Constitutional Judicial Review and International Obligations of Criminalization

The main purpose of this article is to investigate the role that international obligations of criminalization do play and could play in the judicial review carried out by the Italian Constitutional Court. It is divided into three main parts. The Court’s case law is examined first, a general and theoretical appraisal of the Court’s approach follows, and further implications of that approach are taken into account at the end. The author maintains that the Court is quite deferential to international obligations and, despite the significant constitutional constraints surrounding criminal law-making, it seems prepared to let criminalization obligations have various legal effects in the Italian national legal order.

The rule of law and the role of courts

What role do courts play in advancing or upholding the political ideal that we call ‘the rule of law’? Does the rule of law require that courts should have authority over all other branches of government, including the legislature? And does it impose constraints on the sort of reasoning and decision-making that courts engage in? This article explores an array of possible answers to these questions, and considers the possibility that the ascendancy of courts in a constitution may represent a form of judicial supremacy that looks remarkably like the uncontrolled rule of men, which the rule of law is supposed to prevent. To preclude that possibility, it is particularly important for courts to recognize that their authority is limited in scope and that they should not be guided by any overall political program other than the program of seeing that constitutional constraints on government are upheld.

Ethics could damage public trust in UK government

Significance The UK government’s landslide election victory in 2019 has given Prime Minister Boris Johnson room to pursue an agenda for governance that targets institutions such as the Supreme Court and the Electoral Commission. The government has also ignored the recommendations of ethics bodies and appointed to key positions individuals with close personal ties to the ruling Conservative Party. Impacts The government’s agenda risks attracting increasingly questionable sources of offshore political money and support. The institutional agenda to remove constitutional constraints and reform the civil service will likely resume after COVID-19. The successful roll-out of the COVID-19 vaccination would likely boost public confidence in the UK government.

Militant constitutionalism: a promising concept to make constitutional backsliding less likely?

Constitutional democracy is in decline and many would-be autocrats try to transgress constitutional constraints. Here, we introduce the concept of militant constitutionalism, which suggests a number of constitutional rules that could make constitutions more resilient to attempts to undermine them. A first empirical evaluation, however, can link only few constitutional paths to enhanced constitutional resilience.

Remilitarization in Japan

This chapter revaluates the utility of militarization as a framework for comprehending Japan’s changing military stance, and to challenge many current analyses that portray Japan’s security trajectory as one of essential continuity. The concept of militarization assists in identifying those military components—institutional and ideological in nature—present in all societies, including Japan, which are subject to contestation and alteration and open the way to substantive change in military security policy. The first section of the chapter outlines Japan’s self-declared and self-imposed constraints on its military posture in the immediate postwar and Cold War periods to establish the baselines against which any shifts toward remilitarization can be evaluated. The sections thereafter systematically assess these baselines and the degree of subsequent shift in the post–Cold War and contemporary periods—in terms of legal and constitutional constraints on military power, procurement of new military capabilities, increases in defense budgets, civil-military relations, the export of military technologies, and external and alliance military commitments. The concluding section, in assessing the overall trajectory of Japan’s military posture, and arguing that there has been substantial change rather than continuity, then considers the interrelationship with and challenges for the quality of Japanese democracy.

Constitutional Emergencies Inside and Out

This chapter considers a family of constitutional theories that advocate for an internal principle of necessity. It looks at factors that argue constitutional constraints that can become a “suicide pact” or promote acting illegally first then asking forgiveness later. It also explains why the constitutional theories fail both as interpretations of the American Constitution and as pragmatic solutions to a paradox of constitutionalism. The chapter discusses justifications for emergency measures that often rely on extreme cases of potential “ticking bombs” in order to justify the use of torture. It argues that constitutional theories cannot justify torture while remaining theories of constitutionalism. It also talks about a key feature of American constitutionalism that includes the existence of limits to the means available to achieve security ends.