Parliamentary Sovereignty before and beyond Brexit

This article assesses the use of parliamentary sovereignty against the background that UK parliament proclaimed it to be preserved under 2018 and 2020 withdrawal acts. The evidence is analysed to show whether that position works in English law.

Hegel’s Antigone: The Birth of the Constitution from the Spirit of Tragedy

Sophocles’ Antigone has been studied intensely for more than two thousand years, but it was especially Hegel’s allegorical use of this tragedy in several of his works (first and foremost the Phenomenology of Spirit) that added yet another fascinating facet to its possible reading: the birth of the legal order and therewith a constitutional system from the conflict between two normative orders. In this contribution, I interpret the dialectic structure of Antigone in a manner in which each normative position – both Antigone’s and Creon’s – are equally justified and thereby antithetic in the ethical world of the Greek polis. It is therefore only by transcending this tragic conflict between the human and the divine orders that we can transform necessary externalities (‘fate’) into a process of a legal status which eventually allows individuals to become the authors of the law itself and thus to guarantee their freedom. I denote this reading of Hegel’s Antigone as ‘symmetrical’, since it accepts both positions – Antigone’s divine law and Creon’s human law – as equal and makes freedom and justice only possible through the law. This means that an ‘asymmetrical’ reading, giving prevalence to either position (for instance, found in Goethe or Habermas) and localizing freedom and justice beyond the law, can never effectively result in a legal status that would allow individual persons to become legal persons.My principal argument consequently is that only a symmetrical view of this normative conflict can justifiably be regarded as making a constitutional order possible in the first place. It is feasible only in a dynamic-genealogical fashion (ie, by constantly generating this order through conflict and the transcending of this conflict through mutual recognition) that concurrently also respects individuals as particular individuals, not just as formal equals among equals, by allowing them to realize their personalities and to find themselves through the arts, science, and philosophy. This is more than a merely formal or negative constitution which recognizes every person as equal and free, but disregards their particularities; this is a material and positive constitution that can guarantee both equality and self-actualization. Such a constitutional order guarantees an identity of universal laws and individuality, and accordingly offers individuals a solution to the conflicting ethical orders of the ancient polis in which they would otherwise remain trapped.

Societal Constitutionalism: Background, Theory, Debates

The article provides a systematic outline and refinement of societal constitutionalism (SC), one of the frameworks emerged in contemporary legal theory to analyse constitutional phenomena. After an introduction in Section 1, Section 2 summarises SC’s theoretical background, namely the debates on the Economic Constitution (2.1), legal pluralism (2.2), systems theory (2.3), and the work of David Sciulli (2.4). Section 3 explains SC’s analytical limb, which on the one hand criticises some tenets of state-centred constitutionalism (3.1); and on the other hand identifies functions, arenas, processes, and structures of a constitutionalised social system (3.2). Section 4 turns to SC’s normative limb, pointing to some constitutional strategies that increase social systems’ capacities of self-limitation (4.1); and develop a law of inter-constitutional collisions (4.2). Section 5 addresses the main competing approaches and criticisms, which are based on state-centred constitutionalism (5.1); on international/global constitutionalism (5.2); and on contestatory/material constitutionalism (5.3).

Social-Contractarian Money

State capacity, stable currencies, and well functioning financial systems seem to be ‘package deals’ – one cannot have one without having all. I show that the intimate functional links among states, monies, and financial systems, ubiquitous across history and geography as they are, are not accidental. I do so by analytically ‘deriving’ first law and the polity, then money and finance, from a temporally extended implicit covenant that is both grounded in and facilitative of ongoing joint agency among persons. This lends to state and money alike their shared normative and, once formally systematized, legal character. I indicate throughout how this shared genesis, function, and normative character keep state, money, and ultimately finance practically ‘joined at the hip’, and manifest how polity and economy, indeed our very political and productive selves, are thus joined as well. To recognize and to ‘own’ this, I conclude, is not only to see that ‘the public’ must take a far more explicit role in finance, but also in a sense finally to own our own selves.

The Right to Assisted Dying: Constitutional Jurisprudence and Its Impact in Canada, Germany and Austria

Many states are grappling with the regulation of assistance in suicide and ending the life of another upon their request. Initially punishable in most countries, a growing number of jurisdictions have now introduced permissive frameworks decriminalising, to varying degrees, rendering assistance in dying. Other countries, however, have proceeded with the criminal prohibition and several courts have upheld the lawfulness of the respective criminal laws during human rights and constitutional challenges. Yet, the Supreme Court of Canada in 2015, the German Federal Constitutional Court in February 2020 and the Austrian Constitutional Court in December 2020 have respectively declared unconstitutional and void national criminal laws prohibiting rendering assistance in dying. This article first outlines the criminal law framework relating to assisted dying in Canada, Germany and Austria. It subsequently analyses the judgments before pondering their impact on the legal landscape in the three countries. The article concludes that while the Canadian Supreme Court decision appears to have had a significant impact on the introduction of subsequent legislation in Canada, the effects of the Constitutional Courts’ judgments seem much more subdued in Germany and are yet to unfold in Austria.

Pandemic Parliamentary Oversight of Delegated Legislation: Comparing the Performance of Westminster Systems

The COVID-19 pandemic is testing parliamentary systems of governance across the world, especially in relation to oversight of executive actions. Observers in multiple jurisdictions have already noted the proliferation of delegated legislation during the pandemic and the shortcomings in legislative oversight of the same. To date, however, no close analysis has been conducted of the way in which legislative oversight mechanisms have broken down during the pandemic. This paper provides such an analysis, using examples from Westminster systems adopting the ‘legislative model’ of providing extraordinary powers. Looking at individual examples from Australia, New Zealand and the United Kingdom, the analysis seeks to identify and explain the failures, and relative successes, in different mechanisms for parliamentary oversight, including parliamentary scrutiny committees (pre-existing and ad-hoc), disallowance, and sunset clauses. Although primarily descriptive, the comparative approach analysis permits preliminary conclusions to be drawn as to the way each jurisdiction may improve its methods of parliamentary oversight of delegated legislation. These comparative lessons will be of use both during and beyond the pandemic.

Public Employees Restrictions on Political Activity in Canada, Australia, and the United Kingdom

The political rights of public employees vary greatly in scope and depth across democratic societies. While some countries balance the need for a neutral government with the rights of its employees, others fail to provide meaningful avenues for expression of political activities. As the civil service has grown and become more vocal, the government’s desire for an impartial government has grown with it. Canada, Australia, and the United Kingdom, three Westminster-style governments who evolved from a once singular legal system, have adopted laws and regulations to address their employees’ political activities with varying effectiveness and form. This Article will analyze each country’s legal framework for these restrictions, within their larger free speech regime. In particular, this Article will use candidacy and social media activity as a lens to examine these restrictions and provide examples for how these restrictions most commonly effect civil servants’ political activities. Although each regime has successes and failures at balancing the government’s need for impartiality with the civil service’s rights to expression, Canada has most successfully established a balance between the government’s interests in neutrality with their employee’s rights to political expression.