Spontaneous vortices in the formation of Bose-Einstein condensates

Phase transitions are ubiquitous in nature, ranging from protein folding and denaturisation, to the superconductor-insulator quantum phase transition, to the decoupling of forces in the early universe. Remarkably, phase transitions can be arranged into universality classes, where systems having unrelated microscopic physics exhibit identical scaling behaviour near the critical point. Here we present an experimental and theoretical study of the Bose-Einstein condensation phase transition of an atomic gas, focusing on one prominent universal element of phase transition dynamics: the spontaneous formation of topological defects during a quench through the transition. While the microscopic dynamics of defect formation in phase transitions are generally difficult to investigate, particularly for superfluid phase transitions, Bose-Einstein condensates (BECs) offer unique experimental and theoretical opportunities for probing such details. Although spontaneously formed vortices in the condensation transition have been previously predicted to occur, our results encompass the first experimental observations and statistical characterisation of spontaneous vortex formation in the condensation transition. Using microscopic theories that incorporate atomic interactions and quantum and thermal fluctuations of a finite-temperature Bose gas, we simulate condensation and observe vortex formation in close quantitative agreement with our experimental results. Our studies provide further understanding of the development of coherence in superfluids, and may allow for direct investigation of universal phase-transition dynamics.Comment: 14 pages, 6 figures. Accepted for publication in Nature. Supplementary movie files are available at http://www.physics.uq.edu.au/people/mdavis/spontaneous_vortice

A Public Law View of the New Generation of FTAs

status: publishe

Constitutionalising the Right to Secede?

status: publishe

Democracy Reified: Liberal Democratic Constitutionalism’s Distrust of Popular Sovereignty

status: In preparatio

The justiciability of secession? A theoretical foundation for constitutional association and disassociation

This dissertation addresses whether and to what extent constitutions, and their constitutional law more generally, make provision for secession. More broadly put, the question is what place secession has, or should have under municipal constitutional law. The two aspects of the question naturally are different in focus and intent. Whether secession has a place under any constitutional system depends very much on the text of any given constitutional document and the current body of constitutional law and norms. It is principally a factual enquiry, a matter for descriptive jurisprudence. Whether secession should figure in some way in a constitution or the constitutional law and norms is more speculative an enquiry, bordering on politics, legal theory, constitutional theory, and like matters, and pertains more to analytic jurisprudence. The two are nonetheless conjoined inasmuch as the subsuming of secession under a constitutional system in the absence of express provisions therefor depends in a large measure on what analytic stance we take on constitutional and legal theory, and on what a constitution, generally and in particular, should address. Now obviously, the two sides of this single issues are related, insofar as the first draws upon norms and principles to inform – implicitly – constitutional and relevant law, and the second upon the constitution and law as practical framework or instantiation of the norms and principles. This suggests that in constitutional theory, secession should be conceived less as purely some institutional re-arranging inside or outside the current institutional and regulatory framework. Similarly, a constitution should be conceived less as purely a template or map of state, and more as institutional architecture, namely the building of institutions to strengthen and develop the moral foundations of a society. We take the position in this thesis that secession is indeed a matter appropriate for constitutional law, and is governed thereby. Whilst secession provisions are not and should not be incorporated expressly into a constitution the process of secession is certainly subject to constitutional law and norms. Some inroad to a full grasp of this position (but not its implications) has already been forged by the Supreme Court of Canada, in the Québec Secession Reference. As such, and to the extent outlined below, secession, as an element of constitutional law, engages the courts at least on that basis, insofar as their jurisdiction permits. Accordingly, secession is more than a purely political (TABLE OF CONTENTS Volume 1 Foreword i Table of Contents ii Samenvatting vii Chapter 1 THE JUSTICIABILITY OF SECESSION? 1. Secession as a Political Question 1 2. Constitutional Order and Disorder 6 2.1. Disorder: A Secession Crisis 11 3. Secession as a Legal Question 15 3.1. Justiciability 17 3.2. Justiciability of a Secession Crisis 19 3.3. The Terms of Reference 20 4. Outline of the Thesis 26 4.1. Canada? 30 5. In A Broader Context 32 Chapter 2 ASSOCIATIVE CONSTITUTIONALISM 1. The Realist’s Challenge 36 1.1. Form and Function – Structural Concepts 37 2. National Constitutional Law Generally 41 2.1. Constitution and Association 41 2.2. Form’s Legacy: Reification 42 2.3. Reification and Constitutional Stress 51 2.4. Civil Society 53 3. Associative Constitutionalism 56 3.1. Associations, Morality, and Values 58 3.2. Government and Constitution 60 3.21. Government: Control and Authority 63 3.22. Authority: Legality and Legitimacy 67 4. Rules and Associations 71 4.1. The Hart of a Constitution 71 4.2. The Nature of Rules 74 4.3. Articulating the Constitution 77 5. Associations, Institutions and Law 80 5.1. A Theory of Institutions 81 5.2. Transformation: Institutional Premise, Constitutional Promise 88 6. Looked at from a Different Angle 93 Chapter 3 PRIMARY RIGHT THEORY 1. Introductory Observations 96 1.1. Categorising the Right to Secede 99 2. A General Right to Secede 100 2.1. Consent as Primary 102 2.2. Consent, Obligation, and Secession 105 2.21. Insufficiency of Tacit Consent 106 2.22. Insufficiency of the Fairness Principle 113 3. What Is Really Consented To? 119 3.1. Consent and Group Rights 121 3.2. From Primary Right to an Instrumentality Needing Just Cause 127 3.21. Consent as Insufficient Grounds 131 3.22. An Instrumental Concept Based on Just Cause 141 4. Law and Politics of Consent Theory 144 Chapter 4 REMEDIAL RIGHT THEORY I 1. Remedial, or Just Cause, Secession 146 2. Oppression as Justification for Secession 149 2.1. The Concept of Oppression 149 2.2. The Fundamental Difference from the Primary Right Model 153 3. From Right to Remedy 154 3.1. A Right Understanding of Secession 160 3.2. Parsing Remedies 170 3.21. Institutions, and Rights to a Remedy 177 4. The Remedy of Secession 181 4.1. The Responsibility for Constitutional Collapse 183 4.2. Implications of Transformative Failure: Remedial Secession 187 5. What Gives Rise To Remedial Secession? 191 Chapter 5 REMEDIAL RIGHT THEORY II 1. Rights Grounding Remedial Secession 192 2. Discriminatory Redistribution 192 2.1. Discrimination as the Violation of Equality 198 2.2. Equality, Commensurability, and Associative Relationships 201 3. Cultural Preservation and Self–Defence 207 3.1. A Nationalist Application of the Oppression Grounds? 214 4. Rectificatory Justice 217 5. Law and Politics of Just Cause Theory 219 Chapter 6 NATIONALIST THEORY I 1. Secession Based on Nationalism 223 1.1. The Core of Nationalist Secession: National Self–Determination 223 1.2. Nationalism’s Gloss on Remedial Rights: A Primary Right to Cultural Identity 227 1.3. Nationalism’s Affinity for Primary Rights: the Nation as Rights Holder 229 1.4. Summary: Different Strokes for Different Volks 231 2. The Nation as the Summum Bonum 233 2.1. A Concept of a Nation 235 2.2. The Culture of a Nation 239 2.3. The Subjective Standard: Imagining a Nation 245 3. Nationalism and Politics 250 3.1. Considerations on Subjectivity in Nationalism 251 3.2. Next Steps: Who’s the Boss? 254 Chapter 7 NATIONALIST THEORY II 1. Nationalism and Priority 256 2. Nation and Identity 256 2.1. The Protection of Identity 257 2.2. The Priority of National Identity: Enforcing the Boundaries 260 2.3. Identity and Transformation 268 3. The Sources of the “National” Self 270 4. Law and Politics of Nationalism Theory 278 Volume II Table of Contents i Chapter 8 SECESSION AND INTERNATIONAL LAW 1. Introduction: From Theory to Practice 281 2. No Right to Secession: Wilful Omission or Tacit Consent? 286 2.1 No Mention in International Instruments 286 2.2 State Practice Unhelpful for Secession 289 2.3 A Telling Silence? 298 3. Self–Determination and Secession 301 3.1 Self–determination Generally 303 3.2 Accommodating Secession 309 4. Testing the Sources 316 4.1 Ambiguity in the UN Charter 316 4.2 Equivocation in the 1966 Human Rights Covenants 320 4.3 Indeteterminacy of the Declaration on Friendly Relations 327 4.4 Inconclusive Recent State Practice 334 4.5 From the Narrow to the Broad 336 5. Human Rights and Secession 337 5.1 Peoples vs Constitutions? 342 5.2 International Law vs National Constitutional Law 348 5.3 Constitutional Law Redux 356 6. Back to Basics 362 6.1 A Practical Digression: Colonialism and Constitutionalism 364 Chapter 9 CONSTITUTIONAL TEXT AND CONTEXT 1. Of Text and Context 367 1.1 The Three Branches to a Living Tree 370 2. Secession and the Constitution Act 1867 371 2.1 Outlining the Act 372 2.2 Constitutional Text and Secession 376 3. Secession and the Constitution Act 1982 378 3.1 Outlining the Amending Powers 379 3.2 Secession and the Amending Powers 381 3.3 Secession and the Charter of Rights and Freedoms 387 4. Secession and Federal Constitutions 391 4.1 Structure and Politics 393 4.2 Federalism and Voice 401 5. Conclusion 409 Chapter 10 NEGOTIATING SECESSION: OF VOICE AND VETO 1. Introduction 412 2. Background 415 2.1. Bertrand v Québec 416 2.11. Bertrand No.1 417 2.12. Bertrand No.2 419 2.13. Québec v the Constitution of Canada 421 3. Setting the Reference 424 3.1. References and Constitutional Interpretation 425 4. The Court’s Opinion 428 4.1. The Preliminary Objection 428 4.11. Justiciability and Constitutionality 429 4.2. Question 1: The Constitution and Unilateral Secession 431 4.21. Unwritten, Basic Constitutional Principles 432 4.21.1. Federalism and Provincial Autonomy 437 4.21.2. Deliberative Democracy and Qualified Majorities 439 4.21.3. Bound by the Law: the Rule of Law and Constitutionalism 441 4.21.4. Protecting Minorities 443 4.22. The Unconstitutionality of Unilateral Secession 445 4.23. Primary Rights Modelling of Constitutional Secession 445 4.3. Questions 2 and 3: International Law, Secession, and Constitutions 448 4.31. Question 2: International Law and Secession 448 4.32. Question 3: Domestic Law v International Law 450 4.33. Justiciability and Justifiability 450 4.34. Remedial Rights Modelling 454 4.4. Summary 455 5. Of Voice and Veto: Popular Sovereignty and the Rule of Law 458 5.1. Democratic Will and Constitutional Amendment 458 5.2. Secession and Constitutional Veto 460 5.3. Of Voice and Veto: Law, Politics, and Secession 464 6. Conclusion 467 Chapter 11 JUSTICIABILITY AND THE CLARITY ACT 1. The Origins of the Clarity Act 468 2. What the Clarity Act Says 473 3. A Liminal Issue: Characterising The Powers Under The Act 475 4. Being Clear on the Constitutional Questions 480 4.1. No Interference with Québec’s Referendum Jurisdiction 481 4.2. No Clear Violations of the Charter of Rights 483 4.3. No Vagueness to the Act’s Provisions 485 4.4. No Interference with Parliamentary Sovereignty 487 5. The Absence of “Clarity” 489 5.1. No Definition of “clarity” 489 5.2. Strategic Bargaining 496 5.3. Restricted to Province–Oriented Secession Attempts 497 5.4. No Reference to Majorities Outside of A Secessionist Province 499 6. A Clearly Positivist Approach to Constitutional Secession 501 6.1. Process and Structure 501 6.2. The Pitfalls of the Positivist Approach 503 7. Summary 504 Chapter 12 ASSOCIATIVE CONSTITUTIONALISM, SECESSION AND JUSTICIABILITY 1. Back to Basics 505 2. Associative Constitutionalism and Secession 505 2.1. A Secession Attempt 510 2.2. In Associative Terms 511 3. An Introduction to a General Theory of Justiciability 513 3.1. The Justiciability of Constitutional Questions 516 Table of Statutes and Cases 519 Bibliography 529status: publishe

ENGINEERING THE CONSTITUTIONAL FOOTING OF THE SUPREME COURT OF CANADA

status: publishe

Het representatief stelsel, de rechtstreekse democratie, en de grondwet

status: publishe

Is the Rule of Law a Limit on Popular Sovereignty?

Welcome to our quaint hypothetical, democratic, and pluralist State ' let us call it 'Herculeum'. The majority of the inhabitants are white and of a Christian background (whether practising actively or not), with the minority comprising a collection of other major and minor religious creeds, as well as atheists and agnostics. The full range of political views finds representation, from arch'conservatism, through liberalism, to socialism, and Marxism. It is also blessed with the standard organs of State provided for in a Constitution (legislative, executive, and judicial), a constitutionally'entrenched bill of rights, and the ordinary principles and tenets of a modern constitutional democracy, such as representative and responsible government, the separation of powers, the rule of law, and so on. Indeed, Herculeum could be any or all of the current Western democratic States. For whatever reason, things have become unsettled of late in Herculeum. A minority have become dissatisfied with the requirement that shops and businesses must close on Sunday - statutorily prescribed as a day of rest, but seemingly without any account for the particular beliefs and interests of that minority. If these wish to observe their respective faiths, they stand at a disadvantage to the majority, having thus to close two days rather than one.2 Others have ruffled feathers over such issues as the requirement that pharmacists cannot refuse to sell contraceptives or tie the sale to a moralising lecture or the acceptance of anti?abortion pamphlets3, or such as the acceptance of homosexual conduct and same'sex marriage.4 Would it truly be surprising then to observe that a number of lawsuits have been filed to challenge the relevant laws and rules, all claiming some form of breach of some constitutionally?guaranteed rights and freedoms' Hardly. But this is not all. The Herculeum courts have also been active in responding to challenges against various governmental acts, from the delimitation of electoral constituencies5, to committing military resources to conflicts abroad6, to the decisions to deploy various types of weapons.7 Judicial review of the constitutionality of laws and governments acts is alive and well in Herculeum. To the perceptive observer, at least three critical elements underlie this idyllic picture of a democratic Rechtsstaat. In order of increasing significance, they are as follows. First, the courts are empowered to review some, if not all, laws and administrative acts. This refers not only to some conception of judicial independence, but also by implication to the separation of powers. Second, the standard of review ? the normative metric ? is one of law, and in particular constitutional law. The focal point is the Constitution. This speaks to some active conception of constitutionalism. Third, and following, it is assumed that both citizens and State will defer not merely to the decisions of the courts, and obey and implement them, but also defer to and obey thus the mandates of law and Constitution. What makes this idyllic picture so peculiar, however, is the easy and seemingly uncontested acceptance of the third proposition in a democratic State. The fundamental characteristic of a democracy is to maximise the social freedom and equality of all its rational and autonomous participants, so that no restriction on that liberty and equality may arise except through a political process whereby those participants consent to (or participate directly in) the formulation and imposition of those restrictions upon themselves. Thus, a Kant?inspired self?government is the hallmark of a democracy. And this is frequently translated into the phrase ?popular sovereignty?: the people decide for themselves what their laws shall be. But as we know, the actual practice of the democratic form only proceeds by way of majority rule. Given the endless diversity among people and their respective desires and interests, a standard of unanimity is unattainable. So for every restriction cum law, there will be a dissenting minority. Yet good democrats still consider these dissenters bound and compellable by that law. Is it then sufficient that the law merely issue from a constitutionally?prescribed process' That is, is the solution so easy as simply positing constitutional legitimacy qua validity?8 Moreover, almost every modern democracy has a representative government, and citizens do not thereby have direct, active control in proposing and approving laws. A smaller group of officials, ?members of parliament? say, propose and enact legislation, and that (perhaps too cynically) with their own voters and constituencies in mind. Matched with this distancing of the author and addressee of the law is the sense that ?the problems of the modern State? are too complex and technical to allow for anything other than a managerial, technocratic approach of expert committees.9 In the result, the system of public administration has diminished the real and effective power of the individual ruler, by separating the decisions from the decider.10 At the same time, it has also separated the decision from the individual affected, making it the decision of an ?other? to be applied to one. Far from the ?innocent? concept of popular sovereignty with direct and immediate effect, modern democracies exemplify a heavily institutionalised version in which the linkage between ?popular sovereignty? and ?actual power? is mediated through layers of rules and procedures. It is this constituted order, a system of rules and procedures, of institutions and organisations11, which officials and citizens alike rely upon to justify any exercise of actual power. The actual exercise of political power in a (democratic) society must first pass through the optic of ?being constitutional? in order to be recognised as legitimate, as an authentic expression of ?popular sovereignty?.12 In effect the Constitution symbolises popular sovereignty. And if we pursue this line of thought further, we should conclude that popular sovereignty can only find real expression in a constitutional language (?constitutional symbolisation?).13 This has the effect of limiting and qualifying it, with the result that popular sovereignty can only be articulated in and through the rule of law. The rule of law limits popular sovereignty in a democratic State. Or to recite the recent words of Canada's Supreme Court in its advisory opinion on the constitutionality of provincial secession: The consent of the governed is a value that is basic to our understanding of a free and democratic society. Yet democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the 'sovereign will? is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. Equally, however, a system of government cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is more. Our law's claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the 'sovereign will? or majority rule alone, to the exclusion of other constitutional values.14 To sum up, the rule of law would thus seem to limit popular sovereignty, in the negative sense of containing and harnessing its exercise, and in the positive sense of delimiting or defining it. But does this quick sketch of an argument clearly and sufficiently explain the idyllic practice of Herculeum, and the peaceful co-existence of social power and individual freedom? © 2009 Springer-Verlag Berlin Heidelberg.status: publishe

A Public Law View of the Emperor’s New Clothes: New Generation FTAs and a Global Judicial Branch

status: submitte