Between fact and norm : narrative and the constitutionalization of founding moments

Both the subject who gives birth to a constitution and the time a constitution comes into being are part of the multifarious construct of the genesis of a constitution. The intertwinement of the constituent power (subject) and the founding moment (time) not only gives rise to issues at the centre of scholarship on constituent power but also speaks to ambiguities about the relationship between the founding moment and its ensuing constitutional order in constitutional theory. In this paper, I examine the question of the founding moment in constitutional scholarship in light of the antinomy between fact and norm. I argue that contemporary constitutional theories fail to account for the role of the founding moment in the constitutional order because they are absorbed in the narrow question of constitutional interpretation at the expense of making sense of the constitutional order. Drawing upon Robert Cover’s inspiring discussion of nomos and narratives, I contend that the founding moment is pivotal to the discovery of constitutional meaning as it stands as the reservoir of the enriching narratives about the birth and growth of a constitutional order. Through narratives, the founding moment is related to its ensuing constitutional order and thus ‘constitutionalized’, suggesting a broader understanding of interpretation in constitutional theory than contemporary constitutional theories assume. On this view, the founding moment is neither a mere historical fact nor a placeholder for universal norms. Rather, narratives about the founding moment concern more the invigoration of the existing constitutional order than its original foundation. Thus emerges an alternative attitude towards the unsettling concept of constituent power: the constituent power’s appeal does not so much lie in the substitution of a new constitutional order for the existing one as in its rejuvenation of the latter since it is reincarnated in the narratives-mediated constitutionalized founding moment

The concept of ‘law’ in global administrative law : a reply to Benedict Kingsbury

Departing from the Westphalian tradition, global administrative law is seen as arising from the pragmatic needs of transboundary regulation underpinned by a normative aspiration to rule of law beyond national boundaries. Unhinged from state consent, however, it faces a twofold challenge: legality and legitimacy. The former centers on the distinction between law and non-law; the latter is concerned with the legitimacy of global administrative law. Benedict Kingsbury’s The Concept of ‘Law’ in Global Administrative Law attempts to answer this twofold challenge by centering the new paradigm of international law, as epitomized by global administrative law, on the notion of publicness. First, he pins its solution on the substantive concept of publicness. Second, he portrays global administrative law as an inter-public law, governing the relationship among regulatory regimes in accordance with the value of publicness. This Reply argues that Kingsbury’s publicness-centered conception of international law does not resolve the challenges facing global administrative law. Rather, his version of global administrative law does not so much correspond to an inter-public law as points to a post-public conception of legitimacy, reflecting the trend of addressing the issue of fragmentation by tacitly adopting the strategy of privatization in global administrative law scholarship

Taming governance with legality? Critical reflections upon global administrative law as small-c global constitutionalism

The project of global administrative law has stood out from various efforts to tame global governance with the rule of law. By enhancing transparency and accountability, global administrative law is expected to improve the policy output of global administration, giving legitimacy to global governance. In this way, global administrative law evolves into a small-c global constitutionalism. In this paper, I trace the trajectory of global administrative law as small-c global constitutionalism and how the concept of legitimacy is recast in relation to global governance. I first point out that originally embedded in the practice of global governance, global administrative law effectively functions as the small-c constitutional law of global governance, echoing the trends toward constitutionalization. As it takes on constitutional character, however, global administrative law faces the challenges of legality and legitimacy. Turning away from state consent, global administrative law turns to the idea of publicness as solution to its double challenges. My inspection of the notion of publicness in global administrative law shows that the strategy of resting the legitimacy of global administrative law as small-c global constitutionalism on the idea of publicness turns out to be the privatization of legitimacy, suggesting a post-public concept of legitimacy. -- Das Projekt des globalen Verwaltungsrechts sticht unter vielen Versuchen Global Governance durch Rechtsstaatlichkeit im Zaum zu halten hervor. Durch die Erhöhung von Transparenz und Verantwortung, werden mit dem globalen Verwaltungsrecht Erwartungen bezüglich einer Verbesserung der politischen Leistung globaler Verwaltung verbunden, die Legitimität von Global Governance voraussetzt. In diesem Prozess entwickelt sich aus dem Verwaltungsrecht eine konservative globale Rechtsstaatlichkeit. Die vorliegende Arbeit zeichnet den Wandel globalen Verwaltungsrechts in Form einer konservativen globalen Rechtsstaatlichkeit nach und eruiert Veränderungen des Legitimitätskonzeptes in Beziehung zu Global Governance. Zunächst hebe ich hervor, dass globales Verwaltungsrecht, ursprünglich in die Praktiken des Global Governance eingebettet, effektiv als konservatives Staatsrecht des Global Governance funktioniert und damit die Trends hin zu rechtsstaatlichen Strukturen spiegelt. Sobald globales Verwaltungsrecht rechtsstaatlichen Charakter annimmt, sieht es sich mit der Frage nach Legalität und Legitimität konfrontiert. Globales Verwaltungsrecht wendet sich von staatlicher Zustimmung hin zu der Idee von Öffentlichkeit als mögliche Lösung für die doppelte Herausforderung. Meine Analyse der Bedeutung von Öffentlichkeit für globales Verwaltungsrecht zeigt, dass die Strategie, die Legitimität des globalen Verwaltungsrechts in Form konservativer globaler Rechtsstaatlichkeit auf der Idee von Öffentlichkeit aufzubauen eine Privatisierung von Legitimität ist und ein post-öffentliches Konzept von Legitimität nahelegt.

Moving Towards a Nominal Constitutional Court? Critical Reflections on the Shift from Judicial Activism to Constitutional Irrelevance in Taiwan\u27s Constitutional Politics

The Taiwan Constitutional Court (TCC, also known as the Council of Grand Justices) has been regarded as a central player in Taiwan’s transition to democracy in the late twentieth century. Transforming from a rubberstamp under the authoritarian regime into a facilitator of political dispute settlement, the TCC channelled volatile political forces into its jurisdiction. Thanks to the TCC’s judicial activism, the judicialization of constitutional politics was characteristic of Taiwan’s democratization in the last two decades of the twentieth century. The TCC scholarship asserts that the TCC has continued to play a pivotal role in Taiwan’s constitutional politics in the twenty-first century. Taking issue with this popular view, this article focuses on twenty-first century TCC case law to argue that Taiwan’s constitutional politics has moved towards de-judicialization as the TCC has gradually turned away from judicial activism in the face of escalating constitutional conflicts. With the TCC retreating from constitutional politics, this article argues that its constitutional jurisdiction is becoming nominal with the Constitution losing its grip on politics again

Disaggregating dismemberment: nullity, natality, and the hollowing of constitutional renewal in designed written constitutionalism

This paper aims to rethink the idea of constitutional renewal through a dissection of Richard Albert’s ground-breaking concept of constitutional dismemberment. It is contended that under the rubric of constitutional dismemberment are two exceptional constitutional phenomena: the ought-to-be declared nullity of unconstitutional constitutional amendments and the legal unity-defying, extraconstitutional expression of what Hannah Arendt called “natality” in political action. The thesis is that attempts to tame revolutionary constitutional alteration with designed rules as to formal constitutional change as Albert’s illustrates are missing the meaning of constitution-making for a natality-driven constitutional renewal characteristically defies designed constitutional form. The concept of constitutional dismemberment is first dissected in light of Arendt’s idea of natality. With constitutional dismemberment unpacked, it is further observed that the constitution-making transmutes into the formal pronouncement of a new codified constitution in Albert’s rigid tripartite classification of constitutional changes into amendment, dismemberment, and enactment. Albert therefore inadvertently reduces constitution-making to the formal enactment of a new codified constitution with constitutional natality dismembered and constitutional renewal hollowed out. It is concluded that Albert’s formalistic conceptual framework of constitutional change reflects the centrality of comparative written constitutions in the place of comparative constitutional phenomena in current comparative constitutional studies

A Constitution’s Hollow Promise

On 26 November 2022, the Taiwanese people had their authentic constitutional voice heard for the first time in history by casting votes in a referendum on a constitutional amendment that would lower the age of voting from 20 to 18, and that of candidacy from 23 to 18 except as otherwise provided by the Constitution or legislation.  Given that Taiwan’s current Constitution was adopted by a Constituent National Assembly in China in 1946 when Japan still held sovereignty over Taiwan de jure and all the previous constitutional amendments were adopted without receiving direct approval from the Taiwanese people, the holding of referendum itself is historic.  Yet, this latest round of constitutional reform on Taiwan’s road towards an ever more democratic politics ends up as a damp squib.</p

In the shadow of judicial supremacy : putting the idea of judicial dialogue in its place

I aim to shed theoretical light on the meaning of judicial dialogue by comparing its practice in different jurisdictions. I first examine the practice of dialogic judicial review in Westminster democracies and constitutional departmentalism in American constitutional theory, showing the tendency toward judicial supremacy in both cases. Turning finally to continental Europe, I argue that the practice of constitutional dialogue there is reconciled with its postwar tradition of judicial supremacy through the deployment of proportionality analysis-framed judicial admonition. I conclude that constitutional dialogue may take place amid the judicialization of constitutional politics, albeit in the shadow of judicial supremacy

Against instantaneous democracy

In this article, I aim to shed new light on the state of populism by looking beyond the substance of recent populist movements to examine their form. I argue that new populism, which is characterized by instantaneousness and simultaneity made possible by social media and other communications technologies, betrays a pathology of instantaneous democracy in its pursuit of unmediated politics at the expense of democratic representation and deliberation. To show how new populism poses a fundamental challenge to constitutional democracy, I first bring the unnoticed double structure of articulated politics at the heart of constitutional democracy to the fore: the structural articulation of distinct stages of decisionmaking in the multistage process of constitutional governance and that of formal constitutionalized powers and unformed public opinions. As the double structural articulation assumes a temporal gap, first, between each stage of formal decisionmaking, and, second, between opinion-formation and policymaking, I then discuss how this assumed temporal gap is being virtually obliterated amidst the wave of new populism, shaking the structure of articulated politics to its foundations. In response, I suggest that democratic learning, aided by tactics of judicial deceleration before the figuring out of a grand strategy, is critical in combating new populism

The reign of constitutional positivism : revolution reconceived in the new constitutional age

In Constitutional Revolution, Professors Gary Jeffrey Jacobsohn and Yaniv Roznai survey comparative constitutional experiences around the globe and present a substantive conception of transformative constitutional change, which they call “constitutional revolution.” In this way, Constitutional Revolution sheds new light on the idea of revolution in constitutional theory and practice by challenging the conventional wisdom that holds procedural irregularity and legal rupture as the defining feature of constitutional revolutions. Engaging with Jacobsohn and Roznai’s substantive conception of constitutional revolution, this Review looks into the state of the idea of revolution in the light of the social phenomena that underlie the thesis of Constitutional Revolution and asks why such constitutional practices are associated with the polysemous word revolution. It argues that the idea of constitutional revolution emanating from Jacobsohn and Roznai’s theoretical framework mirrors constitutional positivism in recent constitutional scholarship – under which observation of constitutional phenomena is mediated by master-text constitutions and the attendant institutional practices. With the double move – from free act to changing identity and from lived experience to legal expression – in focus, the notion of constitutional revolution is constructed around the systemic mutation of constitutional orders and its manifestation in constitutional master-texts and jurisprudence. Thus emerges another counterrevolutionary theory of political order aspiring to post-political politics with constitutional revolution and freedom delinked. Departing from the traditional idea derived from revolutionary experiences in the modern political project, Constitutional Revolution speaks to an emerging socio-political phenomenon in constitutionalized politics and thus revolutionizes the idea of revolution