This chapter argues that the forms that the normative encounter between domestic and supranational constitutionalism has taken in the United Kingdom (UK) are intertwined with fundamental domestic constitutional principles. Even as the UK legal order ceded ground to external normative sources as a matter of practical outcomes, the key national constitutional actors self-consciously justified this move, as a matter of formal constitutional principle, by express reference to domestic constitutional principles and sources. In the attempt to accommodate legal pluralism in the constitutional edifice of the UK, the constitutional architecture itself became more plural and textured. This constitutional reconfiguration is ongoing and has come to the forefront as the UK is currently at a moment of constitutional reckoning owing to Brexit. This maps onto a long-standing debate on the position of the UK in the international sphere, most notably with respect to the European Convention on Human Rights. The chapter argues that Brexit and similar impulses highlight the interface between domestic and external legal orders (international or supranational). This interface cannot be nullified easily, contrary to what some proponents of Brexit may have expected or wished for. Rather, these recent developments add impetus to constitutional self-reflection; instead of negating constitutional pluralism they move the inquiry to the domestic sphere forcing national constitutional actors to reflect explicitly on the forms that pluralism ought to take.
The original version of Chapter 10 was inadvertently published with incorrect numbering of in-text citations.
The emergence of the UK's statutory constitution has challenged the old Diceyan adage that 'neither the Act of Union with Scotland nor the Dentists Act 1878 has more claim than the other to be considered supreme law'. This article reconceptualises constitutional statutes, offering a three-pronged approach to identifying such legislation. This new model examines the content of the statute, the history of enacting the constitutional statute (the 'life of the Bill'), and the post-enactment history (the 'life of the statute'). The proposed framework reflects a historical approach to constitutionalism and gives weight not only to judicial practice, but also to the interactions between other constitutional actors and to popular endorsement. Four case studies of statutes demonstrate how the new model adds layers to, and diverges from, the current judicial approach. Finally, the article describes the implications of taking constitutional statutes seriously under the proposed approach.
Who makes constitutional claims? This article argues that on both sides of the Atlantic a multiplicity of constitutional actors outside the courts participate in the elaboration of constitutional principles. I map out these constitutional actors by using as a case study the legal recognition of same-sex marriage in the United States, Spain, the United Kingdom, and Ireland. In all four country cases, there are common functional demands for democratic involvement in shaping constitutional meaning. Even though these demands may take various institutional and procedural forms owing to diverse political, institutional, and cultural contexts, I argue that the same overarching hydraulics effect is at play across jurisdictions. When social movements are shut out of one forum, they channel their constitutional claims through different institutional avenues. The four systems represent distinctive models of formal recognition of same-sex marriage, with different actors taking the lead and appearing to have the final say on this contested issue. However, I explain that in all four cases we can detect the voices of multiple actors, including, notably, the people themselves, in a process of legal contestation around the interpretation of fundamental constitutional principles. These voices can take different forms, and the article proposes institutional, historical, political, and cultural factors that may account for this. Thus, the article tells a story of legal development arising from inclusive interpretive communities in the context of a democratic constitutional theory. This framework facilitates dynamic constitutional interpretation that reflects evolving political and social demands instead of top-down delivery of constitutional meaning.
This article argues that multiple actors play a role in raising, and resolving, constitutional claims on both sides of the Atlantic. There are common functional demands for democratic involvement in shaping constitutional meaning in different countries. These constitutional claims respond to what is described in the article as a “hydraulic process.” The hydraulics analogy explains how, across various constitutional systems, similar bottom-up constitutional claims are asserted in different institutional forums. The common driver is the grassroots mobilization of societal actors (and their opponents) advancing their interpretation of the constitution through all available avenues. The precise configuration of these institutional channels is the result of “hydraulic shifts”: when societal actors are shut out of one institutional channel, they redirect their constitutional claims to alternative forums thereby engaging new institutional actors. These dynamic hydraulic responses ultimately generate a picture of multiple actors engaging in the process of constitutional interpretation. I map out these constitutional actors by using as a case study the legalization of same-sex marriage in the United States, Spain, the United Kingdom, and Ireland. The four systems represent distinctive models of formal recognition of same-sex marriage, with different actors taking the lead and appearing to have the final say on this contested issue. However, I explain that in all four cases we can detect the voices of multiple actors, including notably the people themselves, in a process of legal contestation around and interpretation of fundamental constitutional principles. The case studies illustrate that common bottom-up constitutional demands respond to similar overarching hydraulic processes, which, in turn, owing to diverse political, institutional, and cultural contexts, bring in the voices of citizens and other constitutional actors in diverse ways. Analytically, the paradigm proposed in the article captures more accurately the complex institutional dynamics across various legal systems. Normatively, this framework encourages inclusive and dynamic constitutional interpretation that reflects evolving political and social demands instead of top-down delivery of constitutional meaning.
The conventional account of a European Union (EU) “democratic deficit” misses part of the story. This book argues that member-state regulatory processes operating under EU mandates may actually have become more democratically accountable, not less. EU law creates entry points for stakeholder participation in the operation of national regulatory authorities; these avenues for public participation were formerly either not open or not institutionalized to this degree. In these cases, we see not a democratic deficit but a democratic surplus generated by EU law in the member states. Moreover, the decentralized EU regulatory structure may promote experimentation, innovation, and policy exchange between the member states. The book discusses a series of case studies demonstrating how EU law influenced telecommunications regulation in France, Greece, and the United Kingdom. It assesses the operation of accountability processes by drawing on data from more than 1,000 public consultations and some 8,000 consultation responses. The analysis is supplemented by interviews with agency officials as well as industry and consumer group representatives in Paris, Athens, Brussels, and London. The study finds increased participation by actors other than the traditional powerful firms as well as significant transparency gains compared to the previous regime. Nonetheless, the three countries did not respond to EU pressures in an identical fashion. The book compares how the same EU mandates were translated into divergent institutional practices as a result of the different administrative traditions, bureaucratic culture, and public law history of these countries. It also documents roadblocks and difficulties along the way.
In a 1819 lecture Benjamin Constant distinguished between two kinds of liberty: the “liberty of the moderns” (i.e., individual autonomy) and the “liberty of the ancients” (i.e., the collective and direct exercise of sovereignty). I argue that modern safeguards of individual autonomy aspire to keep in check potential excesses of collective power. However, in focusing on the “liberty of the moderns,” we must not lose sight of the “liberty of the ancients.” This essay departs from a case of the South African Constitutional Court, Doctors for Life, regarding citizen participation in the legislative process. It establishes a scheme of four generations of participation rights and situates Doctors for Life in this context as a fourth-generation right. I read the case as an invitation to reconsider the content of the “liberty of the ancients” by recognizing the importance and limitations of an enforceable regime of citizen participation in the legislative process. In that respect, the essay addresses both the novelty of the case but also tries to connect it with more traditional ideas, showing how it might revitalize the “liberty of the ancients.”
In a 1819 lecture Benjamin Constant distinguished between two kinds of liberty: the “liberty of the moderns” (i.e., individual autonomy) and the “liberty of the ancients” (i.e., the collective and direct exercise of sovereignty). I argue that modern safeguards of individual autonomy aspire to keep in check potential excesses of collective power. However, in focusing on the “liberty of the moderns,” we must not lose sight of the “liberty of the ancients.” This essay departs from a case of the South African Constitutional Court, Doctors for Life, regarding citizen participation in the legislative process. It establishes a scheme of four generations of participation rights and situates Doctors for Life in this context as a fourth-generation right. I read the case as an invitation to reconsider the content of the “liberty of the ancients” by recognizing the importance and limitations of an enforceable regime of citizen participation in the legislative process. In that respect, the essay addresses both the novelty of the case but also tries to connect it with more traditional ideas, showing how it might revitalize the “liberty of the ancients.”
