This chapter discusses the ongoing crisis of legitimacy of French and regional institutions in New Caledonia. In December 2021, residents of New Caledonia were asked to vote for the third time in three years in a consultative referendum over independence from France. For the third time, the majority favoured the status quo. The result is, however, misleading. New Caledonia, like Northern Ireland, is a deeply divided consociative regional democracy that has endured a high level of political violence. In 2023, the new negotiation phase of the transitory regime will decide on the future status of New Caledonia within the French constitutional system. This chapter discusses two elements that sustain a perception of the illegitimacy of French state institutions in New Caledonia. The first element of change is the constitutional setting for the forthcoming 2023 negotiation process over the future status of the archipelago within the French Constitution. The second driver of change considered in this chapter focuses on the process of identity formation of both French and Kanak identities in New Caledonia.
This chapter discusses the Australian Federal policies in the Northern Territory. In particular, it focuses on the Northern Territory National Emergency Response, the so-called Intervention, and its follow-up set of policies called Stronger Futures. They all had, and continue to have, a hindering effect on the Aboriginal Peoples and Torres Strait Islanders’ perception of the legitimacy of Federal and regional institutions in the Northern Territory. The analysis will show that among the many drivers of change, there are a few significant factors that contributed to the cycle of distrust in Australian institutions as perceived by these Indigenous communities. The first negative factor is the legal setting that allows Federal institutions to impose policies without consultation with Territorian institutions and, more importantly, with Aboriginal Peoples and Torres Strait Islanders. The second element that sustains the crisis of legitimacy of central institutions is sociological. The system values in relation to the protection of the environment and family relationships that are held by Aboriginal Peoples are significantly different from those of non-Indigenous Australians.
The Italian Constitution and its interpretation by the Constitutional Court have led to the development of a model of accommodation of religious practices that seeks to balance a commitment to promoting religious pluralism whilst, at the same time, maintaining the neutrality of state institutions. What is distinctive about this quasi-neutral constitutional stance is the commitment to reduce the discrepancies between the legal and religious effects of key life decisions. I call this stance ‘positive secularism.’ In this essay, I would like to show that, thus far, positive secularism has been particularly effective in accommodating the demands of Muslim immigrants. For instance, some aspects of the Shari’a law, such as marriage and divorce (including some effects of unilateral divorce), are already recognized by Italian international private law. The second stage for the accommodation of Shari’a law in Italy is likely to be the recognition of Islam as one of Italy’s official religions.
Hong Kong has seen a reduction in recent civic unrest due to the strict rules implemented to prevent the spread of the COVID-19 virus. However, in the years prior to the pandemic, Hong Kong experienced the effects of a series of prolonged mass protests against the perceived illegitimate interference in Hong Kong’s legal system by the Chinese Communist Party (CCP). In the Hong Kong Special Administrative Territory, a large part of the population sees interventions by the CCP as violations of a historically enshrined regional autonomy. This chapter discusses two, among many, of the factors that have questioned the legitimacy of central institutions in Hong Kong. The first element is the difference in ideological roles that constitutional law has in China and in Hong Kong. For the CCP, the Chinese Constitution is one of the institutional devices that helps in the promotion of its socialist agenda, whereas in Hong Kong, the rule of law is a foundational element of Hong Kong identity. The second driver of the crises is the emergence of a regional identity under the term ‘localism’. I explain that Hong Kong localism is a different moniker for a new ethnocentric movement that sits uneasily with Chinese hegemonic identity.
The chapter discusses two from among the many factors that maintain Sicily in a state of perpetual public ungovernability. The crisis of legitimacy in Sicily is examined by focusing on the factors that keep Sicilian territory under the control of organised crime syndicates. The first is an inefficient system of governance and the second is the activity of an effective network of crime syndicates with capillary control over the regional economy. Mafia syndicates and their political cronies are often perceived as a better alternative to an inefficient state apparatus. Mafia bosses are, by comparison to the majority of Italian civil servants, efficient and accountable administrators. The internal dynamics of a single Mafia group ensures a level of democratic accountability for its affiliates. The competition with other families instead fosters efficacy. In short, Mafia syndicates are effective corporations that have taken on the territorial government role and thus contribute to the lack of purpose of the Sicilian public sector.
The chapter analyses the crisis of legitimacy of Spanish institutions in the Basque Country. In particular, the chapter evaluates two elements that maintain Basque institutional relationships in a precarious equilibrium with central institutions. The first factor is the effect of an imprecise constitutional system of territorial governance. The second element is the legacy of a lengthy period of political violence as an element that defines Basque nationalism. Both factors have negative effects on the perception of the legitimacy of Spanish institutions in the Basque Country. The chapter explains that the conditions that supported decades of armed struggle are no longer present but the implications of a diverging perception of constitutional legitimacy still defines the process of the recognition of Basque identity.
In Lee v. United Kingdom, the European Court of Human Rights left gay people partially unprotected against discrimination in commercial transactions in the United Kingdom and, by analogy, in other legal systems, such as the Italian system, where such protection is absent. In this article, it will be argued that the lack of substantive engagement by the European Court of Human Rights should be considered a missed opportunity for the development of European legal systems that do not grant full anti-discrimination protection to gay people.
This paper discusses balancing the prerogative to manifest identity-based beliefs such as the support for same-sex marriage and the prerogative to refuse the transmission of such a message by a service provider. We argue that both prerogatives are the manifestation of human dignity that have normative and pragmatic implications that should be assessed within a deliberative arena such a parliament and regional assemblies. The argument is supported by a comparative analysis of recent UK jurisprudence and by the evaluations of the statutory measures that inform Italian and European law. The first manifestation of human dignity in the case is a prerogative granted to a historically discriminated-against identity to assess publicly offered services. The second manifestation of human dignity is the prerogative of individuals who are managing a business to refuse to provide a service on the basis that what is asked of them is perceived as contravening their religious beliefs. In this paper we provide a review of the Northern Irish, British and Italian systems of rules that inform the accommodation of this dilemma. These three systems are, albeit differently, committed to protecting human dignity and they comply, again distinctively, to the set of international obligations that derived from membership in the Council of Europe and the European Union. The analysis shows that while there are strong indications that international jurisdictions are dynamically changing the balance between the prerogative to manifest and the prerogative to refuse identity-based claims, the process of accommodating competing manifestations is still better left to the national and regional deliberative arenas. This paper will be divided into three sections. The first part discusses the process of balancing competing dignity claims. The second analyses the Lee v Ashers Baking Company case. The third section discusses the statutory measures that inform Italian law on cases in which there might be an allegation of discrimination. The comparison shows that even in a legal system such as the Italian one where there is generally entrenched constitutional protection against discrimination, it is not guaranteed that the courts will consider the refusal to reproduce identity-based beliefs as discriminatory without a specific statutory intervention by the Italian parliament.
This article takes the appointment and term in office of Governor General of Australia, Dame Quentin Bryce (2008-2014), as the basis for a discussion about the potential role of the Governor General in promoting progress on issues of gender equality and minority rights protections. The article adopts a multidisciplinary methodology, combining law and feminist political science to analyse different receptions of the post when it is occupied by men and women engaged in debates concerning different minority populations. It makes a brief comparison with the institution of the President of the Republic of Ireland as functionally equivalent to that of the Governor General, in their respective roles promoting national identity and unity. With this comparison in mind, the article contends that the Governor General’s constitutional mandate presents no barrier to the holder of the office advocating for gender equality and minority rights protection. In fact, such advocacy, as exemplified by Quentin Bryce’s controversial public support for marriage equality during her term in office, is desirable, because equality is a key normative element of modern democracy. The article then critiques—from the perspective of feminist institutionalism—the gendered nature of the office of Governor General and considers how the office can and may in future evolve away from its gendered foundation.
The aim of this collection was to evaluate the development of a sample of decentralised constitutional systems. The project focused on cases from Australia, France, Italy, the United Kingdom, and the USA. All these analyses show that regionalism and federalism are pragmatic responses to social and fiscal stimuli. The debate over finding the optimum balance between flexibility and the stability of public institutions is an old chestnut in constitutional theory. However, there is a general consensus that, in rapidly evolving societies, institutions should be perceived to act for the common good. Businesses, for instance, are competing in a global market and require a tax system that delivers services proportional to their overseas competitors, or at the very least, comparable to their neighbouring regions. Central institutions, which are committed to delivering core public services, also have an interest in holding onto regional entrepreneurs who might easily relocate overseas. One of the reasons for the economic decay in Northern Ireland is related to the inability of the Northern Irish counties to compete with the Republic of Ireland’s business-friendly fiscal system. However, entrenched ideological assumptions, in Northern Ireland and elsewhere, add an element of ‘lag’ in terms of institutional reforms. In other words, institutional efficiency, administrative accountability, and legitimacy are aspects that might foster demands for the decentralisation of competences, but these demands have to be compatible with the orthodox assumptions of modern constitutional theory. In all the legal systems considered in this collection, changes in the system of governance are considered in the light of the fundamental canons of modern deliberative democracy, such as the endorsement of formal equality for all citizens, indirect representation, administrative accountability, and redistributive justice.
This chapter compares the process of constitutional decentralisation in Northern Ireland and in Trentino-Alto Adige/Sudtirol. These are consociational regional democracies within a large state. Both regions host a fractured community divided along ethnic and, in the case of Northern Ireland, religious lines. Northern Ireland and Trentino-Alto Adige/Sudtirol are complex societies and they require a system of governance that is, by a way of comparison to homogeneous polities, more complicated. In this essay, I will discuss the constitutional structure that both regions adopted to establish peace, promote good governance and human development. Overall, there are indications that regional institutions in Northern Ireland and Trentino-Alto Adige/Sudtirol are under pressure to change. This pressure is coming from external factors, such as EU development, and internal trends like a new generation that is reluctant to dwell on past ethnic divisions. The essay is divided in two sections preceded by an introduction and followed by a conclusion. The introduction delivers an overview of the essay’s main narratives and explains the paper methodology. The first section discusses Northern Ireland. It is divided into two subsections. The first provides a contextual overview in which Northern Irish institutions operate and the second subsection focuses on the institutions established by the Northern Ireland Act 1998. The second part of the essay turns to the Trentino-Alto Adige/Sudtirol region. As in the previous section, an analysis of the context is followed by an evaluation of the constitutional setting in which regional institutions operate.
Constitutional Patriotism is a political theory that seeks to provide an explanation for the sense of ownership that most individuals have toward their national constitutional system. Specifically, constitutional patriotism assumes that free thinking individuals involved in a discussion over the common good will reach agreements that are perceived, at least by those involved in the debate, as having a normative value. The awareness that such a deliberative process has been historically part of the constitutional system also induces a sense of ownership of past historical accommodations of constitutional principles. The shared perception of being part of historically grounded institutions of a deliberative democracy is sometime called ‘normative surplus effect’ or ‘normative spill-over effect’ of the deliberative process.
The Modern Law ReviewVolume 82, Issue 4 p. 755-758 REVIEWS Jaakko Husa, Advanced Introduction to Law and Globalisation, Cheltenham: Edward Elgar, 2018, 218 pp, hb £63.00. Vito Breda, Vito Breda University of Southern Queensland, AustraliaSearch for more papers by this author Vito Breda, Vito Breda University of Southern Queensland, AustraliaSearch for more papers by this author First published: 12 June 2019 https://doi.org/10.1111/1468-2230.12430 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume82, Issue4July 2019Pages 755-758 RelatedInformation
Advanced Introduction to Law and Globalisation is an excellent book that provides a well-reasoned and articulated analysis of the interconnections between international law, individual rights and the fiduciary expectations of multinational businesses and international organisations. The book, which is rich in supporting narratives, argues that modern legal reasoning across the globe is becoming, at an ever-increasing pace, a manifestation of a shared global legal culture. It is a distinctive global culture that has chosen a variation of English as a shared language, a series of accepted methodologies and, on a more general level, relinquished some, but not all, of the eighteenth century’s assumptions which linked legality to a state. A rich and diversified global legal culture is not associated with the emergence of a global order. Rather, a global legal culture, in Husa’s description, is a manifestation of the acceptance of pluralism and its implications for practitioners and academics. For instance, the protection of rights as an expression of the individualism in liberal systems and the protection of humanism in Middle Eastern legal cultures are accommodated by the activities of international jurisdictions such as the Singapore International Commercial Court.
This article discusses the Samoan constitutional system and its distinctive ‘mix’ of traditional and modern democracy. On the one hand, the Constitution endorses a series of universal values and the division of power. On the other hand, the chief of the family, called the Matai, is chosen by consensus and s/he still has a distinctive public role within the local council and the parliament. The cooperation and antagonism between modernity and tradition has, over the years, generated a dynamic balance which is perceived by some as hindering the administrative efficiency of the Independent State of Samoa. A process of the constitutional recognition of a national identity might increase the level of complexity of the system of governance but that should not be automatically associated with hindering effects. The article is divided into two main parts. The first part discusses two key aspects of the traditional system of governance called the fa’asamoa and the fa’amatai. The second part evaluates the critiques levelled against the constitutional recognition of traditional identities.
This draft of a paper that discusses the jurisdictional accommodation of religious freedom in Australia. In particular, by considering the recent jurisprudence of the High Court of Australia (hereafter the HCA), the paper examines the constitutional legitimacy of government policies that grant financial support to non-denominational pastoral care for students. In the 2014 Williams v The Commonwealth of Australia & Ors (hereafter Williams n.2), the HCA struck down a federal funding scheme that subsidised a chaplaincy programme for public schools. One of the reasons that supported the declaration of the illegitimacy of the federal programme was that religious education could not be considered a ‘human want’. In this essay, I will argue that the HCA’s decision is an incursion into the prerogative of parliament to set up policies which meet a political demand. In the previous volume of this series, I argued that the European Court of Human Rights accepted that signatory states have a margin of discretion in setting up policies that seek to accommodate both parents’ expectations in state educational institutions and the state’s commitment not to indoctrinate children. The Commonwealth is not a signatory of the European Convention on Human Rights (ECHR), , yet the Australian Constitution provides a legal framework which is very similar to the one that is provided by the ECHR. For instance, the federal parliament cannot draft legislation that limits the freedom of faith ex Section 116. Given the similarities and the close temporal proximity of the two cases, it is unfortunate that the HCA has not considered in Williams n.2 the narratives that were explored in Lautsi n.2. In particular, the HCA suggested that federal legislation supporting the financial cost of pastoral care for students should be unconstitutional because such a scheme does not cater for a ‘human want’. I will explain that such a narrative is not convincing. In particular, I will argue that, once the constitution has allocated a legislative power, it is, within the limit of reasonableness, a parliamentary prerogative to design policies aimed at achieving such an aim. In addition, there are strong indications that the HCA misinterpreted its own jurisprudence.
