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While comparative constitutional law is a well-established field, less attention has been paid so far to the comparative dimension of constitutional history. The present volume, edited by Francesco Biagi, Justin O. Frosini and Jason Mazzone, aims to address this shortcoming by bringing focus to comparative constitutional history, which holds considerable promise for engaging and innovative work along several key avenues of inquiry. The essays contained in this volume focus on the origins and design of constitutional governments and the sources that have impacted the ways in which constitutional systems began and developed, the evolution of the principle of separation of powers among branches of government, as well as the origins, role and function of constitutional and supreme courts.

Contributors include: Mark Somos, Gohar Karapetian, Justin O. Frosini, Viktoriia Lapa, Miguel Manero de Lemos, Francesco Biagi, Ctherine Andrews, Gonçalo de Almeida Ribeiro, Mario Alberto Cajas-Sarria, and Fabian Duessel.
Author: Shreya Atrey
This volume in the Brill Research Perspectives in Comparative Discrimination Law addresses intersectionality from the lens of comparative antidiscrimination law. The term ‘intersectionality’ was coined by Kimberlé Williams Crenshaw in 1989. As a field, intersectionality has a longer history, of nearly two hundred years. Meanwhile, comparative antidiscrimination law as a field may be just over a few decades old. Thus, intersectionality’s tryst with antidiscrimination law is a fairly recent one. Developed as a critique of antidiscrimination law, intersectionality has had a significant influence on it. Yet, intersectionality’s logic does not seem to have infiltrated the logic of antidiscrimination law completely. Comparative antidiscrimination law continues to develop with intersectionality in sight, but rarely, in step. On the occasion of the 30th anniversary of Crenshaw’s seminal article that coined the term in the context of antidiscrimination law, Shreya Atrey explores this irony. Her article provides a meta-narrative of the development of the two fields with the purpose of showing what appear to be orthogonal trajectories.

The toleration of religious minorities is changing in the Netherlands. In this paper we analyze three recent developments in Dutch society that are important for understanding the way the Dutch regime of religious tolerance is adjusting to 21st century circumstances. The first one concerns the growing homogenization of Dutch society and the emergence of a secular and liberal majority. The second is the dominance in policy and public debate of a “Protestant” conception of what religion amounts to. The third development is the fragmentation of religion and its simultaneous combination into new networks and groups made possible by new information and communication technologies. These developments pose challenges to constitutional rights and principles. There are no simple solutions to these challenges, but the Dutch tradition of consociationalism, as a liberal tradition in its own right, may provide some valuable perspectives.

In: Journal of Law, Religion and State
Authors: Janosch Prinz and Enzo Rossi

In this paper, we put forward a realist account of the problem of accommodation of conflicting claims over sacred places. Our argument takes its cue from the empirical finding that modern, Western-style states necessarily mould religion into shapes that are compatible with state rule. At least in the context of modern states, there is no pre-political morality of religious freedom that states ought to follow when adjudicating claims over sacred spaces. Liberal normative theory on religious accommodation which starts from the assumption of a pre-political morality of religious freedom is therefore of limited value. As an alternative, we suggest that the question of contested sacred places should be settled with reference to the purposes of the state, at least as long as one is committed to the existence of modern states. If one finds the treatment of religion by the state unsatisfactory, our argument provides a pro tanto reason for seeking alternative forms of political organization.

In: Journal of Law, Religion and State
Author: Sonya Cotton

Scholarship on ‘radical decoupling’ and ‘sham constitutionalism’ suggests that constitutional promises do not necessarily translate to state action. African states, dually concerned with affirming African Customary Law (acl) and international standards of human rights, face particular legislative challenges in this regard. This article examines 14 Commonwealth African states’ statutory regulation of polygamy, which epitomizes that apparent dilemma. Using simple indices to code levels of protection, it argues for disjuncture between constitutional and legislative levels of protection of women’s rights in polygamous customary marriages. This calls into question the supremacy of constitutions as a catalyst for social reform and the need for revision to African marriage laws on the basis of equality, cognisant of the position of women in legally pluralistic societies.

In: Global Journal of Comparative Law

For some scholars, the possibilities for diminishing the European democratic deficit and the Union’s legitimacy crisis are intertwined with the creation of a European demos and a European public sphere, that, in turn, can create a European civil solidarity. The European citizens’ initiative, which has recently been re-regulated, was precisely designed to help to solve these problems. As we shall see, the new Regulation includes a whole series of positive technical issues that will improve the usage of the mechanism. However, the European citizens’ initiative is still far from being a popular initiative and, therefore, to contribute to diminish the perception of distance between institutions and citizens of the EU or promoting the creation of a European demos. In this vein, after an overview of the European citizens’ initiative new Regulation main innovations and weaknesses, I will present a set of measures in order to achieve a more effective development of the mechanism.

In: Global Journal of Comparative Law

On 30 January 2019 the Council of Europe adopted guidelines on electronic evidence in civil and administrative law (hereinafter “the Guidelines”). The article summarizes and analyses this soft law instrument and explains why its creation is important for the proper administration of justice and how it addresses and reflects technological developments, new business models and evolving case-law. Several conclusions have been identified regarding how use of the Guidelines will address current practical problems for courts and attorneys while maintaining full compliance with important principles like the right to a fair trial, protection of private life and national laws of the member states.

In: Global Journal of Comparative Law

Scholars have, at times, resorted to the concept of generic constitutional law to describe commonalities emerging across jurisdictions with regard to the way in which constitutional law protects rights and prescribes how they can be limited. Comparative law studies on fundamental rights underline how courts, operating in diverse legal cultures all influenced by the Western Legal Tradition, tend to resort to some adjudication techniques such as the reasonableness test and the proportionality test. Those comparative studies, nonetheless, concede that constitutional adjudication techniques may be differently articulated and applied according to diverse degrees of strictness. However, those differences do not receive much attention when it comes to the comparison of legal reasoning concerning rights. Adjudication techniques seem to be able to trigger the same theory of rights at any latitude, the same understanding of the dialectic between liberty and authority. Against this backdrop, our paper aims at arguing that the Japanese Supreme Court uses both proportionality and reasonableness with a clear cultural imprinting, thus potentially questioning generic constitutionalism, proving that the cultural context may alter the functioning of the abstract models of the constitutional aggregates.

In: Global Journal of Comparative Law

This article analyses the changes effected by the new constitutional bills of rights of Egypt, Morocco and Tunisia. In the Introduction, the conceptual and empirical framework is presented, enunciating four descriptive hypotheses: (1) the new Arab bills of rights are longer and denser, (2) they take up the most recent catalogues of rights as expressed in the globalized constitutional models, (3) they recognize the international human rights law as a binding legal category, and (4) they grant a special importance to women, children and minorities’ rights. The testing of these hypotheses, by means of a descriptive statistical analysis and the study of the novelties introduced, constitutes the second section. The third section analyzes the evolution and functional rationale of these new constitutional provisions. Finally, a conclusion is provided, arguing that the new Arab bills of rights are situated within globalized constitutional trends, adjusted with certain regional particularities.

In: Global Journal of Comparative Law