changing landscape comparative reflections on … annual seminar 2013-programme.pdfchanging...

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The Society of Legal Scholars Annual Seminar 2013

Changing Landscape

― Comparative Reflections

on Rights-Based Constitutional Review

Tuesday 2 - Wednesday 3 July 2013 Newman House, St Stephen’s Green, Dublin 2

Hosted by UCD School of Law with the participation of


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Programme

12TTuesday 2 July 2013 Newman House

09.00 Registration - Refreshments

09.30

Welcome

Professor Colin Scott (UCD) Dean of Law

Dr. Marie-Luce Paris (UCD) Seminar Convener

9.40

Society of Legal Scholars Address

Professor Hector MacQueen (Edinburgh) President of the SLS

09.45 Keynote Address

Professor Michel Rosenfeld (Cardozo School of Law, NY)

A Critical Overview of Constitutional Review: The US Model

Discussion and Questions

10.45 Coffee/tea break

11.15 Session 1 Germany and the UK: European Models of Constitutional Review

Chair: Professor Michel Rosenfeld (Cardozo School of Law, NY)

12TProf. Dr. Steffen Augsberg (Giessen)

Dr. Aileen Kavanagh (Oxford)


12.30 Lunch (Newman House)

13.30 Session 2 Australia: The Parliamentary Model Adapted (I)

Chair: Ms Suzanne Egan (UCD)

Professor James Stellios (Australian National University)

Dr. Matthew Zagor (Australian National University)



15.15 Session 3 France and the Netherlands: Exceptions in Europe

Chair: 12TThe Hon. Mr. Justice Nial Fennelly (Supreme Court, Ireland12T)

Dr. Marie-Luce Paris (UCD)

Prof. Dr. Leonard Besselink (Amsterdam)


16.30 Poster Presentation: Constitutional Law, Age and Health: Spanish Constitutional Review

Professor Esther Seijas Villadangos (Leon)


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Programme

12TWednesday 3 July 2013 Newman House

09.00

09.30

Refreshments

Session 4 Spain and Hungary: Specific Experiences of Constitutional Review (I)

Chair: Professor Christopher McCrudden (Queen’s University Belfast)

Professor Agustín Robledo (Granada)

6TProfessor Renáta Uitz (CEU, Budapest)


11.15 Session 5 Ireland: The Parliamentary Model Adapted (II)

Chair: Professor John Bell (Cambridge)

Dr. Eoin Carolan (UCD)

Professor Fiona de Londras (Durham)

12.30 Lunch (Newman House)

13.30 Session 6 Belgium and Italy: Specific Experiences of Constitutional Review (II)

Chair: Dr. Eoin Carolan (UCD)

Professor Marc Verdussen (UCL Louvain)

Dr. Paolo Passaglia (Pisa)

14.45 Coffee/Tea break

Publishers Exhibition

15.15 Closing Address

Professor John Bell (Cambridge)

Salient Issues in Comparative Constitutional Review (General Report)

15.45 Closing Remarks

Dr. Marie-Luce Paris (UCD) Seminar Convener

16.00 Drinks Reception

16.30 Conference Ends

Seminar Theme

The aim of the Seminar is to bring together constitutional experts from a wide variety of jurisdictions and legal traditions to provide a forum to critical discussion of major issues and recent developments in rights-based constitutional review in a comparative perspective. Seminar Convener: Dr. Marie-Luce Paris Seminar Enquiries to: Ms Sinéad Hennessy | [email protected] | Tel. 353 1 716 8763

mailto:[email protected]


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The Society of Legal Scholars is a learned society whose members teach law in a University or similar institution or who are otherwise engaged in legal scholarship. Founded in 1909, and with approaching 3,000 members, it is the oldest as well as the largest learned society in the field. The great majority of members of the Society are legal academics in Universities,

although members of the senior judiciary and members of the legal professions also participate regularly in its work. The Society's membership is drawn from all jurisdictions in the United Kingdom and Ireland and also includes affiliated members typically working in common law, and increasingly, in other types of legal system. The Society is the principal representative body for legal academics in the UK and Ireland as well as one of the larger learned societies in arts, humanities and social science. The Society seeks to advance legal education, research and scholarship; continuing a tradition in which legal studies have been centrally included within university education since its earliest beginnings. As a distinguished former President, the late Professor Neil MacCormick so eloquently expressed it: SLS members “take pride in their role as representatives of the learned tradition of humane scholarship. The fate of constitutionalism and the Rule of Law is nowhere a matter for complacency. Teachers of law protected by a justly defined academic freedom and imbued with a proper sense of professional self-respect and civic responsibility have a special role to play in maintaining critical awareness of the preconditions for law and liberty.” The commitment of the Society of Legal Scholars to supporting legal research and scholarship includes the funding the competition for the prestigious SLS Annual Seminar Series. The SLS Annual Seminar is one of the flagship events of the Society and the Society was delighted 12 months ago to be able to award the 2013 Seminar to the proposal from University College Dublin which was one of a number of strong proposals in a very competitive field. The detailed programme now put together and the distinguished list of contributors and participants fully justifies the decision of the awarding committee and the Society is proud to be associated with a seminar which promises to illuminate important and topical aspects of constitutional law.


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The UCD School of Law celebrated one hundred years of UCD law graduates in 2011-12. Since 1911 our educational mission has remained at the heart of our endeavours and today our wide range of high quality undergraduate degree programmes encourage the development of both a critical understanding of law

and the enhancement of legal and interdisciplinary knowledge and skills. Our students enjoy extensive opportunities to study abroad and to develop their skills through participation in extracurricular activities such as debating, mooting and provision of legal services to students, alongside the more general range of society activities and events that UCD has to offer. The School has outstanding faculty and students supported by an excellent administrative team. The School’s teaching and research activities are characterised by successful programmes of international and interdisciplinary engagement at the forefront of contemporary understandings of law. The School’s activities are informed by a belief that a critical understanding is vital both to understanding the significance of law for social and economic life, and for enabling academic staff, students and graduates to contribute to legal and public policy changes. The School’s outstanding reputation for research spans most of the main fields of law. Academic staff and research students in the School routinely publish their research in leading scholarly journals and books published by the main academic presses. The leading Irish law journal, the2T Irish Jurist2T, and 2TLegal Studies, 2Tthe journal of the Society of Legal Scholars of United Kingdom and Ireland, are both edited in the School. The interdisciplinary and international character of much of the School’s research is reflected in the school’s main research centres, the UCD Institute of Criminology and the UCD Centre for Regulation and Governance. The School also hosts the Human Rights Network and the UCD Constitutional Studies Group. The UCD Constitutional Studies Group is proudly associated with the SLS Annual Seminar 2013. The Group builds on a long and distinguished tradition of constitutional scholarship at UCD and is composed of members of the School of Law and of the School of Politics and International Relations whose current research includes work on European and Irish constitutional reform, democratic accountability, freedom of expression, privacy, the rule of law, regulatory governance, executive agencies and Irish constitutional history. By drawing on the wide-ranging expertise of current staff, the Group seeks to continue UCD’s outstanding record of achievement in the area of constitutional studies. The Group has two core objectives. First of all, it aims to promote research in this area by providing an active and co-ordinated research community which engages in both traditional individual scholarship and collaborative and inter-disciplinary research. The Group is particularly committed to providing a supportive environment for early career postgraduate researchers within which they can avail of the Group’s extensive expertise. Secondly, the Group also seeks to encourage understanding and discussion of constitutional law both in Ireland and internationally through a wide range of activities including publications, conferences, public lectures, research seminars, policy submissions and research projects. We are looking forward to moving into the new Sutherland School of Law in Autumn 2013. The first purpose built law school in Ireland for over two hundred years, it will incorporate stunning new facilities to support innovative teaching and research, with even better opportunities to link academic knowledge to the development of skills in the new Clinical Legal Education Centre. The inclusive and dynamic environment offered by these new facilities will further support the School in its quest for academic excellence across its programmes of education and research and facilitate deeper engagement with the legal community and civil society at all levels. Professor Colin Scott Dean of Law


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Keynote Speaker

Professor Michel Rosenfeld

Michel Rosenfeld is the Justice Sydney L. Robins Professor of Human Rights and director of the Program on Global and Comparative Constitutional Theory at the Benjamin N. Cardozo School of Law. Professor Rosenfeld is the author of several books, including Affirmative Action and Justice: A Philosophical and Constitutional Inquiry (Yale Univ. Press 1991), which in 1992 was named outstanding book on the subject of human rights in the U.S. by the Gustave Meyers Center; Just Interpretations: Law Between Ethics and Politics (Univ. of California Press 1998), which was translated into French and Italian; Comparative Constitutionalism: Cases and Materials, ( 2d. Ed., West 2010) (with Baer, Dorsen, and Sajo); The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (Routledge 2010) and Law, Justice, Democracy and the Clash of Cultures: A Pluralist Account (Cambridge

U. Press 2011). He is the co-editor of The Longest Night: Perspectives and Polemics on Election 2000; Hegel and Legal Theory; Habermas on Law and Democracy: Critical Exchanges; Deconstruction and the Possibility of Justice; and most recently with Andras Sajo of The Oxford Handbook of Comparative Constitutional Law (Oxford Univ. Press 2012); and editor of Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives. Several among Professor Rosenfeld’s works have been translated into: Chinese, French, Greek, Hebrew, Hungarian, Italian, Portuguese, Russian and Spanish. Professor Rosenfeld is a founding member and president of the United States Association of Constitutional Law, co-editor-in-chief of the International Journal of Constitutional Law (I•CON), and was president of the International Association of Constitutional Law (1999-2004). He was an editor of the University of California Press’ Series on Philosophy, Social Theory and the Rule of Law (1991-2002), and since 2003 an editor of the Series on Discourses of Law published by Routledge. Professor Rosenfeld has lectured widely throughout the world, and has been a recurring visiting professor at The University of Paris I (Pantheon-Sorbonne), The University of Paris X (Nanterre), The University of Aix-en Provence in France, The University of Carlos III in Madrid, Spain, The University of Bologna, in Italy, and the Central European University in Budapest, Hungary. In 2007-2008, Professor Rosenfeld was awarded an International Blaise Pascal Research Chair at the Ecole Normale Superieure in Paris. He was a Distinguished Visiting Professor at the University of Toronto in 2007. He held the Fresco Chair in Jurisprudence at the University of Genoa in 2007, was a Senior Fernand Braudel Fellow at the European University Institute in Florence, Italy, in 2009, the Chaim Perelman Chair in Legal Philosophy at the Free University of Brussels, Belgium, in 2011, and the Distinguished Fulbright-Tocqueville Chair at the University of Paris I (Pantheon-Sorbonne) in 2013. Among his many honors, in 2004 he received the French government's highest and most prestigious award, the Legion of Honor.


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Keynote Speaker

Professor John Bell

Professor John Bell FBA QC is Professor of Law at the University of Cambridge. He teaches and researches in comparative law in Europe, particularly in French law. His recent publications include European Legal Development: The Case of Tort (with David Ibbetson, Cambridge University Press 2012) which was part of a 9 volume series resulting from an AHRC project which they led. Previous publications have included Judiciaries within Europe (Cambridge University Press 2006), and books on French constitutional and administrative law. He has also written on comparative law methodology and on the liability of public authorities. He is editor of the Cambridge Law Journal. He taught previously in England at the University of Oxford (1980-89) and the University of Leeds (1989-2001), as well as at the Universities of Paris 1 and 2 (1974-5 and 1985-6).


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Speakers

Prof. Dr. Steffen Augsberg Steffen Augsberg studied law at the universities of Trier and Munich. From 2000 to 2002 he was employed as research associate of Prof. Dr. Dr. h.c. Eberhard Schmidt-Assmann at the University of Heidelberg where he also received a Ph.D. in jurisprudence (2002). After a short stint as an associate with an international law firm in 2004, he worked as assistant professor at the University of Cologne, teaching constitutional and administrative law. In 2009 and 2010 he spent 5 months as a Visiting Fellow at the Institute of European and Comparative Law (University Oxford). In 2011 he was awarded the post-

doctoral degree (Habilitation) and authorised to teach public law, European law and legal theory. The same year he was appointed to a Chair for Public Law and Health Care Law at Saarland University (Saarbruecken). Since 2013 he is Professor at the Faculty of Law at the Justus-Liebig-University in Giessen where he holds a Chair for Public Law. He has written widely on the national constitutional and administrative law as well as the law of the European Union and legal theory. Recently he has been involved in advising the German government on the task of reforming the legal regulation of organ donation and allocation.

Prof. Dr. Leonard Besselink Leonard F.M. Besselink is currently Professor of Constitutional Law at the University of Amsterdam. Until recently, he held the chair of European Constitutional Law at the University of Utrecht and was Fellow of the Netherlands Institute for Advanced Studies (NIAS), Wassenaar. He is a member of the Royal Holland Society of Sciences and Humanities. He studied law at the University of Leiden (Netherlands), the Johns Hopkins School of Advanced International Studies (Bologna Center), and holds a doctorate in social and political science of the European University Institute, Florence, Italy.

Dr. Eoin Carolan Eoin Carolan is a barrister and lecturer in law at University College Dublin. He is an expert in Irish constitutional law, administrative law and media law. He is a graduate and former Scholar of Trinity College Dublin, where he lectured constitutional and administrative law for a number of years before joining UCD. He is also a graduate of the University of Cambridge and a former Visiting Researcher at Harvard Law School.He

has authored or co-authored a number of publications, including "The Right to Privacy: A Doctrinal and Comparative Analysis" (Round Hall, 2008), "The Irish Constitution: Governance and Values" (eds) (Round Hall, 2008), "The New Separation of Powers: A Theory for the Modern State" (Oxford University Press, 2009),"Media Law in Ireland" (Bloomsbury, 2010) and The Constitution of Ireland: Perspectives and Prospects (Bloomsbury, 2012). His work on "The New Separation of Powers” was shortlisted for the Society of Legal Scholars’ Peter Birks Prize in 2010, and won the Kevin Boyle Prize for Outstanding Legal Scholarship in 2011.


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Dr. Aileen Kavanagh Aileen Kavanagh is a Reader in Law at the University of Oxford and a Fellow of St. Edmund Hall. She has published numerous articles on constitutional law and constitutional theory in national and international journals. Her recent work has focused on the UK Human Rights Act. She is author of Constitutional Review under the UK Human Rights Act 1998, published by Cambridge University Press in 2009.

Professor Fiona de Londras Fiona de Londras is a Professor of Law and Co-Director of the Human Rights Centre at Durham University (8TUwww.dur.ac.uk/hrcU8T). Working especially on the relationships between human rights and constitutionalism in and beyond the counter-terrorist context, Fiona’s work has been published in leading international journals and in

monograph form by Cambridge University Press. Fiona is co-editor of Legal Studies and the Irish Yearbook of International Law, founder of 8TUhumanrights.ieU8T, a member of the executive council of the SLS, and holds visiting professorships at the University of New South Wales and University College Dublin Schools of Law.

Dr. Marie-Luce Paris Marie-Luce Paris is a lecturer at the UCD School of Law. She received her legal education in France and holds a PhD from Université Panthéon-Assas (Paris II), France’s first law faculty. She also obtained her professional qualification as a Barrister-at-Law in Paris and worked as a trainee in law firms and at the Commercial Court. She joined UCD to teach in, and later direct, the BCL Law with French Law and dual degree BCL/Maîtrise. Marie-Luce’s primary research interests are in European human rights law, European Union law and comparative constitutional law. Her focus is on the interaction between national and European legal systems with particular

analysis of the reception processes of European norms, whether derived from the European Union or European Convention on Human Rights legal orders, into domestic law. She has also an interest in legal education. Her work has been published in the Yearbook of European Law, German Law Journal, Irish Journal of European Law, and European Journal of Legal Education. She has held research visiting positions at the University of California, Davis School of Law (2009) and the Australian National University Centre for European Studies (2011). She is a member of the Society of Legal Scholars, Société de Législation Comparée, European Law Institute and founding member of Irish Society of Comparative Law. She is currently involved in two research projects on French constitutional law to be published with Routledge and Wolters Kluwer.

http://www.dur.ac.uk/hrc

http://humanrights.ie/


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Dr. Paolo Passaglia Paolo Passaglia is Associate Professor of Public Comparative Law at the University of Pisa and Coordinator of the Comparative Law Area of the Studies and Research Department of the Italian Constitutional Court. He obtained a Ph.D. in Constitutional Justice at the University of Pisa, in association with the University of Aix-Marseille III (France), defending a thesis on the formal invalidity of legislative acts. He was a law clerk for Professor Gustavo Zagrebelsky, former Vice-President and President of the Italian Constitutional Court (2003-2004). He directed an international research on Second Chambers in a comparative perspective (2005-2006). He has spoken at several workshops in Italy and abroad, especially in France,

where he was appointed six times as the Italian national reporter for the annual Table ronde internationale de Justice constitutionnelle, in Aix-en-Provence. He acted as Visiting professor at the University of Toulon – Var (France) in 2007. He was awarded Canadian Foreign Ministry research grants twice, in 2002 and in 2005. He has written four books, on the formal invalidity of legislative acts in Italy and France (2002, in Italian), the French constitutional tradition (2008, in Italian), interactions between the legislator and the Constitutional Court in Italy (2011, in French) and the abolition of the death penalty in a comparative perspective (2012, in French). He has also written several articles on several different fields of constitutional and comparative law: his main articles deal with the French and Canadian systems of constitutional justice, the entry into force of enacted law, the organisation of the French Constitutional Council and the Italian Constitutional Court, the Canadian Senate, the EU Parliament, the interactions between the Italian State and Regions, the interactions between the Italian Constitutional Court and European supranational courts, the right to access Internet in comparative law, the impact of the judgments of Constitutional and Supreme Courts in Western countries, the use of comparative law by Courts, and voting secrecy.

Professor Agustín Ruiz Robledo Agustín Ruiz Robledo is a full professor in Constitutional Law at the University of Granada. He has combined his teaching work with other legal activities; he was a supplementary Magistrate in the Provincial High Court of Granada (1988-1991), Consultant to UNO (Chile, December 1989) and has been Director of the Analysis Advisory Council of the Presidency of the Andalusian Parliament (1996-2004). He is also a Collaborating Professor at

the Andalusian Institute of Public Administration. He has widened his studies and research in several centres outside Spain (the Universities of Dublin, Montreal, London, Florence and Bayreuth, amongst others). He has published more than eighty works on his speciality, among the most important of his books being El Estado autonómico, El ordenamiento jurídico andaluz, El Síndrome de Fabrizio (Notas Jurídicas de política cotidiana), El derecho fundamental a la legalidad punitiva and Constitutional Law of Spain. In addition, he frequently publishes in the daily press, especially in the newspapers of Grupo Joly and in El País. He was Visiting Academic at University College Dublin in 2011-2012.


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Professor James Stellios James Stellios is an Associate Professor at the Australian National University College of Law, where he researches and teaches in the area of constitutional law. He is the Acting Director of the Centre of Public and International Law. His current research interest is the separation of judicial power in Australia, and he has published widely in that field. His 2010 book, The Federal Judicature: Chapter III of the Constitution, is the first comprehensive book in Australia to focus on the operation of the federal judicial system. Dr Stellios joined the Australian National University in July 2001. Prior to that time, he spent a number of years in legal practice with

the federal Attorney-General's Department, primarily in the area of constitutional litigation. Immediately prior to joining the ANU, he worked as Counsel Assisting the Solicitor-General of the Commonwealth, and appeared as junior counsel in a number of constitutional cases before the High Court of Australia.

Professor Renáta Uitz Renáta Uitz is Head of the Department of Legal Studies, and Chair of the Comparative Constitutional Law program. Her research and teaching cover subjects in comparative constitutional law in Europe and North America, transitional justice and human rights protection, with special emphasis on the enforcement of constitutional rights and on issues of religious liberty and sexuality. She is the author of "Constitutions,

Courts and History" (2004) and "Freedom of Religion in European Constitutional and International Case Law" (2007) and the editor of “The Constitution in Private Relations: Expanding Constitutionalism” (with Andras Sajo, 2005), “Constitutional Topography: Values and Constitutions” (with Andras Sajo, 2010), and most recently of” Arguments that Work: Strategies, Contexts and Limits in Constitutional Litigation” (2013).


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Professor Marc Verdussen Marc Verdussen is professor of Constitutional Law at the Law Faculty of Université of Louvain (UCL). He is director of the Research Center on State and Constitution (CRECO), which is a branch of the Institute for Interdisciplinary Research in Legal Sciences of UCL (Institute JUR-I). Research work of the CRECO and its members deals with the two dimensions of constitutional law :

the fundamental basis of the organization of the State (regulating dimension) and the protection of fundamental rights (protective dimension). At the UCL, Marc Verdussen is also President of the Research Ethics Commission and member of the International Relations Board. Marc Verdussen is member of the Institut Louis Favoreu (Groupe d’études et de recherches comparées sur la justice constitutionnelle). He was Visiting Scholar at the Law School of the University of Berkeley (2001-2002) and invited professor at the University of Ottawa (1998, 2000 and 2004), at the University of Szeged (2003), at the University of Liège (2003-2006), at the University of Aix-Marseille (2011) and at the University of Lille (2012). On many occasions, he was in charge of scientific reports and lectures for international conferences and meetings. He was regularly expert for the Belgian Federal Parliament and for Governmental Departments. He wrote a lot of scientific publications. His last book is Justice constitutionnelle (Bruxelles, Larcier, 2012, 436 pp.). Marc Verdussen is sub-editor of the Revue belge de droit constitutionnel and member of the Editorial Board of several scientific journals, in Belgium, Canada, Greece and Spain.

Dr. Matthew Zagor Matthew Zagor is a Senior Lecturer at the ANU College of Law and an Adjunct Fellow at the ANU Centre for European Studies. He teaches and writes in the areas of international refugee and human rights law, comparative constitutional law, judicial rhetoric, and public law theory, and is senior co-editor on the Federal Law Review. From 2010-2011, he directed the law program at the ANU Centre for European Studies as its inaugural Deputy Director. He has also held Visiting Fellowships at the London School of Economics’ Centre for Human Rights and Society, and the University of

Grenoble’s Centre for International Security and European Cooperation (CESICE). Prior to joining academia, he worked as a refugee and human rights advocate for international NGOs, a legal aid solicitor representing asylum-seekers, a Senior Legal Officer at the Attorney-General’s Department’s Native Title Division, and a Member on the Migration Review Tribunal / Refugee Review Tribunal. He remains involved in law reform initiatives at the domestic and international levels, currently sitting on the National Committee of Australian Lawyers for Human Rights, the ACT International Humanitarian Law Committee of Australian Red Cross, and the Australian Chapter of the Cluster Munitions Coalition.


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Acknowledgements I would like to sincerely thank the Society of Legal Scholars for their very generous support of the 2013 edition of the SLS Seminar. I particularly thank its Research Sub-Committee for their award. I am also highly indebted to the current SLS President, Professor Hector MacQueen, outgoing President, Professor Keith Stanton, Hon Secretary, Professor Richard Taylor, and Hon Treasurer, Professor Peter Alldrige, for being so supportive of and enthusiastic about the event. My thanks also go to the UCD Constitutional Studies Group for their sponsorship. I particularly thank my colleague Dr. Eoin Carolan for his support. I also express my gratitute to my colleagues in the UCD School of Law who have helped me with the Seminar. I particularly thank Ms Sinéad Hennessy and Mr Eoghan Carrick for their efficient and kind support in the organisation of the event. I am also grateful for the help and interest of the UCD Dean of Law, Professor Colin Scott. My appreciations also go to the speakers for their participation. This project would not have been possible without them and I extend my sincere thanks to all of them.



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