I•CON
Volume 22 Issue 4
Table of Contents
Editorial: In this issue; In this issue—Reviews; My patria is the book: Ten good reads 2024
Articles
Michael Karayanni, A “third camp” in Israel’s constitutional upheaval: The voice of the silent Palestinian-Arab minority
Martijn W. Hesselink, Private law subjects in European mini-publics
Dian A. H. Shah, Dismantling democratic change in Asia: Modalities and weapons of choice
Lorianne Updike Toler, Constitution-writing rules
Ittai Bar-Siman-Tov, Tamar Hostovsky Brandes, Eliav Lieblich, Yaniv Roznai, and Adam Shinar, Scholactivism in the service of counter-populism: The case of the constitutional overhaul in Israel
Afterword: Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto Rudolphy and Their Critics
Shreya Atrey, Intersectional legal academy: Afterword to the Foreword by Gráinne de Búrca, Rosalind Dixon and Marcela Prieto Rudolphy
Stefano Osella, A caring academia:Afterword to the Foreword by Gráinne de Búrca, Rosalind Dixon and Marcela Prieto Rudolphy
Ayelet Shachar, On being a female law professor: Dispatches from the frontline—Afterword to the Foreword by Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto
Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto Rudolphy, Gender and the legal academy: A rejoinder to the afterwords
Review Essay
Maria Crippa, Untangling the interdependencies between criminal law and politics in moments of great upheaval: The Italian transition to democracy after fascism and the role of scholars. Review of Giandomenico Dodaro, Giuliano Vassali tra fascismo e democrazia. Biografia di un penalista and Paolo Caroli, Transitional Justice in Italy and the Crimes of Fascism and Nazism
Book Reviews
Birte Böök, Review of Immi Talgren, ed. Portraits of Women in International Law: New Names and Forgotten Faces?
Matej Avbelj, Review of Cormac S. Mac Amhlaigh. New Constitutional Horizons: Towards a Pluralist Constitutional Theory
ABSTRACTS
Michael Karayanni, A “third camp” in Israel’s constitutional upheaval: The voice of the silent Palestinian-Arab minority
The Israeli government’s controversial initiative to instigate sweeping judicial reforms, conceived in early 2023, gave rise to an unprecedented opposition movement. So intense was the public pushback that the initiative sharpened existing conflicts, bringing old and new schisms to the surface. One primary stakeholder in the judicial reform initiative, had it proved even partially successful, was the Palestinian-Arab minority. However, this minority was virtually absent from the protests and the deliberations that took place to work out a compromise between the two camps. Referencing the theory and practice of “democratic deficit,” this article explains this striking absence by drawing attention to the fact that the “democratic deficit” that so concerns the Palestinian-Arabs is endemic in the constitutional order that the pro-reform camp wanted to see strengthened, and one that the anti-reform camp would have settled for maintaining. Being against the proposed reforms but simultaneously unwilling to join forces with the public anti-reform pushback, the Palestinian-Arabs thus constituted a “third camp” in Israel’s constitutional upheaval. The article traces the consolidation of this “third camp” and highlights why its positioning as such has constituted the Palestinian-Arab minority as a distinct group that, in contexts predating the constitutional upheaval of 2023, has mounted, and continues to mount, unique challenges to Israel’s constitutional order.
Martijn W. Hesselink,Private law subjects in European mini-publics
This article explores viable paths towards a more radically democratic European private law. In particular, it argues that European private law should catch the deliberative wave. To this end, the article proposes the introduction of deliberative citizens’ assemblies and citizens’ panels in the context of EU private-law making, especially its reform. The argument is grounded in the dialectical relationship between the private autonomy of persons as European legal subjects (individual self-determination) and their public autonomy as European citizens (collective self-determination). However, on the same grounds, the article also cautions against possible exclusionary effects of mini-publics constituted through sortition towards members of marginalized groups, which could end up undermining both individual and collective self-determination.
Dian A. H. Shah, Dismantling democratic change in Asia: Modalities and weapons of choice
The global phenomenon of democratic decay and constitutional retrogression has garnered intense scrutiny, particularly over the past five years. This article demonstrates that such patterns have also emerged in several Asian countries that have undergone democratic political change in the last twenty-five years or so. Drawing on illustrations from various jurisdictions across South Asia and Southeast Asia, it explores how political actors have assaulted and eroded democratic constitutional commitments following political change, even when—in some cases—they pledged to uphold constitutional democracy. This article thus illustrates that the dismantling of democratic change in Asia is multi-dimensional and that it reflects three main imperatives: consolidation (of political authority), dissolution (of institutional accountability), and suppression (of political competition). It also brings to light the range of actors involved and tools used in the dismantling process. Crucially, this article highlights that constitutional amendments have not been a pervasive “weapon of choice” in targeting democratic commitments; instead, anti-democrats have utilized ordinary legislation, nonjudicial interpretation, and incremental changes in political conventions. Ultimately, as this article shows both explicitly and implicitly, “diversity”—in imperatives, actors, tools, and interests at stake—is a key aspect to consider in understanding, identifying, and suppressing efforts to dismantle Asia’s democratic change.
Lorianne Updike Toler, Constitution-writing rules
The new gold standard for constitution-writing is consensus. Such consensus is grounded on inclusivity and deliberation within the drafting body. Yet such consensus is under-theorized. It does not appreciate the impact of rules on constitutional outcomes. That parliamentary procedure is generally associated with majoritarian politics may explain this deficiency, but it is unjustified, as many procedural rules may facilitate a culture of trust among drafters that makes consensus possible. This study is the first to formulate a theory for how rules can contribute to consensus and identifies specific rules that are most likely to contribute to corporate trust upon which constitutional consensus depends. It then provides a case study in how the US Constitutional Convention deployed rules and benefited from physical strictures and structures that helped produce a high level of consensus.
Ittai Bar-Siman-Tov, Tamar Hostovsky Brandes, Eliav Lieblich, Yaniv Roznai, and Adam Shinar, Scholactivism in the service of counter-populism: The case of the constitutional overhaul in Israel
This article examines the role legal scholars in Israel played with respect to the constitutional overhaul promoted by Israel’s thirty-seventh government, during the period between November 2022 and September 2023. Members of the legal academia in Israel, including the authors of this article, took an active part in resisting the overhaul, engaging in a wide array of activities that draw on their professional knowledge and status. These activities included collective activism through the publishing of position papers, giving community talks, collaborating with other parts of the protest movement, providing media commentary, writing op-eds, taking part in political negotiations, and engaging in outreach to the international legal community and international institutions. The article examines this activity in the context of the scholarship on “scholactivism,” and addresses the critique that scholactivism may compromise the role of the scholar to disseminate knowledge and seek the truth. After reviewing the constitutional overhaul and the activities undertaken by legal scholars, the article argues that in the context of counter-populism, the activist goal of fighting populism aligns with, rather than contradicts the scholarly goals of disseminating knowledge and seeking the truth. Furthermore, when constitutional law is the modus operandi of populist leaders, legal scholars have a unique role in identifying manipulations and threats and explaining them to the public. Nonetheless, the article also examines the risks associated with legal scholars’ activism, including potential threats to the integrity of scholarship and the status of scholars. It offers strategies for mitigating these risks and assessing them against the threats at hand.
Shreya Atrey, Intersectional legal academy: Afterword to the Foreword by Gráinne de Búrca, Rosalind Dixon and Marcela Prieto Rudolphy
This Afterword to Gráinne de Búrca, Rosalind Dixon and Marcela Prieto Rudolphy’s Foreword, “Gender and the Legal Academy” picks up on and interrogates a point made by the authors—that a feminist legal academy is needed for gender equality in the academy. It shows that a truly feminist legal academy has to be intersectional, normatively and practically, both. This has implications, as intersectionality necessarily excludes exclusive or limiting ideas of feminism. Whether a legal academy is able to embrace the full force of an intersectional legal academy depends on the context in which that academy is situated and the acceptance of intersectionality in that context.
Cora Chan, Gender, democracy, and the legal academy: Afterword to the Foreword by Gráinne de Búrca, Rosalind Dixon and Marcela Prieto Rudolphy
This Afterword reflects on the Foreword’s three key contributions—proof of a gender gap in the legal academy, revelation of the problem’s complexity, and exploration of solutions—from the perspective of a woman scholar specializing in constitutional law in Hong Kong, a former British colony and now a special administrative region of China. While Hong Kong is an international financial center with a strong higher education sector, and its government is explicitly committed to gender equality, the territory is steeped in traditional Chinese values and culture and has undergone a sharp authoritarian turn since the protest movement in 2019. It therefore provides an interesting vantage point from which to assess issues of gender in the legal academy. In particular, this Afterword cites and provides data substantiating the existence of a gender gap in Hong Kong’s legal academy, highlights the intersectional challenges arising from authoritarianism, marketization, and gender as well as other forms of marginalization, and underscores the relationship between gender equality and democratic governance.
Jaclyn L. Neo, Where Do We Start? The gender gap in legal education and the legal academy: Afterword to the Foreword by Gráinne de Búrca, Rosalind Dixon and Marcela Prieto Rudolphy
In the spirit of collaborative enterprise, this Afterword builds upon one aspect that the authors had time to only briefly mention but not fully develop: the existence and depth of the gender gap in legal education and its connection to the gender gap in legal academia. I invite the reader to view the gender gap legal academia as starting not from the point of employment but even before that. After all, if we are to create more opportunities and inculcate a more gender-equitable environment for the legal academy, including increasing the proportion of female academics, we need to also ask the question: from where would these female candidates come? Are there enough candidates in the pipeline? As we broaden our perspective, we see that the gender gap often begins with law schools, and addressing the gender gap in legal academia must include consideration of the gender gap in legal education as a whole.
Stefano Osella, A caring academia:Afterword to the Foreword by Gráinne de Búrca, Rosalind Dixon and Marcela Prieto Rudolphy
This Afterword to the Foreword by Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto Rudolphy aims to foster the debate on the recognition of care as a means to achieve gender equality in academia. Drawing inspiration from the ongoing revaluation of care across various disciplines, including constitutional law, the article emphasizes the importance of a cultural revaluation of care within academic institutions. It interrogates whether such a shift could favor a more equitable distribution of care-related tasks and foster a symbolic move towards values such as collegiality, reciprocal nurturing and support, and relationality. Finally, the Afterword asks whether such a transformation could be a crucial first step toward a more sustainable higher-education and research environment.
Ayelet Shachar, On being a female law professor: Dispatches from the frontline—Afterword to the Foreword by Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto
This Afterword explores the promises and pitfalls of the concept of feminist legal academia and identifies key areas for intervention to advance the goals of equality and diversity. Weaving data from law and the social sciences with her own experience as an international graduate student at Yale Law School and then as a chaired professor who has taught in numerous universities across the globe, the author highlights, among other possibilities, the importance of creating a safe and inclusive learning and working environment, mentoring and networking, and diversifying our understanding of diversity. The author also considers the role that each of us might have to play in achieving these goals. Finally, the Afterword emphasizes the significance of getting one’s work reviewed and published in leading academic venues. Here, the author cautions against the “mailbox avoidance” tendency of high-achieving female scholars—not submitting work for publication for fear of rejection or an overemphasis on perfection—and the simple but effective power of encouragement to help address this.
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