Pub Date : 2022-04-11DOI: 10.1017/S2045381722000016
G. De Gregorio
Abstract This article examines the reasons for different constitutional approaches to platform governance across the Atlantic. By adopting a comparative perspective under the lens of digital constitutionalism, it analyses the move from converging to diverging strategies of the United States and the European Union to address platform governance. From a liberal approach inspired by the US framework at the end of the last century, the European Union has moved towards a constitutional democratic strategy as demonstrated, for instance, by the launch of the Digital Services Act. On the other side of the Atlantic, the United States has reacted to the consolidation of platform governance by maintaining a liberal approach based on a vertical paradigm driven by the First Amendment. Given these democratic and liberal approaches, this article explains how the different constitutional premises of the United States and the European Union have produced diverging responses to the power of online platforms, thus underlining different expressions of digital constitutionalism across the Atlantic. The first section of the article introduces the rise of digital constitutionalism as the primary research angle to study the trans-Atlantic approaches to platform governance. The second section compares the European and US responses to the rise of platform powers. The third section focuses on the implications of these different constitutional strategies on a global scale.
{"title":"Digital constitutionalism across the Atlantic","authors":"G. De Gregorio","doi":"10.1017/S2045381722000016","DOIUrl":"https://doi.org/10.1017/S2045381722000016","url":null,"abstract":"Abstract This article examines the reasons for different constitutional approaches to platform governance across the Atlantic. By adopting a comparative perspective under the lens of digital constitutionalism, it analyses the move from converging to diverging strategies of the United States and the European Union to address platform governance. From a liberal approach inspired by the US framework at the end of the last century, the European Union has moved towards a constitutional democratic strategy as demonstrated, for instance, by the launch of the Digital Services Act. On the other side of the Atlantic, the United States has reacted to the consolidation of platform governance by maintaining a liberal approach based on a vertical paradigm driven by the First Amendment. Given these democratic and liberal approaches, this article explains how the different constitutional premises of the United States and the European Union have produced diverging responses to the power of online platforms, thus underlining different expressions of digital constitutionalism across the Atlantic. The first section of the article introduces the rise of digital constitutionalism as the primary research angle to study the trans-Atlantic approaches to platform governance. The second section compares the European and US responses to the rise of platform powers. The third section focuses on the implications of these different constitutional strategies on a global scale.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"11 1","pages":"297 - 324"},"PeriodicalIF":0.0,"publicationDate":"2022-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49629729","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-29DOI: 10.1017/S2045381721000277
Ruji Auethavornpipat
Abstract In 2019, Thailand ratified the International Labour Organization Work in Fishing Convention to protect migrant fishers. The Thai government vigorously promoted the Convention among its constituents. Yet, despite the government’s proactivity, such norms have been weakened upon local translation. This phenomenon is not readily explained by existing norms research that pays scant attention to norms in the domestic space. To address this oversight, this article unpacks domestic processes of norm validation and makes a two-step argument. First, it argues that norm validation is crucial for instigating domestic implementation by allowing stakeholders to deliberate and contest the ‘appropriate’ application of norms. Second, it argues that the locally acquired normative understanding, as influenced by norm antipreneurs, or actors who defend the status quo, weakens norm implementation while the norms’ discursive strength is retained. In presenting the findings, this article contributes to the norms literature by illuminating a new life given to validated norms. The contribution also interrogates norms’ global–local dynamics by scrutinizing norm contestation and the extent to which it generates an internalized sense of legal obligation to implement international norms.
{"title":"Norm contestation and the weakening of migrant fisher protection in Thailand","authors":"Ruji Auethavornpipat","doi":"10.1017/S2045381721000277","DOIUrl":"https://doi.org/10.1017/S2045381721000277","url":null,"abstract":"Abstract In 2019, Thailand ratified the International Labour Organization Work in Fishing Convention to protect migrant fishers. The Thai government vigorously promoted the Convention among its constituents. Yet, despite the government’s proactivity, such norms have been weakened upon local translation. This phenomenon is not readily explained by existing norms research that pays scant attention to norms in the domestic space. To address this oversight, this article unpacks domestic processes of norm validation and makes a two-step argument. First, it argues that norm validation is crucial for instigating domestic implementation by allowing stakeholders to deliberate and contest the ‘appropriate’ application of norms. Second, it argues that the locally acquired normative understanding, as influenced by norm antipreneurs, or actors who defend the status quo, weakens norm implementation while the norms’ discursive strength is retained. In presenting the findings, this article contributes to the norms literature by illuminating a new life given to validated norms. The contribution also interrogates norms’ global–local dynamics by scrutinizing norm contestation and the extent to which it generates an internalized sense of legal obligation to implement international norms.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"11 1","pages":"249 - 273"},"PeriodicalIF":0.0,"publicationDate":"2022-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47886917","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-28DOI: 10.1017/S2045381721000241
S. Steininger
Abstract This article investigates how the European and Inter-American human rights regimes have developed communication practices to create loyalty. It argues that communication departments exercise essential functions, in particular by creating diffuse support for international courts. By relying on theoretical analyses developed by Albert O. Hirschman and David Easton, it identifies how international courts can create loyalty through, first, fostering awareness about the existence of the court among the general public, and, second, the establishment of supportive communities around the court through shared practices. By drawing on semi-structured interviews, the comparative analysis of the European and Inter-American human rights regime illustrates both the professionalization of communication actors and the evolution of specific communication strategies in times of backlash. The empirical insights derived from semi-structured interviews with communication officials highlight how they have succeeded in expanding their audiences, but struggle with activating communities of practice. Ultimately, the rise of visual media formats and story-telling narratives might be the most promising tool to portray a more positive and engaging image of the institution.
摘要本文研究了欧洲和美洲人权制度如何发展沟通实践以创造忠诚。它认为，通讯部门行使基本职能，特别是通过为国际法院提供广泛支持。根据阿尔伯特·赫希曼(Albert O. Hirschman)和大卫·伊斯顿(David Easton)的理论分析，本文确定了国际法院如何通过以下方式来培养忠诚:首先，培养公众对法院存在的认识;其次，通过共享实践，在法院周围建立支持性社区。通过采用半结构化访谈，对欧洲和美洲人权制度的比较分析说明了传播行动者的专业化和在强烈反对时期具体传播战略的演变。从对传播官员的半结构化采访中获得的经验见解强调了他们如何成功地扩大了受众，但在激活实践社区方面却遇到了困难。最终，视觉媒体格式和故事叙事的兴起可能是描绘该机构更积极、更吸引人形象的最有希望的工具。
{"title":"Creating loyalty: Communication practices in the European and Inter-American human rights regimes","authors":"S. Steininger","doi":"10.1017/S2045381721000241","DOIUrl":"https://doi.org/10.1017/S2045381721000241","url":null,"abstract":"Abstract This article investigates how the European and Inter-American human rights regimes have developed communication practices to create loyalty. It argues that communication departments exercise essential functions, in particular by creating diffuse support for international courts. By relying on theoretical analyses developed by Albert O. Hirschman and David Easton, it identifies how international courts can create loyalty through, first, fostering awareness about the existence of the court among the general public, and, second, the establishment of supportive communities around the court through shared practices. By drawing on semi-structured interviews, the comparative analysis of the European and Inter-American human rights regime illustrates both the professionalization of communication actors and the evolution of specific communication strategies in times of backlash. The empirical insights derived from semi-structured interviews with communication officials highlight how they have succeeded in expanding their audiences, but struggle with activating communities of practice. Ultimately, the rise of visual media formats and story-telling narratives might be the most promising tool to portray a more positive and engaging image of the institution.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"11 1","pages":"161 - 196"},"PeriodicalIF":0.0,"publicationDate":"2022-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44994954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-28DOI: 10.1017/S2045381722000041
Dana Burchardt
Abstract The notion of legal space is increasingly being used to address the challenges of multiple and overlapping spheres of legality that the notion of legal order cannot capture. This article shows how legal space can serve as an alternative (or at least complementary) concept to legal order in view of the limitations of the latter. It sketches out a notion of legal space that is inspired by topology, an approach that analyses the qualitative nature of spaces. It is concerned with understanding the ways in which legalities interact, rather than with ‘measuring’ their spatial dimensions. A topology-inspired approach to legal space can contribute to conceptualizing, in a novel manner, the inner structure of legal spaces, the boundaries of these spaces and their interrelations with other spaces. It offers an analytical toolkit for better understanding multiple legalities, providing categories to characterize sets of legal elements as well as phenomena such as overlaps and hybridity. It is conceptually less constrained than the concept of legal order, and thus allows us to address various bodies of law ranging from classical domestic law, EU law and international law to global administrative law, corporate social responsibility law, platform law and lex sportiva.
{"title":"The concept of legal space: A topological approach to addressing multiple legalities","authors":"Dana Burchardt","doi":"10.1017/S2045381722000041","DOIUrl":"https://doi.org/10.1017/S2045381722000041","url":null,"abstract":"Abstract The notion of legal space is increasingly being used to address the challenges of multiple and overlapping spheres of legality that the notion of legal order cannot capture. This article shows how legal space can serve as an alternative (or at least complementary) concept to legal order in view of the limitations of the latter. It sketches out a notion of legal space that is inspired by topology, an approach that analyses the qualitative nature of spaces. It is concerned with understanding the ways in which legalities interact, rather than with ‘measuring’ their spatial dimensions. A topology-inspired approach to legal space can contribute to conceptualizing, in a novel manner, the inner structure of legal spaces, the boundaries of these spaces and their interrelations with other spaces. It offers an analytical toolkit for better understanding multiple legalities, providing categories to characterize sets of legal elements as well as phenomena such as overlaps and hybridity. It is conceptually less constrained than the concept of legal order, and thus allows us to address various bodies of law ranging from classical domestic law, EU law and international law to global administrative law, corporate social responsibility law, platform law and lex sportiva.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"11 1","pages":"518 - 547"},"PeriodicalIF":0.0,"publicationDate":"2022-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49326107","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-24DOI: 10.1017/S2045381722000077
Mariano C Melero
Abstract This article offers a critical discussion of two influential positions in contemporary legal and political theory, which will be referred to as ‘political constitutionalism’ and ‘strong popular sovereignty’. Despite their important differences, both share a sceptical approach to the dominant constitutional practice in liberal democracies, hence they are brought together here under the term ‘weak constitutionalism’. They both highlight the political dimension of the constitution, arguing that democratic legitimacy requires institutional arrangements that give the people and/or their representatives the last word in settling fundamental issues of political morality. By contrast, this article underlines the legal dimension of the constitution as the repository of the moral principles that make possible a practice of public justification in constitutional states. It is from this second constitutional dimension that the critical arguments are developed, both against the desire to take the constitution away from the courts and the aspiration to recognize the constituent power as pre-legal constitution-making faculty.
{"title":"Weak constitutionalism and the legal dimension of the constitution","authors":"Mariano C Melero","doi":"10.1017/S2045381722000077","DOIUrl":"https://doi.org/10.1017/S2045381722000077","url":null,"abstract":"Abstract This article offers a critical discussion of two influential positions in contemporary legal and political theory, which will be referred to as ‘political constitutionalism’ and ‘strong popular sovereignty’. Despite their important differences, both share a sceptical approach to the dominant constitutional practice in liberal democracies, hence they are brought together here under the term ‘weak constitutionalism’. They both highlight the political dimension of the constitution, arguing that democratic legitimacy requires institutional arrangements that give the people and/or their representatives the last word in settling fundamental issues of political morality. By contrast, this article underlines the legal dimension of the constitution as the repository of the moral principles that make possible a practice of public justification in constitutional states. It is from this second constitutional dimension that the critical arguments are developed, both against the desire to take the constitution away from the courts and the aspiration to recognize the constituent power as pre-legal constitution-making faculty.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"11 1","pages":"494 - 517"},"PeriodicalIF":0.0,"publicationDate":"2022-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41760523","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-22DOI: 10.1017/S2045381722000065
Gürkan Çapar
Abstract Global regulatory competition is a recent phenomenon that confronts us in various different fields, ranging from food and chemical safety to climate change, and animal welfare to environmental law. The digital economy is not immune to this trend, and it seems highly unlikely that this will soon come to an end when we consider the radical differences between the European Union and the United States with respect to the importance they assign to the right to privacy and the right to freedom of speech. Nevertheless, despite their differences in content, it can be contended that they both tend to disregard the interest of others even though they have enough resources at their disposal to take them seriously. This becomes visible when the recent case law of the CJEU and the recent regulations such as the GDPR and the US CLOUD Act are taken into account. Their similar attitude to regulating for the globe raises the question of whether we are confronted with a new type of Eurocentrism, which is more contracted and introverted than the previous expansionist version. The article argues that unilateralism should be a selfless one and that it should necessarily consider outsiders if it is to acquire legitimacy.
{"title":"Global regulatory competition on digital rights and data protection: A novel and contractive form of Eurocentrism?","authors":"Gürkan Çapar","doi":"10.1017/S2045381722000065","DOIUrl":"https://doi.org/10.1017/S2045381722000065","url":null,"abstract":"Abstract Global regulatory competition is a recent phenomenon that confronts us in various different fields, ranging from food and chemical safety to climate change, and animal welfare to environmental law. The digital economy is not immune to this trend, and it seems highly unlikely that this will soon come to an end when we consider the radical differences between the European Union and the United States with respect to the importance they assign to the right to privacy and the right to freedom of speech. Nevertheless, despite their differences in content, it can be contended that they both tend to disregard the interest of others even though they have enough resources at their disposal to take them seriously. This becomes visible when the recent case law of the CJEU and the recent regulations such as the GDPR and the US CLOUD Act are taken into account. Their similar attitude to regulating for the globe raises the question of whether we are confronted with a new type of Eurocentrism, which is more contracted and introverted than the previous expansionist version. The article argues that unilateralism should be a selfless one and that it should necessarily consider outsiders if it is to acquire legitimacy.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"11 1","pages":"465 - 493"},"PeriodicalIF":0.0,"publicationDate":"2022-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57365655","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-18DOI: 10.1017/S2045381722000089
C. Rieder
Abstract Although markets are becoming increasingly transnationalized, the social question appears to remain firmly national. The aim of this article is to discuss under what circumstances, if at all, the social question ought to have a transnational dimension and what form it should take. As such, the article seeks to build a normative framework that abandons the conventional taxonomies of moral duties and instead links the concept of responsibility to governance, which takes place in the space of the polis through a reliance on questions of group agency. To this end, the article will draw on different aspects of responsibility. Having established a link between the social question and the concept of responsibility based on outcome and remedial responsibility, it will draw on collective and shared responsibility to consider what, if any, transnational dimension the social question should have.
{"title":"The social question and the transnational constitutional space","authors":"C. Rieder","doi":"10.1017/S2045381722000089","DOIUrl":"https://doi.org/10.1017/S2045381722000089","url":null,"abstract":"Abstract Although markets are becoming increasingly transnationalized, the social question appears to remain firmly national. The aim of this article is to discuss under what circumstances, if at all, the social question ought to have a transnational dimension and what form it should take. As such, the article seeks to build a normative framework that abandons the conventional taxonomies of moral duties and instead links the concept of responsibility to governance, which takes place in the space of the polis through a reliance on questions of group agency. To this end, the article will draw on different aspects of responsibility. Having established a link between the social question and the concept of responsibility based on outcome and remedial responsibility, it will draw on collective and shared responsibility to consider what, if any, transnational dimension the social question should have.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"12 1","pages":"11 - 29"},"PeriodicalIF":0.0,"publicationDate":"2022-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44355530","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-17DOI: 10.1017/S2045381722000053
Andreas Kruck, Tim Heinkelmann‐Wild, Benjamin Daßler, Raphaela Hobbach
Abstract International institutions underpinning the ‘liberal international order’ are increasingly contested by established Western powers. This article contributes to a better understanding of this novel challenge ‘from within’. We conceptualize four types of contestation frames according to (1) whether contesting states attribute the source of grievances to specific practices or the underlying principles of an international institution; and (2) whether they present their own nation or the international community as the subject of grievances. Combining these two dimensions, we distinguish between globalist-reformist, nationalist-reformist, globalist-revisionist and nationalist-revisionist contestation frames. These contestation frames are consequential as they open up or shrink the discursive space for contested institutions’ re-legitimation. Drawing on the Trump Administration’s contestation of the World Bank, NATO, the UNHRC, and the WTO, we demonstrate that contestation frames and defenders’ responses varied greatly across institutions, ranging from accommodative deliberations about institutional reforms to principled rejection and the justification of the status quo.
{"title":"Disentangling institutional contestation by established powers: Types of contestation frames and varying opportunities for the re-legitimation of international institutions","authors":"Andreas Kruck, Tim Heinkelmann‐Wild, Benjamin Daßler, Raphaela Hobbach","doi":"10.1017/S2045381722000053","DOIUrl":"https://doi.org/10.1017/S2045381722000053","url":null,"abstract":"Abstract International institutions underpinning the ‘liberal international order’ are increasingly contested by established Western powers. This article contributes to a better understanding of this novel challenge ‘from within’. We conceptualize four types of contestation frames according to (1) whether contesting states attribute the source of grievances to specific practices or the underlying principles of an international institution; and (2) whether they present their own nation or the international community as the subject of grievances. Combining these two dimensions, we distinguish between globalist-reformist, nationalist-reformist, globalist-revisionist and nationalist-revisionist contestation frames. These contestation frames are consequential as they open up or shrink the discursive space for contested institutions’ re-legitimation. Drawing on the Trump Administration’s contestation of the World Bank, NATO, the UNHRC, and the WTO, we demonstrate that contestation frames and defenders’ responses varied greatly across institutions, ranging from accommodative deliberations about institutional reforms to principled rejection and the justification of the status quo.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"11 1","pages":"344 - 368"},"PeriodicalIF":0.0,"publicationDate":"2022-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47992515","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-17DOI: 10.1017/S204538172200003X
Jessika Eichler
Abstract This article approaches current constitutional conservatism in Europe, focusing on the limits of equality rights regimes. These frameworks, it is argued, provide little leverage for positive discrimination to become articulated, let alone for them to be implemented by public policies. Equality regimes are further disentangled by means of a multidimensional reading of legal orders: particular attention is devoted to international human rights law (IHRL) and European Jus Commune that may inspire shifts in constitutional thinking at domestic levels. In that sense, equality frameworks steadily open up towards an inclusive understanding of human rights based on the transformative forces of international law. A pluralistic idea of those subjected to such regimes will be embraced, hence developing a clearer conception of rights holder categories and ultimately peoples affected in daily practice, particularly minorities. A dedicated focus is placed on ethnic, cultural, religious and linguistic grounds. This may similarly concern intersectionalities and the complexities of overlapping grounds of discrimination. It is stressed that equality is best addressed by means of a multivariate approach to legal orders, their dynamics and ultimately virtuous effects of application.
{"title":"The transformative forces of international law? Questioning equality regimes from a multi-level perspective","authors":"Jessika Eichler","doi":"10.1017/S204538172200003X","DOIUrl":"https://doi.org/10.1017/S204538172200003X","url":null,"abstract":"Abstract This article approaches current constitutional conservatism in Europe, focusing on the limits of equality rights regimes. These frameworks, it is argued, provide little leverage for positive discrimination to become articulated, let alone for them to be implemented by public policies. Equality regimes are further disentangled by means of a multidimensional reading of legal orders: particular attention is devoted to international human rights law (IHRL) and European Jus Commune that may inspire shifts in constitutional thinking at domestic levels. In that sense, equality frameworks steadily open up towards an inclusive understanding of human rights based on the transformative forces of international law. A pluralistic idea of those subjected to such regimes will be embraced, hence developing a clearer conception of rights holder categories and ultimately peoples affected in daily practice, particularly minorities. A dedicated focus is placed on ethnic, cultural, religious and linguistic grounds. This may similarly concern intersectionalities and the complexities of overlapping grounds of discrimination. It is stressed that equality is best addressed by means of a multivariate approach to legal orders, their dynamics and ultimately virtuous effects of application.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"11 1","pages":"325 - 343"},"PeriodicalIF":0.0,"publicationDate":"2022-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44164499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-07DOI: 10.1017/S2045381721000265
Frédéric Mégret
Abstract Bill 21 is a highly contested law adopted in Quebec that bans certain civil servants from wearing religious symbols in the exercise of their duties. Rather than analyse Bill 21 on its merits, the article treats it as a test case for global legal pluralism, examining how the validity of the law from an international perspective depends on the frames one uses to analyse it. It finds that a basic tension permeates the entire debate between a universalist vision of rights and a vision of rights as anchored in particular political configurations that demand a constant process of adaptation. That tension is visible in the dualist opposition between Canadian and international law; in the role of federalism as a significant mediating factor in the implementation of constitutional and international rights; and in the kind of majoritarian check on rights that manifests itself in the Canadian Charter of Rights’ ‘notwithstanding clause’. Throughout, the article explores how these tensions might be mediated in ways that do not simply oppose international and domestic law but seek to make the most of their interaction.
{"title":"Ban on religious symbols in the public service: Quebec’s Bill 21 in a global pluralist perspective","authors":"Frédéric Mégret","doi":"10.1017/S2045381721000265","DOIUrl":"https://doi.org/10.1017/S2045381721000265","url":null,"abstract":"Abstract Bill 21 is a highly contested law adopted in Quebec that bans certain civil servants from wearing religious symbols in the exercise of their duties. Rather than analyse Bill 21 on its merits, the article treats it as a test case for global legal pluralism, examining how the validity of the law from an international perspective depends on the frames one uses to analyse it. It finds that a basic tension permeates the entire debate between a universalist vision of rights and a vision of rights as anchored in particular political configurations that demand a constant process of adaptation. That tension is visible in the dualist opposition between Canadian and international law; in the role of federalism as a significant mediating factor in the implementation of constitutional and international rights; and in the kind of majoritarian check on rights that manifests itself in the Canadian Charter of Rights’ ‘notwithstanding clause’. Throughout, the article explores how these tensions might be mediated in ways that do not simply oppose international and domestic law but seek to make the most of their interaction.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"11 1","pages":"217 - 248"},"PeriodicalIF":0.0,"publicationDate":"2022-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49418103","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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