{"title":"Raeesa Vakil, Review of Philipp Dann and Arun K. Thiruvengadam (eds). Democratic Constitutionalism in India and the European Union: Comparing the Law of Democracy in Continental Polities","authors":"Raeesa Vakil","doi":"10.1093/icon/moad042","DOIUrl":"https://doi.org/10.1093/icon/moad042","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46619686","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Khemthong Tonsakulrungruang, Review of Eugenie Merieau. Constitutional Bricolage: Thailand’s Sacred Monarchy vs. The Rule of Law","authors":"Khemthong Tonsakulrungruang","doi":"10.1093/icon/moad040","DOIUrl":"https://doi.org/10.1093/icon/moad040","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44275614","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the wake of the 2014 judicial reforms, are Chinese judges in most circumstances free in their decision-making? Based primarily on interviews with judges, this article argues that although a truncated hierarchy has led to increased judicial autonomy, the state maintains its tight grip over judges. In its new form, the state’s control is more indirect, external, ex post, diffused, and ideological. It allows the state to closely monitor judges’ entire handling of cases (hence the designation “panoptic”). It has some similarities with, yet fundamentally differs from, existing patterns in authoritarian states. While judges’ accountability continues to be largely a bureaucratic matter, this Chinese form of control has nonetheless been effective at a time of soaring caseloads, a slimmed-down judiciary, and increasing insistence on legitimacy. This article seeks to deepen understanding of developments in Chinese courts and, more widely, judicial politics in authoritarian states.
{"title":"From hierarchical to panoptic control: The Chinese solution in monitoring judges","authors":"Xin He","doi":"10.1093/icon/moad053","DOIUrl":"https://doi.org/10.1093/icon/moad053","url":null,"abstract":"\u0000 In the wake of the 2014 judicial reforms, are Chinese judges in most circumstances free in their decision-making? Based primarily on interviews with judges, this article argues that although a truncated hierarchy has led to increased judicial autonomy, the state maintains its tight grip over judges. In its new form, the state’s control is more indirect, external, ex post, diffused, and ideological. It allows the state to closely monitor judges’ entire handling of cases (hence the designation “panoptic”). It has some similarities with, yet fundamentally differs from, existing patterns in authoritarian states. While judges’ accountability continues to be largely a bureaucratic matter, this Chinese form of control has nonetheless been effective at a time of soaring caseloads, a slimmed-down judiciary, and increasing insistence on legitimacy. This article seeks to deepen understanding of developments in Chinese courts and, more widely, judicial politics in authoritarian states.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43075155","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Based on newly opened Chinese diaries of Chiang Kai-shek and presidents of the Judicial Yuan, this article explores China’s Constitutional Court from a socio-historical perspective and contextualizes China’s constitutional development from the mainland to Taiwan by 1971, when the United Nations delegitimized the Chiang Kai-shek regime as a lawful representative of China. This article argues that China’s insistence on legal exceptionalism and the fact that China became a victor state after the two world wars facilitated the institutionalization of the Constitutional Court. Due to the judicial leadership and their effective interactions with the political leader, China’s Constitutional Court survived and led a second wave of global expansion of judicial power around the mid-twentieth century. The survival of China’s Constitutional Court gave life to the oldest constitutional court that endured an authoritarian regime longer than the entire post-1989 era. It therefore provides a unique case for the survival of post-democratization constitutional courts in the twenty-first century. However, China’s Constitutional Court has never been properly accredited, not to mention as a leader of the second wave of judicial review. This article fills the gap and posits the survival of the Constitutional Court as a new thesis in comparative constitutional law. Among others, factors including peaceful constitutional revolution, victor-state’s legal exceptionalism, guardian of the Constitutional Court, strong meritocratic judicial leadership and the judicial personal interactions with charismatic political leadership combine to produce a series of constitutional innovations that have safeguarded the survival of China’s Constitutional Court, and thus contributed to creating an exceptional paradigm of judicial review and global constitutional improvement.
{"title":"The untold leader of judicial review: China’s Constitutional Court (1948–71) and innovative constitutionalism","authors":"Zhaoxin Jiang","doi":"10.1093/icon/moad044","DOIUrl":"https://doi.org/10.1093/icon/moad044","url":null,"abstract":"\u0000 Based on newly opened Chinese diaries of Chiang Kai-shek and presidents of the Judicial Yuan, this article explores China’s Constitutional Court from a socio-historical perspective and contextualizes China’s constitutional development from the mainland to Taiwan by 1971, when the United Nations delegitimized the Chiang Kai-shek regime as a lawful representative of China. This article argues that China’s insistence on legal exceptionalism and the fact that China became a victor state after the two world wars facilitated the institutionalization of the Constitutional Court. Due to the judicial leadership and their effective interactions with the political leader, China’s Constitutional Court survived and led a second wave of global expansion of judicial power around the mid-twentieth century. The survival of China’s Constitutional Court gave life to the oldest constitutional court that endured an authoritarian regime longer than the entire post-1989 era. It therefore provides a unique case for the survival of post-democratization constitutional courts in the twenty-first century. However, China’s Constitutional Court has never been properly accredited, not to mention as a leader of the second wave of judicial review. This article fills the gap and posits the survival of the Constitutional Court as a new thesis in comparative constitutional law. Among others, factors including peaceful constitutional revolution, victor-state’s legal exceptionalism, guardian of the Constitutional Court, strong meritocratic judicial leadership and the judicial personal interactions with charismatic political leadership combine to produce a series of constitutional innovations that have safeguarded the survival of China’s Constitutional Court, and thus contributed to creating an exceptional paradigm of judicial review and global constitutional improvement.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43230247","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Erin Daly, Review of Jimmy Chia-Shin Hsu, ed. Human Dignity in Asia: Dialogue Between Law and Culture","authors":"Erin Daly","doi":"10.1093/icon/moad050","DOIUrl":"https://doi.org/10.1093/icon/moad050","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41759753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Social and political dynamics in the feminization of judiciary","authors":"Wen-Chen Chang","doi":"10.1093/icon/moad043","DOIUrl":"https://doi.org/10.1093/icon/moad043","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43019728","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The thesis of the article by Zhaoxin Jiang, “The Untold Leader of Judicial Review: China’s Constitutional Court (1948–71) and the Innovative Constitutionalism,” is highly innovative, and the materials it uses are invaluable to understanding the Council of Grand Justices. Nonetheless, several key contentions of the article are not fully supported by—or indeed are contradicted by—the existing evidence. This Reply provides some competing analyses and interpretations of the three topics in the article: (i) the characterization of the Council at its founding; (ii) the interactions between Chiang Kai-shek and judicial elites; and (iii) the performance of the Council in Taiwan.
{"title":"A constitutional contingency: A reply to Zhaoxin Jiang","authors":"Chien-Chih Lin","doi":"10.1093/icon/moad048","DOIUrl":"https://doi.org/10.1093/icon/moad048","url":null,"abstract":"\u0000 The thesis of the article by Zhaoxin Jiang, “The Untold Leader of Judicial Review: China’s Constitutional Court (1948–71) and the Innovative Constitutionalism,” is highly innovative, and the materials it uses are invaluable to understanding the Council of Grand Justices. Nonetheless, several key contentions of the article are not fully supported by—or indeed are contradicted by—the existing evidence. This Reply provides some competing analyses and interpretations of the three topics in the article: (i) the characterization of the Council at its founding; (ii) the interactions between Chiang Kai-shek and judicial elites; and (iii) the performance of the Council in Taiwan.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46675036","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article explores the different constitutional developments of the right to gender recognition and discusses their potential to protect trans and nonbinary people. Focusing on a few selected jurisdictions, each incarnating a specific kind of recognition system, it also proposes a conceptual map to understand and identify the different shapes of such a right. The article argues that four types of gender recognition can be identified, each with their own characteristics, advantages, peculiarities, and set of challenges for trans and nonbinary people and for the system of gender categorization itself. In clarifying this area of law, the article contends that the very process of creation and policing of gender identities and categories represents a critical aspect of contemporary gender constitutionalism.
{"title":"Gender recognition at the crossroads: Four models and the compass of comparative law","authors":"Stefano Osella, Ruth Rubio-Marín","doi":"10.1093/icon/moad045","DOIUrl":"https://doi.org/10.1093/icon/moad045","url":null,"abstract":"\u0000 The article explores the different constitutional developments of the right to gender recognition and discusses their potential to protect trans and nonbinary people. Focusing on a few selected jurisdictions, each incarnating a specific kind of recognition system, it also proposes a conceptual map to understand and identify the different shapes of such a right. The article argues that four types of gender recognition can be identified, each with their own characteristics, advantages, peculiarities, and set of challenges for trans and nonbinary people and for the system of gender categorization itself. In clarifying this area of law, the article contends that the very process of creation and policing of gender identities and categories represents a critical aspect of contemporary gender constitutionalism.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43042601","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines varieties of human rights appropriation in the context of sexuality politics in Africa. Noting how contested the landscape of human rights has been in Africa, it demonstrates how the human rights of lesbians, gays, bisexual, trans, queer, and intersex persons or sexual and gender minorities (LGBTQI+) are excluded from protection as a result of what are described as three interconnected predispositions. These predispositions are postcolonial, cultural, and religious tendencies within many African countries which adopt “othering” narratives that justify, and even sacralize, discrimination or violence based on gender identity and sexual orientation. The article analyzes the rights-based arguments—the appropriation of human rights language—used by anti-gay advocates in Africa, which emphasize rights to religion, culture, and family and exclude or deny the rights of LGBTQI+ people. This presentation of a human rights corpus and discourse which excludes LGBTQI+ rights, and which circulates both within and outside Africa, relies on alliances with the US Christian Right, and with the Vatican and Islamic leaders, to oppose sexual rights, and is often deployed by African politicians to retain political power. The article concludes by exploring the concept of ubuntu as a potential alternative to or as an accompaniment to human rights language, as a way of vernacularizing and Africanizing LGBTQI+ rights.
{"title":"The interaction of human rights and religion in Africa’s sexuality politics","authors":"Kapya Kaoma","doi":"10.1093/icon/moad031","DOIUrl":"https://doi.org/10.1093/icon/moad031","url":null,"abstract":"\u0000 This article examines varieties of human rights appropriation in the context of sexuality politics in Africa. Noting how contested the landscape of human rights has been in Africa, it demonstrates how the human rights of lesbians, gays, bisexual, trans, queer, and intersex persons or sexual and gender minorities (LGBTQI+) are excluded from protection as a result of what are described as three interconnected predispositions. These predispositions are postcolonial, cultural, and religious tendencies within many African countries which adopt “othering” narratives that justify, and even sacralize, discrimination or violence based on gender identity and sexual orientation. The article analyzes the rights-based arguments—the appropriation of human rights language—used by anti-gay advocates in Africa, which emphasize rights to religion, culture, and family and exclude or deny the rights of LGBTQI+ people. This presentation of a human rights corpus and discourse which excludes LGBTQI+ rights, and which circulates both within and outside Africa, relies on alliances with the US Christian Right, and with the Vatican and Islamic leaders, to oppose sexual rights, and is often deployed by African politicians to retain political power. The article concludes by exploring the concept of ubuntu as a potential alternative to or as an accompaniment to human rights language, as a way of vernacularizing and Africanizing LGBTQI+ rights.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43810466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The scarce legal recognition of the gender identity of trans people is a contributing factor to the phenomenon of mass incarceration in the United States. The disproportionately higher rates of incarceration of trans people—especially trans people of color—are driven by discrimination-based barriers to housing, employment, education, and trans-specific healthcare. The denial of trans identity in prison results in the ill-treatment of trans persons, including a heightened exposure to assault and violence. Concerningly, incarcerated trans people are commonly confronted with harsh conditions of confinement such as solitary confinement, which are generally enacted to (presumably) protect their own safety. Against this backdrop, this article advances Eighth Amendment-based arguments for (indirectly) affording a more consistent constitutional protection to gender self-determination in prison settings. First, the article argues that a more robust dignity-based interpretation of the Eighth Amendment regarding the conditions of confinement can lead to recognizing (self-determined) gender-affirming placement as a basic human need, the deprivation of which causes constitutionally relevant harm. The second argument relies upon penal theory to illustrate that the denial of gender self-determination in prison settings, with all the negative corollaries it implies, contradicts the fundamental pillars of each major justification for punishment. Thus, such a denial does not serve any constitutionally justified penological need.
{"title":"Gender identity in the era of mass incarceration: The cruel and unusual segregation of trans people in the United States","authors":"Federica Coppola","doi":"10.1093/icon/moad046","DOIUrl":"https://doi.org/10.1093/icon/moad046","url":null,"abstract":"\u0000 The scarce legal recognition of the gender identity of trans people is a contributing factor to the phenomenon of mass incarceration in the United States. The disproportionately higher rates of incarceration of trans people—especially trans people of color—are driven by discrimination-based barriers to housing, employment, education, and trans-specific healthcare. The denial of trans identity in prison results in the ill-treatment of trans persons, including a heightened exposure to assault and violence. Concerningly, incarcerated trans people are commonly confronted with harsh conditions of confinement such as solitary confinement, which are generally enacted to (presumably) protect their own safety. Against this backdrop, this article advances Eighth Amendment-based arguments for (indirectly) affording a more consistent constitutional protection to gender self-determination in prison settings. First, the article argues that a more robust dignity-based interpretation of the Eighth Amendment regarding the conditions of confinement can lead to recognizing (self-determined) gender-affirming placement as a basic human need, the deprivation of which causes constitutionally relevant harm. The second argument relies upon penal theory to illustrate that the denial of gender self-determination in prison settings, with all the negative corollaries it implies, contradicts the fundamental pillars of each major justification for punishment. Thus, such a denial does not serve any constitutionally justified penological need.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43060606","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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