The dominant position of the U.S. Food and Drug Administration (FDA) as the most influential regulator in the world has been particularly salient during the COVID-19 pandemic, in the context of COVID-19 vaccines’ emergency use authorizations. In the context of adjustment toward a post-COVID-19 regulatory order of harmonization for medicines approval, this essay proposes a critical reflection about the justifications and political dynamics behind the FDA’s power and its impact in latinamerican countries’ regulatory systems, considering the already regulatory reliance on the FDA. In particular, this essay asks whether regulatory ‘agility’ and ‘coordination’ will benefit countries of the region in addressing the problems of scarcity and inequitable access to medicines that have become evident with the pandemic.
{"title":"Salud postpandemia: influencia supranacional y coordinación regulatoria","authors":"Ximena Benavides Reverditto","doi":"10.1093/icon/moac116","DOIUrl":"https://doi.org/10.1093/icon/moac116","url":null,"abstract":"\u0000 The dominant position of the U.S. Food and Drug Administration (FDA) as the most influential regulator in the world has been particularly salient during the COVID-19 pandemic, in the context of COVID-19 vaccines’ emergency use authorizations. In the context of adjustment toward a post-COVID-19 regulatory order of harmonization for medicines approval, this essay proposes a critical reflection about the justifications and political dynamics behind the FDA’s power and its impact in latinamerican countries’ regulatory systems, considering the already regulatory reliance on the FDA. In particular, this essay asks whether regulatory ‘agility’ and ‘coordination’ will benefit countries of the region in addressing the problems of scarcity and inequitable access to medicines that have become evident with the pandemic.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41840369","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}
Created in 1890, the Tribunal de Contas da União (TCU) is today one of the most relevant institutions in the Brazilian State. This article explains how the TCU became this very particular institution, from its historical origins as a simple court of accounts to its efforts to differentiate itself from this model and gain other (many) powers, reshaping itself. In the end, we present a synthesis of the current debates on the institutional model of the TCU in Brazil.
巴西联邦法院(Tribunal de Contas da uni，简称TCU)成立于1890年，如今已成为巴西最重要的机构之一。本文解释了TCU是如何成为一个非常特殊的机构的，从它作为一个简单的会计法庭的历史起源，到它努力与这种模式区分开来，并获得其他(许多)权力，重塑自己。最后，我们综合了目前关于巴西TCU制度模式的争论。
{"title":"El Tribunal de Cuentas de la Unión brasilero: una institución muy peculiar","authors":"E. Jordão, J. Palma","doi":"10.1093/icon/moac118","DOIUrl":"https://doi.org/10.1093/icon/moac118","url":null,"abstract":"\u0000 Created in 1890, the Tribunal de Contas da União (TCU) is today one of the most relevant institutions in the Brazilian State. This article explains how the TCU became this very particular institution, from its historical origins as a simple court of accounts to its efforts to differentiate itself from this model and gain other (many) powers, reshaping itself. In the end, we present a synthesis of the current debates on the institutional model of the TCU in Brazil.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":"1 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60926607","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}
On regular basis, courts borrow foreign legal materials when deciding constitutional issues. In many countries, including Argentina, this practice is rarely contested. Within this framework, this paper is focused on studying legal borrowings in order to systematize them and highlight their potential risks. Considering Argentine jurisprudence, the article proposes a classification of the uses of foreign legal sources based on two variables: their authoritative nature and their weight in the judge’s final decision. After presenting the categorization, the article claims that any type of legal borrowing will imply certain risks, which will tend to increase progressively depending on how they are related to the aforementioned variables. Thus, based on the study of the impact of foreign materials on judicial decisions, this paper explores whether it should be discouraged the borrowing of comparative law.
{"title":"Repensando los préstamos constitucionales: un análisis crítico del uso de materiales foráneos desde la experiencia argentina","authors":"Matías Toselli","doi":"10.1093/icon/moac081","DOIUrl":"https://doi.org/10.1093/icon/moac081","url":null,"abstract":"\u0000 On regular basis, courts borrow foreign legal materials when deciding constitutional issues. In many countries, including Argentina, this practice is rarely contested. Within this framework, this paper is focused on studying legal borrowings in order to systematize them and highlight their potential risks. Considering Argentine jurisprudence, the article proposes a classification of the uses of foreign legal sources based on two variables: their authoritative nature and their weight in the judge’s final decision. After presenting the categorization, the article claims that any type of legal borrowing will imply certain risks, which will tend to increase progressively depending on how they are related to the aforementioned variables. Thus, based on the study of the impact of foreign materials on judicial decisions, this paper explores whether it should be discouraged the borrowing of comparative law.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48890303","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 this work, we analyze the links between the theory of republicanism and armed citizenship in Argentinian debates in the nineteenth century. The theoretical and historical approach allows the interpretation of two articles of the National Constitution: Article 21, which establishes the obligation of all citizens “to bear arms in defense of the fatherland and of this Constitution”, and Article 22, which considers that “any armed force or meeting of persons assuming the rights of the people and petitioning in their name, commits the crime of sedition”. An analysis under the light of the republican conception of armed citizenship shows in these two clauses the paradox of popular sovereignty that, on the one hand, recognizes and maintains the constituent power in the people and, on the other hand, aims to restraints and subjects it by state authorities.
{"title":"Republicanismo y ciudadanía armada en la Constitución Nacional Argentina","authors":"Gerardo Tripolone","doi":"10.1093/icon/moac068","DOIUrl":"https://doi.org/10.1093/icon/moac068","url":null,"abstract":"\u0000 In this work, we analyze the links between the theory of republicanism and armed citizenship in Argentinian debates in the nineteenth century. The theoretical and historical approach allows the interpretation of two articles of the National Constitution: Article 21, which establishes the obligation of all citizens “to bear arms in defense of the fatherland and of this Constitution”, and Article 22, which considers that “any armed force or meeting of persons assuming the rights of the people and petitioning in their name, commits the crime of sedition”. An analysis under the light of the republican conception of armed citizenship shows in these two clauses the paradox of popular sovereignty that, on the one hand, recognizes and maintains the constituent power in the people and, on the other hand, aims to restraints and subjects it by state authorities.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48672327","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":"Ching-Fang Hsu, Review of Kristina Simion, Rule of Law Intermediaries: Brokering Influence in Myanmar","authors":"Ching-Fang Hsu","doi":"10.1093/icon/moad007","DOIUrl":"https://doi.org/10.1093/icon/moad007","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47372848","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 Editorial Reflection traces the global proliferation of pandemic fears and follows them through psychological theories as well as legal measures of infection control. Pandemic fears are included in the controversial discussion on how laws and constitutions (should) protect freedom in a pandemic and how the fear of contagion and the insecurity triggered by infection protection measures reinforce each other and contribute to the negativity of a pandemic. In closing, the article presents different forms of fear denial such as conspiracy myths, stimulated by anti-COVID-19 regimes of law and politics.
{"title":"Constituting the negative globality of fear","authors":"G. Frankenberg","doi":"10.1093/icon/moad008","DOIUrl":"https://doi.org/10.1093/icon/moad008","url":null,"abstract":"\u0000 This Editorial Reflection traces the global proliferation of pandemic fears and follows them through psychological theories as well as legal measures of infection control. Pandemic fears are included in the controversial discussion on how laws and constitutions (should) protect freedom in a pandemic and how the fear of contagion and the insecurity triggered by infection protection measures reinforce each other and contribute to the negativity of a pandemic. In closing, the article presents different forms of fear denial such as conspiracy myths, stimulated by anti-COVID-19 regimes of law and politics.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48243252","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 a particular version of contemporary threats to the rule of law: the routinization of emergency powers. Although the global response to the pandemic since 2020 has certainly epitomized the sudden infatuation with states of emergency (SOEs), they have a longer history of becoming a new model of government that has come to saturate our contemporary political horizon, as every crisis (terrorism, pandemic, climate) seems to call for its own SOE. This article analyzes the unprecedented permanence of SOEs in contemporary paradigms of government. It first situates the contemporary practice of SOEs in the longer historical and theoretical frame of states of exception. It then reads the twentieth-century rise of the rule-of-law paradigm that is largely undergirded by an ambition to tame the exception as a challenge to this state of exception framework. Hence its failure to provide a relevant lens for analyzing contemporary SOEs. Through an in-depth study of recent French experiences of an SOE, this article shows that rather than derogate to or suspend the legal order, contemporary SOEs are intensely juridical and claim to be fully compatible with the rule of law. In that, they set a dangerous trap: as they borrow the forms and language of the rule of law, contemporary SOEs threaten to subvert the model’s meaning and sense from the inside.
{"title":"Taming the exception? Lessons from the routinization of states of emergency in France","authors":"Stéphanie Hennette Vauchez","doi":"10.1093/icon/moad006","DOIUrl":"https://doi.org/10.1093/icon/moad006","url":null,"abstract":"\u0000 This article examines a particular version of contemporary threats to the rule of law: the routinization of emergency powers. Although the global response to the pandemic since 2020 has certainly epitomized the sudden infatuation with states of emergency (SOEs), they have a longer history of becoming a new model of government that has come to saturate our contemporary political horizon, as every crisis (terrorism, pandemic, climate) seems to call for its own SOE. This article analyzes the unprecedented permanence of SOEs in contemporary paradigms of government. It first situates the contemporary practice of SOEs in the longer historical and theoretical frame of states of exception. It then reads the twentieth-century rise of the rule-of-law paradigm that is largely undergirded by an ambition to tame the exception as a challenge to this state of exception framework. Hence its failure to provide a relevant lens for analyzing contemporary SOEs. Through an in-depth study of recent French experiences of an SOE, this article shows that rather than derogate to or suspend the legal order, contemporary SOEs are intensely juridical and claim to be fully compatible with the rule of law. In that, they set a dangerous trap: as they borrow the forms and language of the rule of law, contemporary SOEs threaten to subvert the model’s meaning and sense from the inside.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45550492","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":"Christoph Schönberger, Review of Michael Wilkinson, Authoritarian Liberalism and the Transformation of Modern Europe","authors":"C. Schönberger","doi":"10.1093/icon/moad009","DOIUrl":"https://doi.org/10.1093/icon/moad009","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45157543","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}
Dialogic judicial review is a dialectic interaction between supreme courts and legislatures regarding the constitutionality of legislation, in which each institution preserves its constitutional authority, and yet performs it while considering the other institution’s stance and its ability to respond. This interaction is based on reciprocity and upon the contribution of both institutions to the constitutional design and interpretation of legislation. This dialogic interaction has much value at the institutional and instrumental level. Unfortunately, constitutional dialogue sometimes has a negative influence on petitioners and similar groups, as their rights are being trampled under a dialogic veil. This article argues that constitutional dialogue can (and sometimes must) be restricted to avoid hindering human rights during the constitutional institutional interaction. It sketches a doctrine designed to prevent impairing human rights in the name of dialogic interaction, through three arguments: (i) the constitutional dialogue must be restricted, since reality shows that courts in many cases prefer legitimacy considerations over protecting human rights; (ii) in the case of under-represented groups, there is no reason to trust legislatures to take human rights into consideration while formulating a legislative response; and (iii) courts can restrict the dialogic interaction by declaring the constitutional purpose to be unconstitutional or by using judicial decisiveness which strives for full and coercive judicial constitutional review.
{"title":"A double-edged sword: Constitutional dialogue confined","authors":"Bell E Yosef","doi":"10.1093/icon/moad004","DOIUrl":"https://doi.org/10.1093/icon/moad004","url":null,"abstract":"\u0000 Dialogic judicial review is a dialectic interaction between supreme courts and legislatures regarding the constitutionality of legislation, in which each institution preserves its constitutional authority, and yet performs it while considering the other institution’s stance and its ability to respond. This interaction is based on reciprocity and upon the contribution of both institutions to the constitutional design and interpretation of legislation. This dialogic interaction has much value at the institutional and instrumental level. Unfortunately, constitutional dialogue sometimes has a negative influence on petitioners and similar groups, as their rights are being trampled under a dialogic veil. This article argues that constitutional dialogue can (and sometimes must) be restricted to avoid hindering human rights during the constitutional institutional interaction. It sketches a doctrine designed to prevent impairing human rights in the name of dialogic interaction, through three arguments: (i) the constitutional dialogue must be restricted, since reality shows that courts in many cases prefer legitimacy considerations over protecting human rights; (ii) in the case of under-represented groups, there is no reason to trust legislatures to take human rights into consideration while formulating a legislative response; and (iii) courts can restrict the dialogic interaction by declaring the constitutional purpose to be unconstitutional or by using judicial decisiveness which strives for full and coercive judicial constitutional review.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45318637","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 describes the emergence, evolution, and current crisis of autonomous constitutional bodies in Mexico. To this end, it begins by portraying the context in which they emerged, emphasizing four fundamental elements that explain and situate them historically and politically. It then describes certain distinctive features of these bodies and how they represent a change in Mexican constitutional democracy. Finally, it refers to the ongoing challenge these autonomous constitutional bodies face due to the adversarial stance that the President of the Republic has adopted against them.
{"title":"El estado constitucional mexicano: una constelación de autonomías","authors":"P. Ugarte","doi":"10.1093/icon/moac111","DOIUrl":"https://doi.org/10.1093/icon/moac111","url":null,"abstract":"\u0000 This article describes the emergence, evolution, and current crisis of autonomous constitutional bodies in Mexico. To this end, it begins by portraying the context in which they emerged, emphasizing four fundamental elements that explain and situate them historically and politically. It then describes certain distinctive features of these bodies and how they represent a change in Mexican constitutional democracy. Finally, it refers to the ongoing challenge these autonomous constitutional bodies face due to the adversarial stance that the President of the Republic has adopted against them.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48582369","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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