Dr Tom Daly Wednesday 6 December

Our last event for this semester seminar series will take place on Wednesday 6 December, 3-5 pm at Neil MacCormick Room.

Our former convenor, Dr Tom Daly, will be speaking on “Democratic Decay and Courts: part of the problem?”

Here is the abstract of his talk:

Democratic decay―that is, the deterioration of democratic rule falling short of full breakdown―is a rapidly evolving threat to democratic governance worldwide. In Poland, South Africa, Brazil, India, Japan, the US and beyond, democratic structures are not only under intense pressure from anti-democratic political forces, but also from longer-term social forces including declining public faith in democratic governance and rising support for illiberal, nativist and xenophobic political parties, movements and leaders. Courts in these contexts often tend to be painted in two ways: either as heroes or as captives, capable of standing up for democracy or acting merely as servants to an anti-democratic regime. This talk will argue that the picture is much more nuanced and that even independent courts can be part of the problem, focusing in particular on recent developments in Brazil and India. 

Forthcoming: Seminar on Democracy, Pluralism, and Constitutionalism in Southern Asia

On 21st November 2017, we will be hosting a joint event with the Edinburgh Centre for Constitutional Law and the Centre for South Asian Studies at Neil MacCormick Room.

The agenda is as follows:

14:00 – 14:10              Welcome and Introduction by the Chair: Navraj Singh Ghaleigh

14:10 – 15:00              A Royal Coup – The Forced Dissolution of Pakistan’s Constituent Assembly using the Royal Prerogative and the Misrule of Law: H. Kumarasingham

15:00 – 15:20              Discussants: Wilfried Swenden and Asanga Welikala

15:20 – 15:45              Plenary Discussion

15:45 – 16:00              Break

16:00 – 16:45              In Search of the Ancient Constitution? The Galactic Polity and the Constitutional Challenge of National Pluralism in Sri Lanka and Myanmar: Roshan de Silva Wijeyeratne and Asanga Welikala

16:45 – 17:15              Discussants: Jonathan Spencer and Stephen Tierney

17:15 – 17:45              Plenary Discussion

Forthcoming event next Tuesday

Scotland’s Place in Brexit: Role and Perspective”

Anthony Salamone (University of Edinburgh)
Date: Tuesday 17 October, 3-5pm

Venue: Neil MacCormick Room, David Hume Tower


In the aftermath of the EU referendum, one of the essential resultant questions has been the role of Scotland in the process of Brexit. The majority vote for Remain in Scotland, the traditionally more pro-EU nature of Scottish mainstream politics and the ambitious drive of the governing SNP contributed to building a notion early on that Scotland could (or should) have a different arrangement in respect of Brexit. To that end, the present Scottish government is occupied by two parallel and competing Brexit objectives – (1) to oppose (hard) Brexit in relation to Scotland and (2) to ensure that, as and when Brexit develops regardless, Scotland’s interests are represented. Differentiation for Scotland within the UK’s Brexit settlement has consequently become a focal point of debate, concentrating in particular on Scottish membership of/association with the EU’s Single Market. At the same time, the various positions and tactics of all the main Scottish parties have degraded the original political consensus on maintaining Scotland’s place in Europe (however that was defined). The future of devolution and the debate on independence further contribute to and complicate the picture, as do politics in the UK as a whole, the Member States and the EU institutions. This presentation will explore the state of affairs of Brexit for Scotland (including the Scottish government’s strategy), from a politics perspective, and evaluate the prospects of Scotland’s principal scenarios for Brexit.

Professor Nicholas Aroney at the CLDG

Dear all,

Our next CLDG’s seminar will be a Joint Event with the Legal Theory Research Group.

Speaker: Professor Nicholas Aroney (University of Queensland).

Title: “Between Union and Devolution: The Structure of the British Parliament in Comparative Perspective”

Date: 12 October, 4.30pm

Venue: Elder Room, Old College


The Parliament at Westminster has a three-fold status: it is the sovereign legislature on which the British Constitution rests, it is the general legislature for the United Kingdom, and it is the special legislature for England. Prior to devolution, Parliament simply legislated for the United Kingdom, and did so with sovereign authority; it was also constituted in a manner suitable to unified state. Devolution has involved a transfer of jurisdiction to the devolved legislatures, but it has not involved any structural change to Parliament itself. The House of Commons continues to be composed of members chosen to represent local electoral constituencies, and neither the Commons nor the House of Lords is designed to represent the people of the constituent nations of the United Kingdom as discrete political communities. This creates tensions when Parliament exercises its sovereign, general and special functions. At present, these tensions are managed through political conventions and procedural requirements, not legally enforceable rules. The Sewel Convention requires that the Parliament will not legislate on devolved matters without the consent of the relevant devolved legislature. The House of Commons has resolved that bills which in some respect relate exclusively to England (or England and Wales) must obtain the approval of a majority of English (or English and Welsh) MPs. All of this renders the British system unique in the world and a cause of much fascination. Other federal and quasi-federal systems distribute sovereign, general and special law-making functions to distinct legislative bodies, and their legislatures are constructed in a way that reflects these distinctions. It might be tempting to propose that the British Parliament should be reformed along similar lines. But that would be to overlook the unique historical character of each constitutional settlement, for even among federal systems there is great variety in the way that law-making powers are distributed and legislative bodies are constructed. While the American Senate and the German Bundesrat, for example, represent the constituent political units of the federation, they do so in very different ways. Likewise, any future reforms of the British constitution will necessarily develop in a manner unique to the British context, as they always have.

Oxford Edinburgh Public Law Colloquium

We are quite happy to announce the 1st Oxford/Edinburgh Public Law Colloquium, that will convene on Friday 29 September.

Five PhD students from Oxford University Law School will be presenting their work on public law matters, followed by comments by discussants from both Edinburgh members of Staff and PhD students. Topics range from human rights, political parties and referendums to administrative law.

Please, click here to access the programme.

The event will start at 9.30 with Professor Neil Walker‘s keynote address, entitled “Populism and Constitutionalism”.

Everybody is welcome to the event. If you are planning to attend the colloquium, please do send us an email confirmation to cldg@ed.ac.uk

Venue: Elder Room, Old College

Time: 9am – 5.30pm

Fortcoming event Tuesday 19 September 3-5pm

Dr Pablo Marshall (Universidad Austral de Chile) will give a seminar entitled Disenfranchisement as Internal Exclusion: Politics Beyond Human Rights and Democracy.

Venue: Neil MacCormick Room, David Hume Tower

The abstract of his presentation is as follows

This article investigates the political philosophical foundations of the electoral exclusion of convicted prisoners in modern liberal democracies. It considers the three main justifications of disenfranchisement as a principled exception to universal suffrage: (i) disenfranchisement is a democratic form of punishment, (ii) the franchise requires moral capacity or civic virtue, and (iii) it is meant to protect the integrity of the electoral process. I argue that all three justifications on their own fail to explain the practice of disenfranchisement and that they depend on assumptions that are unlikely to be reconciled with the principles of political equality and liberty that underlie universal suffrage: (i) disenfranchisement constitutes a contradictory form of democratic punishment because it destroys the link between the convicted person and the community; (ii) this practice treats convicted prisoners unfairly, demanding of them capacities and virtues that are not demanded of other enfranchised citizens; and (iii) disenfranchisement causes much more damage to electoral integrity than protection. I conclude that a justification of disenfranchisement in a framework that considers democracy and human rights as bases of legitimacy is an impossible task, and I recommend a departure from the justificatory paradigm to focus the analysis on the positive function(s) that disenfranchisement may perform in a political community. I explore the particular function of drawing internal boundaries using the critical idea of internal exclusion, the position of disempowerment of those that belong but are not included or represented. I argue that the electoral exclusion experimented by convicted prisoners may be better explained as a powerful symbolic complement of the physical, political and social exclusions that redundant subjects also are likely to experiment. Focusing on the political function rather than on the justification of disenfranchisement may serve two important critical tasks: (i) expose the democratic problem of internal exclusion and open the field to the organization of resistance and contestation strategies  against the exclusionary politics underlying disenfranchisement; and (ii) expose the shortcomings of the constitutional framework of liberal democracy in terms of fully grasping the consequences of excluding somebody from citizenship, this is, the failure to understand a clear deployment of the exclusionary politics of a community that is looking to constitute and affirm its identity against the otherness of the convicted prisoner.

All welcome

Forthcoming event 14th March 3pm

Elena Brodeala (European University Institute) 

Constitutional and Legal Debates on Reproductive Autonomy in post-Socialist Eastern Europe – A Case Study on Romania

Venue: Ochil Room (Rm B1.11), Charles Steward House  Click here for a Map


Issues related to human reproduction have always been the subject of strong controversies and the laws affecting this field seem to be under constant scrutiny. One of the widest changes in the regulation of reproductive rights took place with regard to abortion in Central and Eastern Europe after the fall of State Socialism. With the notable exception of Romania, abortion on request in Eastern Europe during State Socialism was generally legal. However, after the fall of the regime it was not only Communism as an ideology that was being rejected but also many of its laws and policies including the laws and policies promoting gender equality. This had a great impact on the way post-communist law-makers and courts approached matters like abortion. While in many Eastern European countries abortion was generally restricted, it was only in Romania that democracy brought a dramatic liberalization of reproductive rights and a general retreat of the State from the private lives of its citizens. This is due to the strict pro-natalist policies of the Romanian Communist leader Nicolae Ceausescu (1966-1989) during which around 10.000 women died because of illegal abortions, 2.000 were imprisoned and many others faced serious health problems for the same reason. This paper aims to explain more into depth what was the impact of the fall of State Socialism in Eastern Europe on the legal and constitutional debates on reproductive autonomy in the region with a special emphasis on Romania. Romania was selected as a case study because of its peculiar situation in the region and because it best illustrates how history and social background shape the legal and constitutional conversations on matters that are so contextually-bounded like reproductive rights. After explaining the general Eastern European situation and the way in which the Constitutional Courts from Poland, Germany and Slovakia have adjudicated different cases on abortion, the paper will focus on the special case of Romania. The paper will primarily focus on the peculiar history of abortion in Romania (i.e. Ceausescu’s “draconian anti-abortion legislation”, probably one of the most restrictive anti-abortion legislations in the history of Europe) and how it influenced the constitutional and political debates that took place after the fall of the regime in comparison to the other post-Socialist jurisdictions. Moreover, the paper will underline how Romania’s history of repressing reproductive autonomy hinders the pro-life voices and campaigns promoted in Eastern Europe mainly by U.S. organizations. The paper, however, will not be limited to abortion, but will also focus on assisted reproduction that started being practiced in Romania shortly after 1989. Assisted reproduction will be included in the discussion for two reasons. First, because the legacy of State Socialism in Romania led to a general lack of regulation and State intervention in this field as well, which, as it will be discussed in the paper, left space for serious abuses. Secondly, because when talking about reproductive autonomy, one has to bear in mind that this does not refer only to the idea of not having babies (i.e. abortion) but also to the right of having a baby when one cannot or does not want to do so “naturally”.  In other words, within the purpose of this paper reproductive autonomy should be considered according to the definition provided by The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in Article 16 (1) (e) as encompassing “the […] rights to decide freely and responsibly on the number and spacing of […] children […]”.