Presentation by Dr Catherine Dupré, Tuesday 9 December at 3.00pm

On Tuesday 9 December at 3.00pm in the Neil MacCormick Room (ground floor, Old College) Dr Catherine Dupré, Senior Lecturer, University of Exeter School of Law, will speak on

‘Human Dignity and Judicial Reasoning in European Constitutionalism’

While it has been enshrined in constitutions of European States since the end of the Second World War, with Italy in 1946 and Germany in 1949 paving the way towards (almost) systematic codification, the concept of human dignity has only recently attracted international academic attention in the field of constitutionalism and human rights. There is still much uncertainty and disagreement in relation to the concept’s exact substantive meaning and legal nature, but its growing use in case law and the number of recent books on this subject clearly indicate that human dignity is becoming a core concept of constitutionalism for the twenty-first century.

This paper focusses on a little-noticed dimension of human dignity, yet one that is arguably key to understanding its significance for human rights in Europe. Setting aside (for now) the complex and controversial issue of human dignity’s exact substance, an issue largely (if not exclusively) addressed by the EU Charter (under its Title I), this paper concentrates on what can be called the concept’s formal dimension, namely its role as a reasoning tool in judicial interpretation. Three aspects of this role will be discussed. Firstly, it is argued that human dignity is a crucial tool used by judges to put human beings at the centre of their concern and reasoning, especially when the alleged victims or applicants are particularly vulnerable. Secondly, human dignity, often criticised for its substantive vagueness or emptiness, has in fact proved to be a very useful discursive device for questioning the status quo and navigating new areas. Thirdly, human dignity might help understand the increasing use of comparative law by judges, for which we still lack a theoretical framework, in that it arguably triggers a type of dynamic interpretation seeking to enhance the level of human rights protection, which is perhaps best exemplified (but not reduced to) the living instrument method deployed by the ECtHR.

The meeting will be followed by the usual informal reception

* Dr Dupré is the author of Importing the Law in Post-communist Transitions, The Hungarian Constitutional Court and Human Dignity (Hart, 2003) and of The Age of Dignity, Human Rights and Constitutionalism in Europe (Hart/Bloomsbury, 2015, forthcoming).

Presentation by Prof. James E Pfander, Tuesday 25 November at 3.00pm

On Tuesday 25 November at 3.00pm in the Neil MacCormick Room (ground floor, Old College) Prof. James E Pfander, Owen L. Coon Professor of Law, Northwestern University School of Law, Illinois, will speak on

‘Non-Contentious Jurisdiction and Inquisitorial Judging in the Courts of the United States’

Scholars often contrast the inquisitorial practices of civil law judicial systems in Europe and elsewhere with the adversarial model of litigation that prevails in many Anglo-American systems. The presumed distinction turns in part on the nature of the judicial role: inquisitorial judges take a more active part in the development of the factual record, whereas judges in an adversarial system deal more passively with a factual record constructed by adverse parties. In keeping with this perceived distinction, civil law systems typically incorporate both contentious and non-contentious forms of jurisdiction, whereas most observers view the American practice as almost wholly adversarial. The Supreme Court of the United States, for example, disparages inquisitorial judging and often intones that the Constitution limits federal courts to the resolution of concrete disputes between adverse parties, thus apparently ruling out non-contentious jurisdiction altogether. Insistence on adverse parties, together with trial by jury and punitive damages, gives rise to what some term American procedural exceptionalism
And yet the history of American judicial practice somewhat surprisingly reveals widespread reliance on non-contentious forms of jurisdiction. In such widely varying settings as pension claims, naturalization proceedings, warrant applications, and bankruptcy administration, the federal courts have entertained uncontested ex parte applications for the determination of claims of right. After cataloging these non-contentious forms of practice, the paper questions the doctrine of American procedural exceptionalism and the Supreme Court’s related assumption that a constitutional adverse-party rule limits the power of the federal courts. After reclaiming the American inquisitorial tradition, the paper will conclude by sketching a few avenues for productive future comparison between the non-contentious law of Europe and the newly discovered non-contentious practice in America.

Discussant: James Lee, Senior Lecturer, King’s College London (visiting MacCormick Fellow)

The meeting will be followed by the usual informal reception

Presentation by Asanga Welikala, Tuesday 11 November at 3.00pm

On Tuesday 11 November at 3.00pm in Room 364 (third floor, Old College) Asanga Welikala, ESRC Teaching Fellow in Public Law, Edinburgh Law School will speak on

‘Democracy v. Liberalism? ‘Comprehensive Pluralism’ as an Alternative Normative Foundation for the Plurinational State in the Global South’

The ‘plurinational state’ is a constitutional model that has been developed in certain Western liberal democracies to accommodate multiple nations – and plural conceptions of nationality – within the state. While critical of many of traditional liberalism’s nostrums, and especially its atomistic focus on individualism, Western plurinational constitutionalism nevertheless derives much of its normative sustenance from rearticulated principles and values of political liberalism. This is a natural consequence of the empirical circumstances from which the model has so far been theorised, where both states and sub-state nations share historic liberal traditions. Liberalism, however, is not the dominant political tradition in many non-Western multinational polities. If the plurinational state is to serve as a model in dealing with national pluralism in such contexts, therefore, it needs, among other things, to expand its normative horizons beyond political liberalism. There are several obvious avenues of enquiry in this regard, including from the normative theory of republicanism, federalism, communitarianism, and even the analytical theory of performative nationalism. I suggest that the counterfactual ideal of ‘comprehensive pluralism’ proposed by Michel Rosenfeld might be a particularly useful way of approaching this problem. In addition to sidestepping otiose ideological debates involved in introducing ‘liberal’ ideas to non-Western contexts, when applied to the issue of national pluralism, this approach foregrounds the value of (communal) pluralism against the norm of equality (as between nations within the plurinational state), and as such it may be more susceptible to historical contextualisation as a constitutional strategy.

The meeting will be followed by the usual informal reception