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

Abstract:

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 […]”.

upcoming event Brexit Round Table

Round Table discussion on R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union (The Brexit case)

14th February 3-5pm

Professor McHarg (University of Strathclyde)

Professor Mullen (University of Glasgow)

Dr Elisenda Casanas-Adam (University of Edinburgh)

Dr Cormac Mac Amhlaigh (University of Edinburgh)

Venue: 1.434 Teaching Room 7, Doorway 3, Medical School, Teviot Place. Please click here for a map

If you are interested in attending, please email us cldg@ed.ac.uk

 

Upcoming event

Dr Alex Latham (University of Sussex), “The Circumstances of Politics: Disagreement, Collective Action and the Sphere of the Political”

31st January 3-5pm. Venue: Rm 1.18, David Hume Tower

Abstract:

Jeremy Waldron has argued that much contemporary political philosophy fails to take adequate account of what he calls the ‘circumstances of politics’, namely: (i) the felt need for a decision on a common course of action, notwithstanding (ii) disagreement about what that course of action should be. While the idea is often cited, Waldron’s actual use of the circumstances of politics has been subject to little analytical attention. This article looks to remedy this deficit. I identify two categories of arguments that Waldron makes from the circumstances of politics: ‘toleration-arguments’ and ‘legitimacy-arguments’. These two types of argument invoke the circumstances of politics differently: the toleration-arguments stress the fact of disagreement, while the legitimacy-arguments emphasise the need for collective action. Armed with this basic typology, I argue that Waldron’s defence of legislation by assembly is an example of a successful combination of the two types of argument, whereas his ‘core case’ against judicial review over-emphasises the significance of disagreement to the exclusion of the felt need for joint action. In the final section I consider whether the analogy that Waldron claims between the circumstances of politics and Hume’s ‘circumstances of justice’ actually holds. I conclude that disagreement about justice can only feature as a basic presupposition of politics if one has a Lockean conception of justice as a ‘pre-political’ virtue, a position those ‘political realists’ who have praised Waldron’s work are unlikely to accept.

MacCormick Seminar abstract

From Political to Ethnic Community: The Hungarian Fundamental Law on the Ethnic Nation’s Will 

Dr Balazs Majtenyi (Hungarian Academy of Sciences – Eötvös Loránd University)

Through the review of the illiberal constitution of Hungary the presentation examines the conflict between the universal values of human rights and the particularistic national identity of political communities. There are no international and European standards directly applicable to questions concerning the national identity of political communities like, for example, the concept of the nation or ideological references used in a constitution by defining political community. The national identity of political communities, at the same time, might cause legitimate concerns for liberal democracy. The presentation analyzes the process by which the neutral (in the dominant universal and cultural sense) Hungarian constitutional identity moved toward one of cultural particularism, ethnically-based political community. It examines how an antiegalitarian version of the ethnic concept of nation has been given primary role in the Hungarian constitution (Fundamental Law, 2011).

The move to the primacy of particularistic values in Hungarian public law is examined in the context of the legal system of the European Union, acknowledging that the liberal model of constitutional democracies (as supported by the EU) is based on human rights, the rule of law, equality before the law, and procedural values. The presentation tries to answer the question what (if anything) can limit the identity-building project vis a vis universal values in public law.

Upcoming event – MacCormick Seminar

Tuesday 15th November 3pm

Dr Balazs Majtenyi (Hungarian Academy of Sciences – Eötvös Loránd University), current MacCormick visiting fellow at Edinburgh University, will offer a seminar entitled “From Political to Ethnic Community: What the Hungarian Fundamental Law says about the Ethnic Nation’s Will”.

Venue: Neil MacCormick Room (Rm 9.01), David Hume Tower

Abstract for today’s seminar 3 pm Neil MacCormick Room 9.01, David Hume Tower

‘Whatever people say I am, that’s what I’m not.’

Dr Alison L Young, Professor of Public Law, Hertford College, University of Oxford.

Accounts of democratic dialogue tend to get a bad press and it is easy to understand why. They appear to promise to provide a resolution of the apparent tension between constitutional and parliamentary protections of rights, ensuring that courts are able to protect rights sufficiently to deal with perceived tyrannies of the majority, whilst promising a sufficient remedy to the democratic deficit criticism that arises whenever courts are empowered to strike down legislation. However, a brief overview of those legal systems which had adopted the commonwealth model, the model designed to facilitate dialogue, would appear to suggest that the model collapses all too easily in practice into either a constitutional or parliamentary protection of rights in all but name. This chapter will argue that these difficulties are not because dialogue is wrong; but because we misunderstand what dialogue means.

First, arguments abound that dialogue can provide a middle way between legal and political protections of rights. However, this argument is difficult to make as it is hard to find any account of legal or political constitutionalism which advocates that only courts or only the legislature should play a role in the protection of rights. Second, dialogue appears to be unique because it looks at dynamic interactions and exchanges, rather than relying on a static account of rights to which legislatures and executives are meant to comply. However, dynamic interactions are advocated by theorists that we would traditionally regard as legal or political constitutionalists. Third, dialogue is connected with commonwealth models of constitutionalism. However, dialogue can take place in legal systems with a constitutional and a parliamentary protection of rights and, depending on how these institutions interact with each other, it may not occur in legal systems which have adopted a commonwealth model of rights protections. In other words, democratic dialogue appears to be either ubiquitous or non-existent.

If we are to understand dialogue properly we need to recognise its role as a constitutional model, focusing on analysing interactions between institutions. The role of dialogue is to provide an account of those interactions which are better able to facilitate the many purposes of democratic dialogue – a better protection of rights, the facilitation of deliberation, the engagement of the public more broadly in the determination of rights and acting as check and balance between the institutions of the constitution in a manner that provides an important pressure valve. This chapter will outline these aims and explain how these may be easier to achieve in commonwealth models of rights protection.