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


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.

Event 17 January 2017 POSTPONED

The CLDG roundtable on Miller v Secretary of State for Leaving the EU due to take place on Tuesday 17th January has been postponed due to delays in issue of the UK Supreme Court decision.

The event will now take place on Tuesday 14th February 2017, and further details will appear nearer the time.

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.