Basal Questions :: Simon Evans

Mattias Kumm on the Constitutionalisation of Private Law in Germany

German Law Journal - Who’s Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law:

The relationship between

law and politics in contemporary Germany is in important ways the mirror image

of Weimar. Under the guardianship of the Federal Constitutional Court

(hereinafter FCC) the German Basic Law had, over the course of the second half

of the 20th century, developed to become what Schmitt might well

have referred to as a total constitution.

If a total state is a state in which everything is up for grabs politically, a total constitution inverts the

relationship between law and politics in important respects. If in the

total state law is conceived as the continuation of politics by other means,

under the total constitution politics is conceived as the continuation of law

by other means. The constitution serves as a guide and imposes substantive

constraints on the resolution of any and every political question. The validity

of any and every political decision is subject to potential challenge before a

constitutional court that, under the guise of adjudicating constitutional

rights provisions, will assess whether such an act is supported by good

reasons. The legislative parliamentary state is transformed into a

constitutional juristocracy.

New issue of I.CON

As usual, the latest issue of I.CON appears to have a great deal of interest in it. I'm particularly looking forward to reading the pieces by Eisgruber and Zeisberg, Schneiderman and Roach.

Catharine A. MacKinnon

Sex equality under the Constitution of India: Problems, prospects, and "personal laws"

Symposium North American Constitutionalism

Ran Hirschl and Christopher L. Eisgruber

Prologue: North American constitutionalism?

Kim Lane Scheppele

North American emergencies: The use of emergency powers in Canada and the United States

Christopher L. Eisgruber and and Mariah Zeisberg

Religious freedom in Canada and the United States

Yasmin Dawood

Democracy, power, and the Supreme Court: Campaign finance reform in comparative context

Leslie F. Goldstein

Constitutionalism and policies toward women: Canada and the United States

Linda A. White

Institutions, constitutions, actor strategies, and ideas: Explaining variation in paid parental leave policies in Canada and the United States

Kent Roach

Dialogue or defiance: Legislative reversals of Supreme Court decisions in Canada and the United States

David Schneiderman

Property rights and regulatory innovation: Comparing constitutional cultures

Jorge A. Schiavon

The central-local division of power in the Americas and renewed Mexican federalism: Old institutions, new political realities

Stephen Zamora and José Ramón Cossío

Mexican constitutionalism after presidencialismo

Another implied freedom case: PEEK v CHANNEL SEVEN ADELAIDE PTY LTD [2006] SASC 63 (7 March 2006)

Peek v Channel Seven Adelaide Pty Ltd [2006] SASC 63 (7 March 2006) is an appeal in a strike out application. The South Australian Full Court considers the extent to which the extended Lange qualified privilege defence applies to communications about courts and judges (answer: not any great extent).

Others (including Graeme Hill and Adrienne Stone in (2004) 24 Adelaide Law Review) have written before about how the Constitution was relevant to the decision in Lange - as one of my Advanced Con students summarised their argument this week, perhaps the constitutional arguments can be seen as giving the court "dutch courage" to extend a common law doctrine, an extension that absent the constitutional imperative might have been beyond the legitimate creative role of the courts.

I wonder if the constitutional arguments in Lange may have a converse influence on some lower courts called on to apply Lange. McHugh J may well be right in APLA that the Lange reasoning cannot embrace communications about courts and judges. Before APLA and since, lower courts have minutely parsed Lange and its reasoning to attempt to work out the answer. I wonder if all that constitutional heavylifting may distract some courts from noting (i) Lange extended a common law doctrine; (ii) that common law doctrine provides a level of protection that meets the minimum standards required by the Constitution; (iii) Lange emphasised that legislatures could provide additional protection; but (iv) there is no reason that the courts (perhaps even intermediate appellate courts) could not similarly develop the common law to provide additional protection; (v) there are good (but not overwhelming) arguments for extending the common law qualified privilege doctrine so that it covers communications about the courts and judges. (I emphasise this is conjecture about overall trends and influences, not a blanket characterisation of the judges and courts who have considered whether the Lange defence extends to discussion of courts and judges - some of the judgments, pre and post APLA, do appear to be alive at least to the theoretical possibility of the common law defence being further developed.)

Of course, if courts were to take step (v) above, they would not have the "dutch courage" afforded by the Constitution and (adapting the words of one of my students) commentators might "hang it on" (trans: robustly criticise) the court (particularly if it were an intermediate appellate court) for being too creative - in circumstances where the court isn't able to say "Don't blame us - it was the Constitution wot dun it"!

World Congress of the International Association of Constitutional Law 11-15 June 2007 - Call for Papers

The website for the World Congress of the International Association of Constitutional Law 11-15 June 2007 has appeared, without much fanfare as far as I have heard or seen. The Preliminary Programme looks very exciting. The call for papers seeks discussion papers for 15 workshops. Worth noting that although the conference isn't until June 2007, fully-written papers are due in February 2007. Time to start thinking ...