On July 1, 1997, sovereignty over Hong Kong was transferred from the United Kingdom to the People’s Republic of China, and, so the story goes, the sun finally set on the British Empire. Except it didn’t. As Paul Scott masterfully explicates in The Privy Council and the constitutional legacies of Empire, the Empire endures, both in terms of ongoing control over Overseas Territories unlikely to become independent, and in the retention of formal mechanisms of constitutional governance which hide this imperial residue from the domestic constitutional order.
Scott’s article is part of a symposium edition of the Northern Ireland Legal Quarterly, entitled “The Constitutional Legacies of Empire.” This broader project is of a piece with comparative and global constitutionalism’s increased—and important—focus on colonialism and decolonization. For example, in an editorial in March 2020, the editors of Global Constitutionalism charged constitutional scholars to “decolonise constitutional law” through “a commitment to analyzing the colonial legacy in constitutional formation, the contemporary rights regime, and international public law, from both theoretical and historical perspectives.” Scott turns a critical eye on the British constitution itself and calls for a reckoning “with the legacy, and indeed the ongoing reality, of the British Empire.”
He opens by describing the territorial residue: fourteen Overseas Territories (OTs) whose position in the UK’s constitutional order both “exclude[s] them from constitutional consciousness,” and even “mislead[s] as to their constitutional status.” These OTs are without representation in the Westminster Parliament, which nevertheless has ultimate legislative authority over them, and though they are “‘neither foreign nor Commonwealth,’” they are under the purview of the Foreign and Commonwealth Office (a successor to the Colonial Office), not the Home Office.
This imperial twilight is managed by the Privy Council, a “black hole”, in Scott’s words, of the British constitution and the reason that “the UK is able to remain an Empire without being required to acknowledge that fact directly within its constitutional order.” Scott paints a picture of an institution shrouded in mystery—one that works a subterfuge, allowing the UK to maintain a domestic and an imperial constitution simultaneously. And he bemoans the lack of critical attention to the Privy Council paid by domestic constitutional lawyers, arguing that scholars must engage with its anomalies in order to confront, in turn, both the UK’s imperial past and its “ambiguous imperial present.”
The Privy Council has ancient roots; its earliest incarnation, the Curia Regis, emerged in the aftermath of the Norman invasion. The Privy Council advises the Sovereign, and there are over 600 Privy Counsellors, including members of the Royal family. As Scott notes, the list on the Privy Council’s website provides no information about individual members of the Council, making it almost “impossible” to figure out “who many of these people are, and why they have been appointed to the Council” without extensive research. Although some Commonwealth countries appear to be represented, there is no obviously “direct or systematic representation” of the OTs.
The Privy Council has both a judicial and legislative role in governing the OTs, presenting what Scott calls a “substantive continuity” with the imperial constitution. The Judicial Committee of the Privy Council is well known, and its ongoing jurisdiction as the court of final appeal for a number of Commonwealth countries (both monarchies and republics), is an obvious link to Britain’s past Empire. But it retains jurisdiction over the OTs, and, as Scott points out, in some years, “such cases represent more than a third of those decided by the JCPC.” Scott argues that if these cases arising from the OTs were to be handled by the UK Supreme Court instead (as presumably would befit a domestic jurisdiction), it might force an acknowledgment of the “ongoing imperial nature of the UK.” It is possible that OT cases could account for upwards of 10 percent of the UK Supreme Court’s work in a given year and would receive the publicity attending decisions of that Court. (The JCPC for example does not have its own Twitter feed.)
The legislative role of the Privy Council also “disguises the substantive reality whereby the government of the UK legislates . . . for a residual empire.” Scott explains that, although Parliament retains a formal power to legislate, in practice law is made for the OTs through the Queen in Council. In operation, this is done by the Lord President of the Council and three other members (current Government ministers who are themselves Privy Counsellors) in the presence of the Queen. Scott criticizes the two primary forms of legislation promulgated as diverging in important ways from expectations under the domestic constitution. Statutory orders in council do not receive “the normal processes” of parliamentary scrutiny, and prerogative orders in council can escape publication and come into force without being seen by Parliament at all. Scott is careful to note that the number of prerogative orders in council is likely small, but quantifying their existence is complicated by inaccessibility. And the underlying problems of principle remain: a lack of democratic accountability and even a threat to “basic standards of the rule of law.”
Scott’s thoughtful study makes an important contribution to the study of constitutionalism and empire. In shining a light onto the Privy Council, Scott argues that it provides “cover for practices that the domestic constitution would rightly reject.” He does not take the final step in his article, but it seems a short distance to the claim that the imperial residue works to undermine the core democratic commitments of the British constitution itself. In this Scott echoes the work of American scholars confronting U.S. constitutional history. In both cases, an old but still-relevant story: power corrupts, and imperial power perverts.
Cite as: Erin F. Delaney, Empire’s Residue
(September 9, 2021) (reviewing Paul F. Scott, The Privy Council and the constitutional legacies of Empire
, 71 N. Ireland Legal Q.
261 (2020)), https://intl.jotwell.com/empires-residue/
Ran Hirschl’s City, State: Constitutionalism and the Megacity (hereafter, City, State) addresses a significant gap in the constitutional law literature. Cities are economically, politically and culturally important and their importance will only grow. (P. 8.) Yet, Hirschl argues, constitutional theory and practice have not kept pace. Constitutional law scholarship does not have the “conceptual language and constitutional categories” (P. 10.) to account for the rise of cities. And constitutional orders typically assign cities a subordinate status, “as ‘creatures of the state’, fully submerged within the Westphalian constitutional framework, and assigned limited administrative local governance authority.” (P. 10.) City, State diagnoses this neglect and offers proposals for how constitutional orders can address it.
The Introduction sets the stage for the arguments that follow. Hirschl describes the rise of cities and the policy challenges posed by this rise. Among the most striking trends he identifies is the change in percentage of the world’s population who live in cities: “In 1800, 3% of the world’s population lived in cities. In 1950, less than 30% did; by 1990 43% of us were city dwellers. By 2019, this proportion has grown to 56%.” (P. 1.) Seventy percent of the world’s population is projected to live in cities by 2050. (P. 2.) These raw numbers tell only part of the story. The distribution of growth is uneven: “about 9 of every 10 urban dwellers since 1960 reside in Asia, Africa or Latin America.” (P. 4.) The rise of megacities—defined variously as cities with more than 5 or 10 million—has been similarly vertiginous. In 1950 New York was the only city in the world with a population of 1 million. By 2018, 33 cities had populations of at least 10 million. And studies predict that there will be cities with populations of 50–100 million in the next century. (P. 6–7.) These demographic changes create policy challenges. In today’s cities, poverty is concentrated and extreme, public health is threatened, and the environment degraded. (P. 5.) Hirschl further identifies problems that flow from cities’ “constitutional non-status,” including deficits in democratic representation and an absence of jurisdictional autonomy. (P. 9.)
With this context set, Hirschl turns in chapter one to flesh out his claim that cities are neglected in constitutional law. He provides a tour d’horizon of how cities have been considered in political theory, the social sciences, urban planning and innovation studies, journalism, and international and global law scholarship. He contrasts this vast body of scholarship with the paucity of writing in the field of constitutional law and criticizes the field’s focus on the state. Hirschl then turns to describe briefly how constitutions around the world describe cities. He closes the chapter by describing “neo-secessionism”, which he defines as “an explicitly counter-convergent mode of response to various globalization trends, constitutional or otherwise.” (P. 41.) He notes that although neo-secessionist movements around the globe have focused on “the local” they have not identified this concept with the “the urban”, at least in part, because “cities lack the constitutional power to bring their own local interests to the fore.” (P. 48.)
Chapter two describes the subordinate status of cities in the Global North. Hirschl surveys the relevant bodies of positive law in the United States, Canada, Australia and several European countries. He contrasts how the status of cities is debated in litigation in North America with the way that “megacity discussion in Europe is largely taking place in central government and policy making circles.” (P. 101.) Yet despite these differences, argues Hirschl, the constitutional orders of the Global North are united in their neglect of cities.
Chapter three provides a counter-point to chapter two. Hirschl describes innovations in Asia, Latin America and Africa that create constitutional space for cities, and he attributes these changes to the relevant polities’ need to respond to rapid changes in their urban environments, their constitutions’ amenability to change and specific alignments of “political power holders, national and subnational governments’ interest.” (P. 104.)
Hirschl finds in Japan, Korea and China examples of megacities being developed “economically and politically, as a means of nationwide modernization, economic transformation, and global branding.” (P. 104.) For example, a series of national government decisions resulted in the Metropolis of Tokyo’s being given the status of a prefecture in 1943. Moreover, several provisions of Japan’s post-war constitution protect the Tokyo Metropolitan Government’s fiscal and regulatory autonomy. (Pp. 105–06.) As a consequence, approximately 82% of Tokyo revenue is generated from local taxation (P. 106) and the metropolis is at liberty to pursue progressive policies that diverge from those of the national government. (P. 107.) Hirschl concludes that the national government, by granting Tokyo a significant measure of constitutionally protected autonomy, has harnessed “the city’s size and stature to stimulate national economic development and enhance the nation’s competitiveness and both regionally and globally.” (P. 108.)
The evidence of cities benefitting from constitutional autonomy elsewhere is mixed. In South Africa, the 1996 post-Apartheid Constitution granted municipal governments in major urban centres significant regulatory and fiscal autonomy. (P. 129.) Municipal governments are further entitled to an equitable share in nationally raised revenue in order to “provide basic services and perform the functions allocated to them.” (P. 130.) Hirschl contrasts the South African case with those of India and Brazil, where, because of confluences of national political factors, the constitutional status of cities has not consistently yielded on-the-ground autonomy. Hirschl closes the chapter by surveying the cases of Buenos Aires, Mexico City, Nairobi, Cairo and Dhaka in order to “illustrate the significance of political shifts in explaining shifts in national governments’ willingness to bolster the constitutional status of cities.” (P. 133.)
Chapter 4 looks at means of enhancing the power of cities, outside of granting them constitutional status. Hirschl first examines how international networks of cities have achieved significant gains in environmental protection by committing their members to climate change mitigation plans (P. 153) and by influencing transnational and international policy. (Pp 153–54.) Hirschl then turns to various cities’ attempts to protect human rights and promote social inclusion. These efforts range from city-level rights charters, such as the Montreal Charter of Rights and Responsibilities, to declarations committing cities (e.g., San Francisco) to international rights instruments (e.g., the Convention on the Elimination of All Forms of Discrimination Against Women), to the creation of city-level human rights bodies (e.g., New York City’s Commission on Human Rights). (Pp 158–65.) Hirschl concludes the chapter by discussing various urban citizenship initiatives, including municipal identity cards, that aim to recognize the affiliation residents (including undocumented migrants) have with their cities and formalize the ways that cities regulate their everyday lives. (P. 167.) Throughout the chapter Hirschl praises these various attempts to increase the power of cities, while noting that each initiative falls short. Because most cities in the world do not have constitutional status, Hirschl argues, they ultimately cannot wield effective political power.
Chapter 5 offers a variety of ways of rethinking the constitutional status of cites. Some of what Hirschl offers takes the form of concrete proposals. He proposes: (i) redesigning electoral systems to address the systematic under-representation of urban voters (Pp. 179–81); (ii) giving “enhanced political and constitutional voice to more vulnerable residents of megacities in the Global South” (P. 175); and (iii) implementing fiscal equalization measures that would reduce economic inequalities within metropolitan regions. (Pp. 213–19.) Chapter 5 also provides policy diagnoses. For example, Hirschl argues that because cities lack constitutional status—and thus do not have the regulatory capacity to bargain on more equal terms with corporations—they are overly deferential to big business. (P. 183.) In a similarly diagnostic vein, Hirschl argues that global policy challenges, including climate change and economic inequality, can only be effectively addressed if cities have constitutionally guaranteed powers to, for instance, build public housing that is adequate to their populations’ needs (Pp. 192–94) and develop infrastructure that will protect residents from climate change’s most devastating effects. (P. 196.) Hirschl concludes the chapter by challenging theorists to develop constitutional concepts, such as subsidiarity and “community standards,” in order to give metropolitan governments the constitutional powers they need to safeguard the distinctive “super-diversity” (P. 226) that characterizes the modern metropolis.
City, State: Constitutionalism and the Megacity is a magisterial work: bold in its ambitions and sweeping in its coverage. With it, Hirschl has seeded the field of urban constitutionalism. I am confident that as the field flourishes, scholars and practitioners will have occasion, time and again, to draw inspiration from his insights.
T. Alexander Aleinikoff and Leah Zamore’s compact-but-ambitious new book, The Arc of Protection: Toward a New International Refugee Regime, seeks to transform the international refugee system by proposing a set of legal reforms centered on redistributing responsibility northward, increasing mobility, and better enforcing rights. The authors’ reform vision was developed through decades of research and practice experience.
The legal-political discourse on refugees in the United States focuses largely on disputes over quantities and definitions. How many refugees should be admitted each year: 50,000, 125,000, or (as in fiscal year 2018) 62? Should gang- and domestic-violence be considered persecution and thus valid grounds for asylum? The ways in which these issues are resolved can mean life or death for many displaced people. But even granting all of the reforms that domestic refugee advocates seek would protect only a small fraction of the world’s forcibly displaced. The great majority of the approximately 27 million refugees would still be trapped in poverty in the Global South – effectively confined to underfunded border camps or to urban areas – in either case, largely blocked from the formal economy and from effective redress of rights violations.
The authors therefore deserve credit for adding their voices to the growing set of scholars and practitioners arguing for more radical changes to the international system. The first part of the book documents how the international refugee protection system evolved through the twentieth century: Initially a system designed to substitute other states’ legal protections when a state withdrew its own protections from one of its nationals, it became one centered on ad hoc humanitarianism. The authors then identify a series of policy reforms. Their key proposals include expanding the scope of harms that trigger protection by moving away from “persecution” as the basis for entitlement to protection, bolstering the shared responsibility of the Global North vis-à-vis the South, and expanding third-state resettlement as a durable solution.
Aleinikoff and Zamore acknowledge that they are not the first to call for some of these changes. The more provocative aspects of their proposal, however, part ways with other elements of the so-called modern “liberal consensus” for reform. Most notably, the authors critique the emerging consensus of aiming to keep refugees closer to home. They take issue with views – such as those espoused by social scientists Alexander Betts and Paul Collier – who generally believe that mass re-settlement in other parts of the world is not politically feasible on a sufficiently large scale, and that integration into the economies and communities of the region will do the most good for the most refugees. In contrast, Aleinikoff and Zamore think that liberalized global mobility should be a centerpiece of any comprehensive plan. Refugees, they argue, should be afforded great latitude in their choices of where to relocate based on their cultural, community, religious, and labor preferences.
In their commitment to prioritizing mobility and choice, Aleinikoff and Zamore join those endorsing greater refugee self-reliance. But, and drawing a contrast with the liberal consensus, they caution against too much self-reliance, which underappreciates how vulnerable many refugees truly are. They are wary of what some would call neoliberal-oriented policies: approaches that put undue faith in deregulation, offer employment without robustly protected rights, and rely on other market-based solutions. As applied to financial and development programs in developing countries, the authors believe that these sorts of policies have performed poorly, and they see little reason to expect better results here.
Without taking a side in these debates, I was struck by the scope of the authors’ reform vision. Yet any such call for expanding global rights of entrance, mobility, and non-return, is bound to face questions of inequity: “Why is group X more deserving than group Y?” In that vein, I would appreciate hearing why those who take “necessary flight” (to use their proposed standard) should enjoy greater long-term immigration rights, freedoms, or subsidies than other non-privileged would-be migrants. Neither “persecution” nor “necessary flight” is a neatly binary concept; persecution and necessity exist in degrees. Many would-be migrants have suffered appreciable harms in their country of nationality— poverty, famine, disease, violence, or natural disasters. Most of them would, of course, make many positive contributions to their host society. But for many of these, their departure would be considered economic: neither strictly “necessary,” nor resulting from Refugee-Convention-style formal “persecution.”
It is unclear, therefore, why policy should provide dichotomous privileges, with those deemed to meet these amorphous legal thresholds having the national borders and checkbooks of the world opened to them, while those falling just short remaining trapped. Indeed, some refugee advocates oppose significantly expanding both the class of people receiving protection and the basket of benefits they receive, largely because doing either would dilute the very concept of “refugee,” backfiring and reducing public support for refugee-protection programs. Of course, this line-drawing critique is not new: for decades, the 1951 persecution standard has been criticized as creating an artificial and unjust dichotomy. Decades of global conferences, discussions, and scholarship have thus far not produced a politically workable substitute.
Despite not fully addressing all the issues it raises, The Arc of Protection adds much to the discussion about possible ways forward for the international refugee regime. I urge practitioners, scholars, and policymakers in the field read it and seriously consider its proposals.
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- Jorge L. Esquirol, Credit Supports for Italian Specialty Products: The Case of Prosciutto and Long-Aged Cheese, 14 FIU L. Rev. 589 (2021).
- Tomaso Ferrando, Gangmastering Passata: Multi-Territoriality of the Food System and the Legal Construction of Cheap Labor Behind the Globalized Italian Tomato, 14 FIU L. Rev. 521 (2021).
- Helena Alviar García, Italian Coffee: Retelling the Story, 14 FIU L. Rev. 443 (2021).
- Michele Graziadei, The Making of an Iconic Cheese: Mozzarella Di Bufala Campana D.O.P., 14 FIU L. Rev. 615 (2021).
- Fernanda G. Nicola & Gino Scaccia, It’s All About the Pasta: Protectionism, Liberalization, and the Challenge for Quality and Sustainability of Made in Italy, 14 FIU L. Rev. 479 (2021).
In 2020, Jorge Esquirol organized a magnifico symposium, “Made in Italy: The Law of Food, Wine and Design,” dissecting the laws that support the “Made in Italy” branding for the country’s most valued and globally exported products: espresso, mozzarella, olive oil, Parmigiano, pasta, prosciutto, tomatoes, wine, as well as design and fashion. This jot focuses on food.
Was your mouth watering just reading this list? Perusing the volume will both deepen and question your appreciation for Italian foods. You will learn fascinating facts about their histories, cultural valence, production conditions, consumption patterns, and regulation. All humans eat and most participate in the global trade of food, yet foodways (eating and culinary practices) continue to be tied to personal, cultural, and national identities. The collection of articles contributes to the burgeoning scholarship on international and comparative food law. Jotwell does not usually publish reviews of symposia, but this compendium is most powerful when taken in its entirety. It is not any individual story of food, but it is the collection that is remarkable. Read as products of law, these foodstuffs raise deep and troubling issues of imperialism, unequal trade between North and South, labor exploitation, animal abuse, and environmental degradation.
For instance, if you thought of spaghetti as a symbol of dolce vita, you might reconsider after reading Fernanda Nicola and Gino Scaccia’s critical history of the regulation of pasta since the 1900s. The social importance of pasta in the Italian diet is such that it became a subject of legislation early on, including its composition, price, and conditions for import and export. But after Mussolini’s 1922 coup, fascist propaganda promoted pasta eating (before turning against it), launching a nativist “battle for grain” to make Italy self-sufficient in wheat.
Telling the story of how coffee exports became central to the Colombian economy in the twentieth century, Helena Alviar García scrutinizes the myth of “Italian” espresso. Positioned as an essential social ritual (and glorified as a harbinger of democracy), Italian coffee culture is also the result of colonialism, unequal global trade, and property regimes incentivizing land grabbing and deforestation. All coffee is imported to Italy and yet the global infatuation with gourmet and specialty coffee has benefitted Italy’s exports of roasted grains imported from Colombia, among other countries.
Italy may not grow coffee beans, but it is the second largest producer of tomatoes in the world after the United States. Turning to the interaction between spaces of legality and illegality in the branding of “Made in Italy,” Tommaso Ferrando focuses on trade law, competition law, and migration law. He points out the role of exploitative conditions of agricultural work (which sometimes approximate enslavement) and organized crime in the construction of the Italian passata (tomato sauce). Italy developed a criminal legal framework to address these violations, but it remains woefully underenforced, much like the global tomato chain ignores the migrant worker as an invisible, exploitable, and disposable means of production.
Michele Graziadei analyzes the role of intellectual property law in making mozzarella di bufala (buffalo milk mozzarella) an iconic cheese, one of the most beloved “Made-in-Italy” products. As key to this success, he emphasizes Italian and European geographical indication labels associating the product with a well-defined geographical area and a certified production method protecting it from competition. Analogously, Esquirol’s article shows that along with production norms, tax regimes, and other background rules, secured lending laws allowing specialty food products such as hams and cheeses to serve as collateral give a crucial edge to their producers. Meanwhile the farmed animals, the (often undocumented) migrant workers who milk and slaughter them, and their increasingly polluted environments are harmed by the lack of legal protections.
The contributors to this symposium do a terrific job of problematizing the idea that there is such a thing as “Italian” food, highlighting that a complex web of local, national, regional, and international laws and private ordering systems determine which foods are produced where and whether they will be considered “Italian.” Their intervention should be read as an invitation to conduct similar research projects on a wide range of foods and cuisines. In this spirit, I have written about French food Whiteness, that is, the use of food law and eating practices to reify and reinforce Whiteness as the dominant racial identity in France and elsewhere. Anyone interested in building the critique of French food through the lens of the law should consider this an open call for papers for a “Made in France” symposium to be held (why not?) in Paris when the health situation will allow it. In the meantime, bon appétit!
Mathilde Cohen, Pizza, Pasta, and Gelato: The Legal Construction of “Made in Italy" (June 31, 2021) (reviewing Jorge L. Esquirol, Credit Supports for Italian Specialty Products: The Case of Prosciutto and Long-Aged Cheese, 14 FIU L. Rev. 589 (2021); Tomaso Ferrando, Gangmastering Passata: Multi-Territoriality of the Food System and the Legal Construction of Cheap Labor Behind the Globalized Italian Tomato, 14 FIU L. Rev. 521 (2021); Helena Alviar García, Italian Coffee: Retelling the Story, 14 FIU L. Rev. 443 (2021); Michele Graziadei, The Making of an Iconic Cheese: Mozzarella Di Bufala Campana D.O.P., 14 FIU L. Rev. 615 (2021); Fernanda G. Nicola & Gino Scaccia, It’s All About the Pasta: Protectionism, Liberalization, and the Challenge for Quality and Sustainability of Made in Italy, 14 FIU L. Rev. 479 (2021)), intl.jotwell.com/pizza-pasta-and-gelato-the-legal-construction-of-made-in-italy.
Conceptually, “terrorism” is complicated. Although a definition is simply stated – terrorism is the unlawful use of violence for political ends, usually against civilians – the “unlawful” component of the definition and the “civilian” component blur quickly. An attack by a non-uniformed independence fighter on a police station closely aligned with military operations treads the line. So does the civilian who is willing to give coded warnings to fighters when regime forces enter a neighborhood. One man’s terrorist is another man’s freedom fighter, or so they say.
Notwithstanding the legal gray zones, there are national and international legal regimes dedicated to stamping out the practice. Enter Pooja R. Dadhania’s Paper Terrorists: Independence Movements and the Terrorism Bar, which tackles a discrete, specific ambiguity in the law of terrorism and proposes a practical, reasonable, and immediate measure that can be taken to bring clarity to at least a thread of the far more intricate tapestry. Her article is one I like a lot, and it is one with which I encourage scholars of this difficult area of the law to engage.
Dadhania’s focus is immigration law, and the complexities caused by the “terrorism bar” used to prohibit U.S. entry to those who have committed unlawful violence. Created by the 1990 Immigration Act and expanded in the wake of the September 11, 2001 attacks, the terrorism bar in the Immigration and Nationality Act (INA) precludes any noncitizen who has engaged in “terrorist activity” from most immigration relief, including asylum. The breadth of the term “terrorist activity” in the INA is “staggering,” she writes, “capturing conduct that may not be commonly considered terrorism and that would include the conduct of American Revolutionary War soldiers” and irregulars fighting for independence in 1776. In one vivid illustration Dadhania offers, an Eritrean applicant was denied for receiving physical fitness exercises and one rifle-shooting lesson from the forces fighting against Ethiopia during the then-as-yet-unsuccessful Eritrean war for independence.
The contribution Dadhania makes to this high-stakes debate is asking whether the applicant was working on behalf of an “independence” movement or whether it was an opposition movement. If the former, then both U.S. and international law permit immigration judges to determine that the applicant was engaged in lawful activities for a “state”. If the latter, the same activities would be “unlawful” as they would violate the law of the incumbent regime resisting the opposition movement.
Dadhania reviews the sources of the United States’ approach to the recognition of foreign states —from executive branch practice to the Restatement (Third) of Foreign Relations Law to the Foreign Sovereign Immunities Act to the act of state doctrine—to outline the possibilities, and sources of confusion, that now vex the application of the terrorism bar. After careful and detailed analysis, Dadhania recommends that adjudicators adopt the Restatement standard in the context of the terrorism bar to evaluate the lawfulness of a noncitizen’s conduct in furtherance of an independence movement. The Restatement bases recognition on “a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other states.”
The Restatement is particularly important because it incorporates the terms of the Montevideo Convention, which has been ratified by the U.S. and is broadly representative of either treaty or customary international law of nearly every country in the world. The Montevideo Convention dates to 1933, when Central and South American states argued that there should be uniform international criteria for recognition of statehood as part of a broader effort to reject the dispute or opposition to their statehood by former colonial regimes. Montevideo Convention parties agreed to criteria that made it easier for other dependent states with limited sovereignty to gain international recognition. According to Dadhania, the choice between alternative (what she labels “recognition-based”) standards and the Restatement standard is ultimately a decision about which branch of government is most competent to apply the standard as well as the standard’s accuracy. “In the area of foreign relations or issues that are directly adjacent to foreign relations, the common sensibility may be that the executive branch is more competent than the judiciary to make such decisions. However, the inquiry is more nuanced in the context of immigration law,” and therefore the judiciary is better suited to 1) make the determination and 2) apply a standard not complicated by the executive’s perhaps conflicting interests. The Restatement standard is fact-intensive – a feature that lends itself well to judicial application.
It is important to recognize that Dadhania’s article doesn’t address other areas where the Department of Homeland Security may enter evidence for disqualification based on prohibited activities; it just covers the subset of “unlawful “activities that have caused so much confusion. As she notes, determinations that implicate foreign sovereign immunity, diversity jurisdiction, or the act of state doctrine may have external consequences because they affect not only private persons, but foreign entities as well since courts are either granting or denying rights based on statehood.
Dadhania’s solution is elegant and straightforward and deserves the attention of the U.S. government, the scholarly community, and the immigration bench.
William J. Moon, Delaware’s Global Competitiveness
(Jan. 30, 2021), available at SSRN
Post-election headlines that Delaware is finally “on the map” after “centuries of obscurity” are anathema to corporate law scholars. Delaware has long been at the center of US corporate law. US corporations may choose where they organize, untethered to their physical location. This creates the tantalizing – and much-studied – possibility of a market for corporate law. In many accounts Delaware dominates that market, with the majority of Fortune 500 companies organized in the state. But the market for corporate charters is not just a domestic US market. It is also a global market. And in the context of that market, Delaware is not doing so well. In Delaware’s Global Competitiveness, Professor William Moon studies the place of Delaware corporate law in the world.
Moon steps into a crowded field, against the backdrop of decades of articles about the reasons for Delaware’s dominance, debunking or promoting or explaining the market for corporate law. But Delaware’s Global Competitiveness and Moon’s recent companion article Delaware’s New Competition fill a key gap. As Moon points out, the discussion of Delaware’s corporate dominance has almost entirely neglected the global scope.
Delaware itself has sought worldwide reach. The Delaware Division of Corporations has a globe as its icon. Its page answering “Why Incorporate In Delaware?” gives users the ability to “choose their language” from among “العربية, Deutsch, Español, Français, עברית, Nederlands, 日本語, Português, [and] 中文.” Moon suggests that these efforts have been unsuccessful.
Moon provides data to support his claims about Delaware’s growing “international unpopularity.” He examined all publicly traded foreign companies listed on American stock markets from 1985 to 2018, focusing on companies organized outside of their home country. While 30% of these companies were organized in Delaware in 1985, this percentage steadily decreased until it reached 11% in 2018.
Moon then digs deeper into the underlying documents about Chinese corporations listed on American Stock Markets. Interestingly, most are incorporated outside of China; they “actively shop for corporate law.” (P. 24.) And Delaware’s law is no longer a common choice. Whereas 40% were incorporated in Delaware in 1985, these numbers have dropped to single digits. In 2018, less than 5% incorporated there.
In digging, Moon uncovers the key fun fact of the article: More Chinese companies listed on American Stock Markets are incorporated in Nevada than in Delaware. Fun fact, at least, for followers of corporate law, who think immediately of Nevada’s special claim to being a “liability-free jurisdiction,” attracting all sorts.
Why is Delaware unpopular globally? Moon makes the plausible point that Delaware’s prohibitions on self-dealing transactions are an awkward fit with Chinese companies, which are set up as a tangle of entities that routinely engage in intra-group transactions. (P. 44.) The content of Delaware corporate law is the problem. One size does not fit all, and “good” corporate law may not be absolute.
Moon also addresses some of the other possible explanations for Delaware’s international unpopularity. There are two chief contenders. The first is a tax story. Moon’s data reveals the popularity of incorporating in well-known tax havens: Cayman Islands (62% of the Chinese companies studied in 2018) and the British Virgin Islands (13%). The Nevada incorporations come with US taxation, which complicates the tax story, but it is difficult to rebut fully. Likewise, the possibility that prized “foreign issuer” status drives incorporation choice is difficult to refute. Moon’s response is creative: he relies in part on the Nevada incorporations, but also draws on hand-collected information showing that these companies do not adopt Delaware-like corporate governance provisions.
One of the pleasures of this article is the questions that it raises. For example, which companies are shopping? And how has this changed over the thirty or so years in Moon’s study? An increased pool of corporations is “eligible to shop for Delaware law” as a “number of major foreign nations have relaxed legal restrictions that forced corporations to be bound by local corporate law.” (P. 18.) Brazil, Canada, China, India, Israel, Japan, the U.K. and the US all allow corporations with operations there to incorporate elsewhere. (P. 19.) Although Chinese companies are Moon’s focus, he also includes an intriguing mention of other companies and countries – for example the “’Amazon’ of Africa” was organized in Germany. (n. 17.) There is space, in other words, for interesting future study that builds on this article’s many strengths.
The modern story of Delaware corporate law – like other legal areas – is partially about the role of the United States in a global marketplace. By identifying shifts in the corporate law market, Moon’s work creatively and thoughtfully pushes the reader to consider corporate law’s global scope.
The Brexit referendum result in June 2016 brought to the boil a cauldron of constitutional politics that had been simmering since the piecemeal New Labour reforms of the 1990s. Those reforms were undertaken as a programme of constitutional modernisation in improving the legal protection of individual rights and in establishing asymmetric devolved institutions at the peripheries of the Union. Despite some radical rhetoric at the time, it was, in both style and substance, a very British kind of reform – incremental, pragmatic, careful to preserve a cherished narrative of historical continuity, and dismissive of theoretical grand designs. They were meant to be practical solutions to practical problems, which would enable the constitution to change sufficiently in order to carry on as successfully as ever before.
Except that this was not how it turned out. The changes to the regime of rights protection turned out to be, for some at least, a cultural revolution through the judicialisation of politics. The institutionalisation of democratically elected loci of popular sovereignty at the sub-state level turned out to be difficult to reconcile with the principle of the legislative supremacy of the Crown-in-Parliament upon which the rest of the unwritten constitution still rested. The judicialisation of rights protection and multilevel governance were both reforms that presumed UK membership in the European Union in perpetuity. When Leave won the Brexit referendum largely through English votes and against majorities for Remain in Scotland and Northern Ireland, these debates and especially the question of the UK’s continued territorial integrity have become engulfed in flames of passionate rhetoric and deep divisions. All of a sudden, the UK constitutional settlement finds itself in a very un-British place.
Even in the somewhat more rarefied atmosphere of academic discussions of the constitution, the sense that something is seriously wrong and that something must be done is never far away. It is in this context that the old debate about whether or not there is now a need to codify the constitution, in whole or in part, has assumed new relevance. Two new rigorously researched and persuasively argued books make important contributions to this debate from opposing perspectives. Admirably, both make their interventions into the UK debate in the context of comparative constitutional law, or more precisely, the way the field has developed in the post-World War II and post-Cold War waves of democratic constitution-making. In this sense both books make valuable general contributions beyond the immediate concern of the writtenness of the UK constitution.
The subtitle of Brian Christopher Jones’ Constitutional Idolatry and Democracy makes clear the author’s aim: “Challenging the Infatuation with Writtenness”. Jones defines ‘constitutional idolatry’ as “drastically or persistently over-selling the importance and effects of written constitutions.” The consequences of constitutional idolatry are threefold: it devalues politics and the democratic process; it is paternalistic; and it stifles constitutional maintenance. The first objection is based on the well-known ‘political constitutionalist’ perspective on the UK constitution. An idolised written constitution raises law and judges above politics and legislators and guts the vitality of politics and democracy, all based on the fallacy that constitutional norms have an independent and superior existence above the political. Secondly, constitutional idolatry is paternalistic because it assumes that the framers of the supreme text, and the judges who authoritatively interpret it, know what is best for the polity better than any other citizen. This paternalism also has the consequence of giving rise to the false expectation that the written constitution, necessarily an historically and spatially contingent thing, provides all the answers to every constitutional problem for all time coming. Thirdly, written texts ossify constitutions when what is needed is ‘constitutional maintenance’, i.e., the flexible, continuous, and undramatic change that keeps the constitution broadly in step with changes in society, culture, and technology.
In challenging the infatuation with writtenness, Jones systematically asks the sceptical questions that must be asked in any serious conversation about constitutional codification. Even if it is accepted that the traditional self-understanding of the British constitution is under terminal challenge today, he is right to ask how and if an attempt at introducing a written constitution would serve as a plausible solution. If the problems arise from a deep unsettling of a traditional consensus, what are the prospects of a new consensus being forged, codified, and moreover, (justiciably) entrenched? Why, indeed, is ‘constitutional unsettlement’ not itself the more plausible response in the face of politically salient divisions over Europe, human rights, juristocracy, and most of all, the institutional, territorial, and demotic pluralism of a plurinational union-state?
But is writtenness always the same thing as idolatry? Does writtenness always cause idolatry? A persistent question about the entire framing of Jones’s critique is whether he fixates too much on the American tradition. The American trait of constitutional veneration, after all, has not been followed in very many other places. As Ginsburg, Elkins and Melton famously showed, the mean lifespans of written constitutions are remarkably short at 17 years. In the liberal democracies, at least, this frequency of constitutional replacement surely points, not to constitutional idolatry, but perhaps to written constitutions being used more as instruments of a deeper political constitutionalism of the type that Jones approves.
For an answer to this question that looks to a written but proceduralist model of constitution and constitutionalism that was once (but no longer) familiar in mainstream UK public law scholarship, we can look to W. Elliot Bulmer’s Westminster and the World. This book is an elegant restatement of many of the arguments in favour of a written UK constitution from the heyday of that movement in the 1980s and early 1990s. These arguments would also be familiar to those engaged in constitution-making as part of effecting transitions from authoritarianism-to-democracy or conflict-to-peace in the Global South. However, there are at least two ways in which the contribution is original.
The first is the attempt to convince Burkean constitutional conservatives that a written constitution is not inconsistent with the organic and the incrementalist view of the British constitution. Bulmer’s ‘neo-Burkean’ argument goes as follows. Edmund Burke’s starting premise was that the constitution of the state is an inter-generational compact between the living, the dead, and the unborn. Such a constitution, preserving ancient liberties and evolved institutions, is better protected from the tyranny of transient parliamentary majorities by a written and entrenched document. Such a written constitution is not about the pursuit of abstract rationalist ideals in the Continental style, but an expression of the common inheritance of values and institutions derived from long and concrete experience. Moreover, as Burke recognised that limited and prudential reform was essential to the preservation of the inherited order, a written constitution may not merely express the status quo, but also effect those necessary changes. In developing this point, Bulmer has not become a Burkean conservative or abandoned his clear preference for the constitutional thought of Burke’s great radical detractor, Tom Paine. He is merely showing that the conservatism of one and the radicalism of the other are not as fundamentally irreconcilable as generally assumed.
Bulmer’s second, and perhaps the really serious, contribution of the book, is the theorisation he offers of ‘The Westminster Model as a Constitutional Archetype’. Somewhat ironically, perhaps, this aspect of the discussion may well be independently and more widely accepted among Bulmer’s readership than his main thesis about a written constitution for the UK. This model is the concrete instantiation of the marriage between the Burkean and Paineian traditions of constitutional thought. Recently there have been scholarly denials that the ‘Westminster Model’ is any longer a thing, if it ever was. Bulmer offers a robust response to such ahistorical political science. His multi-layered model encompasses the legal and the political, the normative and the descriptive, and the historical, institutional, and cultural dimensions that must all be accounted for in a proper theory of a model of constitutional state. The explanatory taxonomy of Westminster model states he builds towards the end of this discussion is the visual proof of his success in theoretical completeness. Using this as the basis to argue for the codification of the UK constitution will constitute a powerful appeal, including by answering some although by no means all of Jones’s concerns. But it is far from clear whether the disparate bodies of public opinion in the UK today, pushing and pulling in different and often opposed directions, are any readier to accept this historic ideal of British constitutional achievement than they have been in the past.
Neither Jones nor Bulmer, despite the sustained intellectual efforts represented in their very well-written recent books, are likely to fully convince their strongest detractors. That is testament to the scale of the division, or more likely, the indifference, of public opinion, rather than their abilities. But their efforts will be extremely well regarded by everyone looking for illumination and inspiration in the tortuous days that lie ahead in British constitutional discourse.
Cite as: Asanga Welikala, The Constitutional Codification Debate in the United Kingdom, JOTWELL (March 2, 2021) (reviewing Brian Christopher Jones, Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness (2020); W. Elliot Bulmer, Westminster and the World: Commonwealth and Comparative Insights for Constitutional Reform (2020)), https://intl.jotwell.com/the-constitutional-codification-debate-in-the-united-kingdom.
Matiangai Sirleaf, Racial Valuation of Diseases, 68 UCLA L. Rev. __ (forthcoming 2021).
The Covid-19 pandemic has impacted all of us, but not all of us equally. Far from acting as the great leveller, the disease that itself does not discriminate has revealed and exacerbated startling health disparities across the United States and globally. The early disaggregation of data indicated that Covid-19 mortality rates were more than double in Black populations than in White populations in the U.S., and were one and a half times as high, nationwide, in Latinx, and Indigenous populations. Infection rates, by population group, were also higher. The disparities of the global spread added further complexities. Now, as the Covid-19 vaccine has been developed in record speed, the challenge of distribution must incorporate facts about public health disparities alongside questions of prioritization. Two big questions loom: how much do our concepts of distributive justice and global justice incorporate racial justice? And how much should they?
Matiangai Sirleaf has given us a vocabulary, and a theoretical framework, to grapple with these issues. In her forthcoming article, Racial Valuation of Disease, she examines both the hierarchical valuation of racial groups in the context of disease, and the distributional consequences of that valuation. In developing the concept of racial valuation, she borrows from frameworks developed within critical race theory (CRT) and Third World Approaches to International Law (TWAIL), such as racial capitalism, intersectionality, “whiteness as property”, “interest convergence”, racial stratification, neocolonialism, and racial empathy gaps. These concepts, pioneered by Cedric Robinson, Kimberlé Crenshaw, Cheryl Harris, Derrick Bell, Robert E. Washington, amongst others, point out how past acts of violence, such as slavery, colonialism, and Jim Crow, continue to manifest in facially neutral policies and apparently color-blind laws. A powerful inverse of the moral valuation demanded by the Black Lives Matter movement, the racial valuation of disease provides a background to Covid-19 that demands a close reading – and that should help to provoke an array of structural, institutional and intellectual responses.
A scholar of global health and international law, whose past work sought to deepen our understanding of state responsibility and epidemics like Ebola and cholera, Sirleaf here delves into present and past incidents of structural, scientific and medical racism, to explore the unequal impact of disease. Structurally, she notes the institutions, policies, and practices that account for the inequalities between and among racial groups, including geographical segregation – de facto not de jure, as we know, but what’s that to a pathogen? – alongside racial, gendered, and socioeconomic trends in high housing density, food insecurity, inadequate schools, inaccessible, inadequate or biased clinical care, public transportation reliance, high crime rates, and employment stressors like hazardous jobs (including essential work), an absence of sick leave or adequate health insurance, or unemployment. These known social determinants of health – the conditions in which people “live, learn, work and play” as the Centers for Disease Control and Prevention puts it – affect health risks and outcomes. And these determinants are shaped, as the World Health Organization has described, by the distribution of money, power and resources, across local, national and global contexts.
Sirleaf brings these structural causes – familiar to the public health literature and the field of health and human rights – in direct interplay with historical examples of scientific and medical racism. Sirleaf thus presents her readers with some awful truths about the overt medical racism that was popularized during spreads of leprosy, syphilis, smallpox, HIV/AIDS, and other diseases. While she notes that the worst excesses of such racism have been safely discredited – from eugenics, phrenology and other pseudoscience – she warns of its current return, through race-specific patents in pharmacogenomics, for example, or the rise of personalized medicine. Indeed, Sirleaf notes that the pathologization of Black or Brown “culture” with disease prevalence has resurfaced during Covid-19.
Tracking the distribution of disease by racial group is of course essential. But that distribution creates its own distributive effect, which Sirleaf’s article also addresses. She warns that the coding of Covid-19 as Black and Brown may limit the prospect of an empathetic, collective, corrective response, and may explain the otherwise baffling use of “white supremacy” paraphernalia – swastikas, Confederate flags, and nooses – in the anti-lockdown protests that have challenged Covid-19 mitigation responses. Moreover, Sirleaf’s structural framework helps to explain why the US Surgeon General acknowledgement of Covid-19’s disparate impact by race, when accompanied by an apparently benign request for communities of color to “step up and help stop the spread” of the pandemic is, when the far more hazardous structural causes are known but unaddressed, both affronting to such communities and ineffectual.
Sirleaf’s use of CRT and TWAIL scholarship help reveal how surface reforms may backfire, and how individualized, personal responses and reckonings to disease may be insufficient. In applying and extending these powerful concepts to the terrible pandemic that is currently resurging within the US, as well as to its spread outside of the country, and to disease burden and mortality gaps more generally, Sirleaf has provided us with a grasp of the problem and a language to address it. This is notable scholarship, not just for its assessment of the scale of the immediate problem, but for the cogent deployment of important strains of both US and international legal scholarship, which were developed within distinctive legal research fields.
When the Black Lives Matter protests ignited the country, it was impossible to ignore that the disease distribution of Covid-19 sat alongside police brutality and mass incarceration as an urgent and shameful racial injustice in the U.S. As the Biden-Harris Transition Team prepares its program for “building back better”, two of its four listed priorities are Covid-19 and racial equity. Sirleaf’s work helps to illustrate how these two priorities are necessarily interwoven, and how deepseated must be the efforts to confront them. Her readers will also learn, too, of the global priorities that must be established as a result.
Constitutional democracy is under threat worldwide, including in Asia itself. Witness the banning of the political opposition in Cambodia, the ongoing role of the military in Thailand, or the actual and threatened expansion of executive authority in the Philippines. These trends also parallel broader patterns of democratic backsliding or erosion across the globe. Identifying ways in which courts can effectively help counter these trends is thus of enormous value in 2020, and beyond.
In her important new book, Constitutional Statecraft in Asian Courts, Yvonne Tew provides just such an account: she argues that courts in Asia – and specifically in common law, South-East Asian countries such as Malaysia and Singapore — can and should play a greater role in both helping build and protect resilient constitutional democratic systems.
A role of this kind, Tew argues, is clearly desirable from a constitutional theoretic standpoint: building a successful democracy, according to Tew, depends more on the creation of effective institutions than individual ‘heroic’ political leadership; and courts can play a central role in the protection and creation of these institutions through appropriately robust but flexible forms of review.
Tew suggests that courts in common law Asia have the formal legal-institutional foundation on which to engage review of this kind: they have entrenched written constitutions, a history of (at least semi) independent review, and formal constitutional commitments to the separation of powers, rights, and the rule of law. To date, they have tended to exercise this authority in a quite restrained, deferential way. But Tew suggests that there are indications in both countries, and especially Malaysia, of a more robust approach to the judicial role.
One of the most important contributions of the book is to suggest a doctrinal toolkit for courts wishing to engage in review of this kind – a toolkit based on a purposive approach to constitutional interpretation or ‘construction’, proportionality reasoning and the ‘unconstitutional constitutional amendment’(UCA) doctrine. And Tew suggests that this toolkit must be exercised ‘strategically’ by courts, including with close attention to the timing of court decisions.
Tew’s account of historical constitutional trends in Malaysia and Singapore is also a distinct and valuable contribution to the field. In chapters 2 and 3 of the book, Tew provides a rich contextual and historical account that builds in extremely productive ways on the several excellent single-country case-studies on this topic.
All of these arguments make a serious contribution to existing comparative constitutional scholarship. It is notable that Tew goes further than many other leading scholars in this context in arguing for a role for courts in both democratic ‘hedging’ and building. She also goes further in linking purposive interpretation and proportionality analysis to these judicial projects. And she makes a persuasive case that these tools help provide both sufficient legal justification and flexibility needed for successful ‘constitutional statecraft’ by courts.
The book also leaves open questions for further reflection: first, are the tools Tew identifies as key tools of judicial statecraft – i.e. purposive interpretation, proportionality reasoning and the UCA doctrine, together with the careful timing of court decisions – ultimately necessary to successful judicial statecraft in all cases, or rather helpful tools that may increase its chances of success in some subset of cases? My own sense is that they may be more or less necessary for effective constitutional statecraft in Malaysia and Singapore, but not necessarily elsewhere. In some cases, textualism or pragmatism may be consistent with a form of democratic hedging by courts. And proportionality may increase judicial flexibility but is not required for it. The US Supreme Court is arguably the exemplar of the use of the ‘passive virtues’ for strategic ends, and yet it relies on a form of tiered scrutiny rather than any explicit proportionality-style analysis.
Second, how confident is Tew that the nascent trends she identifies of greater judicial assertion and adventurism are likely to last, especially in Singapore? Tew herself notes the dialectic or unsteady nature of change in Malaysia in the last few decades; and the intimations of change she notes in Singapore seem at best incipient. It may, therefore, be too early to say that there is nascent support within Singapore, especially for the kind of vision Tew articulates.
Ultimately, however, this is a work of scholarly statecraft: it aims both to persuade readers globally of the importance and lessons of these Asian cases for theorizing about the relationship between judicial review and democracy globally, and to persuade common law Asian judges to follow the path set out by Tew herself. And in that context, telling those judges they are already on the path set out in the book seems more than politic. It employs exactly the same kind of mix of principle and pragmatism Tew is calling for from judges.
We can only hope that, like Tew, they are up to the task.