ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

Valentin Jeutner: The reasonable person in
public law
As part of the conference panel “How can the absent
speak? Presumptions and paradoxes of presence
in public law” my paper aims to investigate the meaning
and role of the concept of the reasonable person
in public law reasoning. Specifically, I want to focus
on three aspects of the concept. First, I seek to show
how the invocation of the reasonable person can be
understood as an (potentially unsuccessful) attempt to
bestow judicial decisions with a degree of democratic
legitimacy in the sense that courts make normative
judgements supposedly with reference to standards
shared by most – “reasonable” – persons. Second, I
seek to consider the significance of the concept of
the reasonable person with reference to the rule of
law. In many cases the reasonable person concept
is seen as a safeguard of the rule of law, but given
the fictional nature and the intentional absence of the
reasonable person itself from the court room the rule
of law might at times be at odds with the reasonable
person concept. Drawing on the findings of the previous
two sections the paper finally intends to identify
and to consider the specific nature of the absence of
the reasonable person. While the kinds of absence
considered by the other panel speakers trigger questions
of legitimacy because the respectively absent
persons could in principle be present, in the case of the
reasonable person the concept’s legitimacy might be
inherently linked to the reasonable person’s absence.
In this sense my paper questions the binary divide between
absence/presence showing that both absence
and presence can, depending on the circumstances,
be beneficial from the perspective of democratic legitimacy
and the rule of law.
Nino Guruli: Public law abroad: democracy,
legitimacy, and the rule of law
The democratic process is a central principle of
constitutional law; it is the most basic requirement for
legitimate exercise of power. But it is not the only principle.
This paper seeks to untangle doctrines rooted in
democratic legitimacy from those constitutional principles
that derive their authority from values of good
governance and substantive conceptions of the rule of
law in order to evaluate when and how ‘absence’ of the
impacted individual is made irrelevant by the ‘presence’
of the State. Constitutional principles contain distinct
(though connected) limits on exercises of public power.
Charters of individual rights draw their authority from
normative principles of human rights, as well as from
the democratic processes that enact those values into
positive law and ultimately from rule of law principles.
By considering the role of these principles in the state’s
exercise of extra-territorial authority, my aim is to develop
a principled means of relating these sources
of legitimacy. What can we learn about legitimacy of
public law by analyzing the role of democracy, authority
and the rule of law abroad?
79 THE BOUNDARIES OF CITIZENSHIP
Panel formed with individual proposals.
Participants Miluše Kindlová
Věra Honusková
Michael B. Krakat
Manav Kapur
Jhuma Sen
Name of Chair Jhuma Sen
Room DOR24 1.405
Miluše Kindlová and Věra Honusková: Citizenship
and Denationalization – Current Theoretical
and Legal Perspectives
Citizenship theories have again become one of the
most debated areas of political/constitutional studies.
With (re)emergence or revival of legal regulations
providing for the possibility of citizenship deprivation,
theories of the nature of citizenship have received
another impetus, struggling with questions such as:
Should the lack (loss) of loyalty to the state be a reason
for the deprivation of citizenship, considering that its
existence is a usual precondition for naturalization?
Should we differentiate between citizenship acquired
by birth and citizenship acquired by naturalization in
this regard and why? Should we conceive of various
limitations on citizenship rights and is this a better option
than direct deprivation of citizenship? The paper
reflects upon these and related questions against the
background of current (inter)national law and practice
in the sphere of citizenship.
Michael B. Krakat: Economic Citizenship Laws:
Commodification to Cosmopolitanism
An emerging area within the law of citizenship relates
to direct citizenship by investment or ‘economic
citizenship’ allowing for free trade ‘flag-of-convenience’
cash-for-passport-programs (for instance by St. Kitts
& Nevis or Malta) to directly assign citizenship to elite
bidders without need for residence- or other requirements.
‘Cosmopolitan citizenship’ on the other hand
may be understood as a minimum number of rights
and duties held individually, directly under international
law, as a global ‘right-to-have rights’ based on
formative principles including Human Rights, equality,
access to justice. This research is to contextualize
both areas of law: Basic tenets of cosmopolitanism
may inform and guide the process of marketization
of citizenship. Economic citizenship laws on the other
hand may trigger- and pose as practical, functioning
drivers and foundations for the idea of a mobile, flexible
rights-based cosmopolitan approach to citizenship.
Manav Kapur: ‘refugees’ or ‘citizens’: Pakistani
Hindus and the Indian State
In this paper, I examine the relationship between
Pakistani Hindus and the Indian state. I argue that the
Concurring panels 120