ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

45 CONSTITUTIONAL POLITICS
AND COMPARATIVE
INSTITUTIONAL DESIGN
In the field of constitutional theory, normative questions
such as the appropriate role of courts, the nature
of constitutional adjudication and the appropriate
approaches to interpretation are often discussed
without any explicit reference to a specific institutional
setting in which these normative answers are
expected to obtain acceptance. But variations in institutional
design can be linked to different answers
in these questions: they can be shaped by different
understandings, in that community, of the role of
courts and of public law; moreover, differences in
institutional design can also help shape these understandings
and normative expectations themselves. In
this panel, the papers approach recurrent problems
in constitutional theory and public law in a comparative
fashion, or that contextualize and explain answers
to these problems by means of case studies
that make visible the possible connections between
theory and variations in institutional arrangements.
Participants
Name of Chair
Room
Diego Werneck Arguelhes
Michaela Hailbronner
James Fowkes
Thomaz Pereira
Jaclyn Ling Chien Neo
Diego Werneck Arguelhes
UL6 2249a
Diego Werneck Arguelhes: The first, the last and
everything? The Supreme Court’s role in the
legalization of same-sex marriage in Brazil
This paper examines the institutional conditions
in which the judiciary in Brazil has played a legislative
role, by means of a case study of the Supreme
Court’s decision on the constitutionality of same-sex
marriage and its implications. The court’s role as a
first legislative chamber will appear as the outcome of
a set of different variables: the political strategies by
actors outside the court the institutional configuration
of the court’s powers and the specific ways by which a
generation of Justices currently in the Supreme Court
has been interpreting their own powers. Our discussion
of the conditions under which judges have been
acting as first and last legislators will reveal certain
understudied possibilities of constitutional court’s
role in the political decision-making process in other
countries as well.
Michaela Hailbronner: Acting when others aren’t
– institutional failure as a basis for judicial action
Courts in modern welfare states both in the Global
South and North are increasingly involved in policymaking.
Whether it concerns the management of forests,
the administration of health care or access to
Concurring panels 80
education, courts around the globe take part in the administration
of many multi-faceted tasks. One important
justification for this kind of judicial expansionism
– most familiar in the standard defenses of the Indian
Supreme Court’s activism such as in S.P. Sathe – is that
other institutions have failed in fulfilling their functions
and courts therefore must take-over vital tasks where
no one else does. A similar kind of rationale is reflected
in the European “Solange”-jurisprudence, where it
serves as a basis to withhold judicial scrutiny ‘as long
as’ other courts are acting. This presentation sets out to
examine the frequently used, but never fully developed
argument of ‘institutional failure’ (of other institutions)
as a basis for judicial intervention in greater depth.
James Fowkes: Everyone knows what a court is
no-one knows what a court is: The institutional
nature of the South African Court in comparative
perspective
The question of what a court is can be deceptively
simple. It is especially important to ask it in light of the
many tasks modern courts are being asked to fulfil, in
their different contexts, which can significantly affect
their institutional nature. I take up this issue in relation
to the South African Court, the one I know best, in
broader comparative perspective. The South African
case is instructive as a court unusually poised between
traditional ideas of a court in the legal culture in which
it operates, and calls for it to be a novel, Southern,
poverty- and injustice-fighting, dominant democracychecking
court and to change its institutional nature
radically to these ends. (It has also undergone an under-noted
conversion to a US-style supreme court of
general jurisdiction). Drawing on other global courts
as touchstones, I seek to use the South African case
to raise and address questions about what modern
courts are, or are becoming.
Thomaz Pereira: Between Reason and Politics:
The Indian Constitutional Court’s Struggle
to Protect the Constitution from Parliamentary
Sovereignty
The most famous element of Indian constitutional
law is its Supreme Court an institution at times referred
to as the most powerful one of its kind in the world.
Should India be understood as a prime example of
courts exercising judicial review in their function of
guardians of reason (or elite interests or formal legality
or democracy or the rule of law‚ against the irrationality
of the popular will? Through an analysis of the “four
judges cases” in which the Court has determined the
process for the appointment of its own members I will
endeavor to construct an alternative narrative. An indepth
discussion of the Indian constitutional jurisprudence
should serve to illuminate the broader research
question of how variations in institutional design can
be linked to different understandings on the source of
legitimacy and functions of constitutional courts and
constitutional law in different political communities.