Book Announcement: Jan-Werner Müller, What Is Populism? (Penn 2016)

Network member Jan-Werner Müller (Princeton) announces a new book from University of Pennsylvania Press, entitled "What Is Populism?"  In an analysis described by Dani Rodrik as "masterful," the new volume sets out to untangle the concept of populism, to map its relationship to pluralism and authoritarianism, and to set out strategies for response to populist movements.  The publisher's blurb follows; the book can be ordered here.

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Donald Trump, Silvio Berlusconi, Marine Le Pen, Hugo Chávez—populists are on the rise across the globe. But what exactly is populism? Should everyone who criticizes Wall Street or Washington be called a populist? What precisely is the difference between right-wing and left-wing populism? Does populism bring government closer to the people or is it a threat to democracy? Who are "the people" anyway and who can speak in their name? These questions have never been more pressing.

In this groundbreaking volume, Jan-Werner Müller argues that at populism's core is a rejection of pluralism. Populists will always claim that they and they alone represent the people and their true interests. Müller also shows that, contrary to conventional wisdom, populists can govern on the basis of their claim to exclusive moral representation of the people: if populists have enough power, they will end up creating an authoritarian state that excludes all those not considered part of the proper "people." The book proposes a number of concrete strategies for how liberal democrats should best deal with populists and, in particular, how to counter their claims to speak exclusively for "the silent majority" or "the real people."

Analytical, accessible, and provocative, What Is Populism? is grounded in history and draws on examples from Latin America, Europe, and the United States to define the characteristics of populism and the deeper causes of its electoral successes in our time.

Dan Kelemen on "Poland's Constitutional Crisis: How the Law and Justice Party is Threatening Democracy"

Network member R. Daniel Kelemen (Rutgers) has alerted to his new piece in Foreign Affairs, entitled "Poland's Constitutional Crisis: How the Law and Justice Party is Threatening Democracy," which may be of interest to readers. The first paragraph is below and the remainder can be read here.

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After simmering for nine months, the tension between Poland’s ruling Law and Justice (PiS) party and the country’s highest court, the Constitutional Tribunal, is coming to a boil. The PiS government is attempting an unconstitutional takeover of the tribunal—ignoring its rulings, trying to pack it with new judges, and, most recently, threatening the head judge with prosecution. At stake are the survival of constitutional democracy and the rule of law in Poland. [continue reading here]

Book Announcement: Interparliamentary Cooperation in the Composite European Constitution (Nicola Lupo and Cristina Fasone, eds.)

Network member Nicola Lupo (LUISS), together with Cristina Fasone (also LUISS), have alerted us that their new edited volume Interparliamentary Cooperation in the Composite European Constitution has now appeared from Hart. Below is the publisher's blurb and more information, including the Table of Contents (noting several contributions by other network members), can be found here. Hart has graciously offered readers a 20 per cent discount if they choose to purchase (see here -- use code CV7 at checkout to get the discount).

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This collection analyses the place and the functioning of interparliamentary cooperation in the EU composite constitutional order, taking into account both the European and the national dimensions. The chapters join the recent scholarship on the role of parliaments in the EU after the Treaty of Lisbon.The aim of this volume is to highlight the constitutional significance of interparliamentary cooperation as a permanent feature of EU democracy and as a new parliamentary function as well as to investigate the practical side of this relatively new phenomenon. To this end the contributors are academics and parliamentary officials from all over Europe.

The volume discusses the developments in interparliamentary cooperation and its implications for the organisation and procedures of national parliaments and the European Parliament, for the fragmented executive of the EU, and for the democratic legitimacy of the overall EU composite Constitution. These issues are examined by looking at the European legislative process, the European Semester and the Treaty revisions. Moreover, the contributions take into account the effects of interparliamentary cooperation on the internal structure of parliaments and analyse the different models of interparliamentary cooperation, ie from COSAC to the new Interparliamentary Conference on Stability, Economic Coordination and Governance in the European Union provided by the Fiscal Compact.

The Quest for EU Reform after Brexit: Changes to the Role and Doctrines of the European Court of Justice

“What if…?” These kinds of questions may now seem pointless in the aftermath of the victory of Leave in the EU Referendum.  Instead we hear ‘What’s done is done’, ‘Leave means Leave’, ‘out is out’, etc., etc., etc.

But one question has always nagged at me ever since David Cameron brought his renegotiation deal back to the UK in February: What if it included a serious commitment to alter the role and doctrines of the European Court of Justice? Would that have tipped the balance toward the Remain side? Would we have been talking instead about a 52-48 victory for Remain? Would serious ECJ reform, both institutionally and doctrinally, have been enough to peel off the likes of Boris Johnson from the Leave camp, harnessing his energies for Remain and reform?

We will never know. But the question is still of interest, if for no other reason than the remaining Member States must now seriously consider a range of EU reforms in order to prevent further contagion of the Brexit virus. As former German Constitutional Court Judge Gertrude Lübbe-Wolff said in an interview on Verfassungsblog, ‘the shock over what has happened, and the fear of further disintegration, might produce an awakening effect. So I try to remain optimistic’. This post is in that spirit.

Broadly speaking, there are two options for EU reform in response to the Leave victory: ‘more Europe’ or ‘less’. Which should it be?

Maciej Kisilowski (CEU) on the "moment of truth" in Poland's constitutional dispute

Network member Maciej Kisilowski (CEU) has a new piece in EUObserver entitled "Moment of truth for Poland in constitutional dispute".  The opening passages are below and the remainder can be read here.

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The ruling Law and Justice (PiS) party in Poland suffered two major setbacks this week.

On Wednesday (9 March), the nation’s Constitutional Tribunal declared a sweeping amendment limiting the tribunal’s powers to be unconstitutional.

On Friday, the Venice Commission, an advisory body to the Council of Europe in Strasbourg, issued a powerful concurrence. Like the Polish court, it did not find a single major provision of the amendment, passed by PiS last December, consistent with European principles of democracy and the rule of law.

The twin decisions bring about a moment of truth for PiS. The party can either retreat from its overreach and try to implement its reform agenda within the current constitutional framework or set Poland on the path to authoritarianism.

Warsaw’s international partners should strongly support the moderate course without risking their own “liberal overreach”.

[continue reading here]

Maciej Kisilowski on Constitutional Crisis in Poland

Network member Maciej Kisilowski (Central European University) has a new piece up on Politico that should be of interest to the broader network.  Entitled "Poland’s ‘overnight court’ breaks all the rules: Law and Justice party attempt political takeover of Constitutional Court", the first paragraph is below and the remainder can be found here.

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Poland’s constitutional order is under a full-scale assault by the country’s newly elected right-wing government. Just two weeks after a general election, the ruling Law and Justice party abandoned its friendly, moderate campaign image to enter into battle with the Constitutional Court. Its actions in its first two weeks in power heighten the worries that Poland may follow the “illiberal democracy” path set by Hungary under its populist Prime Minister Viktor Orbán. [continue reading here]

Book Announcement: Antoine Vauchez, Democratizing Europe (Palgrave 2015)

We are delighted to announce that network member Antoine Vauchez (Paris) has released the English translation of his book Democratizing Europe with Palgrave Publishing.  A German translation is planned for 2016.  The publisher's blurb is below; further details are available here.

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How can we account for numerous and repeatedly failed attempts to redress the European Union's democratic deficit over the past three decades? In the wake of the Eurozone crisis, Democratizing Europe argues that part of our collective failure to re-orient the EU's trajectory lies in our failure to fully characterize the EU government's dependent path. Bringing together new streams of scholarship in history, law, sociology, and political science, this book suggests a new portrait of the EU's singular political model. Tasked with Europe's grand project, the edification of a unique economic and monetary Market, the European Court, Commission, and Central Bank have been the cradle in which the EU polity has been shaped, staged, and legitimized. In this context, it is no wonder that the many attempts to parliamentarize Europe have had limited democratic effects. Vauchez suggests that we recognize this historically-rooted centrality of Europe's independent branch and adapt our democratization strategies accordingly.

Turkuler Isiksel on "Europe's Functional Constitution" at NYU's Jean Monnet Center (November 20, 2015) (RSVP required)

We are pleased to pass along to the network an invitation from NYU's Jean Monnet Center to join a celebration on Friday November 20, 2015, of a forthcoming book from network member Turkuler Isiksel (Columbia & currently Emile Noël Fellow at NYU): "Europe's Functional Constitution: A Theory of Constitutionalism Beyond the State" to be published by OUP in 2016.  

Turku will give a presentation on her forthcoming book; network members Joseph Weiler (EUI & NYU), Piet Eeckhout (UCL & currently Senior Emile Noël Fellow at NYU), and Daniel Francis (NYU), along with friend of the network Jan Klabbers (Helsinki & currently Senior Emile Noël Fellow at NYU), will comment.  Network member Gráinne de Búrca (NYU) will moderate the session.

Details follow; please note the RSVP request to jeanmonnet@nyu.edu.

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Europe's Functional Constitution: A Theory of Constitutionalism Beyond the State

On Friday, November 20, 2015 at 12:30-2:00PM (lunch served from 12:00PM) the Jean Monnet Center will host Turkuler Isiksel‘s presentation of her forthcoming book Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State (coming out with OUP's Constitutional Theory series in 2016).

Commentators: Joseph Weiler, University Professor, NYU; President of EUI; Piet Eeckhout, Professor of EU Law, University College London; Senior Emile Noël Fellow, NYU School of Law, 2015-16, Johannes Klabbers, Professor of International Organizations Law, University of Helsinki; Senior Emile Noël Fellow, NYU School of Law, 2015-16, and Daniel Francis, JSD candidate, NYU School of Law.

Moderator: Gráinne de Búrca, Florence Ellinwood Allen Professor of Law, Faculty Director, Hauser Global Law School and Jean Monnet Center for International and Regional Economic Law & Justice.

Location: 1st Floor Lounge, 22 Washington Square North, New York, NY 10011.

Please kindly RSVP by email to jeanmonnet@nyu.edu if you would like to attend.

President Michael Higgins of Ireland on the State of the (European) Union

A few weeks ago, President Michael D. Higgins of Ireland visited NYU to give the Eleventh Annual Emile Noël Lecture on the State of the (European) Union, sponsored by the Jean Monnet Center for International and Regional Economic Law & Justice at NYU.  Network member Gráinne de Búrca (NYU), Director of the Jean Monnet Center, introduced President Higgins and acted as discussant at the event, which drew a capacity crowd.  We are pleased to share the following summary, prepared by friend of the network Johann Justus Vasel (Visiting Researcher at NYU).

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The European Union – Towards a Discourse of Reconnection, Renewal and Hope

The Eleventh Annual Emile Noël Lecture on the State of the (European) Union

presented by

His Excellency, the President of Ireland, Michael D. Higgins

On Monday September 28, 2015, His Excellency Michael D. Higgins, President of Ireland, honored the NYU School of Law by delivering the Eleventh Annual Emile Noël Lecture on the State of the (European) Union (full text available here; video available here). The Annual Emile Noël Lecture is sponsored by the Jean Monnet Center for International and Regional Economic Law & Justice. 

Following opening remarks by Dean Trevor Morrison and an introduction by Professor Gráinne de Búrca, His Excellency gave a vivid, bold, and inspiring address entitled “The European Union – Towards a Discourse of Reconnection, Renewal and Hope.” The President took as his subject the current legitimacy crisis facing the European Union. In a rich and powerfully argued presentation, he offered and elaborated the vision that this crisis must be recognized as a consequence and symptom of an inadequate worldview that has taken root among policymakers and politicians: a worldview grounded on assumptions that are grossly inadequate for the tasks facing the Union today. 

Europe's Justice Deficit? (Debate at LSE, June 4, 2015)

Network member Gráinne de Búrca (NYU) has sent us the following account, which also appears on EUtopia here, of a debate on Thursday June 4, 2015 at the London School of Economics, between Justice Giuliano Amato of the Constitutional Court of Italy (former Italian Prime Minister) and Professor Christian Joerges (Hertie School of Governance).  The debate marked the publication by Hart Publishing of a new collection of essays on “Europe's Justice Deficit?" (available here), edited by Dimitry Kochenov, Gráinne de Búrca and Andrew Williams.  

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Christian Joerges launched the debate by reflecting on the EU’s origins, and on the strong influence of German ordo-liberal economic theory in the creation and design of the European Economic Community.  He described an ordo-liberal legal framework as one which “privileges and constitutionalizes a private-law society”; and which treats as “just” whatever a system of undistorted competition delivers.  He asked the audience whether the EU’s institutional design and its ordoliberalism-inspired “integration through law” agenda has been an obstacle to the pursuit of justice instead of a means of fostering it.  Citing the various challenges which have been made to this ordo-liberal vision by writers such as Fritz Scharpf, Jürgen Habermas and Wolfgang Streeck, he emphasized the democratic and social embeddedness of markets and their dependence on other institutions for their capacity to deliver justice, and doubted whether the EU in its current form has that capacity.  Moving on to the writings of John Rawls and Thomas Nagel on the scope of justice, and on the difficult question of whether “justice between states,” and particularly any form of redistributive justice, is really possible, he posed the question: “what are the Greeks entitled to expect from the Germans?”  The EU is better understood, he suggested, in terms of “inter-democracy” (to use a term derived from Daniel Innerarity’s work, here) rather than being thought of as itself a democratic system.

On the current crisis, with its politics of austerity and governance-by-troika, Joerges argued that the kind of interventionist European economic and financial management we have seen in recent years is actually far removed from the ordo-liberal vision, in its reliance on discretionary power rather than justiciable rules.  Finishing on an understandably gloomy note, he suggested that while the EU’s crisis management may well destroy southern European economic cultures, the social and institutional resistance of these cultures means that it will nevertheless be unable to replace them with some other top-down model of economic governance.

Summer School: "Democracy and the Financial Crisis in Europe," Amsterdam, June 29 - July 3, 2015

Network member Gareth Davies (VU University Amsterdam) has written to announce a summer school for doctoral students between June 29 and July 3, 2015 at VU University Amsterdam on "Democracy and the Financial Crisis in Europe."  A short summary is below, and more information can be found here.  The deadline for applications is April 14, 2015.

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This one-week, full-time, intensive summer school is organized by ACCESS Europe and the VU University Amsterdam law school. ACCESS Europe is a co-operative venture between VU University and the University of Amsterdam, providing a platform for research and debate on Europe, the European Union and its Member States. It has recently been awarded Jean Monnet Centre of Excellence status.

The summer school will consist of a series of interactive seminars with leading scholars in law and political science. The 20-25 participants will explore the theme of "democracy and the financial crisis in Europe" from different angles, with plenty of opportunities to link it to their own research.

Book Announcement: Susan Rose-Ackerman et al., Due Process of Lawmaking: The United States, South Africa, Germany, and the European Union (CUP 2015)

Network member Susan Rose-Ackerman (Yale), together with Stefanie Egidy and James Fowkes, has a new book out from CUP entitled Due Process of Lawmaking: The United States, South Africa, Germany, and the European Union.  The publisher's blurb is below and more information can be found on the CUP site here.

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With nuanced perspective and detailed case studies, Due Process of Lawmaking explores the law of lawmaking in the United States, South Africa, Germany, and the European Union. This comparative work deals broadly with public policymaking in the legislative and executive branches. It frames the inquiry through three principles of legitimacy: democracy, rights, and competence. Drawing on the insights of positive political economy, the authors explicate the ways in which courts uphold these principles in the different systems. Judicial review in the American presidential system suggests lessons for the parliamentary systems in Germany and South Africa, while the experience of parliamentary government yields potential insights into the reform of the American law of lawmaking. Taken together, the national experiences shed light on the special case of the EU. In dialogue with each other, the case studies demonstrate the interplay between constitutional principles and political imperatives under a range of different conditions.

Book Announcment: Klemen Jaklic, Constitutional Pluralism in the EU (OUP)

Many of you may already know that network member Klemen Jaklic (Harvard) has a book out from OUP, Constitutional Pluralism in the EU.  What you may have overlooked was that it just received a very nice end-of-year review from Joseph Weiler (EUI) on EJIL: Talk, who called it "an important and tremendously useful book."  For readers seeking to learn more, the publisher's blurb is below and more information (including a downloadable Chapter One), can be found here.

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Where does the law and political power of any given territory come from? Until recently it was believed that it came from a single and hierarchical source of constitutional authority, a sovereign people and their constitution. However, how can this model account for the new Europe? Where state constitutions and the European Constitution, which are ultimately equally self-standing sources of constitutional authority, overlap heterarchically over a shared piece of territory.

Constitutional pluralism is a new branch within constitutional thought that argues sovereignty is no longer the accurate and normatively superior constitutional foundation. It instead replaces this thought with its own foundation. It emerged on the basis of contributions by the leading EU constitutionalists and has now become the most dominant branch of European constitutional thought. Its claims have also overstepped the European context, suggesting that it offers historic advantages for further development of the idea of constitutionalism and world order as such.


This book offers the first overarching examination of constitutional pluralism.Comprehensively mapping out the leading contributions to date and solving the complicated labyrinth they currently form, Klemen Jaklic offers a complete assessment against existing and new criticisms while elaborating his own original vision. Constitutional pluralism thus refined has the potential to rightfully be considered the superior new approach within constitutional thought.

Peter Lindseth: Equilibrium, Demoi-cracy and Delegation in the Crisis of European Integration (Corrected Version)

Network member Peter Lindseth (UConn Law School) has a new article out in the German Law Journal entitled "Equilibrium, Demoi-cracy and Delegation in the Crisis of European Integration".  The abstract is below.  A corrected version has been posted to fix errors inadvertently introduced by the editors without the author's approval.  The corrected version can be downloaded on SSRN here or the GLJ site here.

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As my work has argued previously, European integration enjoys an “administrative, not constitutional” legitimacy. This view is in obvious tension with the deeply-rooted conceptual framework—what we might call the “constitutional, not international” perspective—that has dominated the public-law scholarship of European integration over many decades. Although the alternative presented in my work breaks from that traditional perspective, we should not view it as an all-or-nothing rejection of everything that has come before it. The administrative alternative can be seen, rather, as providing legal-historical micro-foundations for certain theories that also emerged out of the traditional perspective even as they too are in tension with it. I am referring in particular to Joseph Weiler’s classic notion of European “equilibrium”—now updated as “constitutional tolerance”—as well as Kalypso Nicolaïdis’s more recently developed theory of European “demoi-cracy” on which this article focuses in particular. The central idea behind the “administrative, not constitutional” interpretation—the historical-constructivist principal-agent framework rooted in delegation, as well as the balance demanded between supranational regulatory power and national democratic and constitutional legitimacy—directly complements both theories. The administrative alternative suggests how the relationship between national principals and supranational agents is one of “mediated legitimacy” rather than direct control. It has its origins in the evolution of administrative governance in relation to representative government over the course of the twentieth century (indeed before). By drawing on the normative lessons of that history—notably the need for some form of national oversight as well as enforcement of outer constraints on supranational delegation in order to preserve national democratic and constitutional legitimacy in a recognizable sense—this article serves an additional purpose. It suggests how theories of European equilibrium and demoi-cracy might be translated into concrete legal proposals for a more sustainable form of integration over time—a pressing challenge in the context of the continuing crisis of European integration.

Slovenia: a de facto failed constitutional democracy (Matej Avbelj)

Network member Matej Avbelj (Graduate School of Government and European Studies, Kranj, Slovenia) has posted this important piece on Verfassungsblog.  Given the need for broader dissemination and the high interest to readers of our blog as well, we are cross-posting here.

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The political and legal crisis in Slovenia has escalated further. The opposition leader was taken to prison on June 20 amid public protests and harsh critique waged by the most prominent Slovenian constitutional lawyers. The crisis is due to have huge impact on the fairness of the election, scheduled for July 13.  However, this does not seem to be of concern to the highest Slovenian courts.

On Monday June 16 the Constitutional Court rejected the petitioner’s constitutional complaint as premature, for failing to fulfill extraordinary legal remedies at the Supreme Court. The Court refused to apply Art 51 of the Constitutional Court Act, which exceptionally allows for a constitutional complaint prior to the exhaustion of all legal remedies if the alleged violation of human rights is manifest and if the petitioner is to suffer unrepairable consequences.

The Court ruled 6:3 that while the alleged violations of the petitioner’s rights were serious, they were not manifest, within the meaning of the Court’s judicial test, so to allow a direct review. This was opposed by three judges, writing for the minority, who have produced extremely critical dissenting opinions, unprecedented in the history of the Court, stressing that the violations of human rights were not only manifest, but were patent and flagrant and were violated in a trial that was manifestly unfair.