Towards a new separation of powers? Institutional flexibility and rigidity in international and domestic public law

Name: Towards a new separation of powers? Institutional flexibility and rigidity in international and domestic public law
Start: 2022-07-06T10:00:00+02:00
End: 2022-07-06T11:30:00+02:00
Location: Building C

There is often a considerable gap between the legal texts outlining institutional competences and institutions’ real functions and powers on the ground. This is true both for domestic and international systems. In international law, some have with Nico Krisch described authority as liquid, as it develops dynamically over time and is driven by informality and institutional multiplicity. In domestic systems, the situation is sometimes not dissimilar. Here, too, institutions exercise their power in flexible ways, sometimes responding to political dysfunction by creating new channels for policy-initiatives and participation such as in courts, with the distinctive traits of different branches and institutions becoming blurry as a result. In this panel, we seek to capture and analyse this flexibility of institutional roles both on the international and domestic level but also ask about the costs and risks that come with such flexibility and dynamism and how to contain them.

Nico KrischThe Liquid Powers of International Institutions

International institutions operate in radically changing contexts and constantly face calls for adaptation to new circumstances, yet their legal structure is traditionally dominated by the notion of attributed powers and member state control. How do they navigate these contradictory demands? In this paper I argue that international organizations generate flexibility in two major ways. They turn to instruments too informal to generate many legal concerns, and they use political opportunities, especially crises and discursive openings, to expand their powers with the support, or in the absence of substantial opposition, from states. The result is not necessarily a consolidated new legal framework, and the authority institutions generate in these ways is often not solid but instead ‘liquid‘, subject to further fluctuation and contestation. Yet such authority is often sufficient to ground a far broader scope of action than envisaged in organizations‘ constituent instruments.

Michaela HailbronnerInstitutional flexibility and its limitations in times of crisis

In situations of real or alleged crisis, institutions often assume roles beyond the ones normally ascribed to them. In some cases, such expansions of power are justified in terms of emergency powers, in others we see teleological arguments about implied powers/effet utile/constitutional realization at work and in others still we encounter arguments from failure where institutions expand their powers on the basis of the failure of other institutions. This paper seeks to explore these different arguments in a domestic and international law context, arguing that while they often blur into each other, there is a need to distinguish between them from a normative perspective. Doing so is helpful to reconceptualize the relationship between rights and competence norms in modern constitutions.

Andrea Scoseria KatzElecting Rigidity over Liquid Power: Formalism, Minimalism, and Anti-Statism in the American Judiciary

In the context of global constitutional adjudication, courts have often deployed their authority flexibly to correct blockages in the democratic process as well as ensure rights enforcement where weak political institutions are unwilling or unable to take such action. The efficiency-enhancing and rights-protecting virtues of such “liquid power“ notwithstanding, it cannot be assumed that rights-adjudicating institutions will in fact make use of this power. In fact, recent trends in the United States shows the opposite: a strategic deployment by the judiciary of “rigid“ doctrines of deference and non-justiciability to block enforcement of broad rights claims upon the American state. This paper explores the twin doctrines of political questions and standing (particularly in the context of mass class actions), two elements of American rights jurisprudence that typify courts‘ formalist and minimalist rejection of liquid power.

Roberto GargarellaExecutive powers, democracy and participation (substitutes) in Latin America

Roberto Gargarella argues that the latest wave of constitutional reforms in Latin America did not go far enough in advancing human rights because the reforms failed to reach what Gargarella calls the “engine room of the constitution.“ The engine room consists of the power-granting provisions of constitution that determine the relative authority of governmental actors. Gargarella contends that the enshrinement of several additional rights in Latin American constitutions is undermined by a failure to reorganize power structures so as to ensure that these new rights will be enforced.

Chair(s): Joana Mendes

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