When we think about parliaments and the legislature, we often find ourselves casting our minds back to the first ‘parliaments’, such as the fora of Ancient Greece or the Althing of Norse Iceland. Broadly speaking they were similar – a group of people coming together to make laws. Parliaments and legislatures have developed considerably since those times to be complex bodies, but the key idea of a group coming together to make laws remains. At the same time we might also think that this collection of people is also somehow representative of democracy – but we need to be clear that just having a legislature does not itself mean you are democratic. A variety of other conditions need to be met before we would usually say that a country is 'democratic', though in the case of Australia this is generally a given. While other chapters will discuss the way parliaments are elected – the electoral system – and who gets to choose who the candidates are – the parties or individuals – this chapter will discuss the role, purpose and operation of the Australian Parliament, as it is the legislature that citizens, members of parliament (MPs) and parties all aim to attend and control.

While women may have partly profited from the relatively recent rights-revolution in Latin America, the pregnant sisters among them have seemingly had to sit in the back of the bus or stay off altogether. Even modest progress on abortion entitlements has ostensibly come at a high price and slow pace, perchance thanks to the opposition of an alliance of age-old and up-and-coming religious congregations. On a positive note, though, the struggle for emancipation on this front seems to be moving forward.

This chapter discusses the legal nature of the Security Council. It first defines the law applicable to the Council and then its nature as an organ of the UN, not a separate legal entity. It addresses and dismisses attemps to compare the Council to an executive, legislative or quasi-judicial body. Rather it is a UN organ with the primary resposibility for international peace and security, and that is what defines its legal nature. ThecChapter also addresses issues of the supremacy of legal obligations under the UN Charter over other sources of law, including binding decisions of the Council.

UK law on assisted suicide is stuck in a cycle: courts uphold its illegality and defer to parliaments to enact change, but parliaments are reluctant to cross that threshold. This chapter deconstructs the case law on maintaining the status quo and constitutionally deferring to the legislature. It also considers reasons why legislators have declined to enact legal reform – autonomy issues, safeguards, palliative alternatives and the slippery slope. It looks at three jurisdictions in which this matter is overtly constitutional, and finds similarities among the criminal provisions that litigants sought to overturn and the rights on the basis of which they were overturned, leading to legislative change. The contested criminal provisions reflect the Suicide Act 1961 and the constitutional provisions against which they were considered to mirror the Human Rights Act. Currently, the only evidence of escape from liminality is a de facto policy of non-prosecution. With the UK Supreme Court poised to declare incompatibility with the European Convention on Human Rights, the ground has been laid for a constitutional answer that forces the legislature’s hand and enables a move beyond liminality.

This chapter presents the institutions of central and local government. The balance of powers in favour of the executive within the Fifth Republic Constitution formalises realities of power. The traditional centralised French state with its local representatives controls many important public services. Developments over the past forty years have given more power to regions and large cities. These have provided a counterbalance to centralisation in economic development. The growth of Independent Administrative Authorities reflects developments in other developed countries. Nearly fifty years of the ombudsman function (now constitutionalised as the Défenseur(e) des droits) provides alternative redress to the administrative courts. The chapter concludes with an overview of the sources of French administrative law. The law is no longer primarily drawn from the case law of the Conseil d’Etat, but the Constitution, the enactment of codes, and the importance of EU law and the European Convention have diversified sources of law. Case law remains more important than in private law and legal scholarship is enriched by the participation of leading members of the Conseil d’Etat as authors.

This chapter examines the impact of the process of implementing Brexit on the pre-existing constitutional problem of delegated legislation. Its core argument is that one likely legacy of the Brexit process will be (and perhaps already is) the exacerbation of the already troubling constitutional position of delegated legislation. But it does also, albeit very tentatively, highlight some indications that the Brexit process may yet lay the foundations for improving the position of delegated legislation in the UK’s constitutional landscape. After providing a critical overview of the (pre-Brexit) constitutional position of delegated legislation - and thereby setting out the context in which the heavy reliance on delegated legislation in the implementation of Brexit arose - the chapter examines the place of delegated legislation in the legislative response to Brexit, focusing in particular (but not exclusively) on delegated legislation by the UK government under the European Union (Withdrawal) Act 2018, before closing by excavating some more encouraging elements of the story.

The Pan-African Parliament (PAP) had been part of a stalled series of proposed reforms to accelerate the African Economic Community since 1991. However, it passed as one of the ‘twin’ goals in establishing the AU, but its powers were relegated to a minor part of the AU. Explaining both its sudden adoption after years of going nowhere, and its eventual functions as a mere advisory body rather than continental legislature as originally envisaged, necessitates diving into the norm circles that first proposed and then turned against it, as well as its role in Gaddafi’s vision of uniting Africa. Where it landed was a function of the respective competencies of these norm circles, ending largely in a stalemate.

In this chapter, I begin by covering the legal definitional differences between treaty signature and treaty ratification. I discuss the two-step legal nature of signing and ratifying international treaty law and present an argument of when and why signature is important. I posit that states confronting domestic legislative barriers to ratification place an importance on the act of signature, as it is easier for these states to sign than it is to ratify. I examine the case of the United States and the historic hurdles confronted ratifying human rights law. Then, I statistically test the effect of signing human rights treaties on human rights behavior on the ICCPR and CEDAW treaties. I find that for states confronting domestic legislative barriers to ratification, signature is a significant indicator of improved human rights. This finding does not hold for states without such barriers.

This chapter begins with existing explanations for rights informality: weak state capacity, left-wing ideology, and competing state goals. It then develops a theory for understanding why governments that distribute land often withhold property rights, presiding over widespread rural property informality for long periods, and why other governments grant more secure property rights over land. Authoritarian regimes tend to redistribute land from large landowners to peasants but withhold property rights. Democracies often grant property rights to beneficiaries of previous land reforms but do not redistribute additional property. This difference is driven by how political regimes empower or disempower landed elites and peasants, differences in institutional powers, and constraints that political elites face, and the incentives of incumbency and political competition. Democracies are better at channeling popular demands into policy. But policies can also be blocked by the powerful in a legislature. Finally, foreign pressure during economic crisis can force a country to turn to international financial institutions for help. Privatization and greater security of property rights can be a condition for support.

In the previous chapter, I explained that we may need to reconsider familiar formulations of fundamental principles when we apply them in new contexts. In this chapter, I ask how we might even embark on such evaluations. A traditional and commendable scholarly reflex is that we must ‘ground’ our analysis in certain and self-evident bedrock. I will show the infeasibility of this search for secure moral foundations.

I suggest a non-foundational approach, using a coherentist method: we do the best we can do with the available clues and arguments. The clues include patterns of practice, normative arguments, and casuistically-tested considered judgments. We can work with ‘mid-level principles’ to carry out fruitful analytical and normative work.

The coherentist approach accepts that our principles are human constructs, that our starting points are contingent, and that we have no guarantees of ‘correctness’. Discussion of fundamental principles is not a matter of ethical computations; it is a conversation. It is a human conversation, a fallible conversation, and nonetheless an important conversation. I also argue that coherentism offers the best explanatory and justificatory account of the method used in most criminal law theory. In other words, it is the best theory of criminal law theory.

This chapter discusses the scope of the right to free elections in the Convention. It explores how this is largely limited to legislatures but there are debates about the application to presidential elections and referendums. The chapters includes a discussion on globalisation and the development of the free elections case law in respect of the European Parliament.

Patents as “exclusive privileges” were introduced in India in 1856 when it was a colony of the British Empire. Many developed countries, then as now, used patent systems as policy levers to encourage importation and adoption of inventions in order to strengthen their technological capabilities. Yet even under the influence of British patent law, by the time of its independence in 1947 India was technologically far behind. This chapter examines this issue by focusing on patent policy and policy making in colonial India to highlight how colonial constraints on the political and legislative freedom of the Government of India had an adverse effect on choosing a patent policy conducive to India’s cultural interest. The analysis draws from the empirical evidence of inventors’ experiences of obtaining and enforcing patent rights in British India, and the role of various stakeholders in influencing the patent policy. It specifically outlines the case of patentees Messrs Thomson & Mylne, whose efforts led to the first large-scale commercialization of an Indian patent and reassessment of the proposed patent law vis-à-vis the needs of the Indian agricultural sector.

The government is unique among speakers because of its coercive power as sovereign, its considerable resources, its privileged access to key information, and its wide variety of speaking roles as policymaker, commander-in-chief, employer, educator, health care provider, property owner, and more. The government’s expressive choices—and by this I mean the government’s choices about whether and when to speak, what to say, how to say it, and to whom—are neither inevitably good nor evil, but instead vary widely in their effects as well as their motives. Through its speech, the government informs, challenges, teaches, and inspires. Through its speech, the government also threatens, deceives, distracts, and vilifies. This chapter shines a light on the government’s speech in its many manifestations, with its vast array of audiences, topics, means, motives, and consequences. The more we recognize the volume and variety of the government’s speech in our lives, the more thoughtfully we can puzzle over its constitutional implications. After identifying some of the motivations for and consequences of those choices, this chapter introduces available options for constructively influencing them.

One of the great legacies of the French Revolution was that it made parliamentarism the preeminent constitutional ideal of European liberalism. This chapter begins by examining the early constitutional debates of the Revolution when the English practices examined in previous chapter were rejected across the French political spectrum. I then examine Germaine de Staël and Jacques Necker, two of the most influential champions of these practices in 1790s France. Finally, I return to Britain, consider key advocates of parliamentarism there who were writing during this period and highlight the parallels between their arguments and those of de Staël and Necker. In both France and Britain, advocates of parliamentarism claimed that it was the only political framework that could enable a nation to be safely and durably governed by a representative assembly. But in both contexts, authors continued to grapple with the dilemmas of parliamentarism–above all, the dilemma of corruption.

This chapter argues that Benjamin Constant’s greatest legacy to liberalism was his theory of parliamentarism, which revolutionized the way that the constitutional model was understood. Unlike previous authors examined in this book, Constant envisioned a constitutional monarch divested of executive powers–who reigned but not govern–and minsters who maintained their position entirely through the process of debate that unfolded within Parliament and the public sphere. Constant believed that this (seemingly) minimal framework of checks was sufficient to prevent Parliament from becoming tyrannical. It could achieve the great promise of the English parliamentary model–a nation being truly governed by a representative assembly–while at the same time overcoming the dilemmas long associated with that model, including the dilemma of corruption. The first part of the chapter examines Constant’s constitutional theory. The second part examines Constant’s involvement in French parliamentary politics during the Restoration when he tried and failed to enact this theory.

While Alexis de Tocqueville is most famous for his analysis of American democracy, this chapter argues that when it came to France, he preferred parliamentarism over the American constitutional model. During his long career in French parliamentary politics, Tocqueville in fact developed a distinctive theory of parliamentarism, which was different from Constant’s, but which also differed from the conception of parliamentarism propagated by Constant’s great rivals, the Doctrinaires. Tocqueville rejected Constant’s argument for a monarch who reigned but did not govern. However, he agreed with Constant that corruption posed a severe threat to the survival of French parliamentarism.