Editorial | Volume 26 No. 6

The issue opens with Antonios Kouroutakis’ evaluation of the militant democracy model for defending democracies against anti-democratic political parties. Drawing a distinction between ‘hard’ militant democracy and the softer ‘strategic democracy alternative, he highlights how certain electoral systems can operate as protective shields for democracy. Moreover, in selecting the strategic model over the militant one, Kouroutakis argues that this model has the effect of entrusting the defence of democracy to the voters, itself a more democratically aligned approach.

Pádraig McAuliffe’s article also engages with democracy, specifically the idea of global democratic decline. McAuliffe poses the question: ‘What is the future for the concept of indivisibility in a world where human rights and democracy are separable in theory and increasingly separated in practice?’ Focusing on the relationship between socio-economic rights (ESR) and those civil and political rights associated with democracy, he considers indivisibility – that is, the idea of rights being ‘incapable of being divided in reality or thought’ – with a view to assessing the continued viability of this conception in circumstances of democratic retreat.

In her article, Nina Kerstensteiner draws our attention to the field of animal protection law in Germany, and the problems with implementing these elevated standards caused by a lack of enforceable rights for animals. Scrutinising the structural and procedural barriers that hinder enforcement, the author not only delves into their underpinning theories, specifically the Schutznormtheorie (Protective Norm Theory), a doctrinal principle of German administrative law that restricts legal standing to the infringement of individually protective norms, but also calibrates these insights via engagement with international and European jurisprudence and practices.

Paolo Bodini’s article concerns political constitutionalism, specifically citizen participation, and examines arrangements that promote participation as a key channel for societal change. In this article Bodini proposes a ‘dual approach’ to what he calls the counter-majoritarian difficulty, that is, the tension between popularly legitimate legislative power and the judiciary’s counter-majoritarian power of the judiciary to strike down laws held as conflicting with judicial constitutional interpretation.

In this article, the authors Nam Giang Do and Dat T. Bui discuss how, under the migration of the proportionality doctrine to Asia, there has been increased and more productive interactions between public and private law. Noting that this ‘migration’ has been driven in large part by normative reasoning concerning rights – that is, the idea that any restrictions of constitutional rights should not exceed what is necessary – the authors observe this in the case of Vietnam at three levels: the constitutional provision of human rights limitation, the constitutional principle of proportionality analysis, and the constitutional theory of proportionality doctrine.

As always, happy reading.
Jen Hendry
On behalf of the GLJ EiC