What it means for a provision to be “incompatible” with Convention rights is crucial in determining whether courts with the power to do so ought to make a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“HRA”). A clear understanding of incompatibility is also necessary for the proper operation of statements of compatibility under section 19 HRA. It is crucial for the devolved legislatures whose incompatible legislation is “not law”. And delegated legislation can be struck down, or declared incompatible, by a court for the same reason. Yet the test for determining incompatibility remains unclear and understudied. The lack of clarity threatens both rights protection and dialogue between the different branches, and layers, of the state. This article argues that the test currently favoured sets the bar inappropriately high and that the test must more clearly consider both the potential extent, and the likelihood, of the breach.

While the judgement of the European Court of Human Rights (ECtHR) in KlimaSeniorinnen v. Switzerland has been hailed by many as a landmark in climate change and human rights litigation, the response by Switzerland and many intervening parties has been less favorable. For instance, the Swiss legislative has been very critical in its review of the judgement, claiming it to be “judicial activism.” By dissecting the criticism voiced in the aftermath of the KlimaSeniorinnen judgement and by comparing this case to similar cases by national and international courts in regard to climate change this paper asks whether this is a unique and swiss-specific criticism or if there is an inherent problem when it comes to climate change litigation and the separation of powers. While acknowledging persistent general criticism of the ECtHR, this article concludes that it is likely that the connection to human rights drives such criticism more than the connection to climate change. This might be because human rights, especially in the international context, leave ample room for interpretation and the margin of appreciation doctrine leaves room for disagreement. Additionally, this paper finds that situations of vertical separation of powers are more prone to criticism than horizontal ones.

American politics is characterized by an implicit rights-centrism, for example, when public discourse champions the freedom of speech in absolute terms. This article proposes instead an ends-centric mode of deliberation that underscores the myriad ends beyond rights that are also necessary to a polity’s health. Grounded in republican theory, the ends-centric mode maintains space to (re)prioritize ends and to redraw the boundaries of rights as required by a given moment or issue. Rather than displace rights-centrism or the courts’ role in enforcing rights, the ends-centric mode prompts other institutions also to engage in rights reasoning, thereby elevating the larger conversation and process of deliberation. It thus allows a separation-of-powers logic to operate more fully in the realm of rights by leveraging diverse institutional perspectives and capacities toward a multi-sided dialogue over rights questions. We draw from historical debates on speech and press freedom from the early republic and the twentieth century to find sight lines for an ends-centric approach in American politics. We further examine how ends-centric arguments would benefit deliberations over the regulation of social media today. Specifically, arguments that overemphasize speech in social media crowd out other desirable ends, such as protecting young people online and combating misinformation. Ultimately, we argue the benefits of rights-centric and ends-centric modes operating alongside each other across constitutional fora, as the polity deliberates rights in old and new forms.

Based on a qualitative and quantitative research design, this article examines the implementation of a morality policy – the medical cannabis policy in Switzerland – to investigate three understudied aspects of bureaucratic entrepreneurship. First, moving away from mono‐professional studies, the focus is on a policy characterized by a dispute between two groups of bureaucrats: physicians and jurists. Second, key conditions triggering bureaucratic policy entrepreneurship are identified, with a focus on mid‐level administrative entrepreneurs. Third, vertical alliances between bureaucrats and politicians of the executive and legislative branches are examined and these processes are reflected in the wider perspective of the politics‐administration dichotomy. Results show that law obsolescence, disputes between groups of bureaucrats and the need for political arbitration are favourable conditions for bureaucratic policy entrepreneurship. The study also shows that within the traditional separation of powers, bureaucratic entrepreneurship reinforces the executive power and creates dividing lines within the different branches of government.

Democracies in Europe fail to take adequate climate mitigation measures. In response, not only legal, but also illegal acts of climate protesters are multiplying in Europe. This paper examines the criminalisation of climate protests in France, Germany, Switzerland, and the UK. Against the overarching concept of dissensus to which this special issue is dedicated, this contribution reflects on the role of judges who deprive the disobedient from the opportunity to communicate about their motives. The paper pays particular attention to the case of David Nixon in the UK, in which the judge prohibited Mr. Nixon from sharing his motivation or mentioning climate change in the court room. This demeans civil disobedience to an ordinary criminal act and deprives democracy of its self-correcting potential.

The US and the EU have undergone a process of institutional convergence. While Madison argued that the US was subject to a systemic imperative to promote an anti-hegemonic order, the same has revealed itself to be true of the EU too – this because of the asymmetry of powers between its member states. However, because of the anti-hierarchical structure which supports it, an anti-hegemonic order is weak in terms of decision-making capacity. Thus, the price of the preservation of internal complexity is external ineffectiveness. The article considers the most appropriate trade-off between the two. The Madisonian approach to the compound of American states can help the EU in facing the dilemma of the integration process.

This article critically assesses the claim that smaller states may be structurally and socially pre-disposed towards more effective government performance. A review of recent experience in Iceland and Ireland indicates that the domestic characteristics that have been argued to foster superior small state performance can, under certain conditions of size and homogeneity, contribute to government failures. Furthermore, experience in these states suggests that high levels of social cohesion and homogeneity may increase the risk of a specific social phenomenon (‘Volkthink’) with adverse consequences for public policy.

Steffen Ganghof’s Beyond Presidentialism and Parliamentarism: Democratic Design and the Separation of Powers (Oxford University Press, 2021) posits that “in a democracy, a constitutional separation of powers between the executive and the assembly may be desirable, but the constitutional concentration of executive power in a single human being is not” (Ganghof, 2021). To consider, examine and theorise about this, Ganghof urges engagement with semi-parliamentarism. As explained by Ganghof, legislative power is shared between two democratically legitimate sections of parliament in a semi-parliamentary system, but only one of those sections selects the government and can remove it in a no-confidence vote. Consequently, power is dispersed and not concentrated in the hands of any one person, which, Ganghof argues, can lead to an enhanced form of parliamentary democracy. In this book review symposium, George Tsebelis, Michael Thies, José Antonio Cheibub, Rosalind Dixon and Daniel Bogéa review Steffen Ganghof’s book and engage with the author about aspects of research design, case selection and theoretical argument. This symposium arose from an engaging and constructive discussion of the book at a seminar hosted by Texas A&M University in 2022. We thank Prof José Cheibub (Texas A&M) for organising that seminar and Dr Anna Fruhstorfer (University of Potsdam) for initiating this book review symposium.

I examine the transformation of Italy during the fascist era and the way in which it was explained by one of the most prominent constitutional lawyers of the time, Costantino Mortati (1891–1985). A member of the Constituent Assembly of 1946–1948 and later a constitutional judge, Mortati had a deep influence on the Italian post-War constitutional thinking. Here I focus on Mortati’s understanding of the state’s transformation after 1922. I show how he conceptualised Italy’s transition from a liberal state to an authoritarian regime as a shift from the parliament to the executive of the power of ‘political direction’, ie, the power of identification of the aims and values of the state. Mortati did not envisage in the Italian transformation the full erasure of the separation of powers, but rather a large reshuffle of political direction moving from the Parliament to the Head of Government, allegedly a process in line with the country’s needs in the 20th century. He read the growth of executive powers as the most enduring constitutional transformation of his time, one destined in his mind to persist even after the downfall of the regime.

This essay aims to clarify the characteristics of the political theories of Montesquieu and Adam Smith by comparing their views on liberty. Montesquieu divides political liberty into two categories: “liberty in its relation with the constitution” and “liberty in relation to the citizens.” The former concerns the security of the governed in their relationship with those who govern, whereas the latter concerns the security of citizens and their property against infringements by other citizens. Smith concentrates on civil liberty and elaborates on Montesquieu’s framework to develop a more refined theory of the separation of powers. However, their views diverge on constitutional liberty. Montesquieu expects the nobility, as an intermediate group, to restrain sovereign despotism, whereas Smith emphasizes that this group historically threatened citizens’ security and valued the central government’s role in checking it. A comparison of their views deepens our understanding of the foundations of a free society.