The Indian Yearbook of Comparative Law 2019

The Indian Yearbook of Comparative Law
Series Editor: Mahendra Pal Singh
Mathew John · Vishwas H. Devaiah ·

Pritam Baruah · Moiz Tundawala ·
Niraj Kumar Editors
The Indian
Yearbook
of Comparative
Law 2019
Series Editor
Mahendra Pal Singh, Centre for Comparative Law, National Law University, Delhi,
New Delhi, India
The Indian Yearbook of Comparative Law (IYCL) is a Springer series in the
field of Comparative Law, a field which has evolved from being seen as
methodology only, to a full-fledged substantive discipline of study. It comprises
both public and private law. With the yearbook, editors and publisher make a
significant contribution to the development of this highly significant branch of
study. Although much work has been done in the discipline worldwide,
references to Global South in the discourse is still on the margins. The series attempts
to bring narratives from Global South to the forefront. It also simultaneously
engages with scholars from Global North too with a view to generate interactive
comparative discourse.
IYCL covers all areas of comparative law. The series engages with contempo-
rary issues and also with issues of perennial importance. This series primes inter-
disciplinary approach to the study of comparative law. The view of comparative law
taken by IYCL encompasses both jurisprudential and functionality approaches
of the discipline.
More information about this series at http://www.springer.com/series/16189

Mathew John · Vishwas H. Devaiah ·
Pritam Baruah · Moiz Tundawala · Niraj Kumar
Editors
The Indian Yearbook

of Comparative Law 2019
Editors
Mathew John Vishwas H. Devaiah
Jindal Global Law School Jindal Global Law School
O. P. Jindal Global University O. P. Jindal Global University
Sonipat, India Sonipat, Haryana, India
Pritam Baruah Moiz Tundawala

BML Munjal Law School Jindal Global Law School
Gurugram, Haryana, India O. P. Jindal Global University
Sonipat, India
Niraj Kumar
Centre for Comparative Law
National Law University
New Delhi, Delhi, India
ISSN 2524-7042 ISSN 2524-7050 (electronic)

ISBN 978-981-16-2174-1 ISBN 978-981-16-2175-8 (eBook)
https://doi.org/10.1007/978-981-16-2175-8
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Preface
The Indian Yearbook of Comparative Law (IYCL) was started in 2016 at the Centre
for Comparative Law at the National Law University, Delhi, to deepen engage-
ment with comparative law from an Indian vantage point. We have tried to do so
by juxtaposing and bringing into conversation the works of both established and
younger scholars. The present volume is our third issue, and we hope to become more
regular to truly live up to our ambition of being a yearbook of original scholarship
in comparative law.
This year marks some important administrative shifts for our yearbook. The year-
book will be housed and managed from Jindal Global University (JGU) from this
year onwards. In part, this was driven by our senior colleague Prof. M P Singh, the
moving force behind this yearbook, after he assumed a professorial position at Jindal
Global Law School (JGLS). In addition, there are many of us among the large faculty
cohort at JGU who have deeply invested in carrying forward the founding vision of
the yearbook through an interdisciplinary investigation of comparative law themes.
The IYCL 2019 encompasses themes from both public and private compara-
tive law. These include papers on constitutional law, constitutionalism, the German
concept of ‘Rechsstaat’, the comparative study of the principle of ‘proportion-
ality’, and the significance of constituent assembly debates for legal interpretation.
Further, scholarly work on the themes of comparative environmental law, compar-
ative consumer disputes across different jurisdictions, comparative study of arbitral
awards under the New York Convention, comparative study of hate speech across
Europe, comparative analysis of the religious practice test in India and the US, a crit-
ical analysis of legal transplants, and critical Chinese scholarship on the changing
landscape of ’Lawyering for Change and Public Interest’ in China are also included.
We are hopeful that these essays will speak insightfully to the widest readership
in contemporary comparative law problems and especially to those interested in
thinking about comparative law as a way of solving Indian problems with an eye on
global conversations.
We are grateful to all the contributors to this issue for responding and taking
forward our call for comparative conversations across the range of themes covered
by this volume. A number of others require special mention—Prof. C. Raj Kumar,
v
vi Preface
Vice Chancellor, Jindal Global University, for his unwavering support and the hard
work of the new IYCL editorial team, especially Nupoor Singh (Springer), Abhilasha
Ramakrishnan, and Vandana Gyanchandani. Lastly, we hope that the readers of the
IYCL 2019 will find this volume enjoyable, useful, and engaging.
New Delhi, India Niraj Kumar

Moiz Tundawala
Pritam Baruah
Mathew John
Vishwas H. Devaiah
Contents
Part I Comparative Law: General Themes

1 The Limits and Challenges of Comparativism . . . . . . . . . . . . . . . . . . . . 3
Esin Örücü
2 The Curious Case of Overfitting Legal Transplants . . . . . . . . . . . . . . . 23
Mathias Siems
Part II Private Law

3 The Concept of Arbitral Award Under the New York
Convention: A Comparative Study of English, French
and Indian Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Rajesh Kapoor
4 A Comparative Assessment of the Legal Frameworks
on Cross-Border Consumer Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Williams C. Iheme
5 Sustainable Development Component in Model
BITs—A Comparative Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Rubanya Nanda
Part III Public Law: Constitutional Law

6 Proportionality—A Balancing Act for Achieving
Constitutional Rights: A Comparative Study . . . . . . . . . . . . . . . . . . . . . 111
A. K. Sikri
7 Authoritarian Constitutions: Audience and Purposes . . . . . . . . . . . . . 131
Günter Frankenberg
8 Understanding the Contours and Contexts of the Rechtsstaat:
A German Concept? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Markus Kotzur
vii
viii Contents
9 Does Authoritarian Legality Work for China? . . . . . . . . . . . . . . . . . . . 169

Qianfan Zhang
10 Durham, Dyarchy, and Difference: India’s Constitutional
Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
Kamala Sankaran
11 Relevance and Significance of Constituent Assembly Debates
in Constitutional Interpretation: A Comparative Analysis
with Reference to Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
P. Ishwara Bhat
Part IV Public Law: Human Rights

12 The Regulation and Governance of Online Hate Speech
in the Post-truth Era: A European Comparative Perspective . . . . . . 255
Kyriaki Topidi
13 Essential Religious Practices Test and the First Amendment:
A Comparative Analysis of the Free Exercise of Religion
in India and the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
Arvind Kurian Abraham
14 Public Interest Litigation and Grievance Redressal:
Combining ‘Macromanagement’ and ‘Micromanagement’
for Effective Socio-Economic Rights Adjudication . . . . . . . . . . . . . . . . 303
Florian Matthey-Prakash
15 Another Perspective to Read the Picture of Lawyering
for Change in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
Wenjuan Zhang
16 ‘A Call for Order’: Intra-Disciplinary Challenges
and ‘Comparative Environmental Law’ . . . . . . . . . . . . . . . . . . . . . . . . . 357
Akhilendra Pratap Singh
Editors and Contributors
About the Editors
Dr. Mathew John is Professor at the Jindal Global Law School and also Execu-
tive Director of Centre for Public Law and Jurisprudence. His research spans the
fields of public law, legal theory, and especially legal theory at the interface between
constitutional and political theory. His research work has been facilitated by research
fellowships at the London School of Economics, the Centre for the Study of Culture
and Society, Bangalore, the Centre for the Study of Law and Governance, Jawaharlal
Nehru University, and most recently at the Kate Hamburger Kolleg, at Bonn. He has
qualified in law with a doctoral degree from the London School of Economics and
Political Science, a master’s degree from the University of Warwick, and a bachelor’s
degree from the National Law School of India University.
Dr. Vishwas H. Devaiah is Professor at the Jindal Global Law School, Director
of Centre for Postgraduate Law School. He is also Executive Director of the Centre
for Intellectual Property and Technology Law (CIPTEL), and Co-director of JIRICO
where he has led research and capacity building of JIRICO. He has served as the
Managing Editor of JGLS’ flagship journal, Jindal Global Law Review (Springer).
His primary areas of interest are intellectual property law, interface between IP and
competition, health law, and biotechnology law. He has co-authored two open access
books titled ‘Multi-dimensional Approaches Towards New Technology: Insights on
Innovation, Patents and Competition’ & ‘Complications and Quandaries in the ICT
Sector: Standard Essential Patents and Competition Issues’. He has published widely
in Journal of Intellectual Property Law and Policy, Journal of World Intellectual
Property, Asian Bioethics Review etc., and serves as a reviewer for the Asian Compar-
ative Law Journal and the Indian Journal of Medical Ethics. He was awarded the
2015 Microsoft IP Teaching Fellowship to engage with researchers at University
of Washington Law School in Seattle. He obtained a Ph.D. from the University of
Liverpool, UK; an LL.M. degree from Warwick University, UK; and Bachelor of
Law (B.A.L., LL.B.) degrees from University Law College, Bangalore University.
ix
x Editors and Contributors
Pritam Baruah is Professor & Dean, BML Munjal Law School. His research inter-
ests are in legal philosophy and constitutional theory. He was earlier a faculty
at National University of Juridical Sciences, Kolkata and has served as Visiting
Professor at Humboldt University, Berlin; National Law School of India Univer-
sity (Bangalore), China University of Political Science and Law (Beijing), and the
University of Ottawa. He was a teaching fellow in jurisprudence at University College
London where he co-founded UCL Legal Philosophy Forum. He has published
in international and Indian journals including the Canadian Journal of Law and
Jurisprudence, the NUJS Law Review, and in several edited international volumes
including the Indian Yearbook of Comparative Law. Before joining academia, he
practiced law at the Supreme Court of India. He has an integrated degree in law and
humanities from NALSAR University of Law, Hyderabad; was Felix Scholar at the
University of Oxford (BCL); and is Commonwealth Doctoral Scholar at University
College London.
Dr. Moiz Tundawala is Associate Professor of Law at Jindal Global Law School
in India. He completed his doctoral studies at the London School of Economics and
Political Science. All through his academic career, Moiz has been a recipient of pres-
tigious scholarships including a fully funded scholarship from the LSE for Ph.D.,
Felix scholarship for his Masters at SOAS, and a Microsoft Intellectual Property
scholarship during the final year at the WBNUJS. Moiz has taught and researched in
various institutions including JGLS, LSE, WBNUJS, and the National Law Univer-
sity, Delhi. He works in the areas of Indian constitutional thought, legal and political
theory, modern intellectual history, and comparative public law. His scholarship is
either forthcoming or published in the Journal of Political Theology, Asian Journal
of Comparative Law, Indian Yearbook of Comparative Law, NUJS Law Review, and
other edited volumes.
Dr. Niraj Kumar is currently working as Associate Professor at National Law

University, Delhi, where he is also Project Co-director of “Exploring the Nature
of the Indian Legal System” at the Centre for Comparative Law. Prior to this, he was
teaching at Faculty of Law, University of Delhi. He was Co-ordinator of the project
of Ministry of Home Affairs on the ‘Study regarding Cadre Management of Indian
Police Services officers’. He was also member of the Expert Committee constituted
by Ministry of Labour& Employment to draft rules under the EPF Act. His recent
publication is titled The Indian Legal System: An Enquiry 2019. He was Co-editor
of The Indian Yearbook of Comparative Law 2018 and Open Markets, Free Trade
and Sustainable Development—Perspectives from the EU and India, which have been
published by Springer. His areas of interest are comparative law, administrative law,
constitutional law, environmental law, interpretation of statutes, and jurisprudence.
Editors and Contributors xi
Contributors
Arvind Kurian Abraham Harvard Law School, Cambridge, MA, USA;

West Bengal National University of Juridical Sciences, Kolkata, India
P. Ishwara Bhat Karnataka State Law University, Hubballi, India
Günter Frankenberg Goethe University, Frankfurt, Germany
Williams C. Iheme Jindal Global Law School, O.P. Jindal Global University,
Sonipat, India
Rajesh Kapoor NALSAR University of Law Hyderabad, Hyderabad, India
Markus Kotzur Chair for Public Law, European and International Public Law &
Vice Dean for International Relations, University of Hamburg, Hamburg, Germany
Florian Matthey-Prakash Bad Vilbel, State of Hessen, Germany
Rubanya Nanda Jindal Global Law School, O.P. Jindal Global University, Sonipat,
India
Esin Örücü Professor Emerita of Comparative Law, University of Glasgow,
Glasgow, Scotland;
Emeritus Professor of Comparative Las, Erasmus Universiteit Rotterdam, Rotterdam,
Netherlands;
Senior Honorary Research Fellow, University of Glasgow, Glasgow, Scotland
Kamala Sankaran Campus Law Centre, Faculty of Law, University of Delhi,
Delhi, India
Mathias Siems European University Institute, Florence, Italy
A. K. Sikri Singapore International Commercial Court, Supreme Court Lane,
Singapore;
Supreme Court of India, New Delhi, India
Akhilendra Pratap Singh Ph.D., Department of Political Science “Jean Monnet”,
University of Campania “Luigi Vanvitelli”, Caserta, Italy;
LL.M, NLU Delhi, Delhi, India;
LL.B, Banaras Hindu University, Varanasi, India;
B.Com, University of Allahabad, Prayagraj, India
Kyriaki Topidi Head of Cluster on Culture and Diversity, European Centre for
Minority Issues, Flensburg, Germany
Qianfan Zhang School of Law, Peking University, Beijing, China
Wenjuan Zhang Jindal Global Law School, Jindal Global University, Sonipat,
Haryana, India
Part I
Comparative Law: General Themes
Chapter 1
The Limits and Challenges
of Comparativism
Esin Örücü
Abstract This paper examines the limits of comparativism under two categories:
those limits related to the comparatist herself—the intrinsic, and those related to
other factors such as the context, the environment and the purpose, the limits of its
use; the limits of its methodology; the limits of topics to be compared and so on—the
extrinsic. These limits are not rigid and at times may overlap. Beyond these, the paper
also delves into further challenges. As a final note, the paper reminds the reader that
although comparative law is not a panacea to all our woes, the comparative lawyer
will remain an essential actor in our century. She must endeavour to surpass the
limitations enslaving both her, the intrinsic challenges, and her subject, the extrinsic
challenges.
1.1 Introduction
Comparative Law appeared limitless to me when I gave my inaugural lecture at

Erasmus University Rotterdam in 1982.1 This rather naïve plunge into the field was
fired by what my predecessors professed. I was first bewildered when I read that
as a Professor of Comparative Law, I may expect to ‘enjoy many privileges which
would make (me) an object of envy among (my) colleagues’, though ‘the subject had
1 Esin Örücü, Symbiosis between Comparative Law and Legal Theory – Limitations of Legal
Methodology (Erasmus Universiteit Rotterdam, Mededelingen van het Juridisch Instituut nr.19,
1982).
2 Otto Kahn-Freund, ‘Comparative Law as an Academic Subject’ (1966) 82 Law Quarterly Review,
40–41.
3 Max Rheinstein, ‘Teaching Tools in Comparative Law’ (1952) 1 American Journal of Comparative
Law, 107.
E. Örücü (B)
Professor Emerita of Comparative Law, University of Glasgow, Glasgow, Scotland
e-mail: esin.orucu@glasgow.ac.uk
Emeritus Professor of Comparative Las, Erasmus Universiteit Rotterdam, Rotterdam, Netherlands
Senior Honorary Research Fellow, University of Glasgow, Glasgow, Scotland
© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 3
M. John et al. (eds.), The Indian Yearbook of Comparative Law 2019, The Indian Yearbook
of Comparative Law, https://doi.org/10.1007/978-981-16-2175-8_1
4 E. Örücü
a somewhat unusual characteristic that it does not exist’2 and thereby Comparative
Law defied definition. Yet another eminent Comparative Law Professor was warning
me that ‘comparative law is a word of many meanings and the question of how it can
best be put to use in law school instruction is far from settled,’3 though, above all
it was ‘a method of knowledge.’4 Thus, my predecessors made me feel bewildered,
interested, intrigued, exhilarated and excited. I also felt my work was to be limitless
as it was in pursuit of knowledge.
However, we very well know that nothing is limitless.5 ‘Limits’ may mean
borders, boundaries, frontiers, margins, edges, perimeters or obstacles, restrictions
and restraints. Some of these are rigid, some are not.
Certain factors that may restrict the ‘comparative law enterprise’ can be referred
to as ‘the limits of comparativism’. There will be intrinsic limits—the limits of
the comparative lawyer herself; extrinsic limits—the limits of the context and the
environment in which she works; the limits of the purpose of comparativism; the
limits of its use; the limits of its methodology; the limits of topics to be compared
and so on. Some of these are severe, some are not.
Here, I regard ‘limit’ as a ‘not so rigid restriction’ and question the existence of
some of the factors regarded by some as insurmountable. I will consider below ‘the
limits of comparativism’ as I see them in two categories. The first is related to the
comparative lawyer herself and the second arises from factors extrinsic to her. In
each category, there are a number of issues to look at, some more serious than others.
Then, there are also further challenges facing the comparatist.
It is important to note the importance of the comparative lawyer herself before
venturing into the first category. By reference to other forms of cognizance by an
audience, I will try to demonstrate this.
Through an interpretation of the world by a painter, a painting can be directly seen
when hung on a wall, and a book can be read in direct contact with a writer through
her words. It can obviously be said that a picture may be enhanced or obscured by
the place where it is hung, under what light and so on. So, for a book, whether it
is clearly printed on good quality paper and published with care. Nevertheless, the
contact is direct in both cases. In music, however, three factors come together: the
composer where the composition starts, the player-interpreter through whom the
piece is heard and the listener where it ends. The composition reflects the personality
of the composer and the re-presentation of the interpreter.
This last instance is very similar to what happens in comparative law. Here, we
start with the foreign law—the composition—reflecting the society for which it is
envisaged in internal and external contexts, the composer being the actor of the
law, in a ‘top-down’ sense, the legislature, and in a ‘bottom-up’ sense, the judge.
The comparative lawyer is the interpreter. The target audience is the listener or the
4 Léontin Jean Constantinesco, Traite de Droit Compare, La Methode Comparative, Tome II

(Libraire Generale deDroit et de Jurisprudence 1974) 289.
5 I have looked into this subject elsewhere also. See Esin Örücü, The Enigma of Comparative
Law – Variations on a Theme for the Twenty-First Century (Martinus Nijhoff Publishers 2004)
Chapter 10.
1 The Limits and Challenges of Comparativism 5
reader. As law must be considered by the comparative lawyer in the context in which
it lives, she, as the interpreter, is the middleman. The target audience is exposed to
the law through the comparative lawyer’s conception of that law.
1.2 Two Categories of Limits
As foreign law passes through the sieve of the interpreter raconteur, that is the compar-
ative lawyer, the first limit of comparativism must be the comparative lawyer herself.
We can now delve into the first category of the limits of comparativism where we
will deal with a number of issues.
1.2.1 The First Category of Limits
The first question is: ‘Can the comparative lawyer find the law, understand it, interpret
it in keeping with the original meaning and faithfully represent it?’ It can be said
that in our day most comparative lawyers do possess the technical equipment to meet
any demand made upon them, the necessary language skills, cultural appreciation
and the tools of social science methodology. But are they all sufficiently familiar
with the totality of the legal system and the context of the foreign jurisdiction? Do
they all have that keen eye for detail and the willingness to see both similarities and
differences and the skills for transmitting this to the audience?6
To complicate matters further, there is no single legal culture in a legal system,
let alone a single culture in a society: there are communities and sub-communities,
as well as legal sub-communities. A comparative lawyer usually does not share the
culture of the ‘other’ into which she wishes to research and juxtapose to ‘another’. Nor
does she share all the cultural aspects of the ‘other’ culture’s legal sub-communities.
The legal system under scrutiny also has layers. What is the impact of one layer
upon others? How should the comparative lawyer decipher ‘interlegality’ in multi-
level legal systems, looking at local customary rules, religious rules, ‘national’ rules,
transnational business rules, EU rules (if a member state), rules of ius humanitatis
(environmental pollution conventions, etc.) and their interrelationship? What is she
to do facing such cases? Where are the functionally equivalent institutions to be
found? What should her target audience be told and what would they appreciate?7
If we are to give some examples, one could be to do with liability: Who should
point out any defects in the goods in a sales contract, the buyer or the seller? What
6 See Esin Örücü, ‘Some Problems and Pitfalls in Researching Law in Foreign Jurisdictions’, in
Péter Cserne, István H Szilágyi, Miklós Könczöl, Máté Paksy, Péter Takács and Tattay, S (eds),
Theatrvm Legale Nvndi: Symbola CS Varga Oblata, (Societaas Aancti Stephani 2007) 339–359.
7 See Nigel Jamieson, ‘Source and Target-Oriented Comparative Law’, (1996) 44 American Journal
of Comparative Law, 121.

6 E. Örücü
differences should one expect where the practice is that a seller sells a box of tomatoes
in a cellophane bag or where the buyer habitually handles the goods and picks his
own fruit? In both cases, the legal problem may be the same and the rules in force
may be the same, but there is a difference in the true meaning of liability here, not
because liability has a different meaning in different countries.
Another example could be: Why does a Turkish judge hear both parties separately
in a divorce case based on the ground of mutual consent, and does not recognize a
foreign divorce decree, even though also based on the ground of mutual consent,
where the foreign judge has not heard both parties separately? To a comparative
lawyer, it may seem absurd that the Turkish judge cannot see that Dutch or German
grounds of mutual consent and irretrievable breakdown are functionally equivalent
to the Turkish grounds of mutual consent and irretrievable breakdown. For her, there
would be no need even to seek for functional equivalence since all these systems rely
on the same ground. Her main concern would be to secure a recognizable pattern
and if she could not, she may conclude that only comparables should be compared
and that Turkish law in action is ‘beyond compare’! This would be because she does
not know the special socio-cultural issues involved here.
Yet another example: Why should it be that in some countries only adults can be
adopted? Why should the adopters have no children of their own? A comparative
lawyer looking at adoption can only develop a deep understanding and genuine
interpretation by appreciating the moral, social and cultural contexts that shape the
legal institutions. However, a traditional comparatist may come to the conclusion that
Turkish law lagged behind until the 2002 Civil Code and that the situation before
that date should not be compared with that in Scotland, for example.
Another example could be on the issue of bribery: In the Turkish language and
culture, there is a difference between bahşiş and rüşvet.8 What is the dividing line
here? Gessner says that German tax officers accept deductions for bribery in a tax
return if the enterprise claims bribery to be a local custom, in spite of international
conventions and codes of conduct against bribery.9
Without sufficient confirmation, a comparative lawyer’s florid addenda to basic
facts may mislead the audience. It may take on a life of its own; it may even start a
new narrative. We can only approach this limitation with ‘trust’ in the integrity and
meticulousness of the comparative lawyer.
I, for example, would regard myself as having a ‘deep level knowledge’ of Turkish
law, society and the Turkish language, and am at times amazed at passing remarks
made in the works of comparative lawyers which misrepresent Turkish law and
its socio-cultural context. Incorrect dates given for pieces of legislation, misspelt
words, bizarre explanations for certain legal developments and postures of unfounded
authority are frequent.
8 ‘Bahşiş’ is a payment given as a ‘thank you’ for a service legally owed to you but which could be
delayed in implementation but for it, ‘rüşvet’ is a payment to acquire an illegal interest.
9 Volkmar Gessner, ‘Global Legal Interaction and Legal Cultures’, (1994) 7 Ratio Juris. However,
this is not any more the case since the law has been amended.
The comparative lawyer may be forever confronted with the problem of how
closely she can keep to the actual. A high level of legal intelligence and sensitivity
is expected from comparative lawyers. Yet, some exaggeration and generalization
of findings may be inevitable. We must also keep in mind that there will always be
a number of different interpretations. Law is a living thing capable of being seen
in different lights and from different angles at different times even by the same
comparative lawyer.
Interpretation is a matter of emphasis to a large extent, so the audience must know
the interpreter as well as the law. Although the comparative lawyer must be faithful to
the original material, her personality, views and approach will inevitably colour her
interpretation. As each comparative lawyer thinks differently, has different emotional
attitudes and a different philosophy of life, it is only to be expected that comparatists
handle material differently. The target audience must be aware of the comparative
lawyer’s input to what they are being presented with. The audience needs some idea
of the legal systems under consideration as a point of reference and should be able to
sense the contribution of the comparative lawyer to it. An intelligent body of audience
is needed who also must have a sense of responsibility. This requires a broadened
base. It is insufficient to be involved only in the conventional aspects of the normative
legal order.10 The target audience must develop an unprejudiced broad taste for the
different. Above all, the comparative lawyer and the audience must both ‘hear’ and
‘listen’.
Interpretation, re-creation and re-presentation are delicate tasks. In these
processes, we see other limits of comparativism related to the comparative lawyer.
A lack of a deep knowledge of language is a major one. Language is a compar-
ative lawyer’s most important tool: the language of the foreign law, the ‘original
language’ and the language of the target-audience. Grammar, structure and vocab-
ulary can hide a host of relationships between law and the language in which it is
expressed. The same relationship exists between law and the language into which it is
interpreted. Although law is expressed in language, until the law has been constructed
and applied, it remains merely words on paper. Meaning must be given to language
and there is never one single meaning but permutations of meaning. Especially in
relation to concepts that do not exist in the target language, any translation made by
the comparative lawyer, however well she may know both languages, may remain at
the level of the idiosyncratic.
Furthermore, when dealing with customary law, the comparative lawyer must
remember that it is not always explicit or written and is often known only by word
of mouth. She must re-present this in explicit language, at times abstracted from the
facts. A further danger may arise here from a misunderstanding of what is ‘said’, or
a misinterpretation of what is ‘not said’, leading to assumed analytical conclusions
or even universal truisms. Though not in the realm of law, the example I often use for
10 See Hannu Tapani Klami, ‘Comparative Law and Legal Concepts’, in Oikeustiede Jurisprudentia,
ost- (1981) XIV Suomalaisen Lakimiesyhdistyksen Uosikirya (Vammala 1981) 67–166, for an
intriguing and thorough discussion of the role and limits of comparative law, as well as the theoretical
problems, legal dogmatics and contexts.
8 E. Örücü
this is simple.11 Most people who have travelled to Turkey tell me: ‘Turkish coffee is
awful, it is so sweet, so strong and so gritty! I could never drink that’. Coffee cannot be
sweet by nature. Personally, for example, I always have my coffee without any sugar
in any country I happen to be in. Turkish coffee would be sweet, strong and gritty
only for the half-enlightened and is the result of misunderstanding and confusion
between what is ‘said’ and what is ‘not said’. For information to the novice, a cup of
Turkish coffee is individually made to personal taste. It is not filtered but cooked. The
grounds fall to the bottom and stay there and are not meant to be consumed. Sugar,
if asked for, is added while the coffee is being cooked. A Turk when ordering coffee
would never ask for ‘kahve’, but would say ‘sade’ (without sugar) or ‘şekerli’ (with
sugar) with gradations such as ‘az’, ‘orta’ or ‘çok şekerli’ (meaning a little, some
or medium, or a lot of sugar). Thus, when the foreigner (‘other’) asks for ‘coffee’,
the waiter makes his own judgement on what is being asked for. He assumes that
‘foreigners like sweet things’ and brings a very sweet cup of coffee. Neither would a
Turk drink the coffee grains in the bottom of the cup, thus the coffee itself is neither
strong nor gritty, whereas when the ‘other’ drinks her coffee, she notices that a lot of
coffee is still sitting in the bottom of her small cup and tries to swallow the grounds
which should have remained at the bottom, and from which she might even have
her fortune read! Misunderstanding, misinterpretation and misrepresentation! If this
can happen in so simple an act as drinking coffee, imagine the perils at the door of
a comparative lawyer facing oral law!
For instance, now that its position is entrenched by the Constitution, how is the
indigenous law in South Africa to be researched, since it is not part of the literate
tradition, being basically oral?12 Narratives or stories about rules are as important
as the rules themselves and give meaning to them. How does one listen to stories,
especially if one is a judge? The true values underlying the indigenous law must be
discovered by listening. Can the comparative lawyer do this effectively?
Translation is yet another acute problem.13 We can observe this even when
comparing the name of our theme, Comparative Law—its English version—with
French, Italian, German, Dutch or Turkish versions. Then there are well-known and
frequently observed problems with terms such as public policy and ordre public;
rule of law, Rechtsstaat and due process; law, droit, recht, rights and so on. Bernhard
Grossfeld analyses the relationship of law and language and asks the questions:
11 This example was inspired by the one provided by Mitchel De S.-O.-L’E. Lasser, ‘The question
of understanding’ in Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies:
Traditions and Transitions (Cambridge University Press 2003) 237.
12 Gardiol Van Neikerk, ‘Indigenous law and narrative: rethinking methodology’, (1999) XXXII
CILSA 208. Also see Jacques Du Plessis, ‘Fairness and diversity in the South African law of
contracts’, in Sean Patrick Donlan and Jane Mair (eds), Comparative Law: Mixes, Movements, and
Metaphors (Juris Diversitas Series, Routledge 2020) Chapter 4, 47–66.
13 See Esin Örücü, ‘A Legal System Based on Translation: The Turkish Experience’, (2013)
6 J.Civ.L.Srud., 445–473, available at https://digitalcommons.law.lsu.edu/jcls/vol6/iss2/2/. Also

see Esin Örücü, ‘One into Three: Spreading the Word, Three into One: Creating a Civil Law
System’, (2015) 8 J.Civ.L.Stud., 381–407, available at http://digitalcommons.law.lsu.edu/jcls/vol8/
iss2/3 accessed 1 December 2020.
All this is very alarming for the comparative lawyer. If law lives in and through language,
what happens to it when it is transferred to another language? If the structure of a language
influences, or even determines, the mode and content of thought, might it not be that any
language can only express certain thoughts, and that these thoughts differ from culture to
culture?14
This concern is even deeper than that voiced by Harold Gutteridge in 1938: ‘I
would, in fact, be disposed to assert that pitfalls of terminology are the greatest diffi-
culty and danger which the student of comparative law encounters in his novitiate.’15
Not only the novice but also the seasoned comparative lawyer is at risk here.
To complement Bernhard Grossfeld’s observations of the Japanese language, let
us consider the Turkish language. In the Turkish language, the verb is always at the
end of the sentence; the subject need not always be mentioned but be understood;
there are no separate personal pronouns for ‘he’, ‘she’ and ‘it’, and the word ‘o’
may mean he, she or it. A sentence may be extremely long, cut across by a number
of clauses carrying the thought from one subject to another. In a translation from
English, for example, say a judgement by the late Lord Denning, which usually
consists of one-line long sentences, the directness and the crispness of the English
language could be totally lost, and the idea becomes fuzzy. If we agree that limits
of the language mark limits of understanding, then either certain legal ideas are
untranslatable, or altered in the process. Therefore, the comparative lawyer would be
advised to keep the original terminology and offer a description and an explanation
of it in the target language in a footnote.16
As comparative lawyers will in future be going more often to cultures beyond
the Western, the limits for comparative lawyers will be reached more quickly, the
fundamental difficulty being the overcoming of conceptual differences. It might be
worth remembering that ‘A word denoting an object, an institution or, if such exists,
a psychological characteristic peculiar to the source-language culture is always more
or less untranslatable—everything else is more or less translatable.’17
Connotations, as well as words themselves, can pose problems. On the whole, the
British, for instance, think in terms of ‘reasonableness’ and assess an administrative
action in relation to administrative action taken by a ‘reasonable administrator’.
‘Reasonableness’ would apply to all professions. Once, while giving a paper on
English administrative law and judicial review in a Seminar in Turkey, I talked of
‘Wednesbury reasonableness’ and the ‘reasonable administrator’. This caused a lot
of mirth and I was asked whether there could ever be a ‘reasonable administrator’
and what would he be like, a question seldom asked in Britain since the connotation
14 Bernhard Grossfeld, The Strength and Weakness of Comparative Law, (trans) Tony Weir
(Clarendon Press 1990) 101.
15 Harold Cooke Gutteridge, ‘The comparative aspects of legal terminology’, (1938) 12 Tulane Law
Review 401–411, at 403.

16 See Martin Weston, An English Reader’s Guide to the French Legal System (Berg Publishers
1991) for a most valuable contribution, specifically the first three chapters, pp 9–42.
17 ibid 9, where Weston quotes Peter Newmark, ‘Twenty-three restricted rules of translation’, (1973)
12 Incorporated Linguists, 12. Also, for the ‘translation theory’ and some problems that may arise
see Jamieson (n 7), 121.
10 E. Örücü
of ‘reasonable’ is well internalized. I was then told by one Turkish judge that ‘a
Turkish “reasonable judge (!)” could never base a decision on such vague criteria as
the “Wednesbury test”’!
Not many foreign legal terms have a directly corresponding translation. Therefore,
even bilingual legal dictionaries cannot be relied on exclusively. They can even be
dangerous.18 Examples abound, and one finds lists of these in most books and articles
on comparative law. As to definitions, finding internationally acceptable definitions
is very difficult indeed. Vagueness and generality can make such definitions almost
useless. When involved in the preparation of International Conventions or in creating
multi-language legal texts, these are some of the problems faced by comparative
lawyers. For example, comparative lawyers working for the enlarged European Union
face considerable problems. Those of us who are also interested in other regions of
the world encounter even more significant difficulties. There is a growing need for
explanatory bilingual glossaries and dictionaries.
A simple warning to students of comparative law is ‘beware of words which are
similar in two languages or two cultures’. One example I used to give at the very
beginning of my comparative law classes is the word ‘sheriff’. It goes thus: A serious
Scottish student of comparative law is on holiday in the deep south in the USA. He
wants to carry out a small piece of empirical research by interviewing a judge of
a court of first instance, so he is looking for a ‘sheriff’. Using the vocabulary of
his domestic legal culture and with the assertion that he is in an English-speaking
country, he asks his friend whether he could be introduced to a ‘sheriff’. Imagine
his amazement when he meets the American ‘sheriff’ with all his paraphernalia!
Had he asked to meet a judge from a court of first instance, he would have had no
such surprise and been able to carry out a meaningful survey. Moral of the story:
dangers arising from similar or related languages may be the most acute! The worst
possibility is a complete misunderstanding, but just as bad is the meaningless or
unnatural use of language for the target audience. Then, more subtly of course, there
is the apparent correspondence of terms that have different meanings that one finds
in the various so-called civil law countries.
Up to this point, the limits of comparativism have been related to the comparative
lawyer herself: the possible lack of a deep level of knowledge of language, problems
related to listening and hearing, and the pitfalls related to translation, especially
translation of culture-specific concepts. This last leads us into one more limit related
to the comparative lawyer, that of cultural deficit. Before she can re-present what she
finds, the comparative lawyer must be able to understand the context well in order
to approach a legal system in context confidently. The context—mainly the culture
and therefore localism—may sometimes escape even an academic looking at her
own laws. It is also true that sometimes an outsider at times sees more clearly than
18See for a severe criticism put forth, Gerard-René De Groot, ‘The quality of bilingual dictio-
naries’, (2000) 7 Maastricht Journal of European and Comparative Law, 331–335, who says that
out of approximately one hundred bilingual dictionaries, only six can meet the requirements of the
comparative lawyer.
an insider, but the question is whether seeing is understanding. It is in some ways

comparable to hearing and listening noted above.
A knowledge of the wood is essential for the identification of the trees, yet the
wood may not be visible because of the trees. This becomes an occupational hazard
for comparative lawyers who may pay close attention to formal and substantial detail
but lose sight of the text as a whole, let alone the context. To close the cultural
deficit, one must be aware of its importance and impact, and be humble enough to
correct possible misunderstandings by using the experience of domestic academics,
practicing lawyers and judges in the confirmation stage of one’s research in order
to check the correctness of one’s understanding, insight, imagination and creativity.
Even the best-intentioned comparative lawyer will have great difficulty in tackling
law as a bottom-up phenomenon. The top-down approach is easier to cope with since
the material is to hand, it is easier to understand and re-present. But the apparent
bottom can prove to be bottomless and the re-presentation can become idiosyncratic,
and unreliable. This ties in with yet another limit of comparativism related to the
comparative lawyer herself, and that is, her conception of law itself.
When the comparative lawyer believes that reporting formal rules of the foreign
law and signalling differences and similarities between the laws studied are the
sole aims of her research, and her conception of law is the normative legal order
found in legislation, regulations, judicial decisions and doctrinal writings, then this
black-letter-law approach would have already restricted the comparative lawyer and
prevented her from entering into any discourse of context, or show any interest in
the bottom-up approach to law. This comparative lawyer would be happy to limit
herself to descriptive translations and information on foreign law. She may not even
need a specific methodological approach and definitely no theory. In such a case,
the cultural deficit remains but is regarded as of no importance. Issues of cultural
pluralism let alone legal pluralism would not even arise in the normative context of
‘law’. However, even with this approach, how can she solve some mysteries?
Here, in assessing such cases either as an interpreter or even as a raconteur, the
comparative lawyer must re-think her conception of law in appraising the relationship
between law, custom and culture. What should she consider? How can she truly
understand the position of the courts handling the law and then re-present it? Without
a deep understanding of contexts cumulatively, it would be difficult to deal with such
cases or any of the questions posed in the earlier parts of this paper, properly.
‘What is law?’ is as hotly contested as the question ‘What is comparative law?’. The term
‘comparative law’ has been bisected and the discourse taken to an inquiry into the meaning of
both ‘comparative’ and of ‘law’.19 Obviously, before one can ‘compare’ one must determine
what one is comparing, that is ‘what is law’.
Referring to our earlier metaphor, the law then is the ‘composition’ of which the
comparative lawyer is the ‘interpreter’. The composition must be grasped with all its
intricacies, textually, contextually, with its form and content, and the environment
19See Olivier Moréteau, ‘The Words of Comparative Law’ in Esin Örücü & Sue Farran (eds), (2019)
6(2) Journal of International and Comparative Law, Special Issue: The Relevance of Comparative
Legal Studies in the Twenty First Century, 183–208.
12 E. Örücü
within which it lives. Legal scholars approach ‘law’ in many different ways. Some
analyse law as rules, as norms, as a system, as virtual facts, constructed facts or
actual facts, as cases, as culture or as tradition. Some analyse law in relation to
history, economics, legal theory, sociology or even anthropology. In addition, one
can consider law as coming from the ‘top’, from the ‘bottom’, from the ‘side’, from
the ‘back’ or moving ‘forward’. In fact, there is no agreement on what ‘law’ is or on
its properties! There are arguments about the nature of law and further, arguments on
the nature of the arguments about the nature of law.20 Thus, as Joseph Raz says: ‘The
list of the essential properties of law is indefinite.’21 Having already dramatically
oversimplified the issues, I will not try to rehearse the whole debate here.
The comparative lawyer’s methodological tools and how she uses them is the
last limit of comparativism in this first category of limits. The problems with social
science methodology and the failure of mainstream comparative lawyers to avail
themselves of this methodology can be discussed endlessly. Listening to a piece
of music many times does not necessarily bring an understanding of it and might
actually have a dulling effect on nuances, neither does reading material over and over
again necessarily bring enlightenment. Therefore, I will not go into the discussion of
methodology here yet again.22 This limit is also related to the comparative lawyer’s
conception of the law, how far she is going into context and what is the level of her
comparative venture.
It is apparent that the comparative lawyer must consider many complex issues
related to visions and traditions, traditions and transitions, interpretation, human
rights and margins of appreciation, interaction of law and culture, modernity and
traditionality and the relationship between transposed law and ‘source-law’. For
instance, without these considerations, a comparison of Turkish law to, say, German
law—or even the Swiss ‘source-law’—would be difficult.
All the limits of comparativism discussed up to now relate to the interpreter, her
conception of law, the depth of her knowledge of languages, translation skills and the
possibilities of listening and hearing, and to the audience of comparative law because
hearing but not listening is also a limitation of the audience, though obviously not
as significant as for the comparative lawyer. As stated above, a cultural deficit is a
further problem.
20 Robert Alexy, The Nature of Arguments about the Nature of Law, in Lukas H Meyer, Stanley L
Paulson, and Thomas W Pogge (eds), Rights, Culture, and the Law (Oxford University Press 2003)
3–16.
21 Joseph Raz, ‘On the Nature of Law’, (1996) Archives for Philosophy of Law and Social
Philosophy, 1–25, at 6.
22 See, Esin Örücü, ‘Methodological Aspects of Comparative Law’, (2006) VIII (1) European
Journal of Law Reform, 29–42.

1.2.2 The Second Category of Limits
The second category of limits of comparativism I will look into is related to nation-
alism, specific national visions and the ‘contrarian challenge’. Although under this
category extrinsic factors such as the limits of the context and the environment in
which the comparative lawyer works, the limits of the purpose of comparativism, the
limits of its use, the limits of its methodology, the limits of topics to be compared
and so on have been mentioned at the outset, I will confine myself here only to
these. The ‘contrarian challenge’ straddles the two categories since it is also related
to the interpreter, her personality and philosophy. Let us start with this then. The
so-called ‘contrarian challenge’ advocates that the comparative lawyer be only inter-
ested in difference. In its extreme form, assuming an epistemological pessimism,
there could even be a denial of comparativism. Cultural differences in this extreme
position would bar comparative law research. The ‘other’ would remain a mystery,
since any attempt at understanding the ‘other’ would only lead to misconceptions
and misleading results. The contrarian lawyers seem to be living in ‘closed worlds’.
In its more flexible form, however, comparative law works, but must be involved only
with differences between systems. There is a natural link between the ‘contrarian
challenge’ and the ‘difference theory’.
Pierre Legrand invites the comparative lawyer,
to place herself firmly in opposition and to pursue the contrarian challenge. Indeed, there
is no more pressing research and teaching programme for a comparatist to undertake in
this historical juncture than actively to promote the merits of the contrarian challenge for
comparatists themselves, for comparative legal studies, and for the European legal order.23
He states that
From the moment he [comparative lawyer] ascribes meaningful meaning to law through
tradition or culture and accepts that nothing can be explicated without the support of histor-
ical narratives arising over the longue durée, the comparatist naturally engages in inter-
disciplinary studies. He also spontaneously privileges the idea of difference as principium
comparationis.24
Nationalism is the next limit in this second category. A lawyer from the legal
system of a country where nationalism is a pronounced philosophy will have little
room for developing an interest in comparative law or an understanding of foreign
laws. The official position may even be to direct any interest in comparative law
research towards proof of the superiority of the domestic legal system. This could
only be frustrating for the comparative lawyer and be an impasse for comparative
law. It might be difficult to find many examples to illustrate this limit today, but in
the past it was commonplace. ‘We have nothing to learn from elsewhere’ was the
common attitude of many practicing lawyers, judges and even academics. In such a
culture, there is little scope for comparative law.
23 Pierre Legrand, Fragments on Law-as-Culture (Deventer, W.E.J. Tjeenk Willink 1999) 13.
24 ibid 18.
14 E. Örücü
A more subtle version of nationalism is the possession of a specific ‘national

vision’ or a political or religious ideology. A State may have a goal, an inbuilt
mission. In the realization of this goal, only certain ideas can be furthered. This also
means that comparative law research must be carried out between the domestic legal
system and legal systems that have served as models, or legal systems with the same
vision or ideology. Usually, these visions are specific to a nation State or a cluster
of States. One such obvious case is that of the socialist camp prior to 1989, which
regarded the carrying out of comparisons as only valid if taking place ‘within the
family’. So, we see the denial by socialist comparative lawyers of the possibility of
comparative law across legal families, possibly regarding the term ‘comparable’ to
mean ‘similar’. There are other instances, such as that of Turkey, where the official
vision was to create a State, a law and a people with a forged socio-culture that was
introduced by the reception of laws of Western origin and social reform legislation.
In such a case also, comparisons could be given value if carried out with the ‘source-
laws’ only. However, later developments in the source-laws in unwanted directions
would be ignored. This could create an isolationist approach with ‘separateness’ and
‘distinctiveness’ valued as goods in themselves. How is the comparative lawyer to
explain why these received values were so inherent to the receiving system and so
cut off from their roots over the past number of years that, though changes may
have taken place in the ‘source-law’, in the domestic law they were regarded as an
integral part of indigenous societal values and local culture? What kind of a ‘fit’ was
there between the foreign institution and the local culture that the law could not be
changed in Turkey, though the ‘source-law’ changed? In Turkey, the comparative
lawyer’s role is greatly diminished in the eyes of the target audience who cannot see
the relevance of being exposed to the ‘other’. To consider the ‘other’ might even be
regarded as detrimental to the vision.
As far as I am concerned, there can be no limits to comparativism as to the topics
that can be compared. Although it has been sometimes claimed that system-oriented
topics are incomparable or culture-specific topics should not be covered, I believe
personally that it is part of the comparative lawyer’s duty to expose all. I do not
accept that certain topics ‘do not lend themselves to comparison’. Family law, for
example, previously regarded by many as not appropriate for comparison, is one area
in which a commonality in certain of its aspects has now emerged in Europe to an
extent that harmonization is necessary and feasible.25 Areas of public law likewise
used to be regarded as ‘no go areas’ for comparative lawyers, but today there is
vigorous comparative activity in such areas. The Constitution for Europe, if finally
constructed, requires a thorough comparison of the constitutional traditions of all
the Member States and of the US Constitution if it is to build a Europe ‘united in its
diversity’.
The interest of the comparative lawyer determines her choice of topic. She can
inquire into any subject matter. She might want to show, for example, that ‘never
25See the works of The Commission of European Family Law summarized by Katharina Boele-
Woelki, ‘The Commission of European Family law: Taking Stock after almost Twenty Years’,
(2019) Journal of International and Comparative Law, Special Issue: E, 233–244.
the twain shall meet’ in a certain area, but she could only determine this by first
carrying out comparative research. The only limit here might be when an institution
is unique, but how would a comparative lawyer even discover this if she did not
undertake comparative research first?
1.3 Further Challenges
Today, comparative law is taking stock of important issues arising from the above
picture and is then moving on. The horizons of comparative law are shifting and
changing. How can comparative lawyers enter this new and different world with
their existing strategies, and accommodate differences by building on or modifying
them and so extend the scope of comparative analysis beyond the jurisdictions and
topics traditionally dealt with? Can contemporary comparative law say anything new
to a world that will be radically different from the one hitherto covered? Analysing
fully transfrontier mobility of ideas and institutions and reciprocal influence, as the
underlying phenomena of most interest to comparatists in our day, must be one of
the tasks of comparative lawyers. Several challenges must now be addressed.
The first challenge is that the current concerns of comparative lawyers on conver-
gence versus divergence, problems for the importer and the exporter of legal ideas
and institutions and mismatch in borrowings should be constructively approached as
‘Critical Comparative Law’. The term ‘Critical Comparative Law’ can be used as the
direct opposite of the terms ‘Traditional Comparative Law’, ‘Mainstream Compara-
tive Law’ or ‘Conventional Comparative Law’. The future entails changes both in the
perception and practice of comparative law, and its interaction with other disciplines
investigating the phenomena of legal and social cultures. While still continuing to
serve other disciplines, comparative law will remain independent and develop new
visions and new agenda thereby also broadening its vista.26
The second challenge is that comparative law needs a fresh approach to the clas-
sification of legal systems. In the last two decades, there has been increasing interest
in mixed systems and legal pluralism. I regard all legal systems as mixed, whether
covertly or overtly, and suggest grouping them according to the proportionate mixture
of the ingredients. All systems are better understood as overlaps. My scheme also
makes it easier to classify systems such as Malaysia, Singapore, Burma, Thailand
and others, long neglected by Eurocentric comparatists. The whole of South East
Asia can be better served by this approach. All, being the outcome of transpositions,
off-shoots and sub-groups, can be catered for, and the overlaps clearly seen with this
approach.27
26 See, for example, the ten contributions full of vigor and innovation in Esin Örücü & Sue Farran
(eds), (2019) 6(2) Journal of International and Comparative Law, Special Issue: The Relevance of
Comparative Legal Studies in the Twenty First Century.
27 See Esin Örücü, ‘Family Trees for Legal Systems: Towards a Contemporary Approach’, in Mark
Van Hoecke (ed) Epistemology and Methodology of Comparative Law (Hart Publishing, European
Academy of Legal Theory Series 2004, Chapter 18, 359–375.
16 E. Örücü
The third challenge, though related to the second one, is that a large number
of legal systems are in ‘extraordinary’ places.28 The problems facing comparative
lawyers today will not be solved by hiding behind phrases such as ‘law is culture and
lawyers cannot understand any culture other than their own’, ‘legal history is the only
path for comparative lawyers’, ‘the only true explanation of legal change is through
economic analysis of law’, or ‘comparative law must be legal theory, therefore we
must be “comparative jurisprudents” in order to understand other laws’, ‘comparative
law as we know it cannot cope with renewal’, or ‘transplants are impossible’. These
approaches can be encountered in the writings of many colleagues. We cannot ignore
the reality of transmigration and ‘difference’. Whatever our stance, we must be
prepared to go out to these ‘extraordinary’ places. ‘Comparison in extraordinary
places’ is vital in our ‘extraordinary times’. These places should not be the sole
domain of regionalists and anthropologists or the subject of cultural studies alone.
Obviously, the more fundamental underlying differences are those related to socio-
cultures and values. We have to live with the fact that there can never be a tailor-made
model; a perfect match between model and recipient is not possible and a degree
of mismatch is inevitable. So, the major question is: ‘How is this mismatch to be
addressed?’ Can it be dealt with by the power of the reception on the imagination
and creativity of the recipient, the ‘tuning’? Comparative law as the science of the
new century must be deeply involved here.
The function of comparative law is the building of bridges, with the understanding
that legal systems and cultural systems can indeed ‘live apart together’. There-
fore, comparative law in ‘extraordinary’ places can perform this ‘bridging’ role
by analysing and adjusting any mismatch, and so easing transposition. There are,
however, serious bridging problems when legal systems from diverse traditions such
as the socialist, religious or traditional look towards civilian or common law systems.
This must be of particular concern for legal systems that have never been part of a
single legal tradition. Imagine, for example, the US Uniform Commercial Code in
Uzbekistan, or the German Code of Bankruptcy in the Kyrgyz Republic. Such issues
are of great importance for legal and social systems in ‘extraordinary’ places that
have for centuries been at the receiving end of movements from the civilian and the
common law, that is, the so-called ‘ordinary’ models.
How is the obstacle of mentalité to be bridged? Within Europe, this obstacle is
related to the nature of what is accepted and the technique of how it is accepted, rather
than to the principle of the acceptance of a rule or solution, on which there is little
room for negotiation, such as, the putting into effect of a European Union directive.
So, refusing the medicine is not the real issue, but how one takes the medicine is.
The fourth challenge is that many models from ‘ordinary’ places are competing
to sell their particular product to ‘extraordinary’ places. We know, for example,
that the new Dutch Civil Code has won the competition as a favoured model in
Russia for the preparation of the Russian Civil Code, and that the systems of the
28For ‘extraordinary’ places, see Esin Örücü, ‘Comparatists and extraordinary places’, in Pierre
Legrand and Roderick Munday (eds), Comparative Legal Studies: Traditions and Transitions
(Cambridge University Press 2003) 467–489.
USA, the European Union and the individual Member States of the European Union
now compete according to their ‘power profile’ and their previous contacts with the
systems in Central and East Europe now in transition.29 At times, Dutch law appears
to be the favourite being well equipped to fulfil its exporting task since in the past the
Netherlands was itself an importing country, and the new Dutch Civil Code of 1992 is
itself influenced by German, French and English laws. It is the outcome of thorough
comparative studies.30 These factors are part of its attraction as an ideal model and
as a source of inspiration. As a consequence, Dutch legal advice is playing a more
important role than that of American, German and Italian experts. For example, in
Armenia, a most ‘extraordinary’ place, Dutch, American and Armenian experts were
all involved in the drafting of the new Penal Code and Code of Criminal Procedure
in co-operation with the Council of Europe under a predominant Dutch influence.31
Even as they themselves are trying to modernize, we see how the legal systems of
the so-called ‘ordinary’ places are today competing to become the ones selected for
import to ‘extraordinary’ places. For Central and East European, Asian and African
systems, the process of import can create acute problems. For example, how will the
Dutch model fare in Russia? It could be that a jurisdiction with an existing ‘mixture’
is the better model and would be more acceptable to recipients.
Fifthly, we must note that similarity is not a requirement for successful transpo-
sition and fruitful cross-fertilization. We know that socio-cultural and legal-cultural
differences are the most serious causes of mismatch. Yet differences between national
rules do not seem to restrict their import and even the misunderstood can be trans-
planted though there is a danger that legal-cultural and socio-cultural differences may
affect their internalization and efficacy, and the internalization of norms and standards
by the people of a recipient system is crucial for success. Harmony as a possibility
of conversation can be achieved through the appreciation of diversity as well as
by the elimination of diversity. Cross-fertilization between seeming incompatibles is
facilitated and even the misunderstood can be successfully transposed when commu-
nication and conversation are on the move. If unexpected developments ensue, they
should be regarded also as part of the progress.
Shared human problems require similar responses from legal systems for their
solution, hence legislatures and courts look to other jurisdictions for inspiration in an
effort to improve these responses. Global problems of our day need global solutions
or interrelated local solutions, and legal ideas and institutions are crossing borders.
The established conceptual and analytical frameworks of law, the role and value of
receptions, theories of convergence and divergence, the dynamism of comparative
law, the classification of legal families and the concept of the legal system itself are
all challenged.
29 See Ádám Fuglinszky, (2019) ‘Applied Comparative Law in Central Europe’, in Esin Örücü &
Sue Farran (eds), (2019) 6(2) Journal of International and Comparative Law, Special Issue: The
Relevance of Comparative Legal Studies in the Twenty First Century, 245–272.
30 Jan Smits, ‘Systems Mixing and in Transition: Import and Export of Legal Models: The Dutch
Experience’, in EH Hondius (ed), Netherlands Reports to the Fifteenth International Congress of

Comparative Law (Intersentia Rechtswetenschappen 1998) 63.
31 ibid 57.
18 E. Örücü
Our time is one of the imposed receptions—‘voluntary’ activities of import under

circumstances in which the exporters hold the trump cards. As this activity accel-
erates, systems in ‘extraordinary’ places will become the ‘ordinary’ systems of
tomorrow and laboratories for comparative lawyers. There will be more harmony
though not necessarily more integration. The future lies in ‘diversity’ and ‘unity in
diversity’ rather than ‘unity through uniformity’. A new ‘genre of mixité’ in ‘extraor-
dinary’ places will be the focus of ‘system-watching’ as ‘ordinary’ places cease to be
the main focus of attention. It is in ‘extraordinary’ places that comparative lawyers
can best observe, analyse and understand the interaction of legal- and socio-cultures
and appreciate the value of ‘tuning’ in transpositions. Paradoxically, it is in these
‘extraordinary’ places that the present comparative lawyers are least equipped to
work. Comparative lawyers of tomorrow must have an education appropriate to the
new age.
The sixth challenge to consider is that comparative law will be tied theoretically
and practically to enhanced legal science, convergence and integration as well as
the appreciation of diversity, the use of foreign models in law reform, and law and
culture studies. New approaches to harmonization, receptions, mixing systems and
the re-designing of systems, a new European ius commune, and a new emphasis on
regional comparative law such as European, Central and East European, Common
law, African and Far Eastern will be the main concerns of comparative lawyers. In
addition, new areas of interest will form the new subject matters of comparative
research.32
In our new century, comparative law by providing models of legal reasoning will
supply systems in transition, wherever they are, with the possibility of structured
change. Its role in this field will strengthen since comparative law is about commu-
nication. By providing the language of that communication, it allows legal scholars
to enter into holistic communication. Comparative law research also reveals how
legal institutions are connected, diversified and transposed. Comparative lawyers are
extending their subject beyond the traditional areas, both geographic and substan-
tive, and re-assess legal systems and legal families. With an even broader intellectual
agenda, comparative law will remain an essential instrument for legal understanding.
The combination of comparative law and culture took the form of ‘law and society
studies’ in the 1970s, and ‘law and popular culture’ in the 1980s. In the 1990s, its main
aim was to provide a better understanding of multi-culturalism, integration and legal
pluralism. Today there is growing and impressive literature here with anthropologists
and sociologists querying the complexities and problems arising. It is among scholars
interested in culture that we find the majority of the so-called ‘contrarian challenge’
supporters mentioned above. It is they who are most concerned with the clash of
cultures surviving under monolithic value systems imposed by legislatures. A ‘mild’
form of ‘law and culture’ studies will only enhance comparative law by providing
the tools for ‘deep level’ understanding of legal phenomena, but an ‘extreme’ form
of this post-modernist cultural relativism can prove to be counterproductive and lead
comparative lawyers to the impasse of ‘incommensurability’.
32 See contributions in JICL 2019, (n 26).

Tangible results and intellectual vigour will carry the discourse further, and the
market value of comparative lawyers’ work will increase. However, comparative law
must retain its independent character and not be replaced by ‘comparative jurispru-
dence’, ‘historical comparative law’, ‘comparative cultural studies’, ‘comparative
law and economics’, or any other kind of ‘comparative law and …. Comparative law
must preserve its separate and distinctive position in the titles of such perspectives,
although such combinations can produce additional benefits. To broaden the scope of
our subject, a more relevant title for our century could be Comparative Legal Studies,
which would also defy any ‘comparative law and…’ suggestions.
Within the European Union where comparative law is extensively used, its prime
task is in ‘new ius commune’ studies. It is asked to facilitate integration and make the
case for reciprocal influence as the basis for convergence. Its related task is to find
ways of reconciling civil law and common law and to aid the creation of European
Codes. An additional specific task is to act as a tool for construction in national and
European courts.
However, Europe also sees comparative law as a tool for the export of legal ideas
and institutions and aiding law reform elsewhere. Competing models of Western
European legal systems are put on convincing display with the help of comparative
lawyers—this is yet another task.
Another challenge concerns the assertion that ‘globalization’, the catchword of
the last two decades, will diminish the value of comparative law. This is a mistaken
view. In fact, the reverse is proving to be the case. There is an increasing interest
in localization. Both the local and those who study the local feel the need to assert
localization. The trend to integrate moves the focus to the different and its value. Thus,
comparative law will become indispensable in the globalization movement since in
the effort to create universalist standards, interest in localized exceptions will also
flourish. In addition, as William Twining says: ‘processes of globalisation stir up old
nationalisms, exacerbate cultural conflict, and encourage post-modern scepticism
about the universality of values and ideas.’33 In order to facilitate co-existence and
harmony, comparative law will be essential for the understanding of this diversity. A
more limited focus and realistic vision must be built upon the ‘similarities’ between
‘differents’, and by the accommodation of the ‘differents’ in harmony.
Yet another challenge is related to the controversial quest to find the ‘better law’
or the ‘better solution’. What is the ‘better law’ approach, what is its value and is
it workable? Is this an area where comparative lawyers should be at work? Those
involved in harmonization projects in Europe have a number of choices. One is to
keep the status quo: not to harmonize but hope that in time convergence may come
as changing social, religious, and economic conditions world-wide push localisms
towards globalism and sporadic transplants take place. The second option is to strive
towards a ‘common core’. In such an effort, though the ideal would be pitched at the
highest common denominator, either the lowest common denominator or the average
solution might be acceptable. The most innovative and progressive option would be
33William Twining, ‘Comparative Law and Legal Theory: The Country and Western Tradition’, in
Ian Edge (ed), Comparative Law in Global Perspective (Transnational Publishers 2000), 21.
20 E. Örücü
the ‘better law’ approach which entails the replacement of existing solutions by a
solution offered by one of the jurisdictions—the most ‘progressive’ or ‘modern’
in the eyes of the harmonizers—or by a newly engineered solution to produce the
desired result. In the case of child law, for example, it can be said that the ‘best
interest of the child’ test is the result of one such attempt.
The comparative lawyer’s role is invaluable here. In all this activity, the main
obstacle, even more important than any resistance on the part of localisms, is the
legitimacy of, and therefore the justification for, the move. The ‘better law’ approach
leaves room for creativity in drafting but may have to face the question of, for example,
democratic deficit. When such exercises are academic, new ideas are easier to sell
based on specific ‘academic reputation’, since the question of ‘bindingness’ does not
arise. Nevertheless, this is something that must be seriously considered.
The ideological dimensions of many answers and the ‘cultural constraints’ argu-
ment have to be weighed against claims to ‘shared notions of human rights’, ‘common
tradition of shared values’ or that ‘the cornerstone principles have universality’. The
hope is that in the long term, utilitarian pragmatism and cosmopolitanism will prevail.
How can such a suitable receptive environment be created? The answer may lie in
the creation of, for example, Europe-wide standards to run parallel with, but not
replace, national legislation. ‘A workable starting point would be to keep culturally
specific aspects aside at first, to harmonize the rest and then incrementally try to
cover the field.’34 What must be kept in mind at all times, however, is that ‘uniform
legal standards at the level of Europe will not by themselves build effective legal
systems. A high level of voluntary compliance with the legal rules is vital.’35 This
issue becomes most serious when we think beyond Europe.
In the long run, the future of comparative law will be tied theoretically and practi-
cally to the appreciation of diversity, while striving for commonality where possible.
A central point must be reiterated here. Obviously, there is certainly nothing wrong
with looking for similarities between legal systems. In fact, the more different the
systems are, the more intriguing it is to discover similarities. To find similarities
between similar legal systems is useful in efforts to harmonize and further, to unify
laws, in grouping legal systems and in building theories of convergence. With such
efforts, a pool of models can be provided to be used when looking for solutions to
newly emerging problems. Finding similarities between legal systems that are not
similar may help us in developing theories with wider application and help in future
transpositions. At the same time, there is certainly nothing wrong with looking for
differences between legal systems, and the more similar the systems are, the more
intriguing it is to discover difference. These discoveries can be used to test theories on
the relationship of law and culture, that is, enhance our understanding of the impact
of culture on law and law on culture, and to show the futility of efforts to build on
assumed convergence where it does not exist. This work is vital if comparative law is
34 Esin Örücü, ‘A Family Law For Europe: Necessary, Feasible, Desirable?’ in Katharina Boele-
Woelki (ed), Perspectives for the Unification and Harmonisation of Family Law in Europe
(Intersentia 2003) 571.
35 ibid 572.
to be involved in the search for and an explanation of divergences, especially between

the seemingly similar with the aim of enhancing our understanding of law and legal
and social cultures. In order to achieve this, we must concentrate on ‘extraordinary’
places, on how mismatches between law and culture may be resolved and must also
be actively involved in reciprocal influence and transposition. All these will domi-
nate the twenty-first century. To look only for similarities and overlook differences
or look only for differences and overlook similarities is what is wrong.
1.4 Concluding Remarks
To summarize then: the comparative lawyer must develop an interest in fields other
than private law and systems other than the normative-legal. She must be interested
in context, in mixing systems, in systems in transition and in the making, in legal
pluralisms, in looking beyond Europe and into both ‘ordinary’ and ‘extraordinary’
systems, in transpositions and the role of the tuners of the law, in the ‘better law’
approach, in the deconstruction of classifications and building of other approaches
to legal systems such as the ‘family trees’ approach, in ‘comparative law and …’
studies and in deciphering the intricacies of the ‘similar’ and the ‘different’—all
being demanding tasks.
As I pointed out at the outset, in the past century we were told that comparative
lawyers enjoyed privileges ‘to the envy of other colleagues’. In our new century,
we find that we have moved even further ahead, and the popularity of our subject
has indeed increased. Comparative law is no longer simply a way of contrasting and
comparing civil law and common law in an effort to resolve the dichotomy between
them, or to stress an impasse. Neither is it merely a sophisticated tool of private
lawyers. The meaning of both ‘law’ and ‘comparison’ is far from settled since the
question ‘What is comparative law?’ may still receive a startling range of replies. As
in the past, comparative law remains essentially a ‘contested project’. ‘Comparative
law’, either as a word or a concept, may remain difficult to define contextually, but
this does not mean that it should be defined only according to its uses.
If the comparative law of tomorrow can provide an ‘angle from which deformed
images can be corrected and distortions in the perspective can be clarified,’36 then
its contribution to an enriched understanding of the phenomenon of law and society
in all its complexity will be priceless.
Shifting horizons of comparative law in the twenty-first century reveal ways of
appreciating diversity as well as aiding convergence. Shifting horizons also indicate
that euphony and harmony can be achieved through both ‘integrative’ comparative
law studies and ‘contrastive’ comparative law studies, and that harmony can indeed
be found in diversity. There will be cross-fertilization and horizontal transfers as
36 Esin Örücü, Critical Comparative Law: Considering Paradoxes for Legal Systems in Transi-
tion, Nederlandse Vereniging Voor Rechtsvergelijking No 59 [Preliminary Report for the Dutch
Association of Comparative Law] (Deventer, Kluwer 1999), 132.
22 E. Örücü
long as communication and conversation are continued through the comparative

legal endeavour. This can only deepen our understanding of laws.
‘Traditional’, ‘conventional’ or the so-called ‘mainstream’ comparative law will
be supplemented, if not replaced, by ‘critical comparative law’. ‘Critical comparative
law’ must remain at the vantage point commanding all views. Comparative lawyers
must approach their subject not as a monophonic or even a homophonic texture,
but as the polyphonic texture that it is. Be it similarity, difference, convergence or
divergence, what actually exists must be analysed and emphasized. The value of
comparative law for academics, students and practitioners can only increase in our
century.
Globalization will reinforce localism with all its overlaps and mixtures. Diversity
must be appreciated and preserved, yet commonality sought. The future requires the
‘internationalization’ and ‘globalization’ of the way the legal profession, the judges
and legal scholars think. Comparative law will be the natural bridge to this. A new
approach to system classification is essential, the existing one having outlived its
usefulness.37
In 1983, Hans Baade said that in the USA, a typical and perennial complaint of
the academic teacher of comparative law was that: ‘Colleagues are not interested in
foreign law; students are ethnocentric boors; the bar consists of monolingual hicks;
deans won’t finance foreign travel; nobody will take Comparative Law.’38 According
to him, all this was true somewhere but nontrue everywhere, and that the picture was
changing. The optimistic message today is that things can only get better.
This work should end on a cautionary note. Obviously, though our new century is
the ‘era of comparative law’, we must remember that comparative law is not a panacea
to all our woes. Yet, the comparative lawyer will remain the essential actor. She must
endeavour to surpass the limitations enslaving both her, the intrinsic challenges, and
her subject, the extrinsic challenges.
37 Van Hoecke, ‘Do “Legal Systems” Exist? The Concept of Law and Comparative Law’, Chapter 3
in Seán Patrick Donlan and Lukas Heckendoon Urscheler (eds), Concepts of Law, Comparative,
Jurisprudential and Social Science Perspectives (Juris Diversitas Series, Ashgate 2014), 43–58.
38 Hans W Baade, ‘Comparative Law and the Practitioner’, (1983) 31(3) The American Journal of
Comparative Law 499–510, at 508.

Chapter 2
The Curious Case of Overfitting Legal
Transplants
Mathias Siems
Abstract Sometimes, cultural phenomena are more popular abroad than at home.
For example, modern business cards arrived in Japan in the late nineteenth century
but in today’s Japan, they are considered more important than in Western countries.
Similarly, and even more surprisingly, in Germany the US actor David Hasselhoff
is considered as one of the greatest pop stars while his musical career has not been
very successful in the US. This chapter suggests that a similar phenomenon may also
exist in law. This is meant to refer to the situation that legal transplants may work
even ‘better’ in the transplant than in the origin country, here called ‘overfitting legal
transplants’. This suggestion departs from the current debate about legal transplants
which holds that, at best, a transplant may work almost as good as in the origin country
(and, at worst, it may be irrelevant, or even harmful to the transplant country). Thus,
it is the main aim of this chapter to relate the idea of overfitting legal transplants to
the current discussion, to outline possible categories and examples, and to show how
lawmakers may be able to make use of them.
1 A previous version of this chapter was published in Maurice Adams and Dirk Heirbaut (eds) The
Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke (Hart Publishing
2014) 133–146 and is reprinted with permission.
2 Some prefer other terms such as ‘legal circulation’, ‘cross-fertilisation’, ‘diffusion’, ‘migration’
or ‘reception’. See e.g., Vlad F Perju, ‘Constitutional transplants, borrowing, and migrations’, in
Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional
Law (Oxford University Press 2012) 1306–1308; David Nelken, ‘Legal transplants and beyond: of
disciplines and metaphors’, in Andrew Harding, Esin Örücü (eds), Comparative Law in the 21st
Century (Kluwer Law International 2002), 30–31.
3 Mark Van Hoecke and Mark Warrington, ‘Legal cultures, legal paradigms and legal doctrine:
towards a new model for comparative law,’ (1998) 47 International and Comparative Law Quarterly,
533.
M. Siems (B)
European University Institute, Florence, Italy
e-mail: mathias.siems@eui.eu
24 M. Siems
2.1 Introduction
The main parts of this chapter1 deal with a specific type of ‘legal transplants’2 ; yet, the
following text is also embedded in a wider debate about legal diffusion, law reform
and comparative law. According to Mark Van Hoecke and Mark Warrington, it has
been ‘a constant element in legal history’ that legal systems influence each other.3
Understanding such legal influence should not be limited to the positive law. Rather,
the trend in contemporary comparative law is to consider the ‘attitudes towards law
and the degree to which it is embedded in society and its general culture.’4 But this
leads to the question on which scholars of legal transplants often disagree. On the one
hand, pessimists claim that legal transplants are at least disruptive to the incoming
legal and socio-cultural system, and maybe even impossible. On the other hand,
optimists acknowledge and support lawmakers in copying foreign rules, though they
often admit that in not all instances do legal transplants work as smoothly as in the
origin country.5
It is no surprise that this debate about legal transplants is one of the main topics
of comparative law since it is closely related to one of the core questions about our
understanding of the relationship between law and society.6 Here, on the one hand,
the ‘mirror view of law and society’ assumes that law reflects the society in question,
for instance, that there is an organic connection between a particular people—its
beliefs, culture, morals, as well as its social, political and economic forces—and
its legal system. On the other hand is the view that law is largely autonomous of
past and present social structures since legal systems have their own forms of self-
reproduction, say, through internal discussions between judges, law professors and
other legal experts—as well as through the use of legal transplants.
This chapter takes the modest view that the precise effect of legal transplants
depends on the circumstances of each individual case. However, it also presents a
new idea as it suggests that a third type of reaction is possible: namely that legal
transplants work even ‘better’ in the transplant than in the origin country, here called
‘overfitting legal transplants’. This can be thought of as a parallel to other cultural
phenomena which are more popular abroad than at home. The corresponding struc-
ture of this chapter is as follows: it starts with two of these other cultural phenomena,
namely business cards in Japan and David Hasselhoff in Germany. Subsequently, it
discusses the debate between the pessimists and optimists of legal transplants. The
main sections then present the idea and try to develop categories of ‘overfitting legal
transplants’. Finally, the chapter discusses the wider implications of overfitting legal
transplants for law-making and comparative law.
4 ibid 502. See also Mark Van Hoecke, ‘Deep level comparative law’, in Mark Van Hoecke (ed),
Epistemology and Methodology of Comparative Law (Hart Publishing 2004).
5 For references, see Sect. 2.3, below.
6 For references, see Mathias Siems Comparative Law, (2nd edn, Cambridge University Press 2018)
150–153.
2 The Curious Case of Overfitting Legal Transplants 25
2.2 What Business Cards in Japan and David Hasselhoff

in Germany Teach Us
The history of modern business cards is not entirely clear, but it is commonly said
that they derive from the following three sources.7 First, starting sixteenth-century
England and France, bearer cards were used for legal notices, such as promissory
notes or other obligations. Second, in seventeenth-century England, trade cards had
the aim to advertise for a particular business, but they could also include further
information, such as maps and price lists. Third, in the same century, in France
visiting cards had the purpose to announce the arrival of an important guest. These
latter cards continued to be used as calling cards in Europe and North America until
the nineteenth century. Later in that century, the three types of cards gradually merged
into today’s business cards.
It follows that modern business cards can be seen as a ‘Western invention’. They
arrived in Japan in the late nineteenth century with the gradual opening of Japanese
society to foreign influences.8 In today’s Japan, business cards (meishi,名刺) and their
correct use are considered very important. For example, foreigners doing business
in Japan are advised to present and receive them with both hands, to leave them on
the table during a meeting, to place the card of the highest ranked person on top of
the others, not to fold these cards, and to store them in a smart leather case.9
A similar culture exists in other Asian countries but not in the Western world:
Today business cards are so ubiquitous that in some countries they are traded with no
formality or consequence, serving as nothing more than an internationally recognized way to
exchange contact information or a handy bit of paper on which to jot a note. In other nations,
however, particularly in Asia, the cards are regarded as an extension of the individual to be
treated with honor and respect. The exchange of cards is attended with great ritual and a
breach of protocol can give serious offense.10
Parallels to this ‘more-popular abroad’ phenomenon can be found in modern pop
music. When in the late 1980s the US actor David Hasselhoff, well-known from the
TV series Knight Rider and Baywatch, started his music career, he did not manage to
get any single in the top 100 of the US charts—nor had much success in most other
countries of the world. Yet, in Germany, as well as in Austria and Switzerland, he
was soon regarded as one of the greatest pop stars. Hasselhoff’s single ‘Looking for
7 For the following see, e.g., The History of Business Cards: Four Centuries of Introductions, avail-
able at https://www.brochuremonster.com/brochure-articles/business-card-history.php; History
of the Business Card, available at https://www.designer-daily.com/a-history-of-business-cards-
20266#:~:text=Business%20cards%20began%20in%20the,the%20middle%20of%20the%20c
entury. accessed 24 December 2020.
8 See Varieties of Japanese business cards (meishi) (NDL Newsletter, No. 195, August 2014),
available at https://dl.ndl.go.jp/info:ndljp/pid/10263403 accessed 23 December 2020.

9 See, e.g., The Meishi: The Japanese Business Card, available at https://www.freebusin
esscards.com/articles/the-meishi-the-japanese-business-card-28.html; Japan – Language, Culture,
Customs and Etiquette, available at https://www.commisceo-global.com/country-guides/japan-
guide accessed 23 December 2020.
10 The History of Business Cards (n 7).
26 M. Siems
Freedom’ made it to the top position of the German charts. He also had another top
10 single (‘Is Everybody Happy?’) and two singles in the top 20 (‘Crazy for You’
and ‘Do the Limbo Dance’).11
Hasselhoff’s success may seem inexplicable. Possibly, it may have mattered that
Hasselhoff, while born in the US, is of German ancestry. But it can also be argued that
it has to do with good timing and the fact that the German audience easily understood
the title of his single ‘Looking for Freedom’ though not its substance (which simply
dealt with a young man leaving home). It has been suggested that the title of the
song inadvertently captured the mood of the German public at the time of the fall of
communism in 1989. As a BBC article explains:
Barely a month after the fall of the Berlin Wall in November 1989, the city that had been
divided by politics for more than 40 years was united in song. And leading the chorus of
several hundred thousand voices was a man hitherto known to the rest of the world for
driving a talking car: David Hasselhoff, star of the hit 80s TV series Knight Rider (…).
For that seminal concert, on New Year’s Eve 1989, Hasselhoff stood atop of the partly
demolished wall and belted out a tune called Looking for Freedom. (...) Hasselhoff, who by
now was appearing in Baywatch, scooped a clutch of top German music awards and went
on to become one of the country’s biggest selling artists of the 90s.12
A similar phenomenon is that of the ‘Big in Japan’ effect. This is meant to refer
to the situation that some pop and rock bands from the US and Europe have been
more successful in Japan than in their home countries.13
Overall, it can be seen that it is possible that cultural phenomena—such as business
cards and pop songs—may be more popular abroad than at home.14 Possibly, in the
examples of business cards and Hasselhoff, it mattered that the foreign phenomenon
reflected certain features of the transplant society in question—hierarchy and cere-
mony in the first example, and desire for freedom and change in the second one. Of
course, it could also be argued that Hasselhoff simply had good luck. Thus, it may
be difficult to draw any firm advice from these examples on how to make foreign
ideas ‘super effective’ abroad.
The question raised in this chapter is whether there may be similar examples in
law, i.e., legal transplants that ‘work better’ abroad than at home. Before doing
so, however, the following section will discuss how this view is related to the
disagreement about the working or failure of legal transplants in the current literature.
11 See David Hasselhoff songs, https://www.chartsurfer.de/artist/david-hasselhoff/songs-vher.html
accessed 23 December 2020.

12 ‘Did David Hasselhoff really help end the Cold War?’, BBC News (6 February 2004) https://
news.bbc.co.uk/1/hi/3465301.stm accessed 23 December 2020.

13 See also Guy De Launey, ‘Not-so-big in Japan: Western pop music in the Japanese market’,
(1995) 14(2) Popular Music, 203–225.

14 Further examples may be found in the popularity of certain sports, e.g., football (soccer) in Brazil
or cricket in India.
2.3 Legal Transplants: The Big Debate in a Nutshell
Comparative lawyers have developed taxonomies of different types of legal trans-

plants including categories on the relative success or failure of the transplant in
question.15 To get a clear picture of the main arguments, the following focuses on
the two extreme positions, namely the ‘pessimists’ on the one side, and the ‘optimists’
on the other.16
The pessimist view of legal transplants comes in two variants. On the one hand,
there is the postmodern view that legal transplants are largely irrelevant. This is based
on the position that law is not only about the words that can be found in legal texts.
Rather, one needs to consider that ‘meaning is a function of the application of the
rule by its interpreter.’17 Such an interpretation is always subjective and is shaped
by the larger cognitive framework of a particular country, in particular, its culture
and mentality.18 As a result, it is argued that a legal rule cannot survive the journey
from one legal system to another one unchanged since, as ‘the meaning of the rule
changes, the rule itself changes.’19
On the other hand, critical legal scholars argue that legal transplants are often
harmful to the incoming legal system. This line of reasoning may be based on the
relationship between the old and the new law, with the result that legal transplants
should really be called ‘legal irritants.’20 But, more frequently, it is argued that the
negative effect is due to the mismatch between the foreign law and the domestic
social, economic, cultural and political environment. Thus, according to this view,
legal transplants typically do not work, for example, due to lack of enforcement,
side-lining, or general unsuitability.21
15 E.g., Margit Cohn, ‘Legal transplant chronicles: the evolution of unreasonableness and propor-
tionality review of the administration in the United Kingdom’, (2010) 58 American Journal of
Comparative Law, 583–629; William Twining, ‘Social science and diffusion of law’, (2005) 32
Journal of Law and Society, 205–207. See also Otto Kahn-Freund, ‘On use and misuse of compar-
ative law’, (1974) 37 Modern Law Review, 37, 6 (continuum of legal transplants: some legal rules
can be transferred by ‘mechanical insertion’ while other rules may be rejected, similar to the failed
transplant of a kidney); Toby S. Goldbach, ‘Why legal transplants?’, (2019) 15 Annual Review of
Law and Social Science, 583–601 (applying a law and society perspective to legal transplants).
16 Following Siems (n 6), 236–237, 256–257. See also Mathias Siems, ‘Malicious legal transplants’,
(2018) 38 Legal Studies, 103–119 (for the special case of ‘malicious legal transplants’).
17 Pierre Legrand, ‘What “legal transplants?”’, in David Nelken and Johannes Feest (eds), Adapting
Legal Culture (Hart Publishing 2001), 57.

18 ibid 59, 68 (‘law as a culturally-situated phenomenon’).
19 ibid 61; also, Pierre Legrand, ‘The impossibility of legal transplants; (1997) 4 Maastricht Journal
of European and Comparative Law, 111–124 (on the ‘impossibility of legal transplants”). Similar
Werner F Menski, Comparative Law in a Global Context (2nd edn, Cambridge University Press
2006) 5 (‘law is much more than a body of rules that can simply be imposed on others’).
20 Gunther Teubner, ‘Legal irritants: good faith in British law or how unifying law ends up in new
divergences’, (1998) 61 Modern Law Review, 11–32.

21 cf Nicholas H D Foster, ‘Comparative commercial law: rules or context?’, in Esin Örücü & David
Nelken (eds) Comparative Law: A Handbook (Hart Publishing 2007) 273–274.

28 M. Siems
The optimists, on the one hand, argue at the descriptive level that even mindless
legal borrowing ‘is the name of the legal game.’22 In particular, such borrowing is
said to happen in private law where rules and concepts ‘can survive without any close
connection to any particular people, any particular period of time or any particular
place.’23 On the other hand, there is the more normative view that legal transplants
can help countries to address major economic and social problems. Thus, we are
told that comparative lawyers should aim to ‘increase intellectual interaction and
borrowings,’24 denouncing opposition as ‘parochialism.’25
To be sure, the optimists are not saying that any rule will under any circumstances
work without any problems in the transplant country. Rather, it is seen as important to
design legal transplants in a smart way.26 For example, this may consider the need to
ensure ‘complementarities between the new law and pre-existing legal institutions,’27
i.e., that a transplant is more likely to be successful if two legal systems are based on
a similar conceptual understanding of the law, say, because they belong to the same
legal family.28 Reference may also be made to research in political science on the
key conditions for the transferability of policies, for example, that countries need to
be ideologically and psychologically compatible.29
Empirically, the optimists can refer to the fact that most, if not all, legal systems
have managed to incorporate ideas from various parts of the world: clearly, ‘no legal
system is entirely a prisoner of its own past traditions.’30 But even the optimists
tend to argue that, at best, legal transplants work almost as good as in the country of
origin. Thus, the frequently used category is that of a ‘cost-saving transplant’, namely
a foreign law is transplanted since the benefits of the imported rule exceed the costs
22 Alan Watson, Comparative law: law, reality and society (Vandeplas 2007) 5. See also Alan
Watson, Legal Transplants: An Approach to Comparative Law (2nd edn, University of Georgia
Press 1993).
23 Alan Watson, ‘Legal transplants and law reform’, (1976) 92 Law Quarterly Review 79–84, 81.
24 Basil S Markesinis, ‘Our debt to Europe: past, present and future’, in Basil S Markesinis (ed),
The Coming Together of the Common Law and the Civil Law (Hart Publishing 2000) 49.
25 Edgardo Buscaglia and William Ratliff, Law and Economics in Developing Countries (Hoover
Institution Press 2000) 31.

26 See Günter Frankenberg, ‘Constitutional transfer: The IKEA theory revisited’, (2012) 8 Interna-
tional Journal of Constitutional Law 563–579, 563 (laws need to be stripped of their social context
before they can be re-contextualised in the recipient country); Helen Xanthaki, ‘Legal transplants in
legislation: defusing the trap’, (2008) 57 International and Comparative Law Quarterly 659–673,
659 (distinguishing between ‘transplant concept’, ‘transplant term’ and ‘transplant comparative
research design’); Esin Örücü, ‘Law as transposition’, (2002) 51 International and Comparative
Law Quarterly 205–223 (transposition always in need of refinement).
27 Katharina Pistor, ‘The standardization of law and its effect on developing economies’, (2002)
American Journal of Comparative Law 50, 97–130, 98.

28 See, e.g., Daniel Berkowitz, Katharina Pistor, and Jean-Francois Richard, The transplant effect,
(2003) 51 American Journal of Comparative Law 163–203.

29 See Linda Hantrais, International Comparative Research: theory, methods and practice (Palgrave
Macmillan and St Martin’s Press 2009) 133–139.

30 TT Arvind, ‘The “transplant effect” in harmonization’, (2010) 59 International and Comparative
Law Quarterly 65–88, 81.

of designing a new law on their own.31 In this respect, the following sections of this
chapter suggest that it is possible to go further.
2.4 Overfitting Legal Transplants: The Idea
The term ‘overfitting’ is borrowed from statistics where it means that a model has
more explanatory variables than necessary. For example, there may be a causal rela-
tionship A + B → X, but if we use the model A + B + C + D → X, the actual ‘fit’
is even better.32 In the current context, the analogy is that in the origin country the
law works well (X) due to A and B, i.e., A + B → X, but in the transplant country
there is an ‘overfit’ because further factors (C and D, i.e., again, A + B + C + D →
X) make it work even ‘better’.
The subsequent section will discuss what, in the context of legal transplants, these
factors ‘C and D’ could be. To start with, though, it needs to be clarified what it can
mean that law ‘works better’. Roger Cotterrell distinguishes between two positions:
someone who regards ‘law as culture’ will regard a transplant as successful when the
law is consistent with the environment of the transplant country, whereas someone
who regards ‘law as an instrument’ will do so when the law has the intended effect.33
But it may also be said that both types of success are connected, since the effect
of the transplanted law depends on the way it fits into the society of the transplant
country.
As far as the transplanted law is more effective than in the origin country, this
does not provide a normative justification for the transplanted law. For example,
assume that in a country with a moderate climate there is a form of punishment that
withdraws support for heating in winter. If a country with a colder climate transplants
this form of punishment, this punishment ‘works better’, i.e., it is an ‘overfitting legal
transplant’. Yet, this does not provide any normative arguments in favour or against
this form of punishment.
A related point is to consider that imported laws may benefit some groups more
than in the origin country—but, as a result, also be more harmful to other groups.
For example, a law protecting creditors very effectively would, naturally, be a disad-
vantage for debtors. Thus, again, there can be an ‘overfit’, but it does not provide
31 Jonathan M Miller, ‘A typology of legal transplants: using sociology, legal history, and argentine
examples to explain the transplant process’, (2003) 51 American Journal of Comparative Law
839–886, 845. See also Ralf Michaels, ‘Make or buy – a new look at legal transplants’, in Horst
Eidenmüller (ed), Regulatory Competition in Contract Law and Dispute Resolution (Beck 2013);
Peter Grajzl and Valentina Dimitrova-Grajzl, ‘The choice in the lawmaking process: legal transplants
vs. indigenous law’, (2009) 5 Review of Law and Economics 615–660.
32 But note that in statistics/econometrics this is not actually seen as desirable, i.e., there should not
be an ‘overfit’ of the model.

33 Roger Cotterrell, ‘Is there a logic of legal transplants?’, in David Nelken and Johannes Feest
(eds), Adapting Legal Culture (Hart Publishing 2001) 79.

30 M. Siems
a justification for this law being adopted. It also shows that it may be necessary to
identify different categories of overfitting legal transplants.
2.5 Categories and Tentative Examples
The first, and most intuitive, category of an overfitting legal transplant is the situation
that the policy which the transplant aims to pursue is pursued even more effectively
in the transplant than in the origin country given the particularly favourable political,
cultural or socio-economic conditions of the transplant country.
The law as it relates to the board structure of companies may provide two exam-
ples. The typical distinction is between countries with just one board of directors
(‘one-tier countries’), those with a management board and a supervisory board
(‘two-tier countries’), and countries that let companies choose between these two
models (e.g., France and Italy). In addition, in some of the two-tier countries,
such as Germany, some members of the supervisory board must be employee
representatives.34
When the People’s Republic of China enacted a company law in the early 1990s, it
adopted the German two-tier model, including the idea of employee representatives.35
It can be suggested that this is a case of an overfitting legal transplant since employee
involvement in companies makes even more sense politically in a socialist country,
such as the PRC, than in a social market economy, such as Germany.
The other example is that of the European Company (SE, Societas Europaea).
The SE is a special form of companies available to cross-border businesses in the
European Union.36 In terms of board structure, the SE law leaves it to the companies
to decide between the one- and two-tier models. This rule is apparently based on
French and Italian law, but it can be suggested that it is even more appropriate for the
European Company since it is a smart way to accommodate the diverse structures
and preferences of European businesses.37
The second category refers to the situation where the particular mix between old
and new law creates a benefit which goes beyond that of the origin country. The
34 On board models see, e.g., Paul L Davies & Klaus J Hopt ‘Corporate boards in Europe – account-
ability and convergence’, (2013) 61 American Journal of Comparative Law 301–375; Carsten Jung-
mann, ‘The effectiveness of corporate governance in one-tier and two-tier board systems’, (2006)
3 European Company and Financial Law Review 426–474.
35 See Chun Liao, The Governance Structures of Chinese Firms: Innovation, Competitiveness, and
Growth in a Dual Economy (Springer 2009) 87–88.

36 See ‘Setting up a European Company (SE)’ available at https://europa.eu/youreurope/bus
iness/running-business/developing-business/setting-up-european-company/index_en.htm accessed
24 December 2020.
37 Valentina Vadi, Proportionality, Reasonableness and Standards of Review in International Invest-
ment Law and Arbitration (Edward Elgar 2018) 82, provides a further example where a rule of
domestic law (namely, the public-law concept of proportionality) may work better at the level of
EU law.
way old and new law relate to each other has also been discussed in the literature
on legal transplants. For instance, according to Brian Tamanaha, ‘transplanted laws
and legal institutions provide a new resource of power in society for individuals to
resort to as a means to escape from, or with which to contest, the traditional order and
social understandings.38 Michele Graziadei cites psychological research, according
to which higher mental functions incorporate new ones into previous material—and
legal transplants can be thought of as an example of such a process.39
An example may be the law of countries with mixtures between civil and common
law, such as South Africa and Scotland. It may be said that the civil law may have
the benefit of a scholarly and conceptual approach to law, whereas the common law
may have the benefit of being pragmatic and flexible.40 Thus, the advantage of such
mixed legal systems may be that they combine the best of both words, i.e., being
pragmatic but also trying to incorporate more scholarly legal concepts, say, for the
benefit of legal consistency (and, possibly, ‘objectivity in law’41 ).
Other examples may refer to more specific mixtures between legal rules that
derive from different models.42 An overfit may arise where more than one area of
law protects the same interests. For example, both the law on secured interests and
insolvency law aim to protect creditors. Just having a well-developed law on secured
interests may not, however, lead to a good level of creditor protection if the creditors
are not protected in case of insolvency. Thus, if a country that already has a good
insolvency law transplants legal rules from a country with merely a good law on
secured interests, this may be regarded as an overfitting legal transplant.43
Third, there can be the situation where the transplant fulfils an additional purpose
in the transplant country. This additional purpose can be the symbolic value of a
particular foreign law. The literature on legal transplants also discusses a similar
phenomenon of ‘legitimacy-generating transplants,’44 namely where a particular
foreign model is considered as prestigious, or because it is seen as a signal for a
desired turn towards modernity.45
A good example is the role of the common law in Hong Kong since for lawyers
from Hong Kong, being part of the common law helps them to maintain a difference
38 Brian Z Tamanaha, A General Jurisprudence of Law and Society (Oxford University Press 2001)
120.
39 Michele Graziadei, ‘Legal transplants and the frontiers of legal knowledge’, (2009) 10 Theoretical
Inquiries in Law 723–743, 736–737.

40 See discussion in Siems (n 6), 53–58.
41 Jaakko Husa and Mark Van Hoecke (eds), Objectivity in Law and Legal Reasoning (Hart
Publishing 2013).
42 Such ‘vertically divided legal systems’ are fairly common. See Siems (n 6), 106–108.
43 Further examples may be where law enforcement institutions are more effective in the transplant
than in the origin country.

44 Miller (n 31) 854.
45 See, e.g., Curtis J Milhaupt and Katharina Pistor, Law & Capitalism: What Corporate Crises
Reveal About Legal Systems and Economic Development Around the World (Chicago University
Press 2008) 209; Ugo Mattei and Laura Nader, Plunder: When the Rule of Law is Illegal (Wiley-
Blackwell 2008) 19–20, 142.
32 M. Siems
from Mainland China. For instance, a recent newspaper article reports on a dispute
of whether not only barristers but also solicitors can wear a wig in court. It states that
‘since Hong Kong was handed back to China in 1997, some say the wig has taken on
importance as a symbol of an independent judiciary’, quoting a Hong Kong lawyer
stating that ‘it’s a tradition that really dignifies our profession, especially in the context
of our commitment to uphold the city’s justice.’46 It is likely that similar arguments
play a role when legislators and judges from Hong Kong transplant elements of
English law today, thus, potentially contributing to an ‘overfit’.
Alternatively, the additional purpose can be that the legal transplant triggers addi-
tional extra-legal changes. This is also of general relevance for the relationship of the
‘fit’ of a legal transplant with current conditions since a transplant may be ‘geared
to fitting an imagined future.’47 Transplants of human rights law can provide an
example. For instance, the bill of rights of the South African Constitution of 1996
was influenced by its European and North American counterparts, and the South
African Constitutional Court has also considered the case law of other countries.
These transplants are said to have worked well,48 not only for the protection of
individual rights but also as a means of reconciliation and transitional justice in
post-Apartheid South Africa.49
A transplant can also be economically beneficial because it reduces the transaction
costs that arise from differences between legal systems.50 Here, the overfit may
follow from the fact that the transplant country has a smaller economy than the
origin country. For example, if Jamaica adjusts its company law to the US model, it
may benefit from increased US investment, whereas there would be no corresponding
incentive for the US to transplant Jamaican company law. This may even be the case
where the transplanted law is not actually very useful for the protection of investors:
thus, even ‘legal placebos’51 can be overfitting legal transplants.
Fourth, the overfit may be about legal rules and institutions which are more durable
in the transplant than in the origin country. This may be the case in some former
colonies as far as the former colonisers have subsequently abandoned or loosened
certain traditions. For example, as already mentioned, in Hong Kong certain common
46 Te-Ping Chen and Allison Morrow, ‘Wigged Out: Hong Kong’s Lawyers Bristle Over Horsehair
Headpieces’, Wall Street Journal (30 April 2013) https://www.wsj.com/articles/SB1000142412788
7324743704578444422350608136 accessed 24 December 2020.
47 David Nelken, ‘Comparatists and transferability; in Pierre Legrand & Roderick Munday (eds),
Comparative Legal Studies: Traditions and Transitions (Cambridge University Press 2003) 456. See
also David Nelken, ‘Towards a sociology of legal adaptation’, in David Nelken & Johaness Feest
(eds), Adapting Legal Culture (Hart Publishing 2001) 20 (relevance for periods of revolutionary
and post-revolutionary nation-building).
48 See, e.g., Jörg Fedtke, ‘Constitutional transplants: returning to the garden’, (2008) 61 Current
Legal Problems 49–93; Davis 2003.

49 See also the relevance of human rights in the South African Truth and Reconciliation Commission,
https://www.justice.gov.za/trc/legal/justice.htm accessed 24 December 2020.

50 cf, e.g., Ugo Mattei, Comparative Law and Economics (University of Michigan Press 1997) 94,
219; Pistor (n 27).

51 For this idea, see Amitai Aviram, ‘The placebo effect of law: law’s role in manipulating
perceptions’, (2006) 75 George Washington Law Review 54–104.

law traditions may be taken more seriously than in England today. With respect to
civil law countries, a well-known example is by John Henry Merryman on ‘the
French deviation.’52 Merryman shows that French judges had soon disregarded the
strictness of the French Civil Code of 1804, creating more and more judge-made law.
In contrast, the courts of Latin American countries did not regard it as acceptable
to deviate from the strong separation of powers between legislators and judges, as
positioned by their French-based civil codes.
Another example is that of local employment offices to review dismissals in the
Netherlands. These originate from the German occupation in the early 1940s. In
Germany, these offices were abandoned after the end of the Second World War, but
in the Netherlands, they are said to have persisted ‘as instruments for the rebuilding
of the economy, specifically for the maintenance of employment and the continuity
of industrial production.’53 They are also seen as a good ‘fit’ for the Netherlands
as its legal system relies more on filters and alternatives to courts than the German
one.54
The fifth category refers to ideas about legal reform that have not been adopted
in their countries of origin but have been implemented abroad. Thus, it may also be
suggested that, here, we may not have legal transplants in a narrow sense, but cultural
transplants akin to the examples of business cards in Japan, Hasselhoff’s music in
Germany or cricket in India.
The most famous example in this category is Jeremy Bentham’s idea from the early
nineteenth century to codify the common law. This was more successful in some of the
British colonies than in England. In pre-independence India, codification concerned
procedural rules as well as substantive law,55 and these laws have also impacted the
colonial laws in Africa.56 In the mid-nineteenth century, the American lawyer David
Dudley Field also followed Bentham’s idea and drafted a Code of Civil Procedure
which was initially adopted by the state of New York, and which has influenced
today’s Federal Rules of Civil Procedure and the corresponding state laws.57
A recent example from civil law countries is the suggestion by the German
law professor Karsten Schmidt to replace the Commercial Code with a Business
Enterprise Code. In 1998, the German lawmaker did not follow this advice in
a major reform of German commercial law. Yet, a few years later, the Austrian
52 John Henry Merryman, ‘The French deviation’, (1996) 44 American Journal of Comparative
Law 109–119.
53 Alex Jettinghoff, ‘State formation and legal change: on the impact of international politics’, in
David Nelken & Johaness Feest (eds), Adapting Legal Culture (Hart Publishing 2001) 112.
54 See, e.g., Erhard Blankenburg, ‘Civil litigation rates as indicators for legal culture’, in David
Nelken (ed), Comparing Legal Cultures (Dartmouth 1997).

55 E.g., leading to the following codes: Criminal Procedure Code, 1861; Civil Procedure Code,
1908; Penal Code, 1860; Contract Act, 1872.

56 See, e.g., Werner F Menski, Comparative Law in a Global Context (2nd edn, Cambridge
University Press 2006) 462.

57 See, e.g., Gunther A Weiss, ‘The enchantment of codification in the common law world’, (2000)
25 Yale Journal of International Law 435–532, 505–506; Konrad Zweigert and Hein Koetz, An
Introduction to Comparative Law (3rd edn, Oxford: Clarendon 1998) 242–243.
34 M. Siems
lawmaker adopted Schmidt’s proposal and enacted a Business Enterprise Code

(Unternehmergesetzbuch), in force since January 2007.58
2.6 Implications for Law-Making
The idea of overfitting legal transplants shows that foreign models can work very
well, i.e., they are not only a ‘second best’ solution for lawmakers that lack the time
or skill to draft their own laws. Interestingly, in some of the examples of the previous
section, the overfit occurred in case of involuntary transplants (see the fourth and fifth
categories in Sect. 2.5, above). Thus, if the conditions are favourable, transplants can
work better than expected, even if they are not based on a deliberate borrowing by
the transplant country.
However, one should also not be naïve about the effect of legal transplants. It has
already been mentioned that the mere fact that legal transplants may work very well
does not provide a normative justification for this particular set of legal rules (cf. the
withdrawal of heating example at the end of Sect. 2.4, above). Drawing lessons from
comparative law is a complex endeavour, as explained elsewhere in more detail.59 In
particular, it may often be difficult to design a rule that deliberately aims to achieve
an overfit; rather, in some of the examples mentioned in the previous section, the
overfit seems to be more a result of serendipity. Some scepticism towards the ability
to predict the effect of a particular legal design is also in line with the more general
research about the relationship between legal and economic development since there
is no clear evidence about the direction (if any) of this causal relationship and the
types of legal rules that may matter.60
Despite these caveats, it is suggested that lawmakers can draw the following
lessons from the possibility of overfitting transplants. First, a lawmaker contem-
plating a legal transplant needs to consider which variant of overfit, as outlined in the
previous section, may be applicable. In particular, it may be helpful to ‘think outside
the box’ since the benefit may be related to something that does not exist in the same
way in the origin country (see the third category in Sect. 2.5, above). Second, making
the right choice requires good information about the substance of the legal rules that
are to be transplanted, since, while this chapter suggests that an ‘overfit’ may be
possible, this does not deny the risk of ineffective or harmful transplants. Third, it
is crucial to decide on how exactly the law is transplanted. For example, drafting
the transplanted law in relatively general rules can have the benefit to accommodate
58 See Mathias Siems, ‘The divergence of Austrian and German commercial law - what kind
of commercial law do we need in a globalised economy?’, (2004) International Company and
Commercial Law Review 273–278.
59 See Mathias Siems, ‘Bringing in Foreign Ideas: The Quest for ‘Better Law’ in Implicit
Comparative Law’, (2014) Journal of Comparative Law 119–136.

60 For the discussion see Mathias Siems and Simon Deakin, ‘Comparative law and finance: past,
present and future research’, (2010) 166 Journal of Institutional and Theoretical Economics 120–
140.
for possible differences between the origin and the transplant country. Lawmakers
also have to decide on whether, in addition to the legal rules, they need to emulate
other elements of the foreign legal system, such as its legal education, methods and
mentality. Fourth, it has rightly been said that the process of legal reform and develop-
ment may be more important than the substance of transplanted rules.61 Specifically,
this has to consider how the new law interacts with the previous one since this can
potentially contribute to an overfit (noted in the second category, in Sect. 2.5, above),
but can also be reason for its ‘rejection’.
In addition, the possibility of overfitting legal transplants is relevant to the debate
about regulatory competition and harmonisation of laws. On the one hand, regulatory
competition seems to be a good tool to identify ‘the best’ rules—and it is then at
least possible that, in another country, these rules have not only a positive effect but
work better than in the origin country. On the other hand, the idea of overfitting may
support the harmonisation of legal rules since it shows that outside influence on the
domestic legal system does not necessarily have a negative effect. Indeed, the debate
about the desirability of legal transplants and harmonisation is often conducted along
similar lines.62
The EU in particular can be seen as an interesting testing ground for future research
on overfitting legal transplants. The EU publishes scoreboards on the way Member
States implement EU directives,63 and those may be seen as indicators for the ‘fit’
of particular rules in different legal and socio-economic systems. There is also some
interaction between EU law and the law of the Member States. For example, when
the Court of Justice of the European Union (or its Advocate General) puts special
emphasis on the precedents from particular Member States, this may also be seen
as an indicator for the ‘fit’ of a particular EU directive with the law of this Member
State.
2.7 Conclusion
Legal transplants are sometimes compared to wine: a type of grape can be trans-
planted outside its native terrain, but the wine will be a bit different—as is said to
be the case for transplanted law.64 Yet, continuing with the analogy, the fact that the
wine is a bit different does not mean that it will be inferior; rather, a skilful wine
producer may choose the terroir of the vineyard such that the wine may even be
61 Randall Peerenboom, ‘Toward a methodology for successful legal transplants’, (2013) 1 Chinese
Journal of Comparative Law 4–20.
62 Compare, e.g., Legrand (n 19) and Pierre Legrand, ‘Against a European Civil Code’, (1997) 60
Modern Law Review 44–63.

63 See, e.g., Single Market Keyboard, European Commission https://ec.europa.eu/internal_market/
scoreboard > accessed 24 December 2020.

64 Arvind (n 30), 66. See also Gary Watt, ‘Comparison as deep appreciation’, in Pierre Giuseppe
Monateri (ed), Methods of Comparative Law (Edward Elgar 2012) 91–96 (‘horticultural metaphor’).
36 M. Siems
‘better’ (however, this may be defined) than the original one. It was the aim of this
chapter to show that a similar phenomenon may also exist in law.
Since this idea of such overfitting legal transplants is a new one, this chapter tried to
set the scene in outlining possible categories and examples and how lawmakers may
be able to make use of them. The five categories were as follows: (i) a policy which
is particularly favourable to the political, cultural or socio-economic conditions of
the transplant country; (ii) a particularly favourable mix between old and new law;
(iii) an additional purpose that the transplant fulfils in the transplant country; (iv)
legal rules and institutions which are more durable in the transplant than in the origin
country; (v) ideas about legal reform which have been adopted abroad but not in their
countries of origin.
These categories are closely related to core topics of legal methodology in general
and comparative legal studies in particular. For example, the way a foreign legal rule
is received in the transplant country crucially depends on how the relevant legal
actors—legislators, judges, legal scholars, etc.—understand and implement these
rules.65 Moreover, in comparative law in particular, recent scholarship has often
been sceptical about treating rules in a merely instrumental way: according to Mark
Van Hoecke, ‘comparative law research may only be carried out meaningfully if
it also includes the deeper level of underlying theories and conceptions.’66 Thus,
the quest for overfitting legal transplants is not about finding quick ‘silver bullets’,
but about carefully understanding why domestic and foreign laws differ and how a
subsequent legal transplant may affect the former legal system.
This chapter started with the example of business cards in Japan. It explained
that business cards arrived in Japan in the late nineteenth century with the gradual
opening of Japanese society to foreign influences, and that in today’s Japan they
are considered more important than in Western countries. Around the same time,
Japan also transplanted many legal rules from European countries, in particular from
Germany,67 though some argue that this has only led to a ‘façade of Western law.’68
Thus, future research may compare these parallel developments of specific cultural
and legal transplants—how and why their effects may differ, and what this can teach
us about the use and relevance of legal transplants in the future.
65 For the role of communication in the making and legitimation of law see Mark Van Hoecke, Law
as Communication (Hart Publishing 2002).
66 Van Hoecke (n 4), 191.
67 See, e.g., J Mark Ramseyer, ‘Mixing-and-matching across (legal) family lines’, (2009) BYU Law
Review 1701–1712.
68 Max Ehrmann, Comparative Legal Cultures (Prentice Hall 1976) 47. See also the references in
Mathias Siems, Convergence in Shareholder Law (Cambridge University Press 2008) 258–259.
Part II
Private Law
Chapter 3
The Concept of Arbitral Award Under
the New York Convention:
A Comparative Study of English, French
and Indian Approaches
Rajesh Kapoor
Abstract An arbitral award is the most important instrument in any arbitration

proceedings. Nevertheless, a precise conceptual definition of award is a rarity,
whether it is international conventions, national laws or institutional rules. Even
the New York Convention, the very object of which is the recognition and enforce-
ment of foreign arbitral awards, reflected in its very title, only tells as to when an
award is a foreign award but is very much silent about the more fundamental issue as
to what an award is. Since the New York Convention applies only to arbitral awards,
it is indispensable to know what decisions can be considered awards? The present
paper attempts to develop a conceptual understanding of award culled from judicial
decisions in England, France and India.
3.1 Introduction
An award is the ultimate ‘destination’ of any arbitration, the ‘final step’, which
terminates the mandate of the tribunal.1 It is essential to identify it for the purpose
of enforcement which is the very object of any arbitration.2 Notwithstanding the
immense importance of an award, our understanding of the term is merely tentative.
Despite there being a huge network of laws3 dealing with it ranging from its making to
1 Nigel Blackaby and others, Redfern and Hunter on International Arbitration, (6th edn, OUP 2015)
para 9.01; Gary Born, International Commercial Arbitration,(3rd edn, Wolters Kluwer 2021) 3139.
2 Philippe Fouchard, Emmanuel Gaillard and Berthold Goldman, Fouchard, Gaillard and Goldman
on International Arbitration (Emmanuel Gaillard and John Savage eds, Kluwer Law International
1999)737.
3 See, e.g., The Geneva Convention of 1927; The New York Convention on The Recognition and
Enforcement of Foreign Arbitral Awards 1958; The European Convention 1961; The Paris Agree-
ment 1962; The Moscow Convention 1972; Inter American Convention; Inter-Arab Convention;
The OHADA Treaty 1993; The National Legislations and Various Institutional Rules constitute the
network.
R. Kapoor (B)
NALSAR University of Law Hyderabad, Hyderabad, India
e-mail: rajeshkapoor@nalsar.ac.in
40 R. Kapoor
the enforcement, a precise conceptual definition is something which is conspicuously

absent, be it the international conventions, national legislations or institutional rules.4
Absence of a definition in international instruments can be attributed to the lack
of consensus5 as ‘the negotiators of the Convention had difficulties agreeing upon
a common definition and eventually decided to leave the term undefined.’6 But the
same cannot be a reason for the widespread absence in the domestic legislations too.7
Is it because the concept is too labyrinthine, rendering it well-nigh incapable of a
juristic definition or is it a strategy to keep it flexible so as to allow recalibration of
its contours to enable enforcement of as many decisions as possible, is not certain?
Regardless of the reasons, the lack of a proper conceptual definition engenders a type
of uncertainty which can undermine the efficacy of the system.
Undoubtedly, conceptual discussion as to what is an award is of immense practical
importance. Sadly, ‘international commercial arbitration literature has not been able,
so far, to generate a comprehensive and satisfying analysis of the notion of arbitral
award. With a few exceptions there are virtually no contributions on the topic.’8
Even the New York Convention, the very object of which is the recognition and
4 These Conventions do not define the term ‘award’. Same is the situation with most of the national
arbitration laws. For example, there is no definition of the term award in the French Law, the English
Law, the FAA and the Swiss Law to name a few and the national laws which include a definition are
also not very informative. For example, Section 2(1) (c) of the Indian Arbitration Act says, ‘arbitral
award’ includes an interim award.’ However, there are a very few exceptions like New Zealand
and Croatia where the legislation provides a definition of the term. Most of the leading institutional
rules are also silent on the issue, see Gary Born, International Commercial Arbitration, (3rd edn,
Wolters Kluwer 2021) para 22.02 [B] 1.
5 Judith Gill, ‘The Definition of Award under the New York Convention’ (2008) 2 Dispute Resolution
International 114, Ehle,‘Article I Scope of Application’ in Reinmar Wolff (ed), New York Convention
on the Recognition and Enforcement of Foreign Arbitral Awards—Commentary, (CH Beck, 2012)
32, The UNCITRAL Model Law proposed the following definition which could not be adopted due
to lack of consensus:
Award means a final award which disposes of all issues submitted to the arbitral tribunal and
any other decision of the arbitral tribunal which finally determines any question of substance
or the question of its competence or any other question of procedure but, in the latter case,
only if the arbitral tribunal terms its decision an award.
H.Holtzman and J.Neuhas, A Guide to the UNCITRAL Model Law on International Commercial
Arbitration: Legislative History and Commentary, (Wolters Kluwer, 1989) 154.
6 Bernd Ehle, ‘Article I Scope of Application’ in Reinmar Wolff (ed), New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards—Commentary, (CH Beck 2012) 32.
7 Domestic legislations providing a definition are a rare exception. See, Gary Born, International
Commercial Arbitration,(3rd edn, Wolters Kluwer 2021) para 22.02 [B] 1.

8 Julian D M Lew and Giacomo Marichisio, The Notion of an Award in International Arbitration:
A comparative Analysis of French Law, English Law and the UNCITRAL Model Law, (Kluwer
Law International 2017) 1. See also Judith Gill, ‘The Definition of Award under the New York
Convention’ (2008) 2 Dispute Resolution International 114; Domenico Di Pietro, ‘What Constitutes
an Arbitral Award Under The New York Convention’ in Emmanuel Gaillard and Domenico Di Pietro
(eds), Enforcement of Arbitration Agreements and International Arbitral Awards—The New York
Convention in Practice (Cameron 2008) 139; Philipp Peters and Christian Koller, ‘The Award and
the Courts—The Notion of Arbitral Award: An Attempt to Overcome a Babylonian Confusion’ in
3 The Concept of Arbitral Award Under the New York … 41
enforcement of foreign arbitral awards, reflected in its very title9 , only tells as to when
an award is a foreign award10 but is very much silent about the more foundational
issue as to what an award is.11 As the Convention applies only to arbitral awards,
it is indispensable to know what decisions can be considered awards? A conceptual
understanding of the term will enable us to develop the criterion to separate the grain
from the chaff more efficiently. Legislature may skip the issue, but the courts must
know, what constitutes an arbitral award.
3.2 The Law Applicable to Determine the Nature

of the Decision
An award being a legal instrument needs to be characterized so, by some system of

law. Since the Convention has skirted the issue, it is necessary to know what law is
applied by the courts at the place of enforcement to decide as to whether a decision is
an award. It is this law which we need to analyze to cull out the criterion which would
determine the character of a decision. The problem is that there is no set criteria as
to what rules should be applied to interpret the New York Convention.12 Various
approaches are adopted by the Contracting states in interpreting the Convention.13
This undermines the very object of the Convention which is to foster uniformity.
Gerold Zeiler and others (eds), Austrian Yearbook on International Arbitration (Manz’cheVerlags-
Und Universitatsbuchhandlung 2010) 137; Jenifer Kirby, ‘What is an Award, Anyway?’ (2014) 31
Journal of International Arbitration 475.
9 The full title of the New York Convention is the ‘United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards’.

10 See e.g. Article I (1) of the Convention:
This Convention shall apply to the recognition and enforcement of arbitral awards made in
the territory of a State other than the state where the recognition and enforcement of such
awards are sought, and arising out of differences between persons, whether physical or legal.
It shall also apply to arbitral awards not considered as domestic awards in the State where
their recognition and enforcement are sought.
11 Albert Jan van den Berg, The New York Convention of 1958, (T.M.C. Asser 1981) 44; Philippe
Fouchard, Emmanuel Gaillard and Berthold Goldman, Fouchard, Gaillard and Goldman on Inter-
national Arbitration (Emmanuel Gaillard and John Savage eds, Kluwer Law International 1999)
129; Judith Gill, ‘The Definition of Award under the New York Convention’, (2008) 2 Dispute
Resolution International 114; Nigel Blackaby and others, Redfern and Hunter on International
Arbitration, (6th edn, OUP 2015) para 9.05;‘The nearest it comes to a definition is: The term arbi-
tral award shall include not only awards made by arbitrators appointed for each case but also those
made by permanent arbitral bodies to which the parties have submitted’; Gary Born, International
Commercial Arbitration,(3rd edn, Wolters Kluwer 2021) para 22.02 [B] 1.
12 Christoph Liebscher, ‘Convention on the Recognition and Enforcement of Foreign Arbitral
Awards of 10 June 1958 Preliminary Remarks’ in Reinmar Wolf (ed.) New York Convention on
the Recognition and Enforcement of Foreign Arbitral Awards – Commentary (CH Beck 2012) 19.
13 ibid.
42 R. Kapoor
Scholarly opinions are also diametrically opposite. Thus, Liebscher argues in favor
of autonomous approach, ‘without recourse to national law.’14 He reasons that since
the New York Convention is an international treaty, it shall be interpreted in view of
its ‘international character.’15 On the other hand, Albert ven den Berg is of the opinion
that owing to the absence of a definition of an arbitral award in the Convention, it
is ‘appropriate to distill the notion… from the national legal systems.’16 What he is
proposing is not a notion enshrined in one particular national system, e.g. the place of
enforcement alone which would undermine the much desired goal of uniformity, ‘but
a single definition of the award made from a comparative approach.’17 He seems to
be pitching for a bottom to top approach instead of the other way around, a definition
which is not imposed upon the contracting States rather proposed by them.
The problem is if it were possible to cull out a single definition from so many
diverse national legal systems, the New York Convention would have adopted it.
We must recall that a similar attempt in the UNCITRAL Model Law has failed
as the proposed definition18 had to be dropped on account of lack of consensus.19
Furthermore, no definition could be adopted in the Model Law when it was revised
in the year 2006 as well. In the absence of a universally acceptable definition if
the courts at the place of enforcement encounter a situation where they have to see
whether a decision is an award or not, they should have a transnational outlook which
would further the object of uniformity.
There are four different approaches about the law applicable to decide whether a
decision is an award at the place of enforcement is concerned: autonomous interpre-
tation of the Convention, the lexfori, the lex loci arbitri, and combination of lexfori
and lex arbitri both.20
14 ibid.
15 ibid.
16 Albert Jan van den Berg, The New York Convention of 1958, (T.M.C. Asser 1981) 44.
17 Poudret and Besson, Comparative Law of International Arbitration, (Sweet and Maxwell 2007)
811.
18 Award means a final award which disposes of all issues submitted to the arbitral tribunal and
any other decision of the arbitral tribunal which finally determines any question of substance or
the question of its competence or any other question of procedure but, in the latter case, only if the
arbitral tribunal terms its decision an award. H.Holtzman and J.Neuhas, A Guide to the UNCI-
TRAL Model Law on International Commercial Arbitration: Legislative History and Commentary,
(Wolters Kluwer, 1989) 154.
19 Gary Born, International Commercial Arbitration, (3rd edn, Wolters Kluwer 2021) para 22.02
[B] 1.
20 Jean Francois Poudret and Sebastien Besson, Comparative Law of International Arbitration,
(Sweet and Maxwell 2007) 811; Bernd Ehle, ‘Article I Scope of Application’ in Reinmar Wolff (ed),
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards—Commen-
tary, (CH Beck, 2012) 33; Christoph Liebscher, ‘Convention on the Recognition and Enforcement
of Foreign Arbitral Awards of 10 June 1958 Preliminary Remarks’ in Reinmar Wolff (ed.) New
York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – Commentary
(CH Beck 2012) 19.
3.3 Autonomous Approach
According to this approach, since the New York Convention is an international treaty
as stated above, it shall be interpreted according to the general principles of treaty
interpretation in view of its object and spirit.21 These are to be found in Article
31 of the Vienna Convention on the Laws of Treaties. Liebscher classifies them
as ‘grammatical interpretation (wording), systematic interpretation (context), teleo-
logical interpretation (object and purpose), and historical interpretation (legislative
history).’22
He further says that ‘the paramount principle of interpretation is the observance
of bona fide, i.e. that a treaty is to be interpreted in good faith. In respect of method
of interpretation, the emphasis must be laid on the ordinary meaning of its wording
in its context and on treaty’s object and purpose.’23 The problem is that despite
adopting the above-mentioned rules, there cannot be uniformity about the term arbi-
tral award. But at this stage, our concern is uniform rules of interpretation only and
not uniform standards of application. The idea is that uniformity in rules of interpre-
tation will reduce the non-uniformity in the application of the Convention. But even
the supporters of this approach do not eliminate completely the role of national legal
orders in this respect. Thus, Di Pietro who strongly supports the idea of interpreting
the New York Convention according to the rules of interpretation laid down in the
Vienna Convention on the Laws of Treaties accepts that such an approach ‘should
not automatically rule out any reference to the relevant domestic law(s).’24
Poudret and Bessonal also prefer the autonomous approach, but they too concede
an important role for national laws at the same time. Ehle argues in the similar vein
according to whom, ‘the most sensible approach is the one whereby the national
courts classify arbitral awards according to the lex arbitri while verifying the outcome
is in compliance with an autonomous interpretation under the convention.’25 The
difference is that in the approach adopted by Poudret and Besson, the autonomous
content of the Convention plays the pivotal role while according to Ehle, lex arbitri
performs that job. Therefore the national legal systems will keep on playing an
important role in determining what constitutes an award within the meaning of the
Convention.
21 Domenico Di Pietro, ‘What Constitutes an Arbitral award Under The New York Conven-
tion’ in Emmanuel Gaillard and Domenico Di Pietro (eds), Enforcement of Arbitration Agree-
ments and International Arbitral Awards—The New York Convention in Practice (Cameron 2008)
142, Christoph Liebscher, ‘Convention on the Recognition and Enforcement of Foreign Arbitral
Awards of 10 June 1958 Preliminary Remarks’in Reinmar Wolf (ed.) New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards – Commentary (CH Beck 2012) 20.
22 Christoph Liebscher (12) 20.
23 ibid 21.
24 Domenico Di Pietro, ‘What Constitutes an Arbitral award Under The New York Convention’
in Emmanuel Gaillard and Domenico Di Pietro (eds), Enforcement of Arbitration Agreements and
International Arbitral Awards—The New York Convention in Practice (Cameron 2008) 142.
Recognition and Enforcement of Foreign Arbitral Awards—Commentary, (CH Beck 2012) 33.
44 R. Kapoor
3.3.1 Lex Arbitri
Howsoever profoundly and poetically we may pitch for delocalized26 or transna-

tional27 character of international arbitration, the predominant reality is that an arbi-
tral award is considered to be rooted in the legal order of the seat of arbitration.28
Hence, a decision cannot be considered an award under the Convention if it cannot
be considered so according to the law of its place of origin.29 The idea of an national
award is only a theoretical possibility.30 Therefore, the courts at the place of enforce-
ment need to test the nature of the decision according to the lex arbitri which invari-
ably is the law of the seat. This, however, should not mean a blind adherence but a
reasonable deference to the law of the seat. If the law of the seat gives such a meaning
to the term award which would clearly defeat the object and spirit of the Convention,
then the court at the place of enforcement should not pay deference to it.
3.3.2 LexFori
There is a streak of thought which believes in transnational legal order of international

arbitration and considers the seat of arbitration inconsequential.31 According to this
approach, only the lexfori is relevant for determining as to whether a decision is an
award. Fouchard Giallard and Goldman the leading French commentary on Interna-
tional Arbitration clearly postulate this view.32 According to it, the absence of the
definition of the term award in the Convention ‘leaves the courts of each contracting
state to define it according to their own law.’33
26 Jan Paulson, ‘Arbitration Unbound: Award Detached from the Law of its Country of Origin’
(1981) 30 International and Comparative Law Quarterly 358.
27 Emmanuel Gaillard, Legal Theory of International Arbitratio, (MartinusNijhoff Publishers 2010);
Societe PT Putrabali Adyamuliya v Societe Rena Holding et Societe Mungotia Est Epices, Revue
del’ Arbitrage 507.
28 Farncis Mann, ‘LexFacitArbitrum’ (1986) 2 Arbitration International 241.
29 For further discussion on this approach see, Farncis Mann, ‘LexFacitArbitrum’ (1986) 2
Arbitra- tion International 241; Jean Francois Poudret and Sebastien Besson, Comparative Law
of International Arbitration, (Sweet and Maxwell 2007) 811.
Recognition and Enforcement of Foreign Arbitral Awards—Commentary, (CH Beck, 2012) 33.
31 ibid 33.
1999) 967.
33 ibid 967.
3.3.3 Double Barrel Test
The last approach in this respect can be classified as the double barrel approach,
since it requires a decision to qualify the test under the lex arbitri as well as the
lexfori.34 However, the scholars proposing this approach suggest to adopt a compar-
ative outlook, and not a parochial approach.35 In my opinion, the court at the place of
enforcement should first see whether the decision is an award under the lex arbitri,
because of the predominance of the seat theory, and then under the lexfori, but the
lexfori should be interpreted in the light of the object and spirit of the New York
Convention. However, if the issue has been dealt by the court at the seat then the
court at the place of enforcement should defer to that decision. At the same time, if
the law at the seat has a very parochial approach about the concept of award which
clearly undermines the international character of the Convention, the court at the
place of enforcement should discard it. A complete autonomous approach ‘without
recourse to national law’36 though ideal is not very real. The reason is that the national
legal systems will keep on playing an important role in supplying the flesh and blood
to the skeleton of the notion of award under the Convention.
3.4 Approaches Adopted by England, France and India
Now we shall proceed to see the approaches adopted by England, France and India
in this respect before we attempt to cull out a conceptual definition of the term award
in the said jurisdictions. As the seat theory is very deeply entrenched in the English37
and Indian law,38 an award is considered to be rooted in the legal order of the seat
of the arbitration; hence, it is necessary that in order to be enforced as a Convention
award, a decision must be considered so according to the law of the seat.39 But this
would be the first stage. In order to be enforceable, it should qualify the test under
the law of the forum which will have the final say.
34 Bernd Ehle (n 28) 33.

35 ibid.
36 Christoph Liebscher, ‘Convention on the Recognition and Enforcement of Foreign Arbitral
Awards of 10 June 1958 Preliminary Remarks’ in Reinmar Wolf (ed), New York Convention on
the Recognition and Enforcement of Foreign Arbitral Awards—Commentary, (CH Beck 2012) 20.
37 Naviera Amazonica Peruana S.A. v Compania International de Segurosdal Peru, YBCA, XIII
(1988) 156 at 159. The Court of Appeal said ‘ English Law does not recognize the concept of a ‘delo-
calised’ arbitration or of ‘arbitral procedures floating in the transnational firmament, unconnected
with any municipal system of law’. Accordingly every arbitration must have a ‘seat’.
38 See Section 2(2) of the Indian Arbitration and Conciliation Act 1996, Bharat Aluminium v Kaiser
Aluminium (2012) 9 SCC 552.

39 Bernd Ehle, ‘Article I Scope of Application’ in Reinmar Wolff (ed), New York Convention on
the Recognition and Enforcement of Foreign Arbitral Awards—Commentary, (CH Beck 2012) 33.
Since According to this approach an award is not passed in legal vacuum but is rooted in the legal
order of the seat hence it must be an award according to the lexarbitri.
46 R. Kapoor
In Raffles v Educamp,40 an emergency arbitral award passed in a SIAC arbitration

was not considered capable of enforcement as a Convention award in India though
the Singapore law allows emergency arbitral awards.41 The decision was an arbitral
award according to the lex arbitri, but the Delhi HC did not consider the same to be
a foreign award as contemplated under Section 44 of the 1996 Act.42 So it is the law
of the place of the enforcement which finally determined the nature of the decision.
English law though pays a great deference to the law of the seat, but it can be stated
safely that a decision like Raffles would have met the same fate there. According
to French law, it is only the law of the place of enforcement which is relevant to
determine the character of a decision under the Convention as stated above.
In all the three jurisdictions, if a decision is not an award under the lexfori, it cannot
be enforced as a Convention award. Therefore, now we shall attempt to understand
the notion of award as understood by the laws of the said jurisdictions since in the
absence of a definition of an award in the Convention, ‘it falls to each jurisdiction’s
domestic legislation to set out what it would recognize as an award which it is required
to enforce under the New York Convention.’43
3.4.1 Concept of Award, English Position
Despite having a rich tradition of arbitration and being a leading jurisdiction in the
field of arbitration,44 ‘there is no statutory or common law definition of what consti-
tutes an “award” under English law.’45 Section 100(1) of the English Arbitration Act
defines a New York Convention award without telling us what an award is. According
to it, ‘a “New York Convention” award means an award made, in pursuance of an
arbitration agreement, in the territory of a state (other than the United Kingdom)
which is a party to the New York Convention’. Russell on Arbitration says that ‘an
award is a final determination of a particular issue or claim in the arbitration’46 and
40 Raffle Design International v Educomp Professional Education Ltd. 2016 SCC Online Del 5521.
41 SIAC, ‘The Emergency Arbitrator and Expedited Procedure in SIAC: A New Direction for
Arbitration in Asia’ https://www.siac.org.sg/2013-09-18-01-57-20/2013-09-22-00-27-02/articles/
420-the-emergency-arbitrator-and-expedited-procedure-in-siac-a-new-direction-for-arbitration-in-
asia last accessed on 20th June 2019.
42 Section 44 defines New York Convention award.
43 KC Ley and Samuel Leong, Emergency Arbitrators in Singapore The SIAC Rules, https://www.
lexology.com/library/detail.aspx?g=efac76de-b020-4168-bf29-b70f7fff1943 last accessed on 5th

November 2019.
44 Gary Born, International Commercial Arbitration, (3rd edn, Wolters Kluwer 2020) para 1.01 [B]
[1].
45 David John Sutton, Judith Gill and Mathew Gearing, Russel on Arbitration, (23rd edn, Sweet
and Maxwell 2007) 271.

46 ibid 271.
distinguishes it from other decisions like directions and orders given by an arbitration
tribunal.47
Whether a decision given by an arbitration tribunal is an arbitral award or merely
a procedural order has come up umpteen times before the courts, but the courts have
decided the matter without giving a proper definition of an award. Thus, in Cargill
v Kadinopoulos,48 the court said it is ‘unnecessary in the present case to attempt an
exhaustive definition of the precise nature of an arbitration award.’49 Nevertheless
by analyzing these various cases, we can get at least a tentative sketch if not a clear
picture of the notion of award under the English law.
The concept of an arbitral award is highly enigmatic under English law, because
of the pragmatic approach of the said law in general and more so in the field of
arbitration. At times, factors like the intention of the tribunal, perception of the
recipients and importance of the decision have been the basis for deciding whether
a decision is an award or not. Hence, the contours of the notion are too flexible
giving it a very amorphous look. Thus, in Trade Fortitude,50 a procedural order
was accepted as an award by the court because the tribunal intended it to be so,
though with ‘hesitation.’51 In Ranko Group v Antarctic Maritime,52 Justice Taulson
described a decision of a tribunal communicated through a letter an arbitral award
because the recipients would perceive it to be so. Similarly in Michael Wilson and
Partners Limited v John Forster Emmott,53 in order to decide whether the impugned
decision is an arbitral award or not, Justice Teare asked ‘how the reasonable recipient
of the tribunal’s decision would have viewed it.’54 In Charles M Willie, Rix J. opined
that if needed in view of the importance of the issue, an arbitrator can pass an
interim award on evidential or procedural matters.55 If factors like intention of the
tribunal, perception of the recipients and importance of the issue are to determine
the outcome whether a decision is an award or not, the concept is bound to remain
elusive. However, under the 1996 Act because of the ‘general non-interventionist
47 ibid.
48 Cargill SRL Milan v P. Kadinopolous S.A. [1992] 1Lloyd’s Rep. 1, HL.
49 ibid.
50 Exmar BV v National Iranian Tanker Co (The ‘Trade Fortitude’) [1992] 1 Lloyd’s Rep. 169.
51 ibid 175.
52 This is an unreported case quoted in Philipp Peters and Christian Koller, ‘The Award and the
Courts—The Notion of Arbitral Award: An Attempt to Overcome a Babylonian Confusion’, in

Gerold Zeiler and others (eds) Austrian Yearbook on International Arbitration (Manz’sche Verlags-
und Universitätsbuchhandlung 2010) 137, see footnote 62.
53 [2008] EWCH 2684 (Com) England.
54 [2008] EWCH 2684 (Com) England.
55 Charles M Willie and Co (shipping) Ltd. V Ocean Laser Shipping Ltd. (‘The Smaro’) [1999] 1
Lloyd’s Rep 225.

48 R. Kapoor
philosophy,’56 the court will have a stricter approach toward procedural orders being
classified as awards.57
It is beyond controversy that the final decision on ‘merits’ of the dispute is an
award. The problem is that the expression on ‘merits’ is not confined to substantive
claims only. The meaning of the expression was discussed by the House of Lords
in Sennar (No 2).58 The case was with respect to a contract between international
parties providing for exclusive jurisdiction before the courts in Sudan under Sudanese
law. An action before a court in Holland was declined on the ground of exclusive
jurisdiction clause by the Dutch court. Another attempt was made before the English
courts. The crucial question was: Is the action before the English courts barred by the
doctrine of estoppel? It was argued that as estoppel applies to decisions on merits,
and the decision by the court in Holland declining jurisdiction was not a decision
on merits of the claim, hence that cannot be a bar to the action before the courts in
England. Discussing the meaning, the expression the Court said:
Looking at the matter negatively a decision on procedure alone is not a decision on merits.
Looking at the matter positively a decision on the merits is a decision which establishes certain
facts as proved or not in dispute; states what are the relevant principles of law applicable to
such facts; and expresses a conclusion with regard to the effect of applying those principles
to the factual situation concerned.59
The House of Lords held that the decision by the Dutch court declining jurisdiction
was a decision on merits in the given context and therefore precludes the action before
the English courts.60 Thus a decision by a tribunal which can be characterized as a
decision on merits applying the above-mentioned broad meaning of the expression
would be an arbitral award.
In Cargil,61 the court has categorically stated that what constitutes an award cannot
be confined to decisions on jurisdiction or substantive claims. Thus, a ruling deciding
not to proceed with the claim on account of lateness in filling has been characterized
an arbitral award because it finally disposed of the relevant matters in dispute and
the claim could no longer be pursued.62 It may be contentious that whether the final
determination of a relevant matter without bringing the proceedings to an end would
be an award, but if it does then surely it would be.
Though an award under English law is final in nature and has the res judicata
effect, Section 39 adds another twist to the story by allowing ‘provisional awards’
which is subject to the final award.63 In Ferroalloy Plant, the court has said that ‘relief
56 David John Sutton, Judith Gill and Mathew Gearing, Russel on Arbitration, (23rd edn, Sweet
and Maxwell 2007) 272.
57 David John Sutton, Judith Gill and Mathew Gearing Russel on Arbitration, (23rd edn, Sweet and
Maxwell 2007) 271.

58 [1985] 1 WLR 490.
59 ibid.
60 ibid.
61 Cargill SRL Milan v P. Kadinopolous S.A. [1992] 1Lloyd’s Rep. 1, HL.
62 ibid.
63 Arbitration Act, 1996, Section 39: Power [of the tribunal] to make provisional awards.
granted pursuant to S. 39 of the Arbitration Act 1996 is an exception to the principle

that an award must be final as to all issues decided.’64 Thus, under English law even a
temporary decision can qualify as award. This is in clear contrast to the conception of
the term in France and India. In addition to that mentioned above, English law specif-
ically envisages awards on jurisdiction. According to Section 31(4), a jurisdictional
challenge can be decided by the tribunal in the form of an award.65
From the above discussion, we can conclude that under English law an award is
generally the final decision either on substance or jurisdiction or a procedural matter
which might lead to the termination of arbitral proceedings. As an award under
English law could be on procedural matters and temporary as well, the distinction
between award and order becomes very murky, rendering the notion incapable of a
juristic definition and work with an ‘ordinary understanding’66 of the notion.
Further, an award to be enforceable as a Convention award must be one which is
made in pursuance of an arbitration agreement which is in writing.67 If the agree-
ment does not fulfill this criterion, the corresponding award is not considered a
Convention award. Also, only those awards which are made in a country which is
a party to the New York Convention can qualify as Convention awards.68 This is
because England like France and India has made the reciprocity reservation allowed
by the convention. On the other hand, unlike France and India, England never made
the commerciality reservation. France has opted out of the commerciality reserva-
tion, but India is continuing with it. Therefore, in England awards with respect to
non-commercial matters would qualify as Convention awards.
(1) The parties are free to agree that the tribunal shall have power to order on a provisional
basis any relief which it would have power to grant in a final award.
(2) This includes, for instance, making—(a) a provisional order for the payment of money
or the disposition of property as between the parties, or (b) an order to make an interim
payment on account of the costs of the arbitration.
(3) Any such order shall be subject to the tribunal’s final adjudication; and the tribunal’s final
award, on the merits or as to costs, shall take account of any such order.
(4) Unless the parties agree to confer such power on the tribunal, the tribunal has no such
power.
This does not affect its powers under Section 47 (awards on different issues, etc.).
64 Ronly Holdings Ltd v JSC Zestafoni G Nickoladze Ferroalloy Plant (2004) EWCH 1354.
65 Section 31(4) reads: Where an objection is duly taken to the tribunal’s substantive jurisdiction
and the tribunal has power to rule on its own jurisdiction, it may—(a) rule on the matter in an award
as to jurisdiction, or (b) deal with the objection in its award on the merits.
66 Charles M Wille& Com. (Shipping) Limited and Ors v Ocean Laser Shipping Limited and Ors
1999 1 Lloyd’s Rep 225 QBD.

67 See Section 100.
68 See Section 100(1).
50 R. Kapoor
3.4.2 The Notion of Award Under the French law
The Civil Procedure Code in France which deals with arbitration does not provide any
definition of award.69 But the French courts have tried to fill in the void. In contrast
to the courts in England, the French courts have developed a precise definition of the
term award. One such early attempt was made by the French Court of Appeal in the
much cited Sardisud case.70 According to the court of appeal, an award is ‘a final
decision by the arbitrators on all or part of the dispute submitted to them, whether
it concerns the merits of the dispute, jurisdiction or a procedural issue leading them
to end the proceedings.’71 Nearly two decades later, the French Supreme Court, in
Group Antoine Tabet v Republique du Congo,72 has given the same definition. The
Court of Appeal said that arbitral awards are ‘decisions made by the arbitrators which
resolve in a definitive manner all or part of the dispute that is submitted to them on
the merits, jurisdiction or a procedural matter which leads them to put an end to
the proceedings.’73 Thus, under French law an award can be on merit, jurisdiction
or even on a procedural issue, but what is important is that there must be a dispute
and the determination must be final. This is so because in France, arbitration has a
jurisdictional function, i.e. the very purpose of arbitration is to determine or settle
a dispute.74 Accordingly, a decision even if on merits does not settle a dispute and
that too finally is not an award. On the other hand, a decision even on a procedural
issue, if settles a dispute finally, is an award. The final determination of a dispute
whether on merits, jurisdiction or procedure is what would qualify a decision as an
award in France. The element of finality is important because under French law, an
award has the res judicata effect.75 It is well known that only the final determination
can have the res judicata effect. Therefore, unlike England an interim or provisional
decision cannot qualify as an award in France. From the above-mentioned definition,
the following characteristics emerge of an award.76
69 Philipp Peters and Christian Koller, ‘The Award and the Courts—The Notion of Arbitral Award:
An Attempt to Overcome a Babylonian Confusion’ 149, in Gerold Zeiler, and others (eds) Austrian
Yearbook on International Arbitration (Manz’sche Verlags-und Universitätsbuchhandlung 2010).
70 Societe Sardisud v Societe Technip[1994] Rev Arb 391.
71 ibid.
72 Group Antoine Tabet v Republique du Congo [2102] Rev Arb 88; Elie Kleiman and Claire Pauly,
‘Defining ‘Arbitral Awards’: Supreme Court Weighs in’, Lexology (29 November 2012) www.
lexology.com/library/detail.aspx?g=ad516f19-3a48-419c-b142-48c0a6940913 accessed 23 April
2019.
73 ibid.
1999)738.
75 ibid.
76 ElieKleiman and Claire Pauly (n 70); Philippe Fouchard, Emmanuel Gaillard and Berthold
Goldman, Fouchard, Gaillard and Goldman on International Arbitration (Emmanuel Gaillard and
John Savage eds, Kluwer Law International 1999) 738.
First, only those decisions which are passed by arbitrators can qualify as awards.
There are proceedings which are like arbitration but are not essentially arbitration—
decisions rendered in such proceedings are not arbitral awards. The French concept of
arbitration, though hybrid, is predominantly jurisdictional. It is true that the arbitrators
get their powers to decide from the contract between the parties, but they principally
perform judicial function. Thus, only those decisions which are judicial in nature
can be considered awards. Hence, decisions rendered in those proceedings which do
not discharge a judicial function cannot qualify as awards. Judicial function involves
resolution of a dispute by applying law to the relevant facts. In France, the emphasis is
more on the determining and binding character of the decision. This has the potential
to include even expert determinations within the ambit of arbitration, provided the
expert gives a binding decision, not a mere opinion. This is very much in line with
the idea of an amiable compositure, where the emphasis is not on the application of
law.
Second, the decision must be determinative in nature. Though the main function
of arbitration is judicial, an arbitrator can give decisions which are not dispositive in
nature. Only those decisions which determine even though a part of the dispute can
qualify as awards. The reason is that only those decisions which achieve the end or
object of arbitration, which is to resolve the dispute, are given the status of award
and capable of annulment, recognition and enforcement. Courts do not interfere
with decisions which are not determinative in view of autonomy of the arbitration
proceedings. Decisions which achieve the ends of arbitration are awards and those
which are a means to achieve those ends are orders. This was precisely the reason
why the Court de Cassation denied annulling the decision of the tribunal, in Group
Antoine Tabet v Republique du Congo.77
Third, as held by the Cour de Appeal as well as the Cour de Cassation, the
determination must be definitive. This means the decision must be binding as well
as final. Binding means that parties do not have a choice not to accept the decision.
Finality means that the decision must not be subject to change or review by the
arbitration tribunal. Therefore, if a possibility of appeal within the arbitration then
the decision by the first tribunal is not an award as it can be changed. The element
of finality is a clear requirement under the French law because according to Article
1485, an award has the res judicata effect.78 If the decision does not create this effect,
it cannot be considered an award.
Fourth, the decision must be with respect to a dispute. Its existence is indispensable
for a proceeding to be considered as arbitration and for a decision to qualify as an
award. ‘The concept of dispute is interpreted broadly by the French courts.’79 It is not
confined only to merits but issues which are procedural in nature are also included.
77 Elie Kleiman and Claire Pauly (n 70).

78 See Jean Rouche, Gerald H. Pointon and Jean –Louis Delvolve, FrenchArbitration Law and
Practice: A Dynamic Civil Law Approach to International Arbitration, (Kluwer Law International
2009) para 348; Philippe Fouchard, Emmanuel Gaillard and Berthold Goldman, Fouchard, Gaillard
and Goldman on International Arbitration (Emmanuel Gaillard and John Savage eds, Kluwer Law
International 1999) 780.
52 R. Kapoor
A decision with respect to the jurisdiction of the tribunal and applicable laws too
is an award. The concept is interpreted so broadly that in the Pia Investment 80 case
where a conflict between the parties whether to adjourn the arbitration proceedings
or not was considered a dispute and consequently the decision by the arbitrator an
award.
Fifth, a decision to be considered an award must either end the proceedings or
at least be of such nature that it is capable of bringing the proceedings to an end.
However, the latter category is surrounded by uncertainty. Some writers are of the
opinion that the Supreme Court seems to consider only those decisions to qualify as
award which actually put an end to the proceedings instead of those which merely
have the potential to do the same.81 The reason for this interpretation according to
such writers is the use of the present tense in the decision whereby the Court says ‘a
procedural matter which leads [the arbitrators] to put an end to the proceedings.’82 It
is difficult to take a side in this respect as there are cases on both sides.83 The above
interpretation is speculative. The Court has not said anything clearly. But one thing
is clear that the decision must be at least capable of bringing the proceedings to an
end and if it actually does so, there won’t be any iota of doubt about its character.
3.4.3 Concept of Award, Indian Approach
Indian law though does not omit to provide a definition of award but the definition is
not helpful in developing a conceptual understanding of the term. Section 2(1) of the
Arbitration and Conciliation Act, 1996, which provides definitions of various impor-
tant terms, only says ‘“an arbitral award” includes an interim award.’84 Moreover,
this definition is provided in Part I of the Act which is not applicable with respect to
Part II proceedings which deals with foreign awards.85 Section 44, which is in Part
II, defines a foreign award but does not attempt to give a conceptual definition.86
80 Pia Investment Ltd. v L B Cassia [1988] Rev Arb 649.

83 ibid.
84 Section 2(1) (c).
85 See Section 2(2).
86 The Arbitration & Conciliation Act, Section 44: Definition.—In this Chapter, unless the context
otherwise requires, ‘foreign award’ means an arbitral award on differences between persons arising
out of legal relationships, whether contractual or not, considered as commercial under the law in
force in India, made on or after the 11th day of October, 1960—
(a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in
the First Schedule applies, and
(b) in one of such territories as the Central Government, being satisfied that reciprocal provisions
have been made may, by notification in the Official Gazette, declare to be territories to which
the said Convention applies.
Like the New York Convention, it only tells when an award is a foreign award, but
is very silent on what constitutes an arbitral award. Therefore, we have to rely upon
the decisions of the courts solely.
There seems to be hardly any case with respect to foreign arbitral award where the
Indian courts have attempted to conceptually define an award, like the French courts
did in Sardisud v Technip87 and Group Antoine Tabet v Republique du Congo.88
There are cases with respect to locally seated arbitration where the courts have dealt
with the concept of award to an extent if not in great detail but in these cases too,
the characteristics of an award were not at the heart of the problem. Nevertheless,
these cases have helped to develop some conceptual understanding about the nature
of an award. But the problem is: Can we apply these ideas developed with respect to
the characteristics of an arbitral award under Part I to the notion of an arbitral award
under Part II?
As stated above, the difficulty is that according to the Act itself, provisions of
Part I cannot be applied to the proceedings falling under Part II89 and the New
York Convention awards fall under Part II of the Act. Also, the Supreme Court
has restored90 the demarcation between Part I and Part II which it had obliterated
earlier.91 Notwithstanding this, in my opinion some osmosis is permissible. Firstly,
the separation is not absolute, as per the Act itself there are some provisions in Part I
which are applicable to Part II proceedings too.92 It is agreed that no other provision
from Part I can be applied for Part II proceedings, but guidance with respect to some
general concepts to resolve a difficulty can be drawn.
For example, if there is a doubt about the enforcement of a consent award rendered
in a foreign seated arbitration, Section 30 which provides for an award on agreed
terms in the context of locally seated arbitration can be persuasive. There are authors
who share the opinion. Thus, a leading commentary on the Indian arbitration law,
while dealing with the concept of an award under Section 44 without saying anything
about award, simply asks the readers to refer to the discussion on the concept under
87 Société Sardisud v Société Technip[1994] Rev Arb 391.

88 Group Antoine Tabet v Republique du Congo Case No. 09–72.439, Cass. Civ. 1ere, 12 October
2011; Elie Kleiman and Claire Pauly (n 70).
89 Section 2(2) Provides that:
This Part shall apply where the place of arbitration is in India: Provided that subject to an
agreement to the contrary, the provisions of sections 9, 27 and clause (a) of sub-section (1)
and sub-section (3) of section 37 shall also apply to international commercial arbitration,
even if the place of arbitration is outside India, and an arbitral award made or to be made in
such place is enforceable and recognized under the provisions of Part II of this Act.
90 Bharat Aluminium Company and Ors v Kaiser Aluminium Technical Services Inc and Ors (2012)
9 SCC 552.
91 Bhatia International V Bulk Trade SA, AIR 2002 SC1432, MANU/SC/0185/2002.
92 See proviso to Section 2(2).
54 R. Kapoor
Part I.93 Some allow this osmosis in view of consistency.94 It is correct that if a type of
decision is recognized as an award in locally seated arbitration to deny the same, the
status of an award just because it is a decision passed in a foreign seated arbitration
would be awkward.
Thus, in Louis Dreyfus v Govind Rubber,95 the Bombay High Court at the stage
of enforcement of an award passed in Singapore referred to Section 7 to see whether
the arbitration agreement is meeting the writing requirement or not. Similarly,
Section 100 (2) (b) of the English Arbitration Act which is in Part III of the Act
and deals with New York Convention awards states that ‘“in this subsection” agree-
ment in writing and “seat of arbitration” have the same meaning as in Part I.’96 The
courts in other jurisdictions too rely upon their domestic laws to settle confusions with
respect to matters falling under the Convention.97 There is no doubt that domestic
law cannot be used to deny the obligations under the international conventions, but
surely it can be relied upon to fulfill them. Now we shall proceed to understand what
constitutes an award by analyzing some relevant decisions.
Recently, the Supreme Court in Centrotrade v HCL 98 spelled out the characteristic
features of an award. It’s an interesting decision where the Court had to identify the
nature of a decision of an arbitration tribunal dubbed as ‘arbitration result’ in the
arbitration agreement. The matter involved two arbitrations, one in India and the
second in London. The second was in the form of an appeal if a party is dissatisfied
with the decision of the first arbitration tribunal. It was the decision of the first tribunal
which was termed under the agreement as ‘arbitration result’.
In the opinion of the Court, the decision of the first arbitration tribunal was an
arbitral award. The Court looked into the intention of the parties to understand what
they mean by the expression ‘arbitration result’? It was of the opinion that the parties
intended it to be ‘an award or at least in the nature of an award.’99 Therefore, it had to
decide what an award is or the nature of an award at least. Though the Court has not
given any definition of an award it agreed with the features of an award laid down by
the French Court of Appeal in Sardisud v Technip100 and mentioned these aspects,
93 R S Bachawat, Justice R S Bachawat’s Law of Arbitration and Conciliation (Anirudh Krishanan
and Anirudh Wadhwa eds, 5th edn, Lexis Nexis 2010) 2266, ‘For Commentary on the meaning of
‘arbitral award’ refer to commentary under Section 2(c)’.
94 Ashutosh Kumar and others, ‘Interpretation and Application of the New York Convention in
India, International Council for commercial Arbitration National Report 2015’, quoted in Abhinav
Bhushan, ‘The Applicability of the New York Convention in India’, in Nakul Dewan (ed), Enforcing
Arbitral Awards in India, (Lexis Nexis 2017) 139.
95 2013 (2) Arb LR 270 (Bom).
96 See Section 100(2) (b) which reads ‘in this sub section ‘agreement in writing’ and seat of
arbitration have the same meaning as in Part I.

97 G Baseler, ‘The Enforcement of Emergency Awards in the United States: or When Interim Means
Final’ (2016) 32 Arbitration International, 559, 569.

98 M/S Centrotrade Minerals and Metal Inc v Hindustan Copper Ltd. AIR 2017 SC 185.
99 M/S. Centrotrade Minerals and Metal Inc v Hindustan Copper Ltd. AIR 2017 SC185 para 7.
100 [1994] Rev Arb 391.
namely ‘(i) An award is made by the arbitrators; (ii) An award resolves a dispute;
(iii) An award is a binding decision; and (iv) An award may be partial’.101
Notwithstanding the reliance upon Sardisud, the Indian concept of an award is very
much different from the French. Unlike France in India, decisions on jurisdiction and
procedural issues even if they lead to terminate the proceedings cannot form an award.
It is not possible to cull out a very chiseled definition on the basis of Centrotrade.
This decision is not very helpful in understanding the concept of an award under
Indian law because it relied upon works which have very divergent views about the
concept of an award and decided that the decision in question is an award without
taking any sides.102 It is true that the Court was not concerned or bothered to develop
a definition of an award but to find out the nature of the decision rendered by the first
arbitration tribunal only.
There is nothing to disagree with the four aspects of award cited by the Supreme
Court in Centrotrade. The problem is they are very broad and not capable of delivering
results in much nuanced situations. Thus, the aspect that the award resolves a dispute
does not tell us about the nature of the dispute. Does it include a dispute on procedural
issue as well, as is the case in France? Centrotrade judgment does not answer that
question. But combining the Centrotrade with other decisions, we can get adequate
clarity about the concept of an arbitral award.
Under Indian law, only those decisions which are on the merits of the dispute
can partake the character of an award. It does not consider a decision on jurisdiction
an award but an order.103 Similarly, a decision on other issues or disputes, even if
results in terminating the arbitration proceedings, is not an award.104 An award of
course terminates the arbitration proceedings to the extent it determines the dispute
but just because a decision leads to terminate the proceedings would not transform it
into an award. An order can also terminate the proceedings completely.105 Therefore,
unlike France where the capacity to terminate the arbitration proceedings is one of
the decisive factors in considering a decision an award, in India this feature is of no
consequence. The decisive factor is, it must be a decision on merits of the dispute,
otherwise it’s an order or direction. Thus, drawing a distinction between an order and
101 M/S. Centrotrade Minerals and Metal Inc v Hindustan Copper Ltd. AIR 2017 SC185 para11.
102 The court referred to English Commentaries like, Julian D M Lew, Loukas Mistelis and Stephen
M Kroll, Comparative international Commercial Arbitration, (Kluwer Law International, 2003),
Nigel Blackaby and others, Redfern and Hunter on International Arbitration, (5th edn, OUP 2009)
and French commentaries like Philippe Fouchard, Emmanuel Gaillard and Berthold Goldman,
Fouchard, Gaillard and Goldman on International Arbitration (Emmanuel Gaillard and John Savage
eds, Kluwer Law International 1999), see paras 9-11 of the judgment.
103 According to Section 16 if the arbitration tribunal rejects the jurisdictional challenge the
aggrieved party has to wait for the final award and raise the objection then only. More impor-
tantly if the tribunal accepts the challenge the decision is not considered an award but an order and
can be challenged under Section 37(2) (b) as an appealable order.
104 M/S Anuptech Equipments Private Ltd. v M/S Ganapati Co-op. Housing Society Ltd. AIR 1999
Bom HC 219.
105 According to Section 32(1) ‘The arbitral proceedings shall be terminated by the final arbitral
award or by an order of the arbitral tribunal…’.

56 R. Kapoor
an award, the Bombay High Court has said that ‘one is termination of the proceedings
without the merits of the matter, the other is termination on merits.’106
In addition to being a decision on merits, the decision in order to be an award
needs to be final and binding. This is a clear requirement under Section 35107 and
like the French and English law creates the res judicata effect. Though the Act does
not pronounce specifically as the French Code does that an award has the res judicata
effect, the expression finality is construed to ‘preclude the parties from bringing the
same claim in a fresh arbitration or action.’108
Definition of an award in India: An arbitral award is a decision on merits in an
arbitration proceeding, which finally determines wholly or partially the dispute that
refers to the arbitration tribunal by the parties and is binding on them.
Foreign Award: The very title of the Convention makes it clear that it is appli-
cable to foreign awards in contrast to domestic awards. According to Article I of
the Convention, an award is a foreign award if it is made outside the territory of
the enforcing state or if the enforcing state considers an award to be a non-domestic
award. Though the convention provides the criterion when an award is to be consid-
ered a foreign award, the implementation of this seemingly straightforward provision
has not been easy.
The problem is: What is the crucial factor which decides where an award is made?
Thus, in Hiscox v Outwaite,109 an award passed in London in an arbitration conducted
under the English law, between two English parties, was characterized as a foreign
award just because it was signed in Paris by the arbitrator who had shifted there. This
was problematic and the 1996 Act has addressed the mischief. Section 53 clearly
provides that an award is made at the seat of arbitration. Therefore, any award passed
in a foreign territory is a foreign award.
Unlike England and India, French law creates three categories of awards in this
respect: (i) domestic award, (ii) international award and (iii) award made abroad.110
It is the last type which would get protection under the New York Convention. The
Criterion of defining an award made abroad is simply that an award made outside
France, irrespective of the procedural rules or law applicable to the proceedings, is
106 M/S Anuptech Equipments Private Ltd. v M/S Ganapati Co-op. Housing Society Ltd. AIR 1999
Bom HC 219, para 10.
107 Section 35 provides that, ‘an arbitral award shall be final and binding on the parties and persons
claiming under them respectively’.

108 O P Malhotra and Indu Malhotra, O P Malhotra on the Lawand Practice of Arbitration and
Conciliation, (3rd edn, Thomson Reuters 2014)1430.

109 [1991] 3 All ER. 641.
110 Philippe Fouchard, Emmanuel Gaillard and Berthold Goldman, Fouchard, Gaillard and
Goldman on International Arbitration (Emmanuel Gaillard and John Savage eds, Kluwer Law
International 1999) 887; Elie Kleiman and others, Enforcement France, at globalarbitrationreview.
com/jurisdiction/1004826/france accessed on 30th August 2019.
considered an award made abroad. It is irrelevant even if the French procedural law
is applied.111
India, on the other hand, divides awards into two categories only, i.e. domestic
awards and foreign awards.112 An award passed in India irrespective of the nationality
of the parties and the nature of the dispute is a domestic award. On the other hand, an
award passed outside India is a foreign award. There had been a controversy in the
past in this respect under the old regime. Thus, in NTPC v Singer,113 the Supreme
Court decided that the award though passed in England is a domestic award because
the law governing the arbitration agreement was Indian law.
This decision is a reverse of Hiscox v Outwaite,114 wherein a domestic award was
enforced as a foreign award. On the other hand, in NTPC a clearly foreign award was
dubbed as a domestic award. Both the decisions were wrong, but they still indicate
the approaches as one is pro arbitration and the other is not. The fault I think was not
of the Court but of the law which implemented the Convention in India. In the light of
Section 9(b) of the Foreign Award Act 1961 which clearly provided that ‘Nothing in
this Act shall apply to any award made on an arbitration agreement governed by the
law of India’, the court was not very wrong. Had it decided differently, the provision
would have been rendered otiose.
The mischief has been rectified by the Arbitration and Conciliation Act 1996
as there is no provision corresponding to Section 9(b) of the 1961 Act in the new
Act. It is evident that it has been dropped. Section 44 of the 1996 Act lays down
three conditions for an arbitral award to be considered a foreign award under the
Convention. First, the nature of the dispute with respect to which the award is passed
shall be commercial under the law in India, second, the arbitration agreement shall
fulfill the writing requirement of the convention, and thirdly, the award is passed in
a country which is a party to the Convention and the same is notified by the Central
Government to have made reciprocal provisions.
Unfortunately, the traces of the controversial S. 9(b) of the 1961 Act can be found
in the new Act. According to S. 44, a foreign award is an award passed in a foreign
country, ‘unless the context otherwise requires’. This can make an award passed in a
foreign state not to be considered a foreign award. Thus, the Calcutta High Court, in
Centrotrade Minerals and Metalv HCL,115 characterized an award passed in London
not a foreign award, because Indian law was the governing law of the contract. The
decision reminded of the much criticized NTPC v Singer case which was based on the
now repealed 1961 Act. The Calcutta High court relied upon the expression ‘Unless
the context otherwise requires’ in Section 44 to reach the same result. According
to this decision, the situs alone cannot determine the nature of the award. The law
111 Jean Rouche, Gerald H Pointon and Jean-Louis Delvlve, French Arbitration Law and Practice:
A Dynamic Civil Law Approach to International Arbitration, (Kluwer Law International 2011) para
297.
112 See Section 2(7) and Section 44(b).
113 (1992) 3 SCC 551, paras 37 and 41.
114 [1991] 3 All ER. 641.
115 AIR 2004 Cal. 142.
58 R. Kapoor
governing the agreement will have a bearing on the same and that is the situation
addressed by the opening words of Section 44.
Fortunately, in appeal116 the Supreme Court rejected this line of reasoning and
recognized the award to be a foreign award. According to the Court, seat is the only
criterion to find out whether the award is a foreign award. Also, Justice Chatterjee,
one of the two judges who delivered the judgment in Centrotrade, addressed the issue
on what situations can fall under the controversial expression. The Court said:
This question can be looked into by the following illustration where the expression takes
relevance. Let us consider a contract, including the arbitration agreement, governed by
Indian Law and under it the seat of arbitration is mentioned as U.K. However, before the
commencement of the arbitration proceeding, the parties agree that though the physical seat
of arbitration is in U.K., for all purposes the seat of arbitration shall be deemed to be India
and the arbitral proceedings shall be conducted under the curial law of India. In this situation,
though all the conditions under Section 44 were satisfied the award by the arbitrator cannot
be said to be a foreign award. In such a situation, the expression ‘unless the context otherwise
requires’ in Section 44 takes meaning and becomes applicable and relevant.117
This means the phrase is used by way of caution only. Because, once it is clear
that the seat is in India, the award is a domestic award without any ambiguity.118
Secondly, the illustration seems to be quite unrealistic. It is agreed that many Indian
parties would want to choose a foreign seat even with respect to purely domestic
matters. But when all the relevant factors and choices pertain to India and the legal
seat too is in India, why would one choose the physical seat in the UK? Also, it is not
possible that all the proceedings would be conducted at one place but the legal seat
would be at another place. It is possible to conduct some proceedings at a place other
than the legal seat of arbitration but in that situation, there is hardly any doubt as to
where the award is made. It is the legal seat. It is very unlikely that the legislature
would use such an ambiguous phrase to deal with a well-settled situation.
Also there seems to be no scope for Bergesen v Muller type of principle119 in India,
wherein an arbitral award passed in the US was still enforced under the Convention.
The award was considered a foreign award because one of the parties was a foreign
national and hence the award was characterized as a non-domestic award. Territori-
ality is the decisive criterion for classification of the awards under Indian law. The
settled position is that an award passed in India is a domestic award and an award
passed outside India is a foreign award irrespective of the nationality of the parties,
the place of performance of the transaction and the applicable laws as stated above.120
116 CentrotradeMinerals and Metalv HCL, (2006)11 SCC 245.

117 ibid, para161.
118 According to Section 2(7) an arbitral award made under Part I shall be considered a domestic
award and according to Section 2(2) Part is applicable when the place of arbitration is in India.
119 See Alber Jan ven den Berg, ‘When is an Arbitral Award Nondomestic under the New York
Convention of 1958?’ (1985) 6 Pace Law Review, 25.

120 See Section 2(7) and Section 44(b) of The Indian Arbitration and Conciliation Act 1996.
3.5 Conclusion
Though the goal of the Convention is to bring uniformity in the enforcement of

foreign arbitral awards, creating a universally accepted definition of the term is not
only well-nigh impossible it’s not advisable too. The reason is that as Kirby points
out, ‘What is an award? is not so much a question of definition as a question of
policy.’121 Nevertheless, the courts need to know whether a decision qualifies as an
award. England, France and India have very different criteria to determine the issue,
and these three different approaches reflect the major approaches followed in this
respect. All these approaches have their own merits. For England, whether a decision
is an award or not is not a question of definition but policy, and hence it keeps it very
flexible. Its philosophy seems to view the issue from the angle of the parties. Hence,
it will characterize a decision as award if a party has a legitimate reason in requiring
the state courts to enforce the decision.122
On the other hand, French law has created a very robust concept where the bound-
aries are clearly demarcated by the courts. The advantage of this approach is that
there is not uncertainty about what type of decisions can be enforced in France and
what not. The disadvantage is that the dogmatic insistence on the finality of determi-
nation, notwithstanding the fact that the Convention does not use the word, limits the
scope of enforcement for many decisions which are subject to change nevertheless
hugely important for making arbitration more effective.
The Indian approach in this respect which is very pro arbitration can be misun-
derstood. The Indian approach restricts the label only to final decisions on merits.
The disadvantage of this approach is that many decisions given by arbitral tribunal
cannot benefit from the enforcement mechanism of the New York Convention. This
reflects an approach which wants to give more and more autonomy to the arbitration
tribunal.
Acknowledgment The author is grateful to Mr. Gary B. Born and Miss Jennifer Kirby for their
valuable feedback on earlier drafts of this paper. However the views expressed herein are the sole
responsibility of the author and shall not be attributed to them.
121 Jennifer Kirby, ‘What is an Award Anyway’ (2014) 31 Journal of International Arbitration 475,
478.
122 ibid.
Chapter 4
A Comparative Assessment of the Legal
Frameworks on Cross-Border Consumer
Disputes
Williams C. Iheme
Abstract This paper examines the dispute settlement frameworks for consumers
in search of judicial remedies in cross-border (financial) transactions. In this 21st
century, buying goods and services on the Internet from corporate sellers located in
foreign countries, individual ownership and operation of borderless bank accounts
and social media accounts from financial technology companies located in other juris-
dictions, etc., have arguably become mainstream. Until recently, the legal frameworks
on cross-border disputes in many countries did not make any clear-cut distinction
between ‘commercial’ and ‘consumer’ contracts. In fact, the legal framework for
dispute settlement in cross-border transactions has developed much around commer-
cial contracts, and even though the Internet has created a platform for consumers
to transact across borders on a daily basis, no suitable framework exists for these
consumers to seek effective judicial remedies in the event of breach of contract. This
paper analyzes this deficiency from the perspective of the recent Supreme Court deci-
sions in Canada, which have paved a way for a consumer dealing with a corporation
located abroad to sue the latter in his or her (consumer’s) home country notwith-
standing a forum selection agreement nominating the corporation’s home country as
the forum for dispute settlement. It is reasonably expected that the new perspective
introduced by Douez v Facebook and its offspring will positively inspire courts in both
common law and civil law systems towards enforcing forum selection agreements
in deference to consumers’ interests.
Williams C. Iheme—I am grateful to Dr. Joseph Nwobike, SAN and the reviewers for their
constructive and valuable comments.
W. C. Iheme (B)
Jindal Global Law School, O.P. Jindal Global University, Sonipat, India
e-mail: wciheme@jgu.edu.in
62 W. C. Iheme
4.1 Introduction
This paper explores the dispute settlement framework for a dissatisfied consumer
seeking judicial remedies in a cross-border context. The dispute settlement frame-
work is the same for all consumers whether financial or non-financial consumers.
Every day, consumers buy goods and services (especially via online platforms)
from businesses located across the globe. These goods and services usually include
opening and operating borderless bank accounts, getting financial loans from banks
and other financial institutions, buying telecommunication services, booking of
flights, buying from online stores, enrolling for online courses, signing up on social
media platforms, and so on. Although sometimes,1 these transactions are successful,
other times they are not, and some of the consumers (apart from those resorting to
self-remedy)2 do seek legal redress to address breaches of contract.3 Using online
ticket booking, for example, a typical scenario is one in which a consumer sees an
advert online which states that prices of flight start from a particular (affordable)
amount, but unknown to the consumer that the price will increase when he finally
clicks to buy it due to certain undisclosed fees connected to the purchase.
Many consumers realize an increment in price after they have made payment.
Furthermore, at some point in the transaction but before payment (or it could be
indicated somewhere on the seller’s website under ‘terms and conditions’) that the
consumer or buyer has consented to resolve any arising dispute in the court where
the company orseller is located. I will highlight two examples below. The first is the
British Airways forum selection clause:
Your use of this website, any Material accessed or downloaded from it and the operation of
these Terms and Conditions and any dispute or claim arising out of or in connection with
such matters, their subject matter or formation (including but not limited to non-contractual
disputes or claims) shall be governed by, construed and interpreted in accordance with the
laws of England and Wales and You agree to submit to the non-exclusive jurisdiction of the
English Courts.
Where these Terms and Conditions are translated into languages other than English in the
event of any conflict or inconsistency the English language Terms and Conditions shall
prevail. We reserve the right to bring proceedings in the Courts of the country of Your
residence; the Courts of the location of Your access, use or storage of any Materials obtained
from the website; the Courts of the location of any breach by You of these Terms and
Conditions; and/or the Courts of the location of your authorization of any of the above acts.
1 Trevor CW Farrow and others, Everyday Legal Problems and the Cost of Justice in
Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016) 8, available
at http://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%
20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf last accessed 2
September 2019.
2 Ab Currie, The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justi-
ciable Problems Experienced by Canadians (Ottawa: Department of Justice Canada, 2007) 58,
available at https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr07_la1-rr07_aj1/rr07_la1.pdf last
accessed 2 September 2019.
3 ibid 66. Statistical data indicates that about 7 percent of consumers resolve disputes in Canada via
litigation.
4 A Comparative Assessment of the Legal Frameworks … 63
You acknowledge and agrees that damages alone would not be an adequate remedy for any
breach of the terms of these Terms and Conditions. Accordingly, we shall be entitled to the
remedies of injunction, specific performance or other equitable relief for any threatened or
actual breach of the terms of these Terms and Conditions.4
TransferWise’s forum selection clause reads as follows:

This Agreement is governed by English law. Any dispute between you and us in connection
with your TransferWise Account and/or this Agreement may be brought in the courts of
England and Wales.5
From the above excerpts, it is clear that both companies did not make any distinc-
tion between a consumer and non-consumer user of their services, and have indicated
that English courts, and the laws of England and Wales, will govern any dispute that
arises, regardless of the user’s location. In the case of British Airways, the contract
reserves the right to sue the consumer in the latter’s home country, not vice versa.
It is not surprising, however, that this is the case, considering that many companies
that provide services via the Internet platform do indicate exclusivity of jurisdiction
and the applicable law of their home country where they operate, due mainly to a
lot of reasons, ranging from the enjoyment of home procedural and substantive law,
and the lower cost of procuring witnesses as well as the books and records of the
company.
Similarly, it is a strategy toward discouraging dissatisfied consumers from suing,
such that if consumers calculate the high cost of suing in the company’s home juris-
diction in comparison to the amount that could be possibly obtained from the breach,
they could simply drop the ambition to sue. The difficulty of consumers to sue as a
result of the selected forum ensures that companies that provide goods and services
spend little on litigation costs, and thus, use the saved costs to subsidize the prices
of services, which help them to remain competitive in the market.
The ultimate question is how it got to the point whereby almost every company
that provides goods and services to consumers indicates that applicable law and
forum will be the former’s home country. Apart from the reasons alluded to above, it
is known from case law that courts have always enforced exclusive jurisdiction and
choice of law agreements, mainly due to the deeply etched doctrine of freedom of
contract.6 Thus, under this doctrine, courts maintain that their duty is not to make
contracts for parties but to enforce validly formed contracts that do not have any
vitiating elements. In other words, the position of common law courts has been to
enforce forum selection and applicable law clauses unless the party objecting to their
enforcement can show a strong reason why they should not be enforced. However,
4 ‘Applicable Law, Language and Jurisdiction: Website Terms and Conditions’ (British Airways)
https://www.britishairways.com/en-de/information/legal/website-terms-conditions accessed 2
September 2019.
5 ‘Our Agreements with You’ (Transferwise) https://transferwise.com/terms-of-use-eea accessed 2
September 2019.
6 The survey conducted by Professor Pavlovic for the period between 1996 and 2016. Mariana
Pavlovi, ‘Contracting Out of Access to Justice: Enforcement of Forum-Selection Clauses in

Consumer Contracts’, 62 Mcgill LJ (2016) 389, 405.
64 W. C. Iheme
in 2017, the nearly settled law on forum selection and applicable law clauses was
revisited, given that prior to the decision of the Canadian Supreme Court in Douez
v Facebook,7 courts in Canada were inclined to enforce exclusive jurisdiction and
applicable law clauses on the basis of the Pompey factors, unless in rare exceptions
where a defendant could satisfy a relevant Pompey factor that necessitated the grant
of stay of proceedings.8 The decision in Douez v Facebook made a sharp distinction
between a consumer and non-consumer contract, and in the case of a consumer
contract, the settled law on exclusive jurisdiction has been modified to nullify the
‘mutually’ agreed forum of the parties, if the agreed forum is not where the consumer
resides. Prior to the decision in Douez, Facebook’s terms and conditions were similar
to that of British Airways and TransferWise. However, following Douez, Facebook’s
terms of use in respect of forum selection have been rewritten to reflect Douez’s
outcome:
We try to provide clear rules so that we can limit or hopefully avoid disputes between you
and us. If a dispute does arise, however, it’s useful to know up front where it can be resolved
and what laws will apply.
If you are a consumer, the laws of the country in which you reside will apply to any claim,
cause of action or dispute that you have against us, which arises out of or relates to these
Terms or the Facebook Products (‘claim’), and you may resolve your claim in any competent
court in that country that has jurisdiction over the claim. In all other cases, you agree that
the claim must be resolved exclusively in the US District Court for the Northern District
of California or a state court located in San Mateo County, that you submit to the personal
jurisdiction of either of these courts for the purpose of litigating any such claim, and that
the laws of the State of California will govern these Terms and any claim, without regard to
conflict of law provisions.9
This paper will examine how courts in England and Canada have addressed forum
selection and applicable law clauses in contracts, and how all this is now being
redefined in the context of consumer contracts. I will discuss this part in the following
sequence. First, I will discuss the treatment of forum selection clauses in England
and Canada, especially the ‘strong cause’ test that has occupied the center stage for a
long time starting from the Eleftheria case. I will then examine the Douez decision,
given that it is a landmark decision that has introduced the consumer element in
the discussion of forum selection clauses. I will then proceed to discuss the effect of
Douez, including the reaction of Facebook, and how this might affect other companies
that offer services around the globe. I will thereafter conclude and offer some reasoned
recommendations.
7 Douez v Facebook 2017 SCC 33.

8 ZI Pompey Industrie v ECU-Line NV 2003 SCC 27, 451.
9 ‘Disputes Under Terms of Service’ (FACEBOOK) https://www.facebook.com/terms.php accessed
2 September 2019.
4.2 An Examination of Forum Selection and Applicable

Law Clauses: Online Contract Transactions
There is hardly any country these days where the Internet is not being used. About
20 years ago, Internet use was much more confined to the academic use of finding
and posting information. However, today, the use has now extended to commercial
activities; businesses now rely heavily on the Internet to advertise their goods and
services, as well as use it as a platform to process customers’ orders and receive
payments for the same. If an individual enters into a contract of purchase of goods
or services from a company, such contract (whether concluded offline or online)
can be said to be a consumer contract. Although the definition of what qualifies
as ‘consumer contracts’ can range from clear-cut instances to borderline situations,
the essential ingredients to look out for in the determination of what constitutes a
consumer contract are, first, whether the contract in question is for the acquisition
of goods or services for personal, family, or household use.10 Secondly, the seller of
goods must be acting in the ordinary course of his business, and the buyer must be
an individual who is not acting within their trade or professional capacity.
Before the popularity of the Internet, cross-border transactions in the contract were
mainly undertaken by those who were acting in their trade or profession as opposed to
ordinary individuals acting outside their profession or trade and in the circumstance,
needing a good or service for personal consumption. Thus, the legal framework
for consumer cross-border contractual transactions was not well developed until the
popularity of online transactions, starting mainly in the wake of the twenty-first
century. Today, the story is different as several thousands of consumers engage in
online commercial transactions, buying goods and services from companies that are
located in different countries. Not many legal systems have been able to develop
suitable legal frameworks to cope with the upsurge and hefty volume of online
transactions occurring each day, other than the private international law rules that
typically indicate that applicable law in a cross-border commercial transaction is the
place of performance or acceptance of an offer.
Unlike in the traditional method of buying and selling where the buyer is opportune
to physically see, touch, and perhaps test the suitability of the product on offer, and
only upon satisfaction, pay for it; in the online context, the consumer will normally
respond to an offer either by emailing his acceptance or filling an online form designed
by the seller, or clicking on a pay button, and this entails the electronic formation of a
contract between the parties, in which the buyer furnishes consideration by entering
the details of his debit, credit, or electronic cash. In this common scenario, it is
typically the case that the seller will indicate that any dispute arising from the contract
will be governed by a law and forum as stipulated in the contract or website, such
that if the services are rendered or the goods are eventually shipped to the consumer
and they do not conform to the advertised description, or the consumer is generally
10 PM North, Contract Conflicts (OUP 1982)124–125.

66 W. C. Iheme
dissatisfied because he feels that some breach has occurred, the next question is
where should the consumer sue, and which law should govern the dispute?
If the consumer sues in a court other than that which was ‘mutually’ agreed,
under the private international rules in a majority of the common law countries, the
court will first have to determine whether or not it has the jurisdiction to entertain
the dispute. Generally, jurisdiction is primarily determined by looking at where the
parties ‘agreed’ will be the forum and what applicable law is for the settlement of
a dispute. Generally, courts in England and Canada enforce forum selection and
applicable law clauses in deference to the freedom of contract doctrine, except in
certain exceptions.11
4.2.1 Consumer Protection from the Lens of Private

International Law
While the domestic laws of many countries seem to have sufficiently tackled the
underlying difficulties between corporate sellers and consumer buyers vis-à-vis
dispute settlement, at the international arena, the gaping void is yet to be sufficiently
filled by international conventions. The Hague Conference on Private International
Law and the United Nations Commission on International Trade Law have managed
to become sources of substantive law or rules in this regard. There are two main
uniform laws that provide a framework for the international sale of goods, and they
are the CISG12 and ULIS13 ; they exclude the application of private international law.
However, the major drawback of these existing laws, and the legal framework they
constitute, is that they do not provide for consumer contracts.
The European Union currently has 28 members, and under EU law, consumer
protection laws of the member states have been harmonized; the EC Convention
on the Law Applicable to Contractual Obligations,14 the Brussels I Regulation, and
Brussels Regulation (Recast)15 are important laws that constitute this harmoniza-
tion. Additionally, the Directive 2011/83/EU of the European Parliament and of
the Council has mandated Member States to transpose the Directive in a way that
adequately protects consumers including the power for third parties to have the
11 The Eleftheria Case (1969) 2 All ER 641. The fifth factor in the Eleftheria Case: Whether the
plaintiffs would be prejudiced by having to sue in the foreign Court because they would (i) be
deprived of security for that claim; (ii) be unable to enforce any judgment obtained; (iii) be faced
with a time-bar not applicable in England; or (iv) for political, racial, religious, or other reasons be
unlikely to get a fair trial.
12 The Convention on International Sale of Goods.
13 The Convention relating to a Uniform Law on the International Sale of Goods (1964) 4.
14 Council Directive 1980/934/EEC of 19 June 1980 Convention on the Law Applicable to
Contractual Obligations [1980] OJ L 266/1.

15 Council Regulation (EC) 1215/2012 of 12 December 2012 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L351/1, Article
17.
standing to sue on consumers whose rights have been violated.16 Further, Articles
15, 16, and 25 of the Regulation (EC) No 593/2008 generally empower the consumer
to sue in their habitual place of residence if certain conditions are present.17
4.2.2 Applicable Law and Forum Selection in the Context

of Consumer Contracts
As many contracts of goods and services are concluded these days over the Internet,
the suppliers do not generally forget to insert a choice of law clause that favors
them. Although there is no statistical data showing the percentage of consumers who
bother to read the forum selection and applicable law clauses, the undeniable fact
is that not many consumers read them. Even if they manage to read the clauses,
there is practically nothing they can do to alter them to their advantage since the
terms are drafted on a take-it-or-leave-it basis, and the consumer has no choice but
to agree, given that competitor-companies are likely to have similar clauses. Due to
the nature of these boilerplate clauses regarding forum selection and applicable law,
the consumer cannot escape in the event the goods are essential and critically needed
for wellbeing.
Being that online contracts that involve consumers are typically adhesive
contracts, the question which a court will sincerely have to answer is whether it
can be truly said that there was a ‘meeting of the mind’ or whether there was any
equality in the bargain regardless of the fact that the consumer ‘agreed’ to all the
terms of the contract. The solution to unfair terms in the contract at common law
is to examine whether the terms were unconscionable and against equity and good
conscience. The difficulty with this baseline rule is that a domestic court examining
whether the terms of a contract, say an online contract is fair and not unconscionable,
may put on a pacta sunt servanda cloak that prevents it from appreciating the level
of hardship against the weaker (consumer) party as in pre-Douez line of cases, or as
was in Douez, in which the court chose to be overprotective of the consumer, even
at the expense of throwing away the settled law in Pompey and starting a brand new
perspective, even though the decision is being thoroughly praised by consumers.
So, what is the attitude of courts so far on choice of law and forum selection
clauses? Courts have always looked at the material validity of the choice of law
or forum clause, and attacked it on the basis of whether it contained any vitiating
element to contract. Secondly, in the event the contract is accepted as being governed
by the chosen law and forum, the consumer could be made under private international
law to enjoy the protection of the mandatory rules of his home jurisdiction.
16Article 23 of this Directive.

17For instance, if the business entity targeted its business to the consumer’s place of residence.
Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations
(Rome I) [2008] L 177/6.
68 W. C. Iheme
4.2.3 Fundamental Validity Formation of Choice of Law

Provision
It is possible to find that a choice of law provision in a contract is invalid due to some
reasons, ranging from the lack of connection between the forum and contract terms
(seeking procedural advantage) or due to the lack of consent of the consumer; lack of
consent is a vitiating element because it goes to attack the essential requirement of a
valid contract known as the ‘consensus ad idem’. From case law, the ways in which
the underlying issue can be resolved is to, first, look at the law of the jurisdiction;
second, the law stipulated in the choice of law provision; third, the law that will apply
by default, that is, if the parties had left out the issue of choice of law and forum; and
fourth, the court that would determine by exercising its discretion upon examination
of the facts in the issue.
Looking at the International Conventions, the approach being mostly favored is the
consideration of the law indicated in the choice of law and forum selection clause,
except if the party seeking to jettison the enforcement of it can prove that he did
not consent in the formation and inclusion of the clause in the contract. Similarly,
under the Inter-American Convention, the judge has the power to determine what law
should apply by examining and ascertaining if one of the parties did not consent.18
In the two countries (England and Canada) under examination, the private interna-
tional law perspective is to generally honor the hallowed doctrine of the contract, the
freedom to freely choose what terms would govern a contract. Yet, that notwith-
standing, the ethos of consumer protection is the limitation of this laissez-faire
ideology to a manageable extent that curtails abuses of individual-weaker parties
in contracts. In the sections that follow, I will examine the validity of choice of law
clauses in England and Canada.
4.3 The English Law Position on Forum Selection
The English common law is renowned for its profound regard to laissez-faire or the
freedom of contract, provided there is no vitiating element. English courts, when
called upon to set aside a contract on the basis that consideration was insufficient,
have reiterated that consideration need not be adequate, and parties are free to agree
on a peppercorn price as a consideration for the sale of the Taj Mahal; parties are
always free to agree to terms of their contract.19 However, with the coming to force
of the Rome Convention, case law started to reinvent the wheel of pure freedom of
contract to a more balanced position that considers equitable factors. For instance, the
decision in Vita Food Products Inc. v Unus Shipping Co.,20 established that a choice
18 Article 12 of the Convention.

19 Chappel v Nestle [1960] AC 87 House of Lords.
20 (1939) UKPC 7.
of law clause should be honored except if it is against public policy and generally
non-bona fide. Before the decision in Vita Food, the English private international law
rule had etched deeply in contract jurisprudence that where a choice of law clause
was chosen to bypass mandatory rules of law that have the most real connection
with the contract under reference, courts were more than ready to strike down such
a clause.
4.3.1 The Eleftheria case
In 1969, English law further expatiated the general rule that where parties agree in
their contract that any arising disputes would be settled exclusively by a foreign court,
a court other than that foreign court is required to stay proceedings (in deference to
the agreement), unless the plaintiff can prove that it would serve the cause of justice
to disregard the foreign jurisdiction agreement. The decision in Eleftheria empowers
English judges to exercise discretion on whether or not to grant a stay of proceeding,
and may continue with the proceeding if they are convinced that the plaintiff has
satisfied the burden of proving that it is just and proper for English court to exercise
jurisdiction, the factors developed by Brandon J.21
The Eleftheria rule does not rely exclusively on parties’ agreement in determining
whether to grant a stay or not. Yet, the satisfaction of the essential ingredients which
must be proved by the plaintiff to satisfy the ‘just and proper’ exception rests largely
on the discretion of the court to determine. It is possible that a court purporting to
apply the rule in Eleftheria may inadvertently descend on the arena of dispute. And
as McLachlin, C.J. expressed in his dissenting opinion in Douez, matters of this kind
have international significance and repercussions because they negate the ethos of
contract law.22
As this case is crucial in the English law of contract, a brief statement of facts
would be helpful.
Here, the plaintiffs were in the business of selling timbers in England, while the
defendants were Greeks and co-owners of the ship called The Eleftheria, bearing a
Greek flag. The defendants (whose principal place of business was Athens) entered
into a contract to ship timbers for the plaintiffs from the Romanian port of Galatz to
London and Hull. The relevant portion of the bill of lading for the purpose of this
discussion contained provisions which read as follows:
Jurisdiction: Any dispute arising under this Bill of Lading shall be decided in the country
where the Carrier has his principal place of business, and the law of such country shall apply.
21 The first two factors in the Eleftheria’s Case. These factors have been reiterated in several other
cases, for instance in Donohue v. Armco Inc [2002] 1 Lloyd’s Rep. 425, 432–433 (H.L. per Lord
Bingham).
22 Douez, 2017 SCC 33, para. 153.
70 W. C. Iheme
Strikes, etc.: Should it appear that . . . labour troubles . . . strikes . . . prevent the vessel from
entering the port of discharge . . . the Master may discharge the cargo at port of loading or
any other safe and convenient.23
Then, it happened that there were labor troubles at London and Hull ports. Conse-
quently, the defendants discharged the cargo in Rotterdam, and could not later on-
load to deliver to the plaintiffs in London and Hull ports when labor troubles ceased.
The plaintiffs, at their own expense, arranged for the shipment of the cargo from
Rotterdam, and later brought an action to recover damages for the breach of the
contract of carriage. The plaintiff resisted this and cited the relevant portion of the
bill of lading, which empowered them to discharge to a different port in the event
of labor troubles, and also the clause which empowered Greek courts to exercise
jurisdiction in resolving any arising disputes. By this time, the defendants had issued
a writ on the Eleftheria and consequently got it arrested. The defendants filed for a
stay of action on the basis of the foreign jurisdiction clause. The court’s response
(Brandon J) could be summarized as follows:
(a) In the event a plaintiff sues in English court in disregard of its contract with
the defendant to sue elsewhere, the English court will have the power to decide
whether or not it should honor the clause stipulating a foreign court to be the
forum for dispute resolution.
(b) The English court will exercise this discretion by way of granting stay unless
the defendant can prove a strong cause for not doing so.
(c) The plaintiff will have the burden to prove the strong cause.
(d) The court will take cognizance of the all facts of the case under reference.
(e) Additionally, in deliberating the above factors, the court is enjoined to ask
in what country the facts of the case can be easily obtained and how that
bears relevance to the cost of a trial in relation to the forum; whether the
law of the foreign court applies to the contract and the degree of difference
between it and English law; whether the defendants have chosen the foreign
court principally to avoid mandatory rules in England and to enjoy a certain
procedural advantage in the foreign court; and the level of prejudice which the
plaintiff stands to suffer by suing in the foreign court, for instance, whether it
stands a little chance of successfully enforcing its claim on account of race,
politics, religion, all of which will deprive it of a fair and reasonable trial.24
Brandon J laid these factors down and concluded that the plaintiffs who had the
burden of proof did not sufficiently pass the strong cause test, and thus, cannot be
relieved of the contractual obligation to sue in Athens. In other words, the court
upheld the foreign jurisdiction clause in deference to the freedom of contract. Even
though the facts of Eleftheria were straightforward and the court held that a stay of
23 For a brilliant case review of Eleftheria, see GN Barrie, ‘The Eleftheria’ (1970) 3(1)The
Comparative and International Law Journal of Southern Africa, 94–98.
24 Owners of Cargo Lately Laden on Board the Ship or Vessel Eleftheria v The Eleftheria (Owners)
[1969] 2 All ER 641, para 99–100.

proceeding was in order, one would argue that a contrary decision would have been
starkly indicative of the court’s unreasonableness and bias.
Although the Eleftheria Case did not make any distinction regarding consumer
and non-consumer contracts, in the 70s, England passed a few statutes which started
to address consumer issues in contract. One of such important pieces of legislation
was the Unfair Contract Terms Act of 1977. The Act became only a starting point
in addressing real issues of consumer contracts: it provided that a choice of law
and forum selection clause is generally valid, unless superseded by mandatory rules
of the Act25 ; it did not, however, render such clauses invalid and unenforceable
ab initio in consumer contracts. In the circumstances, it could be said that English
law, notwithstanding the Rome Convention, does not invalidate choice of law and
forum selection clauses unless they are superseded by mandatory rules, which now
include those laid down by Brandon J in Eleftheria. According to art. 3(1) of the
Rome Convention, parties to a contract can, in the exercise of their freedom of
contract, choose the law that will govern their contract. There is no provision in the
Convention that invalidates a choice of law regardless of whether an unconnected
law to the contract was chosen except where mandatory rules of a country have been
breached as stated by art. 3(3) thereof; but the Eleftheria factors can be said to be
part of the so-called mandatory rules in English law.
4.4 The Canadian Law Position on Forum Selection
It is the habit of courts to typically suspect any clause in a contract that requests
them to stand down or not to intervene in a dispute between parties especially where
the relevant facts occurred in the court’s jurisdiction. In Canada, even if a forum
selection clause provides that parties in a consumer contract will bring their dispute
to a foreign court, a Canadian court could refuse to honor it, if for no other reason,
on the ground that it can exercise personal jurisdiction on one of the parties who is
habitually a resident in the court’s jurisdiction.26 In this case, such a party could be a
consumer who entered into a contract online while residing in Canada, especially in
any of the common law provinces. As Saumier and Bagg already argued,27 Canadian
courts would most likely stay their proceedings whenever a forum selection clause
calls for enforcement in a contract, notwithstanding that they could assert personal
jurisdiction on one of the parties to the contract, and thus, order the plaintiff to sue
in the foreign forum indicated in the contract.
25 S 27 and 28 of the Unfair Contract Terms Act, 1977.

26 See Genevieve Saumier & Jeffrey Bagg, ‘Forum Selection Clauses Before Canadian Courts: A
Tale of Two (or Three?) Solitudes’(2013) 46 UBC L Rev 439.
27 ibid.
72 W. C. Iheme
4.4.1 Pre Douez v Facebook
Nearly two decades ago, the Canadian Supreme Court reaffirmed its faithfulness in
the freedom of contract doctrine in Z.I Pompey v ECU Line,28 wherein the court
was called upon to interpret the forum selection clause contained in a bill of lading,
which read that ‘any claim or dispute arising under the contract of carriage…shall
be determined by the courts in Antwerp and no other courts.’29 In the circumstance,
the plaintiff was aggrieved, because, it had alleged that the damage to cargo while
in transit was due to the fault of the defendant. Consequently, and in disregard of
the forum selection clause, the plaintiff brought an action in the Federal Court of
Appeal. This was challenged, and in the event, appealed to the Canadian Supreme
Court. Here, the Court restated the law in the Eleftheria Case to the effect that the
principal test in determining the validity and thus, enforcement of a forum selection
clause is whether the plaintiff has satisfied the ‘strong cause’ test as was established
in the Eleftheria.
Of importance here is that the Supreme Court of Canada in Pompey pointed out
the overlapping factors to be considered when determining whether the strong cause
test or the forum non conveniens has been satisfied in relation to stay of proceedings.
The major difference between these two doctrines relates to the burden of proof.
While on the one hand, a forum selection clause is generally enforceable by default
until the plaintiff can prove a strong cause on why it should not be enforced, on the
other hand, in respect of forum non conveniens, which is private international law
and already statutorily codified,30 the plaintiff anchors its argument on the enormous
costs and hardship he will suffer if he litigates in the agreed forum.
One of the vital lessons from the Pompey case is that Canadian law, at least
until recently, was a mirror-image of the English law regarding forum selection
clauses in contract. The Court emphasized in Pompey, the importance of certainty and
predictability which a forum selection clause offers, which in truth are the backbone
of contract law as well as private international law.31 In obedience to the strong
cause test, the lower courts in Canada have been honoring forum selection clauses
to stay proceedings, thus, encouraging parties to be responsible for their contractual
bargains.
For instance, following the decision in Pompey, the Ontario Court of Appeal in
Expedition Helicopters Inc v Honeywell Inc.32 opined that:
a forum selection clause in a commercial contract should be given effect. The factors that may
justify departure from that general principle are few. The few factors that might be considered
include the plaintiff being induced to agree to the clause by fraud or improper inducement
or the contract is otherwise unenforceable, the court in the selected forum does not accept
jurisdiction or otherwise is unable to deal with the claim, the claim or the circumstances
28 ZI Pompey Industrie v ECU-Line NV, 2003 SCC 27 (Can.).

29 ibid 455.
30 For instance, The Court Jurisdiction and Proceedings Transfer Act (CJPTA), S 11.
31 Pompey Case, para 24.
32 Expedition Helicopters Inc. v Honeywell Inc, 2010 ONCA 351 (Can).
that have arisen are outside of what was reasonably contemplated by the parties when they
agreed to the clause, the plaintiff can no longer expect a fair trial in the selected forum due to
subsequent events that could not have been reasonably anticipated, or enforcing the clause
in the particular case would frustrate some clear public policy. Apart from circumstances
such as these, a forum selection clause in a commercial contract should be enforced.33
Unlike English courts, Canadian courts before Douez, without much hesitation,
treated consumer and non-consumer contracts alike when determining issues of
forum selection as laid down in Eleftheria. The following cases show the stag-
gered journey, ranging from the full application of the strong cause test to some-
thing more considerate to the consumer. Take, for instance, the case of Rudder v
Microsoft Corp.,34 wherein the plaintiff brought a class action for themselves and for
the members of the MSN online services, contending that Microsoft was in viola-
tion of the ‘member agreement.’35 The member agreement in question contained an
exclusive jurisdiction and applicable law clause which stated that:
[t]his Agreement is governed by the laws of the State of Washington, U.S.A., and you consent
to the exclusive jurisdiction and venue of courts in King County, Washington, in all disputes
arising out of or relating to your use of MSN or your MSN membership.36
The defendants challenged the action for being in breach of the forum selection
agreement. The Ontario Supreme Court examined the facts of the case, and held
that the plaintiff had hardly satisfied the strong cause test, and therefore could not
succeed in persuading the court not to stay the proceeding.
Five years after the decision in Rudder v Microsoft (supra), a similar kind of
consumer contract presented itself in Ezer v Yorktwon Securities,37 wherein the
following clause in the contract of brokerage was being determined: ‘Any disputes
arising between Yorkton and the Client shall be exclusively within the jurisdiction of
the Courts of the Province in which Yorkton accepts this agreement.’38 The contract
was clearly a consumer contract in that the plaintiff was an individual and the defen-
dant was a corporation dealing in securities in Ontario. When the plaintiff became
aggrieved due to an alleged breach, he brought action in British Columbia, contrary
to the agreed forum in the contract. The plaintiff sought to rely on the inconvenience
of the Ontario forum on the basis of his medical condition, and also, the fact that
British Columbia was more favorable to the idea of a class action that would benefit
not just the plaintiff but all those that were negatively affected by the plaintiff’s
act. The British Columbia Supreme Court reviewed the facts, and denied plaintiff’s
request to litigate outside the agreed forum; according to the Court, the evidence
adduced by the plaintiff was not relevant to the fact in issue and could not satisfy
the strong cause test as was laid down in Eleftheria and followed in Pompey and a
plethora of other cases in Canada.
33 ibid 24.
34 [1999] OJ No 3778 (Sup Ct J).
35 ibid 4–5.
36 ibid 5.
37 Ezer v Yorkton Securities Inc 2004 BCSC 487 (Can).
38 ibid 7.
74 W. C. Iheme
The strong cause test has enjoyed an enviable stance since its initial establishment
in Eleftheria, and even as recent as 2016, the test was followed again in Manjos v
Fridgant,39 wherein the province of British Columbia was the mutually agreed forum
by the parties to resolve any dispute that arises from their contract. In Manjos, the
court restated the doctrine of freedom of contract, and indicated that even though
the underlying contract was that of financial investment, such sophisticated kind of
contract entailed that the plaintiffs being educated must have read and understood the
full import of the agreement, and therefore could not be allowed to renege on their
agreement on the forum on the basis of them being consumers. The Court in Manjos
said something that could be of interest to our analysis; the court rode merrily on
the impression that the plaintiffs did not read the contract when it said ‘[a] person
who signs an investment contract acts at his or her own peril if they fail to read the
document before signing it.’40
The challenge with respect to consumer-related contracts is not that consumers
do not read terms of contracts, but the fact that most of the contracts are adhesive,
worded in sophisticated language, and do not truly give room for negotiations. A
critic of this view might argue that in a free market, a consumer who has read the
terms offered by a financial investment company on a take-it-or-leave-it basis can
refuse, negotiate, or check with other companies offering similar services. However,
a typical consumer lacks that quantum of freedom and choice given that companies
within an industry do have similar terms and conditions, and a consumer who actually
needs a particular service may not be able to get better terms even if they check with
other competitor-companies. This seeming lack of choice on the part of consumers
is pivotal to the discussion of consumer protection, and was the epicenter of Justice
Abella’s perspective.41
The foregoing being said, the default position of courts in enforcing a common
law contract is to apply the full weight of the terms of agreement of parties even
if the result is inconvenient for one of the parties; this is the main essence of a
contract in the first place; the essential features of certainty and predictability are
allowed to trump over any inconveniences and sentiments of a party. Although this is
the common law’s default stance, it is also common knowledge that there are some
days in which courts resume their duties with their equitable mindset. On such days,
they wonder whether the strong cause test must be applied strictly, for instance, in
employment cases where the presumption of equal bargain can easily be rebutted. The
Ontario Court of Appeal, for example, asked itself in Stubbs v ATS International BV,42
‘whether the “strong cause” test applies without modification because the clause in
this case arises in an employment context, rather than a commercial situation where
the parties are assumed to have equal bargaining power.’43 The kind of thought
entertained in Stubbs is suggestive of the fact that courts at some point started to
39 Manjos v Fridgant, 2016 ONCA 176 (Can).

40 ibid 8.
41 Pompey Case, 98–99.
42 Stubbs v ATS International BV, 2010 ONCA 879 (Can).
43 ibid 58.
openly recognize that ‘unequal bargain’ in a contract between parties is possible and
should of course matter in the determination and enforcement of such contracts. It
came to be gradually realized that if ‘inequality in bargain’ is recognized as a factor
that should evoke judicial sentiment and thus lead to a denial of a request for stay of
proceeding, then regardless of the nomenclature given to commercial contracts, the
unequal status of parties in contracts between an individual and a company should
functionally be recognized as a factor when deciding whether to enforce the forum
selection clause of that contract.
Looking at the Canadian case law, one can ascertain easily that there were three
phases in the court’s appreciation of the strong cause test that was established in
Eleftheria. The first phase was the moment in which they applied the test in its
purest form, by always upholding the forum selection clause on the basis of freedom
of contract, without a distinction of consumer and non-consumer situations. In the
second phase, however, courts stopped making unemotional comments as they did in
Manjos v Fridgant (supra) that ‘[a] person who signs a financial investment contract
acts at his or her own peril if they fail to read the document before signing it.’44 The
sober reflection which characterized the second phase led the court to soliloquize
as in Stubbs v ATS International BV, wherein it asked itself whether employment
cases could be made to satisfy the strong cause test given the clear lack of equality
in bargaining power?45 It appears that in the second phase, courts started to gain a
strong momentum, and started to contemplate what it will be like to refuse granting
a stay on the basis of forum selection clauses in consumer contracts.
The opportunity to further test-run the impact of Stubbs presented in Friesen v
Norwegian Cruise Lines Ltd,46 where the Supreme Court of British Columbia applied
the strong cause test, but quickly thought that if it ‘[w]ere to stay the action in favor
of a Florida Court, it would come close to denying the plaintiff access to a court at
all.’47 This was clearly surprising given that for long, courts in Canada hardly asked
this question. To be fair in the circumstance, it appears that the location of the agreed
forum in this case played a strong role in making the court to ask the question. If the
agreed forum was in one of the Canadian provinces, it would have probably decided
that the parties pursued litigation in that forum. The fact that it is a Florida Court in
the circumstance might have played a major role, but this only remains a guess.
What is important and perhaps true was that in this phase, courts were beginning
to alter the pure form of the strong cause test and started to make a distinction in
consumer contexts by riding on the sentiment that the party seeking to enforce in
the non-agreed forum will probably not get justice in the foreign court. In fact, the
Saskatchewan Court of Appeal in Microwell Communications Inc. v Frey,48 was
accusatory by stating that ‘[the defendant] seeks procedural advantages rather than a
true resolution of the claim against it. Resolution of its claim requires participation in
44 Manjos v Fridgant (n 99) [8].

45 Stubbs, (n 102) para 58.
46 Friesen v Norwegian Cruise Lines Inc, 2003 BCSC 256 (Can).
47 ibid 27.
48 Microcell Communications Inc v Frey, 2011 SKCA 136.
76 W. C. Iheme
a larger class action than one run along provincial lines. Further, these are contracts
of adhesion in essentially a noncommercial setting.’49 On the basis of this, the Court
held that the plaintiff sufficiently satisfied the strong cause test and thus, stayed the
action.
The decision in Microwell underlines the probable concern that the strong cause
test is in effect wobbly and can be manipulated to fit any perspective of a court. So,
once the court was ready to relax the pure freedom of contract doctrine in consumer
contracts, it was easy for it to put on its hat of equity and accuse the defendants
in Microwell of not truly seeking to resolve disputes but to enjoy some procedural
advantages in a foreign court which would impede the plaintiff’s access to justice.
It may not be out of place to ask why courts are now backtracking on their pure
application of the strong test as they did in the 70s, 80s, and 90s line of cases. The
strong cause test was laid down in 1970, and by that time, the provision of goods
and services via the Internet was limited, if not absent. And in fairness, consumers
were not in the picture during the formation of these rules. The rule in Eleftheria, for
example, was carved out from a maritime contract, which is a sophisticated kind of
commercial contract compared to buying a simple service or good on a company’s
website.
Against this backdrop, the third phase of the strong cause test was a full recognition
of the fact that it was made for commercial contractual parties operating at arms-
length with comparable bargaining power. Thus, once a functional test is applied and
it can be ascertained that the parties do not have equal bargaining power, and the
contract indeed can be categorized as a consumer type, the strong cause test would be
relaxed and not applied in its purest form. The attitude of courts these days regarding
consumer contracts was aptly captured by Palvovic in 2016, in her well-documented
inquiry regarding consumer protection and forum selection clauses. She opined that
‘[t]he practical effect is that forum-selection clauses restrict consumers’ access to
justice, since the business dictates the choice of court (forum). The forum chosen
by the business is its own home forum or a forum most favourable to its interests.
In a cross-border business-consumer relationship, the chosen forum is a foreign
forum for consumers and it may often, although not always, offer lesser substantive
protection than a consumer’s home forum. On the surface, forum-selection clauses
provide predictability, as consumers know ahead of time which forum will resolve the
dispute. Yet, they significantly restrict consumers’ access to meaningful remedies,
since the cost and complexities of pursuing a claim in a foreign forum often outweigh
the financial benefits of the claim.’50
49 ibid 119.
50 Pavlovic (n 66) 393–94.
4.4.2 Douez v Facebook: Forum Selection Clauses Become

Generally Unenforceable Against Consumers
Facebook had in 2011 introduced a type of advertising known as ‘Sponsored Stories,’

which enabled ‘friends’ of a user to see a product on their own News Feed after the
user had ‘liked’ the product. In effect, when a user performs this ‘liking’ activity,
depending on the user’s privacy setting, the liked products appear on the user’s
friends’ News Feed alongside the user’s name and photo; the idea behind ‘Sponsored
Stories’ is to closely associate the product with the user so that his ‘friends’ who
trust his judgment and reputation could easily like the product without much doubt
or personal investigation of the product; in that case, Facebook profits from the user’s
goodwill.51
Barely a year after Facebook’s introduction of this kind of advertising, Ms.
Deborah Douez who was at the relevant time, residing in British Columbia, sued Face-
book for utilizing her name and picture to run adverts (Sponsored Story), without
first obtaining her consent, and this allegedly violated the Privacy Act of British
Columbia, which particularly provides that it is ‘[a] tort, actionable without proof
of damage, for a person to use the name or portrait of another for the purpose of
advertising or promoting the sale of, or other trading in, property or services, unless
that other, or a person entitled to consent on his or her behalf, consents to the use for
that purpose.’52
At this time, nearly two million residents of British Columbia allegedly had their
names and pictures used by Facebook for this kind of advertising without their
consent, and Ms. Douez was in the circumstance, seeking to bring a class action that
will also provide these users some remedy under the said Privacy Act. In counter to
the allegation that Facebook did not obtain consent before use, it drew attention to
the fact that the users already consented to the use of their names and pictures for the
Sponsored Stories kind of advertising when they agreed to the terms and conditions
of use of Facebook.53 Of interest to this discussion was the fact that Ms. Douez being
a resident of British Columbia brought an action against Facebook therein regardless
of a forum selection clause in Facebook’s terms of use indicating that the court for
litigation as well as the applicable law was that of the state of California, United
States. Here is the relevant portion of the terms of use regarding applicable law and
forum:
You will resolve any claim, cause of action, or dispute (claim) you have with us arising out
of or relating to this Statement or Facebook exclusively in a state or federal court located in
Santa Clara County. The laws of the State of California will govern this Statement, as well as
any claim that might arise between you and us, without regard to conflict of law provisions.
51 Brittany Darwell, Understanding the Difference Between Facebook Sponsored Stories, Page
Post Ads, Promoted Posts and Marketplace Ads (Adweek 2013), available at https://www.adweek.
com/digital/understanding-the-difference-between-facebook-sponsored-stories-page-post-ads-pro
moted-posts-and-marketplace-ads/ accessed 19 September 2019.
52 Privacy Act of British Columbia, Se 3(2).
53 Douez v Facebook (n 67) [120–21].
78 W. C. Iheme
You agree to submit to the personal jurisdiction of the courts located in Santa Clara County,
California for purpose of litigating all such claims.54
On the basis of the above clause, Facebook brought a motion to stay proceedings,
arguing that the appropriate court was in the County of Santa Clara, California, where
Facebook is headquartered.55
4.4.2.1 The Perspective of the Trial Court in Douez
Starting first with a subtle caveat on nomenclature, the Supreme Court of British
Columbia is a trial court, and hears civil and criminal cases; the Court of Appeal of
British Columbia is the apex court in the province. In the Douez case, the trial judge,
Justice Griffin, held that Section 4 of the Privacy Act provided British Columbia
courts with exclusive jurisdiction, which should be allowed to trump the agreement
of the parties to litigate in California. Here, the court rode on the long-standing
position that statutory provisions rank higher than the agreement of parties, and in
the event of a conflict, the latter should be made subservient. More so, the court
expressed the view that there was a strong cause not to enforce the forum selection
agreement because enforcing the same would boil down to shielding Facebook from
liability, given that in the circumstance, only British Columbia could exclusively and
appropriately hear matters emanating from the Privacy Act; the trial court opined
that the court in California cannot competently hear matters hinged on the Privacy
Act, and allowing the matter to proceed there was in a way against the Canadian
public policy.56
4.4.2.2 The Perspective of the Court of Appeal in Douez
The Court of Appeal was disappointed that the trial court had flung away the doctrine
of freedom of contract, and did not see any good reason why the forum selection
clause was not enforced, given that the plaintiff could not in their opinion satisfy the
strong cause test as laid down in Pompey. The trial court’s decision was consequently
reversed. In respect of Section 4 of the Privacy Act, the Court of Appeal was of the
view that it did not confer (exclusive) territorial jurisdiction to British Columbia
courts in relation to Privacy Act claims, but a subject matter jurisdiction. Section 4
of the Act states that ‘despite anything contained in another Act, an action under this
Act must be heard and determined by the Supreme Court.’
54 ibid [8].
55 ibid [2].
56 ‘the Legislative conferral of exclusive jurisdiction on this Court for claims under the Act evidence
both a legislative intention to override any forum selection clause to the contrary, and a strong public
policy reason for not enforcing the Forum Selection Clause [in Facebook’s terms of use]’. ibid [11,
105].
The Court of Appeal reasoned that the import of Section 4 is the exclusion of any
other court in British Columbia in favor of the Supreme Court, since the heading of
Section 4 is titled ‘Action to be determined in Supreme Court.’ On this basis, the
Court of Appeal concluded that the plaintiff did not show evidence that the California
court lacked the competence to hear the matter, and therefore, the plaintiff was taken
to not have satisfied the strong cause test, thus, could not disable the forum selection
clause from being enforced in the event. Accordingly, the court opined that ‘Santa
Clara courts would presumably consider B.C. law and have due regard to comity, but
nothing enacted by the B.C. Legislature can bind the courts of Santa Clara unless
California so chooses.’57
4.4.2.3 The Perspective of the Supreme Court of Canada in Douez
Dissatisfied with the Court of Appeal, Ms. Douez appealed to the Supreme Court of
Canada, the majority of which allowed her appeal not to stay the action in favor of
the California court, stating that Ms. Douez had satisfied the strong cause test in line
with the decisions in Eleftheria and Pompey.
The Majority (and the Concurring) Opinions in Douez
The court found the forum selection clause unenforceable as a matter of contract
involving a consumer. In other words, it resurrected the discourse on how to deal with
a contractual situation that is adhesive in nature and involves the use of boilerplates
such that the consumer had absolutely no say in the formation, which was the case
when Ms. Douez agreed to use Facebook. In the circumstance, the court used the
opportunity to critically ponder on the true meaning of consent, considering that not
many users can practically advert their mind to all the terms and conditions before
agreeing to use Facebook. Yet, even if a user was to object to the terms, there was
no opportunity to negotiate with Facebook, or if the negotiation fails, to utilize a
substitute service provider that will have dissimilar or more favorable terms of use.
Thus, Justice Abella, who was leading this line of inquiry, opined that ‘some legal
acknowledgement should be given to the automatic nature of the commitments made
with this kind of contract, not for the purpose of invalidating the contract itself, but
at the very least to intensify the scrutiny for clauses that have the effect of impairing
a consumer’s access to possible remedies.’58
In furtherance of the unequal bargaining power relationship between Ms. Douez
and Facebook, Justice Abella lamented on the fact that Facebook is a multinational
company while Douez is a videographer and a private individual who ‘had no input
into the terms of the contract and, in reality, no meaningful choice as to whether
57 ibid [64].
58 ibid [98–99].
80 W. C. Iheme
to accept them given Facebook’s undisputed indispensability to online conversa-

tions,’ and in the circumstance, the disparity can qualify to trigger the common law
‘doctrine of unconscionability, a close jurisprudential cousin to both public policy
and gross bargaining power disparity, also applies to render the forum selection clause
unenforceable in this case.’59
Leaving Justice Abella for now, it is interesting to take a look at the joint reasoning
of Justices Karakatsanis, Wagner, and Gascon, who claimed to have revised the
decision in Pompey including the two-pronged test it established in determining the
enforceability of forum section clauses. The first ambit of the test is that courts should
determine from the perspective of contract law, whether the forum selection clause
was duly formed and validly binds the parties. The second ambit of the test probes
whether there is a strong cause for the unenforceability of the clause on the basis of
forum non conveniens. In the Douez case, the second ambit of this test was slightly
altered or modified to suit a consumer context given the unequal bargaining power
which as a matter of public policy necessitated an adjustment irrespective of whether
the contract was not unconscionable.
To put it more succinctly, Justices Karakatsanis, Wagner, and Gascon found that
even if a forum selection clause cannot be challenged on the basis of validity or being
unconscionable, it can be rendered unenforceable on the basis of public policy,60 a
wobbly concept by the way. Thus, what further matters here is the position in which
boilerplate clauses are kept; they are usually inseparable in consumer contracts in
which a consumer is only allowed to click and accept without any opportunity to
negotiate terms and have a real choice. According to the British Columbia Electronic
Transactions Act, a contract is made online by clicking the acceptance button.61
Although this is the only way in which acceptance online in consumer contracts can
be reasonably concluded, there is no indication that clicking ‘yes’ implies that the
consumer read all the terms and conditions, or that reading the terms will have any
real effect on decision-making by the consumer.
Justice Abella lamented on the reality of this and its effects on consumers by
observing that ‘we are dealing here with an online consumer contract of adhesion.
Unlike Pompey, there is virtually no opportunity on the part of the consumer to
negotiate the terms of the clause. To become a member of Facebook, one must
accept all the terms stipulated in the terms of use. No bargaining, no choice, no
adjustments. Online contracts such as the one in this case put traditional contract
principles to the test. What does “consent” mean when the agreement is said to be
made by pressing a computer key? Can it realistically be said that the consumer
turned his or her mind to all the terms and gave meaningful consent? In other words,
it seems to me that some legal acknowledgment should be given to the automatic
nature of the commitments made with this kind of contract, not for the purpose of
59 ibid [112].
60 ibid [159].
61 Electronic Transactions Act, S.B.C. 2001, Chap. 10, (Can) 5.
invalidating the contract itself, but at the very least to intensify the scrutiny for clauses
that have the effect of impairing a consumer’s access to possible remedies.’62
In any event, inasmuch as the above lamentation of Justice Abella has become a
major gap in consumer legal framework and thus a concern to many legal systems, the
question that lingers is whether the paternalistic role that is being frequently played
by courts in extending the frontiers of law via their public policy consideration is the
right approach, or whether the ‘law making’ intervention should in the circumstance
be reserved for legislators who bear the will of the people? If the duty of the court is to
interpret agreements of parties and not to make the same for them, should a court as
a matter of doctrinal analysis find it difficult to enforce validly entered agreements?
Maybe it is time to make concrete legislative distinctions between consumer and
non-consumer contracts, given that in the history of contract law development, the
consensus ad idem, signature of consent, etc., were sufficient to consider parties to a
contract as equals without much concern as to whether a mere indication of consent
by ticking or signing serves the function for which they were created. For example,
a well-formed contract remains valid and enforceable until the party seeking to set
aside provisions of it can prove one or more of the vitiating elements of the contract,
including non-est factum.63
The plaintiff (Ms. Douez) made an argument that should be pointed out in the
foregoing analysis; she cited Section 11 of the Court Jurisdiction and Proceedings
Transfer Act (CJPTA) which statutorily embodies the doctrine of forum non conve-
niens that empowers courts to take cognizance of some factors when ‘deciding the
question of whether it or a court outside [the province] is the more appropriate forum
in which to hear a proceeding.’64 On this basis, the plaintiff urged the court to rope
in Section 11 of CJPTA in its stay of proceeding argument; this request was rejected
because according to the court, the said Section 11 did not make any reference to
forum selection clauses, and in the event, the common law test developed in Eleft-
heria and later followed in Pompey continues to be the architectural framework on
which the analysis of forum selection clauses lies.
As the legal framework before the decision in Douez did not clearly provide for
consumer contracts vis-à-vis forum selection clauses, the court felt that it had the
burden to invent something that could materially serve justice in the circumstance.
The only way out was to favor an approach that would take many factors into account
including public policy considerations; this approach has a striking resemblance with
the preachment of Section 11 of the CJPTA which urges the court to take many
factors into consideration in determining a plea of forum non conveniens. Justices
Karanatsanis, Wagner, and Gascon opined as follows:
But commercial and consumer relationships are very different. Irrespective of the formal
validity of the contract, the consumer context may provide strong reasons not to enforce forum
selection clauses. For example, the unequal bargaining power of the parties and the rights
62 Douez, 2017 SCC 33, [98–99].

63 Andrew Phang, ‘Vitiating Factors in Contract Law’ (2005)17 Singapore Academy of Law Journal,
148, 151–168.
64 Douez, 2017 SCC 33, [128].
82 W. C. Iheme
that a consumer relinquishes under the contract, without any opportunity to negotiate, may
provide compelling reasons for a court to exercise its discretion to deny a stay of proceedings,
depending on the other circumstances of the case. Canadian courts have recognized that
the test may apply differently, depending on the contractual context. The English courts
have also recognized that not all forum selection clauses are created equally. Similarly,
Australian courts have found ‘that in a consumer situation [courts] should not place as much
weight on an exclusive jurisdiction clause in determining a stay application as would be
placed on such a clause where there was negotiation between business people.’ As these
cases recognize, different concerns animate the consumer context than those that this Court
considered in Pompey, where a sophisticated commercial transaction was at issue. Because
of these concerns, we agree with Ms. Douez and several interveners that the strong cause
test must account for the different considerations relevant to this context.65
One can say that Section 11 of the CJPTA, although the judges did not admit
it, principally influenced a majority of the justices in their decision. The said Act
encouraged the consideration of factors in reaching a decision on forum non conve-
niens. Even though the court denied any linkage between Section 11 CJPTA and
the forum selection,66 one can see the many subtle ways in which the court was
influenced by it. The court relied heavily on ‘public policy’ considerations on the
one part and ‘secondary factors’ on the other part. On the ground of public policy,
the court made a heavy weather on the fact that Facebook is a multibillion company
while Ms. Douez is an individual who consented without a real choice to an adhe-
sive contract whose terms were on a take-it-or-leave-it basis. This is more so, (the
court observed) given that in the wake of the twenty-first century, everyday life and
many commercial transactions by consumers are interwoven with the Internet. In
other words, the decision to remain offline simply because Facebook or any other
competitor-company’s terms were unfavorable is not a real choice.67 Thus, apart from
the unequal bargaining power which rested on public policy, the court also considered
that Ms. Douez’s privacy right which has a constitutional outlook, and also anchored
on the Privacy Act, can only be appropriately interpreted by a local court in order to
achieve good justice for the plaintiff as well as those residing in British Columbia.
The court found this reasoning quite appealing considering that the BC province has
shown the seriousness of such a right by providing for it in a statute.68 Resting on
these two-pronged public policy considerations, that is, unequal bargaining power
and privacy rights, the court’s majority agreed not to stay the proceedings.69
Apart from the public policy factors, two ‘secondary factors’ were also considered,
namely the ‘interest of justice’ factor, and the ‘comparative convenience and expense
of litigating in the alternate forum’ factor.70 In the interest of justice factor, the court
was wary of the possibility that the California court may not be able to apply the BC
laws on privacy (the Privacy Act) which bears a right tainted with a constitutional
65 ibid [38].
66 ibid [20].
67 ibid [56].
68 ibid [60].
69 ibid [63].
70 ibid [64].
value; for the court, the BC court was in a better position to interpret the law in this
respect in order to achieve justice.71 In the words of the court, ‘[a British Columbia
court], as compared with a California one, is better placed to assess the purpose
and intent of the legislation and to decide whether public policy or legislative intent
prevents parties from opting out of rights created by the Privacy Act through a choice
of law clause.’72
On the ‘comparative convenience and expense of litigating in the alternate forum’
factor, the court again alluded to the financial prowess of Facebook and the relative
ease of litigating in BC, compared to the plaintiff’s ability to shoulder the financial
expenses of litigating in California; the unequal financial power between the plaintiff
and Facebook reinforced the court’s sentiment in holding that the strong cause test
was in the event satisfied.73 On the disparity of financial strength between the plaintiff
and Facebook, Justice Abella’s concurring decision was somewhat emotional but true
when she observed that ‘[b]oth elements are met here. The inequality of bargaining
power between Facebook and Ms. Douez in an online contract of adhesion gave
Facebook the unilateral ability to require that any legal grievances Ms. Douez had,
could not be vindicated in British Columbia where the contract was made, but only
in California where Facebook has its head office. This gave Facebook an unfair and
overwhelming procedural—and potentially substantive—benefit. This, to me, is a
classic case of unconscionability.’74
Justice Abella reached her decision by finding that ‘unconscionability’ rooted in
unequal financial strengths was sufficient to deny enforcement of the forum selec-
tion clause. The other three justices forming the majority laced unconscionability
with secondary and public policy factors, even though they were humble enough
to acknowledge that irrespective of the fact that these secondary factors ‘might not
have justified a finding of strong cause on their own, they nonetheless support our
conclusion that Ms. Douez has established sufficiently strong reasons why the forum
selection clause should not be enforced and the action should proceed in British
Columbia.’75
The Minority Opinion: a Cry from the Depth
The minority opinion anchored their views on the doctrine of freedom of contract
as established in Eleftheria and Pompey lines of cases, more like a mirror image
of what the law in pre-Douez was.76 The justices did not appreciate the plaintiff’s
71 ibid [65].
72 ibid [72].
73 ibid [74]. According to the court, ‘it would be more convenient to have Facebook’s books and
records made available for inspection in British Columbia than requiring the plaintiff to travel to
California to advance her claim’.
74 ibid [116].
75 ibid [75].
76 ibid [119].
84 W. C. Iheme
argument that the forum selection clause was not brought to her attention,77 because,
after all, there is the BC Electronic Transactions Act which deems it sufficient for an
electronic contract to be deemed as validly formed by clicking a designated online
icon.78 In the minority court’s view, the plaintiff’s acceptance of Facebook’s terms
of use was completed the moment she clicked on the acceptance icon. Again, the
plaintiff’s argument that Facebook’s indication of their willingness to respect local
laws negated the stipulation of California as a forum of dispute resolution, and in
the circumstance, resulted in some ambiguity which must be interpreted against the
drafter of the terms under the doctrine of contra proferentem,79 was rejected when
the court observed that ‘[t]he contract on its face is clear. There is no inconsistency
between a commitment to “strive” to apply local laws and an agreement that disputes
will be tried in California. A forum selection clause does not disrespect the laws of
British Columbia.’80
Similarly, the plaintiff’s argument that the forum selection clause was a negation
of her privacy right, and in any event, the forum for resolving any arising breach is
contained in Section 4 of the Privacy Act, was rejected on the basis that what the Act
conferred was an exclusive subject-matter jurisdiction regarding claims that emanate
from the Act on the Supreme Court of British Columbia over any other court, say
the Provincial Court. The Section 4 indication of the court does not oust a foreign
court from constituting jurisdiction based on the contract, because there is nothing to
prove that a California court cannot analyze and appropriately apply the provisions
of the Privacy Act,81 which bear similarity with California legislation on privacy. For
instance, Section 3344 of California’s Right of Publicity Statute states that:
Any person who knowingly uses another’s name, voice, signature, photograph, or likeness,
in any manner, on or in products, merchandise, or goods, or for purposes of advertising or
selling, or soliciting purchases of, products, merchandise, goods or services, without such
person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal
guardian, shall be liable for any damages sustained by the person or persons injured as a
result thereof. In addition, in any action brought under this section, the person who violated
the section shall be liable to the injured party or parties in an amount equal to the greater of
seven hundred fifty dollars ($750)or the actual damages suffered by him or her as a result of
the unauthorized use, and any profits from the unauthorized use that are attributable to the
use and are not taken into account in computing the actual damages. In establishing such
profits, the injured party or parties are required to present proof only of the gross revenue
attributable to such use, and the person who violated this section is required to prove his
or her deductible expenses. Punitive damages may also be awarded to the injured party or
77 ibid [136].
78 ibid [137].
79 ibid [139 and 173]. For more on contra proferentem, Ledcor Construction Ltd v Northbridge
Indemnity Insurance Co., 2016 SCC 37, [2016] 2 SCR 23, [51]. Also, as Sir Coke put it ‘verbacar-
tarumfortiusaccipiuntur contra proferentem”, or “the words of deeds are to be taken more strongly
against the one who put them forward’. Sir Edward Coke, The First Part of the Institutes of the
Laws of England, or, A Commentary upon Littleton (The Societie of Stationers 1628) 36a. For a
seminal treatment of the doctrine, Joanna McCunn, ‘The Contra Proferentem Rule: Contract Law’s
Great Survivor’ (2019) 39, Oxford Journal Legal Studies 483–506.
80 Douez v Facebook (n 67) [140].
81 ibid [165].
parties. The prevailing party in any action under this section shall also be entitled to attorney’s
fees and costs.82
In fact, in paragraphs 164–170 of the Supreme Court decision in Douez, the

minority court tried hard to show that the plaintiff did not satisfy the tests laid down
in the Eleftheria and Pompey cases, and therefore could not satisfactorily prove to
the court why the forum selection clause should not be enforced. The minority court
tried their best to amplify their voices which praised established contract doctrines,
but were in the event eclipsed by public policy considerations which favored Douez
and by extension, consumers.
4.4.3 Playing the Devil’s Advocate: What Does Douez Mean

for (Consumer) Contract Law?
The decision in Douez is a radical shift from what used to be the settled law in
Eleftheria and Pompey line of cases. The court in Douez mangled their interpretation
and application of the Pompey factors vis-à-vis forum selection clauses, such that
even though their product may on the first look appear celebratory for consumers,
no one can accurately measure the extent to which this disruption can be damaging,
especially given the fact that the public policy factors that were considered and
analyzed to reach the decision are indescribable. Thus, the decision is a potential
recipe of confusion for lower courts and courts in common law systems which will
draw binding or persuasive inspiration from Douez. Similarly, given that consumer
contracts are typically characterized by unequal bargaining powers, it may mean
that courts will continue to elevate and apply whatever they believe is public policy
whenever they feel it will serve their narrow interest to subvert the Pompey factors
in order to deny enforcement of a forum selection clause. The following are perhaps
a few reasons Douez should be closely scrutinized by courts and scholars, and if
possible there should be a legislative intervention that codifies the outcome in Douez
in order to make the right long-lasting for consumers.
4.4.3.1 Is There Any Material Danger of Placing Public Policy Above

Freedom of Contract?
As much as possible, common law contract strives to honor a valid agreement of

parties. However, in Douez, the majority of the court was enthusiastic in making
exceptions for consumer contracts. The court observed that the unequal bargaining
power between Facebook and Ms. Douez necessitated a shift or rather a modifica-
tion of the Pompey factors on the strong cause in a way to fit consumer situations.
Coupled with the unequal bargaining power and unconscionability, the court opined
82 California Civil Code (West 2010), S 3344(a).

86 W. C. Iheme
that Facebook’s breach of the plaintiff’s privacy right has some constitutional impli-
cations, and therefore can best be determined by a local court instead of a California
court.
Looking critically at Douez, it is clear, going forward, that once a contract involves
a company and an individual (consumer), and the contract is adhesive, then the forum
for dispute settlement in such a contract cannot be allowed to be the jurisdiction
in which the company resides or is registered, its home country. Apart from the
unequal bargaining power factor, another way to look at Douez is to assess whether
the consumer in the circumstance has a real alternative choice if the terms of use of
a particular company are unfavorable. Thus, if in earnest a consumer has an array
of choices and alternatives after walking away from a corporate service or good
provider, then it may be difficult to fully engage Douez.
If, however, all or most of the providers of a particular service or good have the
same or functionally equivalent terms of use, then it cannot be said that a consumer
in that situation can truly have a real alternative choice even if he walks away from
a particular service provider; in that case, Douez can be fully engaged. The ‘real
alternative choice’ factor was perhaps the reason the majority in Douez sought to
distinguish social media platforms from other kinds of commercial retail transactions.
In that respect, the court opined that ‘[U]nlike a standard retail transaction there
are few comparable alternatives to Facebook, a social networking platform with
extensive reach. British Columbians who wish to participate in the many online
communities that interact through Facebook must accept that company’s terms or
choose not to participate in its ubiquitous social network. As the intervener the
Canadian Civil Liberties Association, emphasizes, “access to Facebook and social
media platforms, including the online communities they make possible, has become
increasingly important for the exercise of free speech, freedom of association and
for full participation in democracy.” Having the choice to remain “offline” may not
be a real choice in the Internet era.’83
What is not clear in the court’s analysis is whether Douez could be engaged if
both parties to a contract are individuals located in different countries, whereby the
service provider (individual) cannot be said to actually possess a higher bargaining
power regardless of whether he is [financially] richer than the buyer. The court in
Douez did not give a concrete formula on how to measure equality of bargaining
power, given that in Douez, the inequality between parties was self-evident and did
not require any further evidence. But there could be a difficulty when the matter is not
so clear-cut because two individuals are involved, although they may not necessarily
have equal financial strengths. Also, it is uncertain from the court’s analysis whether
equality in bargaining power is measurable by the quantum of assets owned by the
parties, how influential a party is, or whether it should be based on which party
drafted the terms of the contract, and whether the party seeking to set aside the
forum selection clause participated in the drafting. Perhaps, it could make sense to
argue that inequality is established once a party can prove that they did not participate
83 Douez v Facebook (n 67) [56].

in negotiating a contract and were urgently required to sign it on a take-it-or-leave-

it basis. Since the definition of a ‘consumer’ attaches strongly to whether a party
is an individual and acquiring the goods and or services mainly for personal use,
it is not clear how a forum selection clause could be interpreted if both parties are
individuals, but the seller (perhaps not selling in a commercial quantity) is the drafter
of the contract and his jurisdiction was chosen as the forum of litigation.
More so, the court in Douez considered the privacy right of the plaintiff, which was
recognized as a constitutional right, and cannot therefore be displaced by contract.
As the court reasoned, an effective determination of such a right can better be done
by a local court, instead of the foreign court that was indicated in the contract of
the parties. In the event, another unclear issue here is what exactly Douez means
for private individual advertisers who run blog sites and are paid by individuals
to advertise on their blogs. Assuming a blogger and an individual client signed a
contract in which the blogger’s country is indicated as the forum of dispute resolution
by litigation, and in the event of breach of privacy, similarly to what happened in
Douez, will a court relying on the decision in Douez hold the forum selection clause
unenforceable on the basis of public policy anchored on privacy rights, and unequal
bargaining powers?
No clear and satisfactory answer for the foregoing issues can be obtained yet
from Douez at least for countries other than Canada. All this being said, there is
a potential danger that lurks in the shift away from Eleftheria and Pompey line of
cases; the preference of public policy over the doctrine of freedom of contract could
be problematic in the absence of legislation, considering that public policy is a wobbly
concept, and its content can easily be manipulated to suit what a judge’s bias is in a
given circumstance. Allowing such a wobbly concept to trump the settled doctrine
of freedom of contract could be a recipe for disaster because the unclear contours of
the decision could affect the certainty and predictability that contract law gives. And
someday, following the pattern of ad hoc remedies, the table could be skewed against
consumers. In other words, there is a need to incorporate the outcome in Douez into
a statutes or multilateral treaties.
4.4.3.2 The Presumption of Unequal Financial Capacities of the Parties
The majority in Douez denied any association between the facts of the case and
Section 11 of the CJPTA which is a statutory documentation of forum non conve-
niens. However, even though forum non conveniens has no bearing with forum selec-
tion clauses from the perspective of Pompey factors, the Justices in the majority
opinion relapsed into the sentiment that Ms. Douez was financially less capable to
litigate in California compared to Facebook litigating in British Columbia. To arrive
at this view, the court did not bother to call any evidence of assets of both parties
to make an informed and evidence-based decision; instead it simply assumed and
treated its assumption as fact in this respect. Even though in this case, the ques-
tion of financial capacities of the parties can be taken to be a matter that speaks for
88 W. C. Iheme
itself, yet, the precedent of treating assumptions as facts could backfire in border-
line cases, for example, a case between a very rich consumer and a micro-scale
[but incorporated] seller.
The Pompey factors emerged from a commercial setting, and rest on the doctrine
of contract which does not consider the financial capacity of parties, because it is
assumed that both parties considered that before entering into the contract. And
considering financial inconvenience or assuming that once a party is richer, they lose
the right to litigate in the agreed forum is arguably a negation of what contract law
is all about. In the end, even though it was initially denied, the majority in Douez
ended up mixing forum non conveniens with forum selection agreement, and letting
the former trump the well-established law in Pompey.
The difficulty with the consideration of financial capacity as a factor in determining
enforcement of forum selection is that courts following Douez in future may enter
the unclear path of having to review financial assets of parties as a precondition for
determining whether a forum selection could be enforced, and maybe confronted with
the dilemma of what test to adopt in determining assets, balance sheet, or cash flow?84
Or it is possible that some courts that are not ready to take the trouble of reviewing
complex financial documents will simply assume which of the parties is richer and
on the basis of that assumption deny the enforcement of the forum selection clause?85
By now it should be obvious that even though the final product of the court decision
in Douez can be deemed appropriate in the circumstance, the method via which
they arrived at it poses concrete dangers for stare decisis, because many courts can
apply it in ways that will fundamentally disrupt settled law in contract jurisprudence.
Since the majority did not analyze the various Pompey factors and ascertain how the
plaintiff satisfied them in the event, it can be said that Douez did not engage critically
enough to render Pompey otiose or bad law: the court arguably assumed the existence
or satisfaction of some of the factors in the Douez case.
84 Deloitte, ‘Quality of Financial Position. The Balance Sheet and Beyond’ (Deloitte 2009)
3, https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012quickreferenceguide.pdf
last accessed 19 September 2019. The report states that: There is no single financial statement that
sets forth all of the quantitative and qualitative information reflecting financial position—you must
move beyond the balance sheet and perform further analysis to get a complete picture. Although
income statements and cash flow statements are important and do provide information relevant to
financial position, the balance sheet is a basic ‘snapshot’ of a company’s financial position at a
particular point in time and is a logical starting point for assessing a company’s financial position.
The balance sheet delineates the entity’s resource structure, or major classes and amounts of assets,
as well as its capital structure, or major classes and amounts of liabilities and equity.
85 Douez v Facebook (n 67) [101]. Here the Douez Court reflected on Professor Edward Purcell’s
comment regarding consumers’ inability to access courts for redress due to unfavorable forums,
and that appears to be an ‘an egregious disproportionality’. See Edward A Purcell, Jr, ‘Geography
as a Litigation Weapon: Consumers, Forum-Selection Clauses, and the Rehnquist Court’ (1992),
40 UCLA L Rev423, 514.
4.5 Post Douez—Where Does ‘Consumer Contract’ Go

from Here?
Following the decision in Douez, Facebook changed its terms of use to indicate that it
is willing to litigate in a consumer’s territory, and the newly drafted forum selection
and applicable law clause says:
If you are a consumer, the laws of the country in which you reside will apply to any claim,
cause of action or dispute that you have against us, which arises out of or relates to these
Terms or the Facebook Products (‘claim’), and you may resolve your claim in any competent
court in that country that has jurisdiction over the claim.86
Whether it is Facebook, a comparable company, or any company that is deemed

to be in an unequal relationship with a consumer might seek to comply with the law
as Facebook has done, but the possibility of having to litigate in all provinces (in
the case of Canada) or in a consumer’s country and applying the law of that forum
will attract so much costs for companies. Corporations are typically witty because
they afford to pay for expert advice which can help them to surreptitiously transfer
the costs of litigation to consumers by generally increasing the cost of their services
to match whatever they spent or will likely spend on litigation: it is also likely that
litigation expenses which a company has sustained in litigating with consumers can
be written off in taxes.
4.5.1 Will Arbitration Save Companies

from the Stranglehold of Douez?
It is possible (especially in countries other than Canada) that companies that are
not as ready as Facebook to litigate in every consumer’s forum could simply bypass
the stranglehold of Douez by including an arbitration clause, which will require
them to arbitrate in a neutral forum (institutional arbitration), in lieu of a clause
requiring parties to litigate in the company’s home jurisdiction. If an arbitration
clause is inserted, it could mean that the separability doctrine could be evoked to
the effect that a contract even if considered invalid, the clause to arbitrate therein
could be separated from the main agreement. Similarly, following the kompetence-
kompetence doctrine, arbitrators are empowered to determine their own jurisdiction,
and it has become an established practice or arbitration laws of many countries that
once parties to a contract have agreed to arbitrate (whether in a local court or a foreign
one), the court must stay proceedings and require parties to proceed with arbitration.
86‘Terms of Service’ (Facebook 2019) https://www.facebook.com/terms.php last accessed 19

September 2019.
90 W. C. Iheme
Courts have learned not to usurp the place of arbitrators as their role under the New
York Convention is that of reviewing awards on the basis of certain factors.87
Although arbitration might sound as a quick route to bypass the decision in Douez,
what is suspicious and also uncertain is that courts who are faithful to Douez might
still lean heavily on the unequal bargaining and financial strength of parties (as
expressed by the majority opinion) to hold that a company who drafted terms of a
contract has much more financial capacity than a consumer and is in a position to
finance its arbitration even if it is in a neutral forum. This argument has the potential
to sell more than expected given that these days, it has come to be known that in
certain respects, arbitration is far costlier to pull off than litigation. So, it may come
as a disappointment to companies warming up to follow the arbitration bypass that
the hallowed public policy and forum non conveniens argument can be wobbled to
form any shape a court desires in a given circumstance, and in my opinion, it does not
seem to be a solution to the difficulty the Douez decision has imposed on companies
doing businesses with consumers.
As Gikay put it, in the European Union:[a]lthough Alternative Dispute Resolution is consid-
ered a fast, cheap, and flexible dispute resolution system, the consumer cannot be subjected
to pre-dispute arbitration agreement that excludes her option to litigate. EU consumer law’s
hostility towards a pre-dispute arbitration clause is affirmed in the jurisprudence of the ECJ
that nullifies an arbitration award even if the consumer took part in the proceedings without
opposing the processor ignored it despite being duly notified.88
Also, under the English Consumer Rights Act 2015, a ‘term which has the object or
effect of excluding or hindering the consumer’s right to take legal action or exercise
any other legal remedy, in particular by requiring the consumer to take disputes
exclusively to arbitration not covered by legal provisions,’89 is deemed unenforceable.
There is some similarity between the EU approach and what is obtainable in
Canada, whereby even though Section 7(5) of the Arbitration Act of Canada provided
that parties to an arbitration should not be allowed to litigate in breach of their
arbitration agreement, an exception is made for consumers under the Consumer
Protection Act.90 Against this legal framework, in 2019, the Canadian Supreme
Court in TELUS Communications Inc v Wellman,91 held that business customers
87 Under the EU’s Directive 2013/11/EU, Member States have been required to set up an ADR
mechanism by July 2015 to enable faster resolution of consumer disputes.
88 The ECJ decision referred to by Professor Gikay is Mostaza Claro v Centro MóvilMilenium SL
ECR 2006, I–10421 Also See, Gikay Asress Adimi, ‘European Consumer Law and Blockchain
Based Financial Services: A Functional Approach Against the Rhetoric of Regulatory Uncertainty’
(2019) 24 Tilburg Law Review 27.
89 The Consumer Rights Act 2015, schedule 2, paragraph 20 (a).
90 Section 8 thereof which states that: a consumer may commence a proceeding on behalf of members
of a class under the Class Proceedings Act, 1992 or may become a member of a class in such
a proceeding in respect of a dispute arising out of a consumer agreement despite any term or
acknowledgment in the consumer agreement or a related agreement that purports to prevent or
has the effect of preventing the consumer from commencing or becoming a member of a class
proceeding.
91 [2019] SCC 19.
cannot be treated as consumers by exempting them to arbitrate over disputes which

in accordance with the relevant agreement were to be settled by arbitration; this was
due to the lack of coverage for business customers under the exemption to arbitrate
in the Consumer Protection Act. The minority court disagreed with the majority
decision and looked mainly at the unfairness of the arbitration clause given that it
acted to prevent the over 600,000 business customers in the circumstance who were
overbilled, from seeking class action, which is only possible if a court gives leave for
it; only the 1.4 million consumers in the TELUS case were allowed to sue in class
action in breach of the arbitration agreement.
Two of the four (dissenting) Justices92 (Abela and Karakatsanis) accused the
majority decision as being ‘the return of textualism’ which permitted the words of
Section 7(5) of the Arbitration Act to ‘dominate and extinguish the contextual policy
objections’ of the Act and the philosophy behind class actions, which in effect ‘has
the effect of forcing litigants to spend thousands of dollars to resolve a dispute worth
a fraction of that cost; denies others meaningful access to a remedy if they are not
prepared, or cannot afford to, engage in a cost-benefit losing proposition; and invites
the very proliferation of proceedings a class action was invented to avoid.’93 Lastly,
unlike in Canada and many other common law countries, there is no class action legal
framework in the European Union (as of the time of writing), unless a plaintiff can
find a way to obtain a power of attorney of all or a substantial number of the affected
class of consumers in a given case, which is indeed a Herculean, if not impossible
task.
4.5.2 Can a Consumer’s Waiver to Sue Be Tied

to ‘Consideration’ Which Disables the Engagement of
Douez?
Litigation reduces the joint wealth of parties to a contract. In jurisdictions where

each party bears their litigation costs, litigating from a trial court to the apex court
consumes both time and money resources. To avoid this, parties to a contract can
agree to waive their right to litigate in the event of a dispute. There is hardly any
legal system that does not generally recognize the waiver of rights, including that
of litigation.94 The question here is whether, in a consumer contract, a consumer
can agree to waive his right to sue, wherein the other party (a company) furnished
consideration for the waiver by offering a discount on the purchased good or service?
For instance, in an online platform, it could be indicated somewhere conspicuously,
92 For the dissenting opinion, ibid [106–172].

93 ibid [109].
94 Unless there is a statutory restriction; for example, Section 9-602 of the Uniform Commercial
Code in the United States. For a seminal treatment of consumer’s right or lack thereof to waive
certain rights, see Marion W Benfield Jr, ‘Consumer Provisions in Revised Article 9’ (1999) 74
Chi.-Kent L Rev 1255. 3.
92 W. C. Iheme
close to the ‘accept’ button or ‘payment’ button, that agreeing to waive the right to
sue in the event of a dispute would attract a particular percentage of discount from
the total price. Assuming a consumer agrees to this and checks the box of the waiver,
can he still sue in breach of the waiver agreement, and if so, can he be challenged
for willful breach and possession of unclean hands?95
In certain jurisdictions, it has been statutorily provided that a consumer in certain
kinds of transactions cannot waive their right to sue.96 If in breach of a statutory
provision, a consumer waives his right to sue, such waiver will be considered null
and void ab initio, and consequently unenforceable. From case law, and especially
in a consumer context, courts typically suspect litigation waiver agreements, and
do critically examine the equality of parties in order to determine if there was any
element of duress or coercion that necessitated the waiver. The equitable jurisdiction
of courts requires them not to be fooled by labels, but to pierce through to ascertain
the true substance of a situation. This means two things for our discourse. The first
is that if there is a statute or case law that expressly prohibits the waiver of rights
to sue, whereby such rights emanate from certain consumer transactions, then the
agreement of the waiver will be useless. And being in contravention of the statute,
the in pari delicto rule will be triggered to enable loss remain where it has fallen:
in this case, in the hands of the consumer. Second, if there is no specific statute or
case law that expressly prohibits the waiver of the right to sue in certain consumer
transactions, then courts exercising their equitable jurisdiction might strike down
the waiver agreement on the basis of unequal bargaining power, unconscionability,
public policy, lack of good conscience, and any other concept they can conjure to
strike down the waiver agreement, with the possibility to order the consumer to
return the sum it exchanged for the waiver.
In any case, where a company enters into a consumer contract and provides a liti-
gation waiver clause, and furnishes consideration by offering a sufficient discount,
for which the consumer accepts, such contract will logically not have a forum selec-
tion and applicable law clause. This means that in the event a consumer decides to
sue in breach of the waiver agreement, the law and forum will be determined by what
the default contract law is, which is usually the law with the most real connection
with the transaction, and the forum will be the place of acceptance or performance of
the contract. If in the circumstance, the place of performance is not the consumer’s
jurisdiction, but the consumer sues in his jurisdiction notwithstanding, can the corpo-
rate plaintiff succeed if he enters an appearance and pleads forum non convenience?
Assume further that both sue simultaneously in the jurisdictions where each is a
resident, which of the parties can succeed in the other’s court with the pleas of lis
95 This will depend on whether waiver of the right to sue is illegal by statute. If it is, then agreeing to
waive the right to sue in exchange for a reduced price might not be actionable against the consumer
because of the in pari delicto rule in most legal regimes which allows loss to remain where it
has fallen in the context of illegality. However, the consumer could be challenged on the basis of
unclean hands, and consequently disgorged. For a seminal discussion on this. See Gene G. Harter
and Lawrence B Ordower, ‘Rule 10b-5: The In Pari Delicto and Unclean Hands Defenses’ 58 Calif.
L Rev 1149 (1970).
96 US Uniform Commercial Code, S 9-602,.
pendes and forum non conveniens? It is difficult to truly boast of comprehensive

and accurate answers to these questions as the law on consumer protection vis-à-vis
forum selection and applicable law is still in its formative period compared to non-
consumer contracts. All this notwithstanding, it could be said with a fair degree of
certainty that the Douez decision cannot be easily bypassed by companies simply
by inserting litigation waiver clauses and providing consideration for the same to
consumers.
4.6 Conclusion: The Need to Reinforce the Protective

Measures Against Exploitation of (Financial)
Consumers
It is undeniable that most legal systems, in relation to commerce, developed more

favorably around trading merchants and corporations, who usually influence the
making of laws and policies in a system to their advantage—what is now called ‘regu-
latory capture.’ Since corporations produce goods and services to ultimately serve
consumers, it is important to protect the consumers from unfair and unconscionable
practices by corporations, by as much as possible, smoothening the rocky paths that
consumers have been made to walk on due to unfavorable laws, as analyzed above.
In view of the inadequate protective measures available to financial consumers, it is
recommended that the Douez decision should be embraced fully in both common
and civil law systems in relation to forum selection and class action, given the fact
that consumer transactions have increased in volume and frequently across borders
due to the advent of the Internet. Also, in appropriate cases, banks and other finan-
cial institutions should be disgorged of the dishonest profits made through the sale
of shrouded and deceptive products to consumers, and contrary to the privity rule
of contract, it should be possible for a consumer to institute a class action that will
benefit other consumers who suffered similar deceptions, and regulators and courts in
that regard should ensure that whatever sums that are paid out by banks and financial
institutions as damages should not be transferred indirectly to consumers or written
off in taxes.
Chapter 5
Sustainable Development Component
in Model BITs—A Comparative Analysis
Rubanya Nanda
Abstract This article analyses the sustainable development provisions in specific

Model Bilateral Investment Treaties (BITs). These BITs determine the rights and
obligations of foreign investors and the Host State. It has become essential to under-
stand the interface of sustainable development, international investment and the role
of investment agreements. This article endeavours to analyse the role of BITs in
pursuit of Sustainable Development Goals 2030. The main question posed therein
is what is the scope and impact of sustainable development provision in a BIT? A
comparative analysis of India’s Model BIT with the Model BIT of other countries
is discussed in this article. This comparison is done specifically in the context of
sustainable development principles.
5.1 Introduction
According to the United Nations, sustainable development is defined as ‘develop-

ment that meets the needs of the present without compromising the ability of future
generations to meet their own needs.’1 There are four interdisciplinary facets to
sustainable development—society, environment, culture and economy.2 The devel-
opment of these facets is very much essential for a secured present and future. Thus,
the pursuit of sustainable development becomes non-negotiable. Keeping this view
in mind, the United Nations (UN) spearheaded the Sustainable Development Goals
(SDGs) 2030.3 The SDGs are a clarion call to all the member states of the United
Nations to achieve the 17 goals by 2030. These goals are initiated to end poverty, the
1 ‘UNESCO and Sustainable Development Goals’ (UNESCO, 30 June 2020) <https://en.unesco.

org/themes/education-sustainable-development/what-is-esd/sd> accessed 30 June 2020.
2 ibid.
3 ‘The Sustainable Development Agenda’ ((United Nations, 30 June 2020)) <https://www.un.org/
sustainabledevelopment/development-agenda/> accessed 30 June 2020.
R. Nanda (B)
Jindal Global Law School, O.P. Jindal Global University, Sonipat, India
e-mail: rnanda@jgu.edu.in
96 R. Nanda
protection of the planet and the improvement of the lives and prospects of everyone,
everywhere.4 Thus, there is a need to pursue sustainable development even in the
context of international investment law.
In contemporary times, countries are striving to enhance sustainable development
via responsible trade and investments.5 This can be concluded by analysing the bilat-
eral investment treaties (BIT) between two States. These BITS specifically augment
the interface of international investment law and the goals of sustainable develop-
ment. India, being a growing economy, holds greater responsibility in recognising
the importance of the SDGs 2030. International Investment Law cannot be read
in isolation without the inclusion of development that encompasses all. The stakes
and interface in the international investment are high. For instance, before a foreign
investor invests in the Host State, it needs to conduct due diligence. Due diligence
includes conducting surveys, analysing the political scenario of the Host State and
determining the relevant domestic law. While investing in the Host State, the investor
needs to comply with the domestic environmental and labour laws. The investment
not only concerns the investor, but also the stakeholders like the local community,
environment, etc. Here, the role of the Bilateral Investment Treaty (BITs) comes into
place. The BITs define the rights and obligations of a foreign investor. The foreign
investors are also given protection under the BITs. Thus, the inclusion of provisions
pertaining to sustainable development and SDGs ensures that the investor and the
Host State duly protect the future of the stakeholders. The Model BITs also play an
important role in this regard. They are used as templates by the participating coun-
tries in a treaty negotiation. Inclusion of explicit SDGs related provisions in a Model
BIT open the scope of their negotiation by the parties. In a nutshell, the comparison
of the SDGs’ specific provision in BITs will help in identifying the effort taken by
UN member states. This identification of SDGs-related efforts is necessary for the
effective implementation of these goals in an international forum.
5.2 The Interpretation of Sustainable Development

by ISDS Tribunals
Over the years, the arbitral tribunals appointed under conventions like International
Centre for Settlement of Investment Disputes (ICSID) have predominantly inter-
preted the concept of sustainable development in investment. For instance, the ICSID
Tribunal in the Bear Creek case dealt with the importance of consulting with the local
community when dealing with foreign investments.6 The Tribunal agreed to the fact
4 ibid.
5 Nathalie Bernasconi et al., ‘Investment Treaties and Why They Matter to Sustainable Development:
Questions and Answers’ (IISD, 2011) < https://www.iisd.org/publications/investment-treaties-and-
why-they-matter-sustainable-development-questions-and-answers> accessed on 9 December 2020.
6 Bear Creek Mining Corporation v Republic of Perú ICSID Case No. ARB/14/21.
5 Sustainable Development Component in Model BITs ... 97
that Host States need to effectively consult with the local community to seek their
opinion before the initiation of investment. In the words of the Tribunal:
The State’s responsibility extends to ensuring that the affected communities are in fact
consulted by private companies and to supervising those consultative processes to make
sure that they are in place, are consistent with the legal minimum requirements set forth by
the State, and that they are implemented by the company.
Even though the concept of “social license” is not clearly defined in international law, all
relevant international instruments are clear that consultations with indigenous communities
are to be made with the purpose of obtaining consent from all the relevant communities.7
Thus, the issue of sustainable development has been recognised by the arbitral
tribunals as well. We are witnessing a greater number of challenges by the stake-
holders against the bad practices of foreign investors in this decade. The Host States
need to balance these interests to protect the environment of the host territory along
with attracting conducive foreign investments.
Similarly, in the case of Eiser v Spain, the Tribunal was faced with a question
concerning sustainable development and the Energy Charter Treaty (ECT).8 While
elaborating on the facts of the case, the tribunal also pointed out specific provisions
of the ECT:
The ECT’s emphasis on developing secure long-term energy cooperation is coupled with
provisions addressing the environmental aspects of energy development. Article 19(1) of the
ECT thus requires: In pursuit of sustainable development and taking into account its obliga-
tions under those international agreements concerning the environment to which it is party,
each Contracting Party shall strive to minimize in an economically efficient manner harmful
Environmental Impacts occurring either within or outside its Area from all operations within
the Energy Cycle in its Area, taking proper account of safety. In doing so each Contracting
Party shall act in a Cost-Effective manner. In its policies and actions each Contracting Party
shall strive to take precautionary measures to prevent or minimize environmental degradation.
The Contracting Parties agree that the polluter in the Areas of Contracting Parties, should,
in principle, bear the cost of pollution, including transboundary pollution, with due regard
to the public interest and without distorting Investment in the Energy Cycle or international
trade [...].9
Thus, the issue of sustainable development is not something alien in multilateral

treaties like ECT as well. Recently, the advent of Spanish Energy cases has led to
the analysing of fundamental aspects of international investment law.10 The need for
the protection of the environment for a sustainable and safe future of the Host State
has been argued in these cases. Similarly, in the case of Urbaser v Argentina,11 the
7 UN Sustainable Development Agenda (n 3).

8 Eiser Infrastructure Limited and Energia Solar Luxembourg S.À R.I. v Kingdom Of Spain ICSID
Case No. ARB/13/36.
9 Article 19(1): Environmental Aspects, The Energy Charter Treaty <https://www.energychartertr
eaty.org/provisions/part-iv-miscellaneous-provisions/article-19-environmental-aspects/> accessed
9 December 2020.
10 Like the concept of expropriation, Fair and Equitable Treatment, Legitimate expectation etc.
11 Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa (Claimants)
v The Argentine Republic (Respondent) ICSID Case No. ARB/07/26.

98 R. Nanda
Tribunal analysed the Human Rights counterclaim and held that it had the jurisdiction
to decide on the case. It was the first investment tribunal to entertain and acknowledge
counterclaim on a human rights issue.12 This decision enforces the fact that tribunals
deciding on investment disputes do consider the ethos of sustainable development.
This is an encouraging step taken by the arbitral tribunals.
5.3 India’s Model BIT—A Brief Background
The first draft of India’s Model BIT was introduced in 2015. It was introduced after
the conclusion of the White Industries case.13 Thus, it can be considered as a part of
the measures to curb investment disputes against India. Before analysing the specific
provision of the Model BIT of India, it is important to understand its backdrop.
This is intricately related to the White Industries award. White Industries was a
foreign investor (corporation) based in Australia. It entered an agreement with Coal
India (a Public Sector Undertaking under the Government of India). The agreement
pertained to the production of washed and processed coal. The BIT between India
and Australia was the relevant BIT in this case. Subsequently, disputes arose between
the Host State (since the activity of Coal India could be sufficiently attributed to the
government of India) and the investor. White Industries initiated an investor state
arbitration under the India–Australia BIT. The tribunal was constituted under the
International Chamber of Commerce (ICC). The award was granted in favour of
White Industries, but Coal India approached the Calcutta High Court to set aside the
award. The Calcutta High Court granted the relief to Coal India. White Industries
appealed to the Supreme Court of India against the decision of the Calcutta High Court
in the year 2004.14 Eventually, White Industries referred the matter to arbitration. It
cited inordinate delay by the Indian courts and violation of rights of investor in the
India–Australia BIT. The Tribunal held that:
…Tribunal has no difficulty in concluding the Indian judicial system’s inability to deal with
White’s jurisdictional claim in over nine years, and the Supreme Court’s inability to hear
White’s jurisdictional appeal for over five years amounts to undue delay and constitutes a
breach of India’s voluntarily assumed obligation of providing White with “effective means”
of asserting claims and enforcing rights.15
12 ‘10 Years Of Green Bonds: Creating The Blueprint For Sustainability Across Capital Markets’
(World Bank, 18 March 2019) <https://www.worldbank.org/en/news/immersive-story/2019/
03/18/10-years-of-green-bonds-creating-the-blueprint-for-sustainability-across-capital-markets>
accessed 29 June 2020.
13 ‘White Industries Australia Limited v. the Republic of India’ (Italaw.com, 30 November 2011)
<https://www.italaw.com/sites/default/files/case-documents/ita0906.pd> accessed 30 June 2020.

14 ‘Norway—Trade—European Commission’ (European Union, 2019) <https://ec.europa.eu/trade/
policy/countries-and-regions/countries/norway/> accessed 29 June 2020.

15 ibid.
Thus, the inordinate delay in giving out a judgment led to the violation of the
India–Australia BIT. The tribunal held that the borrowing of effective means provi-
sion from the India–Kuwait BIT by relying on Most Favoured Nation (MFN) provi-
sion in India–Australia BIT was valid.16 The White Industries case was used as
precedent by other foreign investors. Thus, several investor state proceedings were
initiated against India. The White Industries award acted as a wake-up call for the
Indian government. It led to several regulatory changes by India which subsequently
culminated in the introduction of Model BIT in 2016.17 This BIT came as a result
of a wake-up call by the Government of India. Being a capital importing country,
India’s approach to investment treaty arbitration is echoing that of other emerging
economies. For example, countries like Brazil have also taken a restrictive approach
in introducing investor-friendly Model BITs. This article would specifically deal with
the sustainable development aspect of the Model BIT of India. The concept of sustain-
able development is not restricted to one specific jurisdiction and is an overarching
principle. Thus, it becomes very important to compare and analyse the sustainable
development aspect of other Model BITs as well. The following discussion is an
effort to identify this aspect and compare it with India’s Model BIT.
5.4 Sustainable Development in Model BITs—European

Perspective
The member states of the European Union (EU) have adopted provisions related to
sustainable development. Recent Model BITs of the EU region have categorically
implemented specific provisions relating to sustainable development.
5.4.1 Nordic Countries
The Model BITs of the Nordic countries are refreshing in a world increasingly
threatened by climate change. For instance, Norway, which is a part of the European
Economic Area,18 has explicitly stated about sustainable development in its Model
BIT. The Model BIT was adopted in the year 2015 which was in sync with the
adoption of the SDGs 2030 Agenda.19 The preamble of the BIT talks about its inten-
tion to strengthen economic and investment relations via the objective of sustainable
16 Rubanya Nanda, ‘Exhaistion of Local Remedies in India: Is it a BIT too exhausting?’

[2020] 9 YAR 39. <https://www.yar.pt/edition-36> accessed 30 June 2020.
17 ibid.
18 ‘Norway—Trade—European Commission’ (n 14).
19 ‘Transforming Our World: The 2030 Agenda For Sustainable Development: Sustainable Devel-
opment Knowledge Platform’ (United Nations, 25 September, 2015) <https://sustainabledevelop

ment.un.org/post2015/transformingourworld> accessed 29 June 2020.
100 R. Nanda
development.20 It also recognises the need to promote sustainable investments.21

The Article 23 of the Norwegian Model BIT talks about the constitution of the Joint
Committee. One of the functions of the Joint Committee is to look into the effective
implementation of sustainable development goals:
Article 23(3)(viii) reads that the Joint Committee shall where relevant, discuss issues related
to corporate social responsibility, the preservation of the environment, public health and
safety, the goal of sustainable development, anticorruption, employment and human rights.22
This implies that Norway is committed to protecting the environment and the goal
of sustainable development in its pursuit to secure investments. This is a welcoming
effort as taken by a country. Furthermore, this effort and initiative become more
relevant at a time when the Arctic region is increasingly getting hotter.23 Thus, the
Norwegian Model BIT serves as a prominent template for other countries to adhere
to the SDGs. In addition to that, the Joint Committee under the Model BIT has been
given enough power and authority to oversee the implementation of the objectives as
stated in the preamble. This ensures that Norway is serious about its efforts to attract
foreign investments. It tries to balance its obligation as a Host State by ensuring
adequate protection to the environment. The balancing of investment protection
measures and environmental protection is the need of the hour. The Nordic countries
are also conscious about directing their investments in specific environment-based
activities. One example is the concept of Nordic green investments. It includes the
Nordic cooperation24 where the Nordic countries cooperate to form a green financing
system. These green financing systems include using the Nordic solutions (including
transfer of technology, policy measures, etc.) in the international sphere to build a
green economy.25 The Nordic model of investment essentially talks about the decen-
tralisation along with cooperation amongst the regions. The investors also invest in
20 ‘Agreement Between the Kingdom of Norway and_for the promotion and protection of invest-
ments’ (UNCTAD, 2015) (<https://investmentpolicy.unctad.org/international-investment-agreem
ents/treaty-files/3350/download> accessed 29 June 2020.
21 ibid.
22 ‘Green Financing—The Nordic Way’ (Nordic Council of Ministers, 24 August 2016) Norden
Diva Portal <https://norden.diva-portal.org/smash/get/diva2:955115/FULLTEXT02.pdf> accessed

29 June 2020.
23 ‘The Arctic Is On Fire: Siberian Heat Wave Alarms Scientists’ (NY Times 24 June 2020)
<https://www.nytimes.com/aponline/2020/06/24/world/europe/ap-eu-russia-arctic-heat-wave.
html> accessed 29 June 2020.
24 Norden Diva Portal (n 22).Nordic co-operation is one of the world’s most extensive forms
of regional collaboration, involving Denmark, Finland, Iceland, Norway, Sweden, and the Faroe
Islands, Greenland, and Åland.
25 ‘Green Economy’ (UNEP - UN Environment Programme, 2020) <https://www.unenvironment.
org/regions/asia-and-pacific/regional-initiatives/supporting-resource-efficiency/green-economy>
accessed 29 June 2020. A green economy is defined as low carbon, resource efficient and socially
inclusive. In a green economy, growth in employment and income are driven by public and private
investment into such economic activities, infrastructure and assets that allow reduced carbon
emissions and pollution, enhanced energy and resource efficiency, and prevention of the loss of
biodiversity and ecosystem services.
green bonds. These are the bonds specifically created to fund projects that contribute
directly to the environment and climate benefits.26 This ensures that the demands of
investors seeking climate-related opportunities are met. The green bond further acts
as a catalyst for the participation of industries in sustainability-based projects. This
increases the factor of transparency and helps the investors in effectively figuring
out the targets and diversification of risks.27 This provides a win–win situation to
the investors as green investments facilitate financial and environmental benefits
for them.28 This is an impactful initiative as it gives some hope for a better future
to our coming generations as well as generates capital. The Nordic Model was a
trendsetter for impact reporting as well.29 The World Bank in particular has taken
numerous steps to ensure that these green bonds receive a substantial amount of
recognition and usage. These green bonds have further encouraged the basis for
the Green bond principle. This is coordinated by the International Capital Markets
Association30 (ICMA). This in turn helped in increasing the factor of transparency
as well. The World Bank managed to generate the first Green Bond Impact Report31
which clearly enunciates the actual contribution of these bonds. It is now regarded
as a market standard and a model for impact reporting.32
5.4.2 The Model Investment Agreement of the Netherlands
The Model Investment Agreement of the Netherlands was released in the year 2019.
It is called the ‘Agreement on Reciprocal Promotion and the Protection of Invest-
ments’. The preamble of the BIT itself mentions the term sustainable development. It
26 ‘Explaining Green Bonds’ (Climate Bonds Initiative, 2020)< https://www.climatebonds.net/mar

ket/explaining-green-bonds >accessed 29 June 2020.
27 World Bank, ‘Green Bond Impact Report 2019’(World Bank, November 2019) <http://pub
docs.worldbank.org/en/790081576615720375/IBRD-Green-Bond-Impact-Report-FY-2019.pdf>
28 The World Bank, ‘10 Years of Green Bonds: Creating the Blueprint for Sustainability Across
Capital Markets’ (World Bank, 28 March 2019) <https://www.worldbank.org/en/news/immersive-

story/2019/03/18/10-years-of-green-bonds-creating-the-blueprint-for-sustainability-across-cap
ital-market> accessed 30 December 2020.
29 ‘Green Bonds’ (World Bank, 2020) <http://treasury.worldbank.org/en/about/unit/treasury/ibrd/
ibrd-green-bonds> accessed 29 June 2020. A key Nordic contribution to the development of the
green bond market is the publication of The Position Paper on Green Bond Impact Reporting,
developed and to be implemented by municipalities and financial institutions across the region. Not
only is the scale of cooperation impressive, but also the speed of putting together the guidance,
suggesting a high degree of alignment of views around climate topics.
30 ibid.
31 At the end of the fiscal year 2018, there were 91 eligible projects and a total of US$15.4 billion in
commitments. Of these commitments, US$8.5 billion in Green Bond proceeds were allocated and
disbursed to support projects in 28 countries and another US$6.8 billion had yet to be disbursed.
32 ibid.
102 R. Nanda
explicitly talks about the contribution of international trade and investment to sustain-
able development.33 This indicates that the Netherlands strives for the coexistence
of international investment and sustainable development. Article 3 of the agreement
talks about the favourable conditions for investments. It states that:
The Contracting Parties strive to strengthen the promotion and facilitation of invest-
ments that contribute to sustainable development, including but not limited through regular
consultations between investment promotion and facilitation agencies and the exchange of
information regarding investment opportunities.34
This provision indicates that promotion and facilitation of investments need to be

given due importance. It also talks about the regular consultations between agencies
for the exchange of information. The phrase ‘exchange of information’ indicates
the efforts of the contracting parties to improve transparency. This is a positive
development towards the effort to strive for SDGs. One pertinent point that needs to
be noted is that the pursuit of SDGs in investment leads to increased transparency
in the process of investing. This is a positive development since most of the foreign-
based investments in a host country tend to be opaque. The costs and the stakes
involved are mostly not discussed. Thus, the inclusion of sustainable development
factors in investment leads to an added level of transparency. This is possible since
the matter of sustainable development does not merely include the contracting parties
but also the public, stakeholders and impact at an international level.
5.4.2.1 A Separate Section on Sustainable Development
The model Investment Agreement of the Netherlands contains a specific chapter

pertaining to sustainable development. Article 6 of the Agreement talks about
sustainable development. It starts with the premise.
The Contracting Parties are committed to promote the development of international
investment in such a way as to contribute to the objective of sustainable development.35
This provision is self-explanatory and adheres to the objectives stated in the preamble
of the Agreement. This furthermore elucidates the importance of following the SDGs
by the contracting parties.
Further, Article 6 (4) states that:
The Contracting Parties recognize that it is inappropriate to lower the levels of protection
afforded by domestic environmental or labour laws in order to encourage investment.36
33 ‘Netherlands model Investment Agreement’ (Investment Policy Hub, 22 March 2019) <https://
investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5832/download>
34 ‘Green Bonds’ (n 29).
35 ‘Agreement between the Belgium- Luxembourg Economic Union and _ on the Reciprocal promo-
tion and protection of investments’ (Investment Policy, 2019) < https://investmentpolicy.unctad.org/

international-investment-agreements/treaty-files/5854/download> accessed 29 June 2020.
36 ibid.
This clause indicates that the contracting party cannot reduce the levels of protec-
tion as under the environmental or domestic labour laws. This ensures that there is
a protection of the environment and labour laws. This bars the Host State to give
preferential treatments to the investors. The Host State cannot compromise on the
implementation of environmental protection law merely to attract investments.
Furthermore, Article 6 (7) sums up the objective of Article 6 as a whole:
The Contracting Parties are committed to cooperate as appropriate on investment related
sustainable development matters of mutual interest in multilateral for a.
This indicates that the contracting parties are expected to commit to cooperate on
matters relating to sustainable development-related investments. The usage of ‘multi-
lateral fora’ indicates that contracting parties need to strive for serious engagement
of discussion in this matter at an international level. Thus, we can see that the model
agreement of the Netherlands creates a suitable environment for foreign investments
but through the prism of sustainable development. This is a major step forward in
the efforts taken for the protection of public health, environment and intergenera-
tional equity as a whole. This model investment agreement can serve as a template
for the developing nations to revamp their BIT provisions and include sustainable
development goals.
5.4.3 Model Bilateral Investment Agreement

of the Belgium–Luxembourg Economic Union
Apart from the preamble in general, the SDGs are specifically mentioned in Article 1
of the BIT which came into existence in 2019. This article talks about the achievement
of SDGs.
Nothing in this Agreement shall in any way be construed as limiting the right of the
Contracting Parties to adopt, maintain and enforce measures to pursue legitimate policy
objectives such as amongst others the protection of public health, environment and public
morals; the promotion of security and safety; the achievement of the sustainable develop-
ment goals; social or consumer protection; the protection of labour standards; the integrity
and stability of the financial system or the promotion and protection of cultural diversity.37
Furthermore, one unique feature of this BIT is the inclusion of a separate chapter
titled Investment and Sustainable Development. This chapter further constitutes
different articles that talk about the elements of SDGs. This includes protection
of the environment and standards of labour by the parties, conducting dialogues on
these issues with the civil society, recognition of the United Nations Framework
Convention on Climate Change (UNFCC), etc. In addition to that, it has a separate
Article (18) that talks about corporate social responsibility specifically:
37 ibid.
104 R. Nanda
Investors of one Contracting Party in the Territory of the other Contracting Party shall
abide by its national laws, regulations, administrative guidelines and policies and act in
accordance with internationally accepted standards applicable to foreign investors to which
the Contracting Parties are a party. Investors and their investments should strive to make the
maximum feasible contributions to the sustainable development of the Host State and local
community through socially responsible practices.38
This article can be analysed in two parts. The first part talks about the obligation of
an investor while investing in the territory of the Host State. It specifically mentions
that these obligations need to be done according to international standards. The
‘international standards’ are used in a general manner. Thus, it could be said to
encompass the essential principles of public international law as well. This ensures
that the investors follow the principles as set in the domestic law of the Host State as
well as the generally accepted principles of international law. This ensures that the
investors adhere to the domestic laws with respect to the protection of the environment
and the labour force. The second part talks about the adoption of socially responsible
practices by investors. These practices should be adopted to ensure that there is
sufficient contribution to the sustainable development of the Host State and the local
community is also benefitted. The inclusion of the role of the local community is a
significant development as it indicates that the investor has an obligation to ensure the
well-being of the local community. By looking at the aforementioned examples, we
can understand the efforts taken by various European regions to strive for investment
via SDGs. These BITs can serve as a beacon for the developing countries whose
investment regime is at a nascent stage. The protection of human rights, environment
and labour is the urgent need of the hour. As explained earlier, the inclusion of
the SDG provisions and elaboration on them make the investment process very
transparent. Hence, it is beneficial for both the parties to a BIT to categorically
negotiate, analyse and include the SDGs provisions.
5.5 India Taking Lessons from the European Perspective?

A Comparative Analysis
The preamble of the Model BIT of India talks about the concept of sustainable
development. It promotes bilateral cooperation between the parties with respect to
foreign investments.39 It specifically states that:
Recognizing that the promotion and the protection of investments of investors of one Party
in the territory of the other Party will be conducive to the stimulation of mutually beneficial
business activity, to the development of economic cooperation between them and to the
promotion of sustainable development.40
38 ibid.
39 Department of Economic Affairs, Government of India, ‘Model Text for the Indian Bilateral
Investment Treaty’ (Department of Economic Affairs of India, 2015) <https://dea.gov.in/sites/def
ault/files/ModelBIT_Annex_0.pdf> accessed 20 December 2019.
40 ibid.
From the primary reading of this part, one can understand the intention of the
Model BIT. Apart from talking about the promotion and protection of foreign invest-
ments, it states about the promotion of sustainable development. Being a developing
country, this initiative to identify and understand the ethos of sustainable develop-
ment is important for India. This is more pertinent considering the past incidents
dealing with foreign investments and damage to the environment. For instance, in
the Bhopal Gas Tragedy that occurred in 1984, around 45 tonnes of the dangerous
methyl isocyanate gas escaped from an insecticide plant.41
This gas leaked from an Indian subsidiary of Union Carbide, an American corpo-
ration. The deadly gas affected thousands of lives and the majority of the affected
population is still reeling under its impact. This incident led to multiple litigations
against Union Carbide but it did not bring effective justice to the millions affected by
the leak. Subsequently, Union Carbide became the subsidiary of Dow Chemicals in
2001.42 Incidents like the Bhopal Gas Tragedy remind us about the difficulties faced
by the developing economies while pursuing SDGs. A similar incident occurred
in March 2020, wherein, gas leaking from LG Polymers, a subsidiary of the South
Korean company LG, killed ten people, and more than a thousand people were
affected in Vishakhapatnam. This incident happened in the backdrop of the ongoing
COVID-19 pandemic-related crisis. The issue of the gas leak remains majorly unad-
dressed. Thus, we can see that even in recent times, there are obstacles in the pursuit
of sustainable development goals in India. The inclusion of the term ‘sustainable
development’ is still a positive change implemented by India with respect to invest-
ment. But there is still a major effort that needs to be taken by India to attract foreign
investments, especially when there are several companies which are willing to invest
in the environmental safety of India. The Bhopal Gas Tragedy and the LG Polymers
incident have set a bad precedent. Nevertheless, they have also shown us the dark
side of investment without the inclusion of sustainable development. Thus, India
needs to effectively strengthen its foreign investment and sustainable development
provisions.
Model BITs need to have specific provisions related to sustainable development
and the environment. Being a capital importing country, India has a greater role and
responsibility to balance its role as a Host State. But at the same time, it must give
certain basic and non-negotiable protection to the foreign investors as well. This
makes the role of a Model BIT even more crucial. Thereby, India must take into
account multiple factors like public health, safety and environmental impact in the
prism of SDGs. Now, reverting to the discussion of green bonds, India has steadily
become the second largest market for green bond investment.43 These bonds were
41 The editors of Encyclopaedia Britannica, ‘Bhopal disaster industrial accident, Bhopal, India
1984’ (Britannica Encyclopaedia, May 7 2020) <https://www.britannica.com/event/Bhopal-dis
aster> accessed 30 June 2020.
42 ibid.
43 ‘India Becomes Second-Largest Market For Green Bonds With $10.3 Billion Transactions’ (ET
Energy world, 3 February 2020) <https://energy.economictimes.indiatimes.com/news/renewable/

india-becomes-second-largest-market-for-green-bonds-with-10-3-billion-transactions/73898149>
accessed 30 June 2020. India has become the second-largest market globally for green bonds with
106 R. Nanda
essentially issued as debt securities where the proceeds were used to finance green
projects. This is a remarkable step taken by India in its effort to adhere to the concept
of sustainable development. The approach taken by the Nordic countries has proven
to be a successful method. India is thus taking a step in the right direction. India has
also joined ‘the International Platform on Sustainable Finance (IPSF)’ in October
2019. The IPSF acknowledges the global nature of financial markets which can help
finance the transition to a green, low carbon and climate-resilient economy by linking
financing needs to the global sources of funding.44
India is positively progressing towards achieving the goals of sustainable devel-
opment. In the context of the Model BIT, the inclusion of a provision that talks
about the investment in green bonds would be a great leap in the right direction.
The rationale, effect and impact of such inclusion can also be included in the Model
BIT. Similarly, the Indian Model BIT does not have a specific elaboration on the
aspect of the implementation of SDGs. As compared to the Netherlands and Luxem-
bourg–Belgium Model BITs, India’s Model BIT lacks clarity in this aspect. India
can also implement the aspect of ‘contribution to the community’ and ‘contribution
to sustainable development’ as a part of the direct obligation of foreign investors.
Apart from attracting investments, the achievement of sustainable investment could
be a major emphasis of India’s Model BIT. This emphasis can be recognised in the
main text of the Model BIT. As explained before, this inclusion will also lead to
increased transparency in the investment process in India.
5.6 Conclusion
International investment is an important aspect for the development of a Host State,

so is sustainable development. Both investment and sustainable development cannot
be achieved in isolation. The role of a BIT thus comes into play over here. A well-
negotiated and balanced BIT ensures the protection of the stakeholders in the Host
State as well as the investor. Including specific provisions pertaining to the protection
of sustainable development gives legal protection to the stakeholders. After all, the
well-being of its people is one of the primary duties of a Host State. Even under the
general international law, adequate protection has been given to the environment and
the stakeholders. Investing in sustainable development (by both foreign investors
and State) ensures investment in the future. India needs to enforce the principles
as encompassed in the sustainable development goals more specifically and rigidly.
After all, India cannot afford to witness another disaster like the Bhopal Gas Tragedy.
It is essential to understand the cause-effect benefits of attracting foreign investment
and looking into the welfare of the stakeholders in those investments. Thus, it needs
$10.3 billion worth of transactions in the first half of 2019, as issuers and investors continued to
adopt policies and strategies linked to sustainable development goals, according to the Economic
Survey 2019–20.
44 ibid.
to proceed with abundant caution by looking into the long-term environmental and
community impact before negotiating and ratifying a BIT. Understanding the nuances
of international investment law through the lens of sustainable development is the
need of the hour. This ensures that there is a humanising aspect to foreign investments
in a Host State.
Part III
Public Law: Constitutional Law
Chapter 6
Proportionality—A Balancing Act
for Achieving Constitutional Rights:
A Comparative Study
A. K. Sikri
Abstract This article discusses the principle of proportionality in constitutional law.

It engages with the academic and legal developments through a comparative study
across jurisdictions and scholarship to assess the development of the proportionality
principle. It emphasizes that ‘democracy’ and ‘rule of law’, as core constitutional
guiding principles, warrant a ‘balancing act’—‘proportionality’ by judiciary to appre-
ciate the ‘constructive tension’ between constitutional rights and their limitations in
adjudicating critical constitutional questions as both constitutional rights and their
limitations are to coexist harmoniously with each other for ‘democracy’ and ‘rule of
law’ to be sustained.
6.1 Introduction
Proportionality has different meanings in various contexts. Simply put, it signifies

that the consequences of an act should be proportionate to the forbidden act. In that
sense, it is aimed at achieving a balance between an act and its impact. The focus of
this study is on the adoption of proportionality doctrine to enforce the fundamental
and constitutional rights in a meaningful manner by ensuring that restrictions on
such rights are not too invasive to take away the fulcrum of such rights. In that sense,
proportionality principles try to achieve a delicate balance between the rights and the
limitations. In what manner it is achieved by applying the proportionality test is a
subject matter of detailed discussion. However, to understand the concept of propor-
tionality, the author has traced its historical evolution in the justice system. A doctrine
that originated in the field of criminal law and that too in the sentencing/punishment
process thereof found its way into the realm of administrative law over the passage of
time. However, its application in criminal law ensured that the penalties are propor-
tionate to the seriousness of the offence and not unduly excessive. In the administra-
tive law field, the doctrine has been applied to ensure check on the use of excessive
A. K. Sikri (B)
Singapore International Commercial Court, Supreme Court Lane, Singapore
Supreme Court of India, New Delhi, India
112 A. K. Sikri
executive power to curtail government intrusion where it excessively infringes on the

individual rights and autonomy. Since a brief recount of this origin and development
of proportionality doctrine is necessary to understand its migration into the consti-
tutional setup, while undertaking the judicial review of legislative acts, the author
decided to discuss in brief these aspects. Thereafter, a journey of the present study
takes the readers to its main theme. In the process, the author discusses the develop-
ment of this doctrine in various jurisdictions and contrasts the way proportionality as
doctrine is applied. The discussion, thereafter, proceeds to narrate the way this prin-
ciple is imbibed in the decision-making process by the Indian courts. However, the
basic objective of application of the principle of proportionality remains the same,
viz., to ensure the least invasion into the constitutional and fundamental rights by the
state. The hypothesis of the study is that by far the tests developed for the application
of the proportionality principle have been found to be most effective. It is hoped that
the readers will find that this hypothesis is adequately demonstrative.
6.2 Roots of Proportionality
Historically, the proportionality principles were initially used in retributive theo-

ries of criminal punishment, which propose that penalties vary in relation to the
culpability of an offence of the offender. Even while discussing non-retributive theo-
ries of punishment, commonly referred to as utilitarian theories, the requirement
that penalties be proportionate to the seriousness of offence assumes significance,
though it is applied differently. Here it is measured by the social harm caused or
risked by the crime. In this sense, the concept/doctrine of proportionality is used as
a criterion of fairness and justice in statutory interpretation processes as a logical
method intended to assist in discerning the correct balance between the restrictions
imposed by a corrective measure and the severity of the nature of the prohibited act.
Within criminal law, it is used to convey the idea that the punishment of an offender
should fit the crime. In other words, it is a fundamental principle of criminal jurispru-
dence that the punishment imposed should not be disproportionate to the gravity of
the offence proved. This principle of proportionality in criminal jurisprudence has
universal acceptance and is applied in all jurisdictions, both in civil law and common
law systems.1
The courts generally have extensively referred to the principles of proportionality,
deterrence and rehabilitation while exercising discretion in sentencing and have time
and again emphasized that the prime objective of criminal law is the imposition of
adequate, just and proportionate punishment which is commensurate with gravity,
nature of the crime and the manner in which the offence is committed.
1In Indian context, see the judgments of Supreme Court in Santa Singh v State of Punjab (1976) 4
SCC 190; Soman v Kerala (2013) 11 SCC 382; State of MP v Bablu Natt (2009) 2 SCC 272; Alister
Anthony Pareira v State of Maharashtra (2012) 2 SCC 648; Hazra Singh v Raj Kumar (2013) 9
SCC 516 and Devender Pal Singh v State (NCT of Delhi) (2002) 5 SCC 234.
6 Proportionality—A Balancing Act for Achieving Constitutional ... 113
6.2.1 Proportionality: Transition into Administrative Law
Over the passage of time, the principle of proportionality found its way into the
realm of administrative law and was applied by the courts while undertaking a judi-
cial review of executive action. The genesis thereof can be traced to the rapid growth
of administrative law in the last century. It is because of the reason that philosophy as
to the role and function of the State has undergone a radical change. The governmental
functions have multiplied tremendously. In a country like India where the Consti-
tution has given the status of a ‘welfare’ state and not merely a police state which
exercises sovereign functions, the administration is supposed to undertake various
tasks which may include social security and social welfare, regulation of industrial
relations, control over the manufacture and distribution of essential commodities,
education to children, etc. As Wade and Forsyth put it, the modern State takes care
of its citizens from ‘cradle to grave’.2 Whereas this calls for giving wide powers to
the Executive so that these functions are carried out smoothly, it also necessitates
controlling the exercise of these wide powers to ensure that they are not misused, and
the ‘Rule of Law’ prevails. Here comes the administrative law, i.e. the law relating
to the administration. It lays down the manner in which the administration exercises
the aforesaid and other functions.
As State functionaries find themselves more heavily involved in new areas of
public life and as citizens are being further integrated into the polity, the tensions
between the need for administrative and penal regulation, the advancement of social
welfare, and individual autonomy become increasingly visible.
According to Griffith and Street,3 the main object of administrative law is the
operation and control of administrative authorities. It must deal with three aspects:
(1) What sort of power does the administration exercise?
(2) What are the limits of those powers?
(3) What are the ways in which the administration is kept within those limits?
The Indian Law Institute, in its research has discussed the following two aspects
which must be added to have a complete idea of present-day administrative law4 :
(4) What are the procedures followed by the administrative authorities?
(5) What are the remedies available to a person affected by the administration?
In our constitutional scheme, courts have the power of judicial review over admin-
istrative actions. It means a court can adjudge the legality and correctness of a partic-
ular action taken by the executive authority. This exercise is carried out with the
application of various principles on which judicial review can be undertaken and
these principles are developed by the courts over a period of time.5
2 William Wade & Frederick Forsyth, Administrative Law (11th ed, OUP 2014) 4.
3 JAG Griffith, Principles of Administrative Law (4th ed, Pittman, 1967) 3.
4 MP Jain, Cases and Materials on Administrative Law in India Vol 1(Indian Law Institute 1966)
53.
5 Main grounds on which the administrative action can be set aside are:
114 A. K. Sikri
Judicial review of administrative actions, even in common law, was started by

applying the principle of ‘reasonableness’ which came to be popularly known
as Wednesbury’s unreasonable test propounded in Associated Provincial Picture
Houses Ltd. v Wednesbury Corporation.6 Most of the grounds on which an admin-
istrative action can be set aside have been judicially involved around that principle.
In case any of these grounds is made out, the administrative action can be declared
illegal. However, there may be situations where the action per se may not be faulted
with, but the blow inflicted on the basis of said action may be too harsh. Courts have
frowned upon such harsh outcomes as well.
True to their traditional role of upholding the rule of law and recognizing the
vulnerability of the individual faced with coercive state power, courts have devel-
oped a variety of mechanisms to curtail government intrusion where it excessively
impinges on individual rights and autonomy. Courts have also ruled on whether
governmental action unduly invades the powers of another branch or level of govern-
ment or whether an individual action invades the rights of other citizens. These issues
have in common the need for courts to determine when a challenged action is exces-
sive. Thus, when a particular administrative or governmental action is challenged
as too invasive, the Court applies the principle of proportionality and examines the
issue by adopting the test as to whether the challenged action is disproportionate.
Here again, legal and philosophical proportionality principles are developed and
adopted almost in all democratically governed legal systems, where judicial review
of administrative action is embodied. The purpose is to ensure safeguarding citizens
from excessive government measures to prevent clear cases of disproportionality.
Lord Diplock encapsulated three fundamental grounds on which an administrative
action can be voided, viz., hinted in the year 19847 about the possible adoption of the
principle of proportionality in the future. Thereafter, it came to be widely accepted
(1) Failure to exercise discretion.

(a) Sub-delegation.
(b) Imposing fetters on discretion.
(c) Acting under dictation.
(d) Non-application of mind.
(e) Power coupled with duty.
(2) Excess or abuse of discretion.
(a) Acting without jurisdiction.
(b) Exceeding jurisdiction.
(c) Arbitrary considerations.
(d) Irrelevant considerations.
(e) Leaving out relevant considerations.
(f) Mixed considerations.
(g) Collateral purpose: Improper object.
(h) Colourable exercise of power.
(i) Non-observance of natural justice.
6 [1948] 1KB 223.

7 Council of Civil Service Unions Case (1984) 3 All ER 935.
in the legal systems of Western countries and even in international and European
regional law. Indian courts not only accepted the tests of judicial review as stated
by Lord Diplock but also started recognizing the doctrine of proportionality. Lord
Diplock had mentioned three grounds on which judicial review of administrative
action can be undertaken, viz., illegality, irrationality and procedural impropriety.
These principles have been widely accepted and adopted by courts in India. However,
along therewith Wednesbury principle of ‘reasonableness’ was also used at times.
Interplay of these principles with that of proportionality took interesting shape in the
beginning. In Tata Cellular v Union of India8 the Court observed that in addition
to the principles of illegality, irrationality and procedural impropriety, the doctrine
of proportionality is the fourth principle on the application of which judicial review
exercise can be undertaken. In Union of India v G. Ganayutham,9 where judicial
review of administrative action pertaining to withholding of pension and gratuity of
government employee came up for consideration, the Supreme Court of India, while
stating that ‘reasonableness’ and ‘rationality’ are the grounds for judicial review, prin-
ciples of proportionality can also be invoked where the court is examining whether
the restrictions on fundamental freedoms imposed by a statute are within the consti-
tutional limits. In the process, the Court stated the position regarding proportionality
in administrative law in England and India in the following words.
The question arises whether our courts while dealing with executive or administrative action
or discretion exercised under statutory powers where fundamental freedoms are involved
could apply ‘proportionality’ and take up a primary role. In England it has been accepted
that the English Court could apply ‘proportionality’ if the Convention were incorporated
into English law. But, so far as our courts are concerned, we do not propose to decide the
question in the present case inasmuch as it is not contended before us that any fundamental
freedom is affected. As and when an executive act or administrative action taken in excess
of statutory powers, is alleged to offend fundamental freedoms, it will then be for this Court
to decide whether the principle of proportionality applies in administrative law sphere in our
country and whether the courts will take up a primary role. Whether the primary role will
be confined to Articles 19, 21 etc. and not to Article 14 will also have to be decided….
…it has been, of course, laid down that at the moment, in the absence of the Convention and
proportionality, English courts will apply a ‘strict scrutiny’ test to the administrative action
rather than the Wednesbury and CCSU tests, whenever liberty and freedom of expression etc.,
which are treated as part of common law are involved. The courts would consider whether
the restrictions imposed by the administrator are necessary for protecting some ‘competing
public interest’. This would no doubt amount to lowering the ‘threshold of Wednesbury’.
We may also state that even if the courts in England by virtue of incorporation of the
Convention should become the primary judges of the validity of administrative decisions,
still they would exercise great judicial restraint in matters concerning governmental policies,
national security or taxation, finance and economy of the country and similar such matters of
grave public policy. This restraint on the part of the judiciary is described in administrative
law as giving a greater margin of appreciation to the administrator in certain areas.
The Court also goes on to discuss the current position on proportionality in

England and India. It noted that:
8 (1994) 6 SCC651.
9 (1997) 7 SCC 463.
116 A. K. Sikri
To judge the validity of any administrative order or statutory discretion, normally the Wednes-
bury test is to be applied to find out if the decision was illegal or suffered from procedural
improprieties or was one which no sensible decision-maker could, on the material before
him and within the framework of the law, have arrived at. The court would consider whether
relevant matters had not been taken into account or whether irrelevant matters had been taken
into account or whether the action was not bona fide. The court would also consider whether
the decision was absurd or perverse. The court would not however go into the correctness
of the choice made by the administrator amongst the various alternatives open to him. Nor
could the court substitute its decision to that of the administrator. This is the Wednesbury
[(1948) 1 KB 223 : (1947) 2 All ER 680] test.
The court would not interfere with the administrator’s decision unless it was illegal or suffered
from procedural impropriety or was irrational—in the sense that it was in outrageous defiance
of logic or moral standards. The possibility of other tests, including proportionality being
brought into English administrative law in future is not ruled out.
…..as long as the Convention is not incorporated into English law, the English courts merely
exercise a secondary judgment to find out if the decision-maker could have, on the material
before him, arrived at the primary judgment in the manner he has done.
If the Convention is incorporated in England making available the principle of proportion-
ality, then the English courts will render primary judgment on the validity of the adminis-
trative action and find out if the restriction is disproportionate or excessive or is not based
upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
The position in our country, in administrative law, where no fundamental freedoms as afore-
said are involved, is that the courts/tribunals will only play a secondary role while the primary
judgment as to reasonableness will remain with the executive or administrative authority.
The secondary judgment of the court is to be based on Wednesbury and CCSU principles as
stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative
authority has reasonably arrived at his decision as the primary authority.
Whether in the case of administrative or executive action affecting fundamental freedoms,
the courts in our country will apply the principle of ‘proportionality’ and assume a primary
role, is left open, to be decided in an appropriate case where such action is alleged to offend
fundamental freedoms. It will be then necessary to decide whether the courts will have a
primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article
14.10
Though the principle of proportionality was lucidly explained, the Court, however,
while deciding the case, left open the question as to whether the principle of propor-
tionality could be applied to administrative or executive actions affecting fundamental
freedoms and if it applies, whether the courts would perform a primary or secondary
role. On the other hand, in State of M. P. v Hazarilal,11 the Supreme Court went
on to observe that doctrine of unreasonableness has given way to the doctrine of
proportionality. This was echoed in Mani Shankar v Union of India,12 viz., Wednes-
bury’s principle was replaced by proportionality principle. In Maharashtra Land
Development Corporation v State of Maharashtra, the Court again traced propor-
tionality doctrine to Wednesbury’s principle of unreasonableness. After observing
that Wednesbury’s principle of reasonableness has given way to the doctrine of
proportionality and referring to the opinion of Lord Diplock in the Council of Civil
10 ibid.
11 (2008) 3 SCC 273.
12 (2008) 3 SCC 484.
Services Unions in this behalf, the Court explained the principle of proportionality
in the following words:
The principle of proportionality envisages that a public authority ought to maintain a sense of
proportion between particular goals and the means employed to achieve those goals, so that
administrative action impinges on the individual rights to the minimum extent to preserve
public interest. Thus implying that administrative action ought to bear a reasonable rela-
tionship to the general purpose for which the power has been conferred. The principle of
proportionality therefore implies that the court has to necessarily go into the advantages and
disadvantages of any administrative action called into question. Unless the impugned admin-
istrative action is advantageous and in public interest such an action cannot be upheld. At the
core of this principle is the scrutiny of the administrative action to examine whether the power
conferred is exercised in proportion to the purpose for which it has been conferred. Thus,
any administrative authority while exercising a discretionary power will have to necessarily
establish that its decision is balanced and in proportion to the object of the power conferred.13
It would be of interest to note that in subsequent passages, the Court took note
of those judgments which dealt with the penalty imposed on a public servant for
his misconduct which may be disproportionate to the gravity of the misconduct (i.e.
in-service law) to buttress a statement that this principle of proportionality has found
favour in recent times with the Court and deduced the following text:
The test of proportionality is therefore concerned with the way in which the decision-maker
has ordered his priorities, i.e. the attribution of relative importance to the factors in the case.
Thus, it is not so much the correctness of the decision that is called into question, but the
method to reach the same. In this context, we are to see if the decision of the respondent
State in considering the disputed property to be automatically vested with the Government
is commensurate with public interests, in a way that affects individual rights in a minimal
way.
It may be mentioned that a few years earlier, in Coimbatore District Central Coop
Bank v Employees Assn, the Supreme Court had explained and applied the doctrine
of proportionality in the following manner:
So far as the doctrine of proportionality is concerned, there is no gainsaying that the said
doctrine has not only arrived in our legal system but has come to stay. With the rapid growth
of administrative law and the need and necessity to control possible abuse of discretionary
powers by various administrative authorities, certain principles have been evolved by courts.
If an action taken by any authority is contrary to law, improper, irrational or otherwise unrea-
sonable, a court of law can interfere with such action by exercising power of judicial review.
One of such modes of exercising power, known to law is the ‘doctrine of proportionality’.
‘Proportionality’ is a principle where the court is concerned with the process, method or
manner in which the decision-maker has ordered his priorities, reached a conclusion or
arrived at a decision. The very essence of decision-making consists in the attribution of
relative importance to the factors and considerations in the case. The doctrine of propor-
tionality thus steps in focus true nature of exercise—the elaboration of a rule of permissible
priorities……
The doctrine has its genesis in the field of administrative law. The Government and its depart-
ments, in administering the affairs of the country, are expected to honour their statements
of policy or intention and treat the citizens with full personal consideration without abuse
13 (2011) 15 SCC 616.

118 A. K. Sikri
of discretion. There can be no ‘pick and choose’, selective applicability of the government
norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a ‘sledge-
hammer to crack a nut’. As has been said many a time; ‘where paring knife suffices, battle
axe is precluded’.14
One significant feature which is discernible from the aforesaid developments in

judicial dicta was that in examining the validity of the actions of the executive, the
courts had started applying the rules of permissible priorities as a facet of the doctrine
of proportionality. In due course, this became an important and necessary tool while
for adjudging the validity of the enactments passed by the legislature by imposing
restriction on the constitutional rights. The journey thereof, which is the main theme
of this essay, is chartered hereinafter.
6.2.2 Transition of Proportionality Doctrine

from Administrative Law to Court Law
As can be seen, up to this stage, the doctrine of proportionality came to be applied

in India, primarily in the field of administrative law. Moreover, inspiration for this
principle in the administrative law field was drawn from Eynesbury’s rule of reason-
ableness. In any case, till that time, the norms on which proportionality test needed
to be applied had not been clearly laid down. On the other hand, by that time, this
doctrine in the constitutional field had been fully developed in Germany, where the
doctrine of proportionality was invoked to test the constitutional validity of a statute.
German Constitutional Court, in the process also laid down the norms/tests which
need to be applied while invoking the principle of proportionality and demonstrated
that this was the best principle for adjudging the constitutional validity of legislation.
The doctrine of proportionality found its jurisprudential acceptance in some other
jurisdiction, including the Canadian Supreme Court. However, there is a significant
difference in approach on the application of this principle. Though the test on which
the principle of proportionality is to be applied in adjudging the validity of a statute is
almost the same, it is the manner of its application where the two approaches differ.
Before adverting to these approaches, let me state the contours of the doctrine of
proportionality to be applied while undertaking such an exercise in the constitutional
arena.
It is now almost accepted that there are no absolute constitutional rights. The
modern theory of constitutional rights draws a fundamental distinction between the
scope of the constitutional rights and the extent of its insofar as the scope of constitu-
tional rights is concerned, it marks the outer boundaries of the said rights and defines
its contents. The extent of its protection prescribes the limitations on the exercises
of the rights within its scope. In that sense, it defines the justification for limitations
that can be imposed on such a right. However, such limitations on the fundamental
14 (2007) 4 SCC 669.

rights cannot be more than necessary. Though States have the tendency to do that,
the judicial wing has to keep such legislations within the permissible bounds.15
As per the analysis of Aharon Barak16 (former Chief Justice, Supreme Court of
Israel), two key elements in developing the modern constitutional theory of recog-
nizing positive constitutional rights along with its limitations are the notions of
democracy and the rule of law. Thus, the requirement of proportional limitations of
constitutional rights by a sub-constitutional law, i.e. the statute, is derived from an
interpretation of the notion of democracy itself. Insofar as the Indian Constitution
is concerned, democracy is treated as the basic feature of the Constitution and is
specifically accorded a constitutional status that is recognized in the Preamble of
the Constitution itself. It is also unerringly accepted that this notion of democracy
includes human rights which is the cornerstone of Indian democracy. Once we accept
the aforesaid theory (and there cannot be any denial thereof), as a fortiori, it has also
to be accepted that democracy is based on a balance between the constitutional
rights and the public interests. In fact, such a provision in Article 19 itself, on the one
hand, guarantees some certain freedoms in clause (1) of Article 19 and at the same
time empowers the State to impose reasonable restrictions on those freedoms in the
public interest. This notion accepts the modern constitutional theory that the consti-
tutional rights are related. This relativity means that a constitutional license to limit
those rights is granted where such a limitation will be justified to protect the public
interest or the rights of others. This phenomenon—of both the right and its limita-
tion in the Constitution—exemplifies the inherent tension between democracy’s two
fundamental elements. On the one hand is the right’s element, which constitutes a
fundamental component of substantive democracy; on the other hand is the people
element, limiting those very rights through their representatives. These two consti-
tute a fundamental component of the notion of democracy, though this time in its
formal aspect. How can this tension be resolved? The answer is that this tension
is not resolved by eliminating the ‘losing’ facet from the Constitution. Rather, the
tension is resolved by way of a proper balancing of the competing principles. This is
one of the expressions of the multi-faceted nature of democracy. Indeed, the inherent
tension between democracy’s different facets is a ‘constructive tension’. It enables
each facet to develop while harmoniously coexisting with the others. The best way to
achieve this peaceful coexistence is through balancing between the competing inter-
ests. Such balancing enables each facet to develop alongside the other facets, not in
their place. This tension between the two fundamental aspects—rights on the one
hand and its limitation on the other hand—is to be resolved by balancing the two so
that they harmoniously coexist with each other. This balancing is to be done keeping
15 Though, debate on this vexed issue still continues and some constitutional experts claim that
there are certain rights, albeit very few, which can still be treated as ‘absolute’. Examples given
are: (a) Right to human dignity, which is inviolable, (b) Right not to be subjected to torture or to
inhuman or degrading treatment or punishment. Even in respect of such rights, there is a thinking
that in larger public interest, the extent of their protection can be diminished. However, so far such
attempts of the States have been thwarted by the judiciary and all such rights are related.
16 Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge Univer-
sity Press 2012).

120 A. K. Sikri
in mind the relative social values of each competitive aspects when considered in
proper context.
In this direction, the next question that arises is as to what criteria is to be adopted
for a proper balance between the two facets, viz., the rights and limitations imposed
upon it by a statute. Here comes the concept of ‘proportionality’, which is a proper
criterion. To put it pithily, when a law limits a constitutional right, such a limitation
is constitutional if it is proportional. The law imposing restrictions will be treated as
proportional if it is meant to achieve a proper purpose and if the measures taken to
achieve such a purpose are rationally connected to the purpose, and such measures
are necessary.
The proportionality test is applied to find out as to whether the limitation imposed
by the legislature on a constitutional right is followed. Here, proportionality can be
defined as a set of rules determining the necessity and sufficient conditions for a
limitation of a constitutionally protected right by way of law to be constitutionally
permissible. In this context, the action of the State is to be tested on the following
parameters:
(a) the action must be sanctioned by law.
(b) the proposed action must be necessary in a democratic society for a legitimate
aim; and
(c) the extent of such interference must be proportionate to the need for such
interference.
Aharon Barak lays down four sub-components of proportionality that need to be
satisfied, a limitation of a constitutional right will be constitutionally permissible
if17 :
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation are rationally
connected to the fulfilment of that purpose;
(iii) the measures undertaken are necessary in that there are no alternative measures
that may similarly achieve that same purpose with a lesser degree of limitation;
and finally
(iv) there needs to be a proper relation (‘proportionality stricto sensu’ or
‘balancing’) between the importance of achieving the proper purpose and
the social importance of preventing the limitation on the constitution alright.
6.3 Jurisprudential Justification of Proportionality

Principle
We may note at this stage that there is a growing awareness of the practical importance
of the principle of proportionality for rights adjudication and it has sparked a wave
of academic scholarship as well. The first integrates the doctrine of proportionality
17 ibid.
into a broader theoretical framework. It is propounded by Robert Alexy, premised

on the theory of rights as principles and optimization requirements.18 For Alexy,
all norms are either rules or principles. Constitutional rights are principles, which
means that they must be realized to the greatest extent factually and legally possible.
The principle of proportionality follows logically from the nature of constitutional
rights as principles. On the other hand, Mattias Kumm presented his theory of rights
adjudication as Socratic contestation, with the proportionality principle at its centre.
As per Kumm, proportionality is the doctrinal tool that allows judges to assess the
reasonableness or plausibility, of a policy and thus to determine whether it survives
Socratic contestation.19
Recently, Kai Moller has proposed another theory, which is an autonomy-based
theory of what he calls ‘the global model of constitutional rights’, at the core of
which lies the obligation of the State to take the autonomy interests of every person
adequately into account.20 In this process, his understanding of autonomy leads to
one consequence, viz., there will often be conflicts of autonomy interests, which
have to be resolved in line with each agent’s status as an equal. Here, the proportion-
ality principle becomes the doctrinal tool that guides judges through the process of
resolving those conflicts.
What constitutes the constitutional basis of proportionality? The legal sources
of proportionality, in this whole discussion, are that it becomes a criterion for the
realization of constitutional rights. Further, it is a notion of democracy itself as it
ultimately seeks to achieve the aim of protecting democracy. Here, it is to be borne
in mind that democracy is given a constitutional status; it includes human rights;
it is based on a balance between constitutional rights and the public interest; this
balancing is to be achieved through limitation clauses; and limitation clauses are
based on proportionality.
In this whole process, jurisprudentially the concept of proportionality is derived
from the notion of ‘the rule of law’, which itself is given constitutional status. In
nutshell, democracy, the rule of law, principle theory and constitutional interpretation
are all legal sources from which proportionality may be derived as a constitutional
concept. When the conflicting principles are of constitutional status and a question
arises as to the legal validity of the limiting sub-constitutional law, each of those four
sources—and all four of them combined—can establish the constitutional status of
proportionality. This is of utmost importance, both to the rights involved and for
constitutional democracies in general. In this entire process, proportionality serves
as a tool to enhance rule of law.
18 Robert Alexy, A Theory of Constitutional Rights, (OUP 2002).

19 Mattias Kumm,‘The Idea of Socratic Contestation and the Right to Justification: The Point and
Purpose of Rights-Based Proportionality Review’ (2010) 4 Law & Ethics of Human Rights 141;
Mattias Kumm, ‘Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm,
Legitimate Authority and the Point of Judicial Review’ (2007) 1 European Journal of Legal Studies
1.
20 Kai Moller, The Global Model of Constitutional Rights (OUP 2012).
122 A. K. Sikri
One thing is clear from the above, i.e. jurisprudential explanations of the propor-
tionality principle. There may be some differences about the approach on the appli-
cation of proportionality doctrine, but it is certain that proportionality has become
the lingua franca of judicial systems across borders, concerning the circumstances
under which it is appropriate to limit fundamental rights.
6.3.1 German versus Canadian Approach
The proportionality test as Justice Barak’s conceptualization essentially takes the

version which is used by the German Federal Constitutional Court and is also
accepted by most theorists of proportionality. According to this test, a measure
restricting a right must, firstly, serve a legitimate goal (legitimate goal stage);
secondly, it must be a suitable means of furthering this goal (suitability or rational
connection stage); thirdly, there must not be any less restrictive but equally effec-
tive alternative (necessity stage); and fourthly, the measure must not have a
disproportionate impact on the right-holder (balancing stage).
In contrast, the Canadian Supreme Court has chartered a different course while
using the proportionality test. The essence of the doctrine of proportionality is
beautifully captured by Dickson, C.J. of Canada in R. v Oakes, in the following
words:
To establish that a limit is reasonable and demonstrably justified in a free and democratic
society, two central criteria must be satisfied. First, the objective, which the measures, respon-
sible for a limit on a Charter right or freedom are designed to serve, must be ‘of’ sufficient
importance to warrant overriding a constitutionally protected right or freedom …
Second
… the party invoking Section 1 must show that the means chosen are reasonable and demon-
strably justified. This involves ‘a form of proportionality test.…’Although the nature of the
proportionality test will vary depending on the circumstances, in each case courts will be
required to balance the interests of society with those of individuals and groups. There are, in
my view, three important components of a proportionality test. First, the measures adopted
must be … rationally connected to the objective. Second, the means … should impair ‘as
little as possible’ the right or freedom in question … Third, there must be a proportionality
between the effects of the measures which are responsible for limiting the Charter right or
freedom, and the objective which has been identified as of ‘sufficient importance’. The more
severe the deleterious effects of a measure, the more important the objective must be if the
measure is to be reasonable and demonstrably justified in a free and democratic society.21
The exercise which, therefore, is to be taken is to find out as to whether the
limitation of constitutional rights is for a purpose that is reasonable and necessary
in a democratic society and such an exercise involves the weighing up of competi-
tive values, and ultimately an assessment based on proportionality, i.e. balancing of
different interests. From the aforesaid discussion, it can be discerned that though the
tests of proportionality which are to be applied are almost identical in Germany as
21 R v Oakes, 1986 SCC OnLine Can SC 6: (1986) 1 SCR 103: (1986) 26 DLR (4th) 200.
well as in Canada, it is the stages of application of these tests, where the difference
in approaches lies.
Many issues arise while undertaking the exercise of proportionality inquiry. At
the legitimate goal stage, a question arises as to what does it mean to speak of the
goal of a policy, and what does it mean to require a goal to be legitimate?22 With
regard to the suitability and necessity stages, some of the open issues are how to deal
with empirical uncertainty: Should this lead to wide-ranging deference to the elected
branches?23 At the balancing stage, we have to ask the question of what it means
to say that a right is ‘balanced’ against a competing right or public interest. One
remarkable feature of the German test is that it tends to push most of the important
issues into the last stage, viz., the balancing stage. At the legitimate goal stage, any
goal that is legitimate will be accepted. At the suitability stage, even a marginal
contribution to the achievement of the goal will suffice. At the necessity stage, it
is very rare for a policy to fail because less restrictive alternatives normally come
with some disadvantage and cannot, therefore, be considered equally effective. Thus,
the balancing stage dominates the legal analysis and is usually determinative of the
outcome.
In contrast, Canadian Supreme Court, in propounding the Oakes test, has held that
the objective must be ‘of sufficient importance to warrant overriding a constitutionally
protected right or freedom’; there must be a rational connection between measure
and objective; the means must ‘impair’ as little as possible ‘the right or freedom in
question’; and finally, ‘there must be a proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom, and the
objective which has been identified as of ‘sufficient importance’. Under this test,
arguably more issues are addressed at the earlier stages. Instead of accepting any
legitimate goal, Oakes requires a goal ‘of sufficient importance to warrant overriding
a constitutionally protected right or freedom’.24 And the minimal impairment test is
different from the German necessity test both in the way in which it is formulated
(there is no requirement that the less restrictive measure be equally effective) and in
the way it is applied in practice: the Canadian Supreme Court tends to resolve cases
at that stage and not, as the German Federal Constitutional Court, at the balancing
stage.
22 On this issue there is a detailed discussion in Mattias Kumm, ‘Political Liberalism and the
Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in George Pavlakos
(ed), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Hart Publishing 2007) 131;
Moller (n 20).
23 As a proposal of how to deal with uncertainty, see Robert Alexy, ‘Second Law of Balancing’ in
A Theory of Constitutional Rights (OUP 2002).

24 R v Oakes (1986) 1 SCR 103.
124 A. K. Sikri
6.3.2 Position in European Union (EU)
It may be stated, as a matter of fact, that the European Union has borrowed its general
principle of proportionality by adopting the German system. Historically, many coun-
tries in Europe, even before the creation of the European Union, had developed and
applied the principles of proportionality in adjudging the administrative actions. This
gave the European Union legitimate ground for treating proportionality as a general
principle of law. The European Court of Justice has applied the principle of propor-
tionality to community regulation affecting the member States and individuals. The
test as developed contains three elements, i.e., suitability, necessity and proportion-
ality in the narrower sense. The Court has, however, clarified that it may not apply
all three elements in a particular case. Suitability has been assigned a secondary
role because of the reason that issues of complex economic situations are involved
in most of the cases which may, according to the Court, warrant wide discretionary
powers. Therefore, the suitability test is limited to examine as to whether the measure
adopted was manifestly unsuitable to achieve the desired end. This would mean the
application of the test of manifest arbitrariness. Necessity test, however, plays an
important role that requires the least intrusive regulatory measure to be adopted. The
test of proportionality is generally used in the narrower sense, viz., to prevent exces-
sive penalty claims and encroachment on fundamental rights recognized as part of
general principles of law granted by the EC Treaty.
6.3.3 Adoption of Proportionality Principle by Indian Courts
It may be argued that the doctrine of proportionality is enshrined in Article19 itself

when we read clause (1) along with clause (6) thereof. While defining as to what
constitutes a reasonable restriction, this Court in a plethora of judgments has held
that the expression ‘reasonable restriction’ seeks to strike a balance between the
freedom guaranteed by any of the sub-clauses of clause (1) of Article 19 and the
social control permitted by any of the clauses (2) to (6). It is held that the expression
‘reasonable’ connotes that the limitation imposed on a person in the enjoyment of the
right should not be arbitrary or of an excessive nature beyond what is required in the
interests of the public. Further, in order to be reasonable, the restriction must have a
reasonable relation to the object which the legislation seeks to achieve, and must not
go in excess of that object.25 At the same time, the reasonableness of a restriction
has to be determined in an objective manner and from the standpoint of the interests
of the general public and not from the point of view of the persons upon whom the
restrictions are imposed or upon abstract considerations.26 In the context of Article
25 See PP Enterprises v Union of India (1982) 2 SCC 33.

26 See Mohd. Hanif Quareshi v State of Bihar 1959 SCR 629.
19(1)(g), in M.R.F. Ltd. v State of Kerala,27 this Court held that in examining the
reasonableness of a statutory provision one has to keep in mind the following factors:
(1) The directive principles of State policy.
(2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond
the requirement of the interest of the general public.
(3) In order to judge the reasonableness of the restrictions, no abstractor general
pattern or a fixed principle can be laid down so as to be of universal application
and the same will vary from case to case as also with regard to changing condi-
tions, values of human life, social philosophy of the Constitution, prevailing
conditions and the surrounding circumstances.
(4) A just balance has to be struck between the restrictions imposed and the social
control envisaged by Article 19(6).
(5) Prevailing social values as also social needs which are intended to be satisfied
by the restrictions.
(6) There must be a direct and proximate nexus or reasonable connection between
the restrictions imposed and the objects ought to be achieved. If there is a
direct nexus between the restrictions, and the object of the Act, then a strong
presumption in favour of the constitutionality of the Act will naturally arise.
Factor (4) above, which talks of ‘just balance’ in some ways, hints at the doctrine
of proportionality, more particularly, when it is seen in the context of ‘reasonable
restrictions’ on the fundamental right. At the same time, what are the tests to be
applied for arriving at the ‘just balance’ were not defined? This position remained
in most of the earlier judgments (including the one cited above) where the Court
embarked on the enquiry as to whether a particular restriction on the fundamental
right was reasonable. While adjudging the constitutional validity of an enactment on
the touchstone of Article 14, likewise, the principle of reasonable classification or
manifest arbitrariness was applied. However, here also, the doctrine of proportionality
as propounded by the jurist or by German, Canadian or European courts, was not
applied. Such a discussion and acceptance of the doctrine of proportionality can
be traced to the Constitution Bench judgment of the Supreme Court pronounced
in the year 2016 in Modern Dental College and Research Centre & Ors v State of
Madhya Pradesh & Ors,28 where the Court discussed in detail the proportionality
doctrine as evolved and accepted the tests which are to be applied while undertaking
a judicial review in constitutional matters. Modern Dental College judgment was
affirmed by a nine-judge bench in the case of K.S. Puttaswamy v Union of India
& Ors (Puttaswamy-I).29 In this case, the Court held that the right to privacy is a
fundamental right. The Court also held that this right is based on a set of fundamental
rights, particularly, Articles 14, 19 and 21 of the Constitution. Another significant
principle laid down by the nine-judge bench in the said judgment is that whenever
27 (1998) 8 SCC 227.

28 (2016) 7 SCC 353.
29 (2017) 10 SCC 1 (Puttaswamy-I).
126 A. K. Sikri
a challenge is laid to an action of the State on the ground that it violates the right to
privacy, the action of the State is to be tested on the following parameters:
(a) the action must be sanctioned bylaw.
(b) the proposed action must be necessary in a democratic society for a legitimate
aim; and the extent of such interference must be proportionate to the need for
such interference.
In K. S. Puttaswamy v Union of India & Ors (Puttaswamy-II),30 the five-judge
bench took note of the German and Canadian approaches and observed that many
issues arise while undertaking the exercise of proportionality inquiry. At the legit-
imate goal stage, a question arises as to what does it mean to speak of the goal of
a policy, and what does it mean to require a goal to be legitimate?31 With regard to
the suitability and necessity stages, some of the open issues are how to deal with
empirical uncertainty: Should this lead to wide-ranging deference to the elected
branches?32 At the balancing stage, we have to ask the question of what it means to
say that a right is ‘balanced’ against a competing right or public interest. The Court
proceeded to answer the aforesaid questions in the following manner:
The goal behind the law will be treated as legitimate when it is in the interest
of public. At the same time, the objective should be of sufficient importance to
warrant overriding a constitutionally protected right or freedom. Examination at the
suitability and necessity would warrant that it is ensured that there is a rationale
connection between measure and objective. Further the impairment needs to be ‘as
little as possible’ to the right or freedom in question. At the same time, the measures
which are responsible for limiting the fundamental right or freedom is of ‘sufficient
importance’. Following inquiry should be conducted by the Court at the balancing
stage:
First, a range of possible alternatives to the measure employed by the government
must be identified. Secondly, the effectiveness of these measures must be determined
individually; the test here is not whether each respective measure realizes the govern-
mental objective to the same extent, but rather whether it realizes it in a ‘real and
substantial manner’. Thirdly, the impact of the respective measures on the right at
stake must be determined. Finally, an overall judgment must be made as to whether in
light of the findings of the previous steps, there exists an alternative that is preferable.
In the process, the Court tried to harmonize the two approaches, i.e. that of the
German Court and the Canadian Court in the following manner:
There is a great debate as to which out of the aforesaid two approaches is a better approach.
Some jurists are of the view that the proper application of the German test leads to a prac-
tice of constitutional review with two connected problems: first, as pointed about above,
usually almost all the moral work is done at the balancing stage, arguably rendering the
30 (2019) 1 SCC 1 (Puttaswamy-II).

31 On this issue there is a detailed discussion in M Kumm, ‘Political Liberalism and the Structure of
Rights: On the Place and Limits of the Proportionality Requirement’ in Pavlakos (ed), Law, Rights
and Discourse: The Legal Philosophy of Robert Alexy (Hart Publishing 2007) 131; Moller (n 20).
32 As a proposal of how to deal with uncertainty, see Robert Alexy ‘Second Law of Balancing’ in
A Theory of Constitutional Rights (OUP 2002).

earlier stages largely useless and throwing doubt on the truth of the popular argument that
proportionality is a valuable doctrine partly because it structures the analysis of rights issues
in a meaningful way. Secondly, the balancing act at the final stage is often carried out in an
impressionistic fashion which seems to be largely unguided by principle and thus opens the
door for subjective, arbitrary and unpredictable judgments encroaching on what ought to be
the proper domain of the democratic legislature. These concerns can, however, be addressed.
According to Bilchitz ..first concern can be addressed by focusing on the necessity stage of
the test. He takes issue with both the German test — according to which almost all policies
are necessary because any alternative policy will usually have some disadvantage which
means that it cannot be considered equally effective — and the Canadian minimal impair-
ment test — which, taken seriously, narrows down the range of constitutionally acceptable
policies far too much: ‘minimal impairment’ can be read as insisting that only one measure
could pass constitutional scrutiny, namely, the measure which impairs the right least. [On
the various problems which the Canadian Supreme Court created for itself because of its
early unfortunate statements on proportionality [….] So the alternatives seem to be either
to construct the necessity (minimal impairment) test as filtering out almost nothing or to
allow only one policy, thus rendering the elected branches partly superfluous. In order to
preserve a meaningful but not unduly strict role for the necessity stage, Bilchitz proposes
the following inquiry. First, a range of possible alternatives to the measure employed by
the Government must be identified. Secondly, the effectiveness of these measures must be
determined individually; the test here is not whether each respective measure realizes the
governmental objective to the same extent, but rather whether it realizes it in a ‘real and
substantial manner’. Thirdly, the impact of the respective measures on the right at stake must
be determined. Finally, an overall judgment must be made as to whether in light of the find-
ings of the previous steps, there exists an alternative which is preferable; and this judgment
will go beyond the strict means-ends assessment favored by Grimm and the German version
of the proportionality test; it will also require a form of balancing to be carried out at the
necessity stage.
Insofar as the second problem in German test is concerned, it can be taken care of by avoiding
‘ad hoc balancing’ and instead proceeding on some ‘bright-line rules’ i.e. by doing the act of
balancing on the basis of some established rule or by creating a sound rule. We may point out
that whereas Chandrachud, J. has formulated the test of ‘legitimate State interest’, other two
of the Judges, namely, Chelameswar and Sapre, JJ. have used the test of ‘compelling State
interest’ and not ‘legitimate State interest’. On the other hand, S.K. Kaul, J. has held that the
test to be applied is whether the law satisfies ‘public interest’. Nariman,J., on the other hand,
pointed out that the Right to Information Act, 2005 has provided for personal information
being disclosed to third parties subject to ‘larger public interest’ being satisfied. If this test
is applied, the result is that one would be entitled to invoke ‘larger public interest’ in lieu of
‘legitimate State aim’ or ‘legitimate State interest’, as a permissible restriction on a claim to
privacy of an individual—a more lenient test. However, since judgment of Chandrachud, J.
is on behalf of himself and three other Judges and S.K. Kaul, J. has also virtually adopted the
same test, we can safely adopt the test of ‘legitimate State interest’ as the majority opinion,
instead of applying the test of ‘compelling State interest’.
The Supreme Court has also considered four sub-components of proportionality

which has to be satisfied. These are:
(a) A measure restricting a right must have a legitimate goal (legitimate goal stage).
(b) It must be a suitable means of furthering this goal (suitability or rational
connection stage).
(c) There must not be any less restrictive but equally effective alternative (necessity
stage).
128 A. K. Sikri
(d) The measure must not have a disproportionate impact on the right-holder
(balancing stage).33
Further, the Supreme Court has also noted:
…the aforesaid stages of proportionality can be looked into and discussed. Of course, while
undertaking this exercise it has also to be seen that the legitimate goal must be of sufficient
importance to warrant overriding a constitutionally protected right or freedom and also that
such aright impairs freedom as little as possible. This Court, in its earlier judgments, applied
German approach while applying proportionality test to the case at hand. We would like
to proceed on that very basis which, however, is tempered with more nuanced approach as
suggested by Bilchitz. This, in fact, is the amalgam of German and Canadian approach. We
feel that the stages, as mentioned in Modern Dental College & Research Centre […] and
recapitulated above, would be the safe method in undertaking this exercise, with focus on
the parameters as suggested by Bilchitz, as this projects an ideal approach that need to be
adopted.34
It would be of interest to note that the proportionality test has been authoritatively
accepted as applicable in undertaking the balancing acts, inasmuch as Justices D.Y.
Chandrachud and Ashok Bhushan in their separate opinions gave the description of
the test in the same manner, the latter in his concurrent opinion and the former in
his dissent. At the same time, when it came to the application of this very provision
while conducting scrutiny into the constitutional validity of the Aadhar Scheme as
well as various provisions of the Aadhar Act, Justice Chandrachud had a different
perception, who held that Aadhar had failed to meet the proportionality test.35 It is
not necessary to go into that debate for the present purpose. It would, however, be
interesting to quote the editorial comment which appeared in the Supreme Court
Cases on this judgment. It reads as follows:
[Ed.: The issue squarely faced by the Court in this case goes to the dilemma at the heart
of Ethical Philosophy is it possible to have social progress, a necessary condition for indi-
vidual flourishing, if the Kantian postulate of never using human beings as means to ends
is taken too literally and dogmatically? Even Kant himself allowed for putting the inter-
ests of the Commonwealth above those of individuals when it came to preservation of the
Commonwealth, for without the Commonwealth or State, it is simply impossible to have
any meaningful civilized existence, and all that obtains is the Hobbesian ‘hugger-mugger’.
of course, the liberal challenge is always to try and absolutely minimise this use of human
beings for the greater good, and which must be non-discriminatory. For instance, is secure
modern life conceivable without the critical role played by the armed forces, police forces
or security forces and the secret services, in every modern State? And do not the rest of us
use them as a means to an end, when they are sacrificed on the frontlines battling for our
freedom and security?
Should the Aadhaar Project, which has finally given a unique non- duplicable identity to
every one of us 1.2 billion Indians, something considered impossible until it was actually
achieved by the statesmanship of almost the entire spectrum of our political class: conceived
and birthed by one political grouping and brought to maturity by another, be trashed because
33 Modern Dental College & Research Centre [Modern Dental College & Research Centre v State
of MP (2016) 7 SCC 353.
34 KS Puttaswamy (Retired) v Union of India (2019) 1 SCC 1.
35 ibid. The author is not entering into the debate as to which opinion is correct.
maybe some invasions of privacy of a few individuals might occur despite the stringent
data protection safeguards, or that some very few individuals might be excluded from social
security benefits due to system errors? Can one really conceive of the political will to ever
attempt such a heroic project again, if this one were trashed? Does not the Resultant Aadhaar
Regime: i.e. the one resulting upon the clarification, reading down or quashment of provisions
in this judgment, that fail to find the right balance, not find the perfect Kantian balance
between individual flourishing and social progress? Is it not better to try to fix and perfect
the stupendous achievement that is the Aadhaar Project, which in any case is an ongoing
process, especially as repeated recourse to the courts to continually fix and improve it is in
no way ruled out?].36
To sum up, the doctrine of proportionality is the latest, and so far the best tool
in realizing the constitutional rights by keeping a check on the limitations imposed
on such rights by way of enactment, and in the process, achieving a delicate balance
between the rights of the individuals on the one hand and the State interests on the
other hand. The outcome that emerges from such an exercise is to ensure that the
two key elements in the modern constitutional theory, viz., notions of democracy
and rule of law are safeguarded.
36 ibid.
Chapter 7
Authoritarian Constitutions: Audience
and Purposes
Günter Frankenberg
Abstract This essay addresses the constitutional question: Why draft and adopt a
constitution in an autocracy where repression is always an option, as are show trials,
deportations, arresting opposition groups, discriminating minorities, intimidating
political adversaries, even murder, albeit not all of these measures to the same degree
everywhere? Do constitutions actually have a say or do they function merely ‘as if’?
In case constitutions have authority, who do they address, and which purposes do
they serve in an authoritarian context? Do they come with practical import or are
they meant to provide empty rhetoric and a deceiving appearance to make a regime
look better? A matrix of internal and external audiences, as well as instrumental and
symbolic purposes, is used here to find answers to the ‘constitutional question’.
7.1 Introduction: The Constitutional Question
What could be the purchase of constitutions for political authoritarianism?1 ‘Zero’,

the ideal-generalized liberal will answer, without being able to explain plausibly
why authoritarian regimes ‘constitutionalize’ themselves all the same. One could add
ironically: because constitutions distract from the work of repression that is tiring
and paralyzing in the long run (an objection that cannot really be taken seriously,
though).
Authoritarian constitutionalism can be understood as featuring four basic
elements: executive-informal techniques of governing, political power as property,
participation as complicity, cult of immediacy and imaginary communality2 —to
1 In the following, I draw on a (revised and abbreviated) chapter of my book Authoritarianism.

Constitutional Perspectives (E Elgar Publishing 2020) (forthcoming).
2 See Günter Frankenberg, ‘Authoritarian constitutionalism: Coming to terms with modernity’s
nightmares’, in Helena Alviar García and Günter Frankenberg (eds), Authoritarian Constitution-
alism. Comparative Analysis and Critique (E Elgar Publishing 2019), 1 ff.
G. Frankenberg (B)
Goethe University, Frankfurt, Germany
e-mail: frankenberg@jur.uni-frankfurt.de
132 G. Frankenberg
possible purposes and audiences of constitutions, to define their relationship to each

other more precisely and to illustrate a diagram. In a first step, the elements of author-
itarianism are connected to form a network, which I introduce as an authoritarian
dispositif 3 to map the heterogeneous ensemble of regimes and to emphasize the
strategic functions these elements may have for the construction and stabilization
of autocracy. After some notes on the structure of authoritarian constitutions, I will
attempt in a second step to answer the constitutional question at least tentatively by
distinguishing and assigning instrumental and symbolic purposes on the one hand,
and internal and external audiences on the other.
So why did the Bolsheviks, after their successful October Revolution, at a rather
difficult moment, have historical and dialectical materialism escorted by a constitu-
tion on its way to the first Soviet republic?4 What prompted Adolf Hitler to extend
repeatedly the Enabling Act, which suspended the Weimar Constitution and trans-
ferred legislative power to him, even though he had long since established a barbarous
dictatorship that operated ‘lawless’? What were the motives that led Bashar al-Assad
to put the revised constitution to the vote in 2012 amidst civil war and bloodshed?
Why did Myanmar’s military government convene a National Congress after years
in power to reconstitute the regime against protests across the country? Why had
President Erdoğan added 74 amendments to the Turkish Constitution after he won
the presidential election in 2017 transferring him more power when lack of power did
not seem to be his problem then? What wanted Augusto Pinochet to prove when, at
the height of his dictatorial power, he enacted a constitution in 1980 and, eight years
later, submitted to a referendum for another term in office, instead of just allowing
himself an unlimited term as fait accompli?5
It will be difficult to sort out motives and strategies in all these and other cases with
adequate precision, as authoritarian leaders, clans and cadres are not inclined to reveal
openly what they have in mind and where they are heading. Similar to their financial
circumstances, to a certain degree one is dependent on conjecture and interpretation.
The starting point for this remains the prima facie peculiar circumstance that autocrats
take the time and the trouble to draft or revise a constitution and then let the population
3 I borrow the term from Michel Foucault and cautiously apply it to political authoritarianism.
Regarding the difficult concept and its diverse applications, see Valerie Larroche, The Dispositif: A
Concept for Information and Communication Sciences (John Wiley & Sons 2019).
4 Basic Law of the Russian Socialist Federalist Republic of 10 July 1918. Praising this Constitution,
Lenin said that it had ‘not been thought up by any commission, not elaborated by lawyers, not copied
from other constitutions’, but rather, he argued, ‘the experience of the organization and struggle of
the proletarian masses against the exploiters both at home and throughout the world’. Schlüssel-
dokumente, ‘The Basic Law (Constitution) of the Russian Soviet Socialist Federal Republic, July
10, 1918’ https://www.1000dokumente.de/index.html?c=dokument_ru&dokument=0005_ver&
object=context&l=de/ accessed 8 July 2019.
5 On 5 October 1988, a majority of almost 56 per cent voted against a further term of office. After
all, the Pinochet Constitution at the time of the change of government secured the influence of the
ancienrégime through numerous regulations during the democracy that followed. These clauses are
known as ‘authoritarian enclaves’. See Codoceo, F., Democratic transition in Chile. Continuity or
New Beginning? (wvb Wissenschaftlicher Verlag Berlin 2007).
7 Authoritarian Constitutions: Audience and Purposes 133
vote on the result in a referendum.6 One cannot rule out the possibility that they
blindly follow the routine that is practiced worldwide, but one would be likely to
overlook their fundamentally strategic mindset. Window-dressing as an explanation
is also probably too unspecific unless one would indicate which window and which
spectators/readers autocrats have in mind.
In general, indeterminacy and ambivalence hide the political impregnation and
subtext of constitutions as well as any aims that rulers want to pursue. The structures
of standardized constitutional design and the established, conventional vocabulary
do not easily give away purposes and projects. At least they try to marginalize these
aspects or silence them.7 And yet, authoritarian constitutionalism presupposes that
there is some kind of connection between regimes and their constitutions, however,
tense and precarious it may be.8 In consequence, it is not all that unreasonable to
read the charters of autocracies as texts written for a purpose (more or less clearly
defined) and addressed to an audience (more or less predictable). Accordingly, I
try to determine purposes and audiences with a heuristic that hopefully helps make
constitutions of authoritarian regimes divulge what the mere text does not tell. The
heuristic, simply enough, places them in the four fields of a grid formed by two axes
of a continuum: one addresses and charts purposes, the other audiences. Moreover,
constitutions are read as performative acts. I assume that authoritarian leaders and
regimes predominantly act with a strategic intention and follow purposive rationality
(regardless of how strongly one may disapprove of the purposes) when they deal with
constitutions.
7.2 Archetypes of Authoritarian Constitutions
Four distinct archetypes—and countless hybrids and crossovers—have shaped the

history of constitutions and constitutionalism.9 Each of them is characterized by a
6 It is easier to oversee limited constitutional maneuvers, such as Xi Jinping’s lifting of the term
limit or Hugo Chávez’s attempt in 2012 to remove the term limit. Although Venezuela’s president
had already failed in a much more comprehensive constitutional referendum at the end of 2007, at
that time a narrow majority of voters rejected the revision of a total of 69 articles of the constitution.
Informative: Kurt Weyland, ‘Latin America’s Authoritarian Drift. The Populist Threat from the
Left’, (2013) 24 Journal of Democracy, 18 ff.
7 Martin Loughlin, ‘The Constitutional Silences’, (2017) 16 International Journal of Constitutional
Law, 922 ff.

8 As discussed above, an authoritarian regime can very well coexist with a formally democratic,
parliamentary system of constitutionalism. This is illustrated by the Fifth French Republic, for
example. Authoritarianism can also develop in a reasonably democratic institutional setting, as
illustrated by the metamorphosis of the Abe Government in Japan. See the analysis by Hajime
Yamamoto, ‘An authorization of Japanese constitutionalism?’, in Helena Alviar García and Günter
Frankenberg (eds), Authoritarian Constitutionalism. Comparative Analysis and Critique (E Elgar
Publishing 2019) 338 ff.
9 For a more detailed characterization of the archetypes see Günter Frankenberg, Comparative
Constitutional Studies – Between Magic and Deceit (E Elgar Publishing 2018) Ch II.
134 G. Frankenberg
recognizable style and comes with a specific register, informed by a constitutional

grammar and vocabulary that depend on the respective historical–political constel-
lations and other contextual conditions. Contract, manifesto, program and (higher)
law or code are constitutional speech acts that can be distinguished as archetypes. It
remains to be clarified which of them accommodates best the strategies of political
authoritarianism maneuvers.
7.2.1 Semantics and Structure of Authoritarian Constitutions
Seen from a distance, it would appear that the semantics and structure of authori-
tarian constitutions and the rhetoric of authoritarian constitutionalism do not have
any particularly striking features and are very much alike non-authoritarian docu-
ments. Conformism seems to shape their external form. But as always, appearances
are deceptive. First, not all constitutions of autocracies fit into the framework of one
type. They are quite open about their preference for the executive and its techniques
of governing. With unsurpassed frankness, the Russian Constitution of 1918 trans-
ferred ‘all state and local power’ to the Soviets (Article 1) but in the ‘present moment
of transition’ (Article 9) it assigned the leading role to the All-Russian Central Exec-
utive Committee of the Soviets, the Council of People’s Commissars for the ‘all-
round protection of the achievements of the great workers’ and peasants’ revolution’
(Article 19). Behind the façade of amorphous Soviet institutions, Bolsheviks thus
installed their monopoly of power. In contrast, the authoritarian constitutionalism à
la Putin adheres in form to the 1993 constitution but does not prevent the autocrat
from establishing the structures and institutions of a vertical ‘guided democracy’ as
a ‘deep state’ according to his preferences.
Hitler’s Enabling Act of 1933 disempowered the Reichstag and transferred legisla-
tive power to the Reich Government, thus liquidating the Weimar Constitution
(Article 2) without any further ado. On careful reading of the organizational part,
Myanmar’s democratically struggling constitution of 2008 also reveals the extent to
which local, regional and state institutions continue to be infiltrated by the military
despite the ‘democratic reform’.10 The regime Erdoğan took the opposite approach in
its comprehensive constitutional reshuffling of powers in 2017. Among other things,
the autocrat was keen to secure his position of power by subjugating the military,
previously in the role of ‘guardian of the republic’, especially by abolishing military
courts and military academies.11
10 Notably the representative bodies: ‘The PyidaungsuHluttaw, the Region Hluttaws and the State
Hluttaws include the Defence Services personnel as Hluttaw representatives nominated by the
Commander-in-Chief of the Defence Services’ (sec 14).
11 See Gerassımos Karabelıas, ‘The Military Institution, Atatürk’s Principles, and Turkey’s
Sisyphean Quest for Democracy’ (2009) 45 Middle Eastern Studies, 57 ff.; Julia Platter and Barış
Çalışkan, ‘Das türkische Verfassungsgericht auf dem Weg zum ‘Hüter der Verfassung’, (2008) 39
Zeitschrift für Parlamentsfragen, 832 ff.
Hence, charters of authoritarianism must be examined to find out whether, in

what respect and to what extent they permit already in the text the centralization of
executive power, abolish the limitation on the term of office of the leading personnel,
lay the basis for complicity and/or favor the neutralization of intermediary institutions
and organizations, or at least accept it in state practice, or allocate emergency powers
to the executive.
Depending on the context, autocracies always have and sometimes exercise the
option to mask themselves democratically. Thus, Syria’s constitutional and legisla-
tive reforms in 2012, viewed in isolation, are not only meaningless but misleading.
On 25th July, the Syrian Government passed a draft law allowing the establishment
of political parties. In the new constitution, the Ba’ath Party’s claim to leadership
(laid down in Article 8 of the previous constitution) was revised in theory. In prac-
tice, this revision hardly played a significant role anyway, given the leadership of the
Assad clan and the absence of an institution that might control compliance. Further-
more, the commitment to ‘political pluralism’ proclaimed by the new version of
Article 8 should not be read with too much enthusiasm, for instance as decentral-
izing power,12 because political parties are still required to obtain explicit approval
(by the government) and, what is more, they are prohibited from organizing on the
basis of a regional or religious program. So, the danger of excessive participation of
Kurds and Sunnis is averted.13
7.2.2 Authoritarian Manifesto
The constitutions of authoritarian regimes reveal their dark side, if at all, in elusive
moments and marginal remarks. It is then and there that one may recognize them as
variants of the political manifesto (and in turn expose authoritarian features of this
archetype in liberal settings).
In the allegorical passages, where purposes tend to lean to the symbolic side, the
authoritarian archetype comes across as a political manifesto. Authoritarian consti-
tutionalism favors unilateral declarations made by a (self-appointed) elite on its own
initiative or on behalf of a leader, such as the Central Executive Committee of the
USSR (1924), the Assembly of Experts (Iran 1979), the Communist Party of China
12 See Omar El Manfalouty, ‘Authoritarian Constitutionalism in the Islamic World - Theoretical

Considerations and Comparative Observations on Syria & Turkey’, in Helena Alviar García and
Günter Frankenberg (eds), Authoritarian Constitutionalism. Comparative Analysis and Critique (E
Elgar Publishing 2019)95 ff.
13 Constitution of the Syrian-Arab Republic of 2012, Art 8: ‘1. The political system of the state shall
be based on the principle of political pluralism, and exercising power democratically through the
ballot box; - 2. Licensed political parties and constituencies shall contribute to the national political
life, and shall respect the principles of national sovereignty and democracy; - 3. The law shall
regulate the provisions and procedures related to the formation of political parties; - 4. Carrying
out any political activity or forming any political parties or groupings on the basis of religious,
sectarian, tribal, regional, class-based, professional, or on discrimination based on gender, origin,
race or color may not be undertaken….’
136 G. Frankenberg
(1982) or the State Peace and Development Council that convened the National
Assembly in Myanmar (1993). Following the structure of the manifesto, the authors
present the result of this performative act, namely the creation of a symbolic system,
the constitutional ‘worldmaking’,14 as something that the addressees have learned
and already know and recognize beyond any doubt. The American Declaration of
Independence, authored also by slaveholders, provides the frequently copied pattern:
We hold these truths to be self-evident, that all men are created equal, that they are endowed
by their Creator with certain unalienable Rights that among these are Life, Liberty and the
pursuit of Happiness...15
The truths are founded as common experiences and learning processes from
collective struggles:
After experiencing the anti-despotic constitutional movement and the anti-colonialist move-
ment centered on the nationalization of the oil industry, the Muslim people of Iran learned
… […].16
[T]his Constitution affirms the achievements of the struggles of the Chinese people of all
nationalities.17
Invoking the memory of our ancestors and calling upon the wisdom of the lessons of our
shared history…[…].18
Algeria’s 1989 Constitution refers to itself, in this very sense, as ‘the result of
its long resistance to the culture, values and fundamental components of its iden-
tity’. Hungary’s 2011 Constitution, orchestrated by Viktor Orbán, evokes a quasi-
millennial history of Hungary, to show the people the sublimity of the ‘Magyar
nation’. It emphasizes the ‘pride in our ancestors who fought for the survival, freedom
and independence of our country’. Other country, same time span: Vietnam’s cadres
deduce from its thousand-year history and especially from the liberation struggles
the mission to ‘lead the nation to socialism’ (Constitution of 1992/2013).
Documents of authoritarian constitutionalism also follow the logic of the mani-
festo in that they make use of the normative register of necessity to justify autocratic
forms of state or measures of state practice. In this vein, the Soviet Central Executive
Committee found that the reconstruction of the national economy, the uncertainty of
the international situation and the building of Soviet power ‘imperatively demand the
unification of the Soviet Republics in a federal state capable of guaranteeing external
security and internal economic prosperity and the freedom of national development
of peoples’ (Soviet Constitution of 1924).19 The Fathers of the Constitution of the
14 Nelson Goodman, Ways of World Making (Hackett Publishing 1978).

15 US Declaration of Independence, 4 July 1776.
16 Constitution of the Islamic Republic of Iran, 1979 (emphasis added).
17 Constitution of the People’s Republic of China, 1982 (emphasis added). See also Cameroon’s
Constitution of 1972, Art 1 (2) and the Constitution of the Democratic Republic of the Congo, 2005,
Art 42 ff.
18 ‘Invoking the memory of our ancestors and calling upon the wisdom of the lessons of our shared
history…’ Constitution of Angola, 2010 (emphasis added).

19 ‘Being guided by the interests of the working class as a whole, the Russian Socialist Federated
Soviet Republic deprives all individuals and groups of rights which could be utilized by them to
Islamic Republic of Iran (1979) conjured up the awakened consciousness of the

nation under the leadership of Imam Khomeini, which had ‘recognized the need
to pursue a genuine Islamic and ideological line in its struggles’. The Constitution
of Rwanda that allowed President Paul Kagameto develop from a peace bringer to
an autocrat,20 also stresses ‘the need to strengthen and promote national unity and
reconciliation, which was seriously shaken by the genocide against the Tutsis’.
More clearly than the classical manifestos that deal less with criteria of member-
ship than with shared values, authoritarian constitutions sometimes reveal which
persons, groups and ideas should be excluded from the community thus consti-
tuted. In this respect, a model of ‘corporate honesty’ was again Russia’s Constitution
of 1918: In ‘unshakable determination… to snatch humanity from the clutches of
finance capital and imperialism’ and to affirm the ‘alliance of the working classes’, the
‘dictatorship of the urban and rural proletariat and the poorest peasantry’ was estab-
lished, for the ‘complete suppression of the bourgeoisie’ and ‘elimination of the para-
sitic strata of society’. Hardly less clearly, all (presumed) opponents of the socialist
revolution were a priori excluded from the use—actually: from the presumed abuse—
of constitutionally guaranteed rights. Likewise, members of the higher classes and
supporters of the White Armies were barred from gaining access to political power
during the civil war.
Some authoritarian constitutions of more recent provenance follow this example
and take all keys to access to power out of the hands of the partisans of the replaced
political system:
[N]o protection shall be accorded to an activity contrary to Turkish national interests, Turkish
existence and the principle of its indivisibility with its State and territory, historical and moral
values of Turkishness; the nationalism, principles, reforms and civilizations of Atatürk and
that sacred religious feelings shall absolutely not be involved in state affairs and politics as
required by the principle of secularism...21
Following this logic, the Iraqi Constitution of 2005 prohibited the Saddamist
Baath Party, as well as any organization and program that promotes or justifies
racism, terrorism or ethnic cleansing (Article 7). With an almost noble reserve, the
constitution of the Kingdom of Bhutan reserves the basic rights (including duties),
party membership and access to political offices for the nationals and excludes only
the—unnamed—foreigners.
If enemies and opponents of a regime are marked, and persons and groups, ideas
and opinions are excluded from protection, constitutions give up the noble style and
the detriment of the socialist revolution’ (Basic Law of the Russian Socialist Federative Soviet
Republic of 1918, Art II no. 23).
20 Peter Beaumont, ‘Paul Kagame: A tarnished African hero’, The Guardian (Rwanda, 18 July 2010)
https://www.theguardian.com/theobserver/2010/jul/18/paul-kagame-rwanda-profile/ accessed 20
January 2020.
21 Constitution of Turkey, 1982, Preamble. See also Penal Code of Turkey, Art 301: ‘A person who
publicly denigrates the Turkish Nation, the State of the Turkish Republic or the Grand National
Assembly of Turkey and the judicial institutions of the State shall be punishable by imprisonment
from 6 months to 2 years.’—Italy’s post-fascist Constitution (1947) prohibited to reorganize ‘the
dissolved fascist party in whatever form.’ (Art XII Transitional and Final Provisions).
138 G. Frankenberg
appearance of formal equality. Instead, they act as the mouthpiece of a dictatorial

agenda, which, incidentally, is reinforced by the autocratic preference for one-way
communication, see above. The lack of tolerance that characterizes political author-
itarianism with regard to surprises and risks, dissent and opposition or even diversity
is thus also expressed in the enemy and prohibition clauses of constitutions.
7.3 Dispositif of Authoritarian Constitutions
To the extent that constitutionalism, that is constitutions—their practice, constitu-

tional culture and ideology included—in autocracies is not expected to yield a signifi-
cant normative dividend in liberal terms, authoritarian constitutionalism can be taken
analytically seriously and can indeed be criticized as such. In the following, I try to
do this by putting the constitutions of autocracies on a heuristic grid and displaying
their (possible) purposes and audiences. This heuristic allows to differentiate between
two internally related dimensions and thus to develop a four-field matrix: horizon-
tally, I depict the tension between instrumental and symbolic purposes; vertically,
the variation between internal (local, national) and external (regional, international)
addressees (see Fig. 7.1).
7.3.1 Audience and Interests
As far as the audience is concerned, I assume that it makes a difference whether a

constitution is essentially internally or externally oriented or whether constitutional
events and issues are likely to affect those living in the domestic arena or abroad.
While one can distinguish diverse fields or horizons of attention for the respective
audience, they do not enclose a uniform group of addressees in the respective zone
though.
internal audience
1. 2.
instrumental purposes symbolic purposes
3. 4.
external audience
Fig. 7.1 Basic matrix of audiences and purposes

The domestic horizon comprises, first of all, the population (this orientation is
usually not very revealing) and the general public (as far as it is interested in consti-
tutional issues). However, it may also include specific target groups, such as the
regime’s supporters to be mobilized or appeased, or its opponents to be deterred or
given a last chance to join, as well as the ruling (party) elites, including possible
competitors for power, such as parties in a coalition government or the members of
a junta.
Once national borders are crossed, the persons and groups who might count as an
‘audience’ are naturally rather more difficult to mark and map. Beyond the national
(or supranational) arena, attention to and interest in another country’s constitutional
matters is likely to drop significantly. Often constitutions do not even domestically
qualify as prime or secondary objects of interest, so framers have a fortiori a much
harder time to reach audiences outside the national sphere. Neighbors’ constitutions
will be of interest though, if they come with a relevant political or economic issue,
such as border claims or investment protection.
In general, the population of other states can regularly be discounted as significant
listeners/readers (due to a lack of information and interest), likewise governments
of neighboring states, unless politically affected, are likely to follow all constitu-
tional business as usual in other countries with mild unconcern. However, it can be
suspected that global actors (companies, corporations and consultants) pay attention
at least selectively, as far as they are or may be concerned by constitutional affairs of
neighboring countries. In particular consultants,22 the brokers of globalism, who run
the business of selling legal expertise and are the midwives of legal transfer, are prone
to be always on the lookout for the need for (constitutional) advice and corporations
evaluate the (constitutional) conditions for investment, property and protection.
Examples for the asymmetry of interests are events or decisions that have transna-
tional impact: the Modi regime’s move to revoke Article 370 of the Indian Constitu-
tion and de facto end Jammu & Kashmir’s special status of autonomy23 was, of course,
acutely noticed by the people in neighboring Pakistan and Bangladesh. Notably, the
political class and the media were stirred up by Putin’s recent announcement of a
constitutional revision and were keen to know how he altered his power scheme so as
to preserve his power or reinvent himself at the end of this term.24 Vietnam’s decision
in 1992 to grant foreign private property constitutional protection was certainly regis-
tered by possible investors. Erdoğan’s post-coup constitutional turn to autocracy was
registered by Turks living in other countries, notably Germany, as well as observers
who were concerned about an even more volatile situation in a highly destabilized
22 Yves Dezalay and Bryant G. Garth, “Lords of the Dance’ as Double Agents: Elite Actors In and
Around the Legal Field’, (2016) 3 Journal of Professions & Organisations, 188 ff.; Yves Dezalay
and Bryant G. Garth, The Internationalization of Palace Wars Lawyers, Economists, and the Contest
to Transform Latin American States (Chicago University Press 2002).
23 ‘Modi’s revocation of Kashmir’s autonomy’, The Economist, 10 August 2019 https://www.
economist.com/leaders/2019/08/10/modis-revocation-of-kashmirs-autonomy accessed 31 January

2020.
24 Chris Miller, ‘Succession and Punishment’, Foreign Policy, 21 January 2020 https://foreignpo
licy.com/2020/01/21/succession-and-punishment/ accessed 31 January 2020.

140 G. Frankenberg
Middle East. The institutions of the European Union (the European Parliament,
Council and Commission first and foremost) can be expected to intensely monitor
constitutional events in Hungary and Poland.
7.3.2 Purposes of Constitutions
According to the nature of the dominant purposes and practices in each case, instru-
mental purposes of authoritarianism can at least analytically be distinguished from the
symbolic ones by means of the grid. Both provide important services for authoritarian
rule. Together they form the horizontal axis of the grid that charts the abovementioned
elements25 of an authoritarian regime: at one pole the matrix maps form of knowl-
edge, practices, strategies and tactics that determine and are enforced as ‘order’ in
constituted institutional arrangements; and at the other pole, the grid buttons down,
in particular, ‘soft’ concepts, like collective identity, representations of society and
nation, rule and state as well as programmatic ideas and common purposes.
Instrumental purposes: in accordance with the elements of authoritarian tech-
niques of governing and conceptions of power, the autocratic notion of participation
as complicity and the creation of an imaginary community, I discussed elsewhere,26 I
assign on the horizontal axis of constitutional purposes either to the instrumental pole
(in the diagram: the pole of coordination) or to the symbolic pole (in the diagram: the
pole of cooperation). Instrumental can be defined as those purposes that are (or should
be) realized through planned and calculated measures of government and adminis-
tration, when these intervene in social processes in order to coordinate actions and
the consequences thereof.27 Instrumental objectives are regularly implemented in a
(purposive-) rational way by means of institutions and procedures.
As far as governance is concerned, standard constitutional instruments include the
allocation of power by means of a system of competencies and, as far as the citizenry
is concerned, the controlled and dosed allocation and distribution of freedom (voice)
and power to act (agency). Insofar as authoritarian regimes do not develop an informal
auxiliary (or ‘deep state’) constitution, the instrumentality of their formal constitution
is illustrated, for example, by norms that regulate the responsibilities and powers of
the executive, such as the right to initiate laws and rule by decree, and that determine
structures of command (notably of the armed forces, police and secret services) and
authorize the declaration and execution of a state of emergency.28 Moreover, the
25 For a regime to be qualified as authoritarian, not all elements have to be present. Rather, the
various combinations lead to different types of regimes, such as authoritarian nationalism, unitary
state, kleptocracy, competitive authoritarianism or dictatorship, and more.
26 See G Frankenberg (n 2) 1 ff.; G Frankenberg (n 1).
27 Concerning the concept of coordination, see G Frankenberg (n 9), Ch 6 with further references.
28 E.g.: ‘Whenever the country is threatened by an imminent danger to its institutions, its indepen-
dence or its territorial integrity, the President of the Republic shall decree the state of emergency’
(Constitution of Algeria 1989/2016, Art 107). For a more elaborate discussion, see G Frankenberg
(n 9) Ch 8.
ensemble of authoritarian instrumental purposes includes rules that limit the use of
freedom and link it to systemic imperatives, for instance, what socialist legality or
the defense of the achievements of the revolution may require29 or what is owed to
the hierarchical order and the integrity of the head of state.30
Symbolic purposes: constitutional symbolism is not meant to express the
‘palpable’ reality of practices and institutions, but the emblematic dimension of
this order, its sign language, so to speak. As is well known, political authoritari-
anism withdraws the imposition of democratic symbolism and replaces it with a
language of images and mobilization, which is also designed to give orientation
to social actions and to create a collective identity.31 However, this is regressively
oriented toward (forced or manipulated) cooperation for commonly shared goals and
the creation of an imaginary community. The authoritarian symbolism helps itself
in the arsenal of the Ancient Régime for this or that purpose and, as far as possible,
falls back on embodiment as a representation mechanism. According to this, soci-
eties or nations appear as homogeneous units ‘embodied’ by the head of state.32 In
this sense, the absolutist monarchy prompted what some autocratic constitutional
framers even today have adopted: that ‘the person of the President of the Republic
… is inviolable’.33
29 Constitution of the Russian Socialist Federative Soviet Republic, 1918: ‘Article 23. Guided by
the interests of the working class as a whole, the Russian Socialist Federative Soviet Republic shall
deprive individuals and individual groups of the rights which are exploited by them to the detriment
of the interests of the socialist revolution.’
30 The Thai Constitution grants the King and Head of State a position of veneration that removes
him from any accusation or criticism: ‘The King shall be enthroned in a position of revered worship
and shall not be violated. No person shall expose the King to any sort of accusation or action’
(Constitution of Thailand, 2017, Sec 6).
31 The symbolic dimension of the theory of democratic representation is discussed by Claude
Lefort, L’invention démocratique: Les limites de la domination totalitaire (Paris: Fayard, 1994);
Claude Lefort, ‘Die Frage der Demokratie’, in: Ulrich Rödel (ed), Autonome Gesellschaft und
libertäre Demokratie (Frankfurt am Main: Suhrkamp 1990), 281 ff. See also UlrichRödel et al., Die
demokratische Frage (Frankfurt am Main: Suhrkamp 1989).
32 ‘The Syrian Arab Republic is proud of its Arab identity and the fact that its people are an integral
part of the Arab nation. The Syrian Arab Republic embodies this belonging in its national and
pan-Arab project and the work to support Arab cooperation in order to promote integration and
achieve the unity of the Arab nation.’ Preamble of the Constitution of the Syrian-Arab Republic,
2012 (emphasis added).
33 Basic Law of Hungary, 2011, Art 12. Similarly: ‘The King is Head of State, and its nominal
representative, and his person is inviolate. He is the loyal protector of the religion and the homeland,
and the symbol of national unity’ (Constitution of Bahrein, 2012, Art 33). Cambodia follows the
same path: ‘The King shall be the Head of State for life. The King shall be inviolable’ (Constitution
of 1993, Art 7).
142 G. Frankenberg
7.4 Variants of Authoritarian Constitutionalism
The analytical distinction between instrumentality and symbolism as well as of

internal and external audiences has a predominantly heuristic meaning. I do not
mean to suggest that constitutions correspond to only one type and are located on the
horizontal axis at only one pole and on the vertical axis at only one group at a time.
On the contrary, coordination for the purpose of constructing an authoritarian order
or disciplining competing elites or opponents can also be combined with symbolic
politics, whether in the form of mobilizing for a joint project (revolution, liberation
etc.) or propagating security and unity. At best, gradations can be made, or priorities
set—in particular, that a constitution should primarily address its own supporters
with the construction of a normative order or address undecided parties, that state
identity, as seen by the international community of states, is a constitutional issue,
especially in divided nations.34
The hybrid character of many constitutions of autocracies, the diversity of the
purposes pursued with them, and also the difficulties in determining the audience
and the purposes in a reasonably plausible way can be illustrated by the Syrian
Constitution of 2012. Internally, the despot seemed hardly in need of an additional
dose of legitimation. His opponents could not be expected to give him any legitimacy,
especially since they saw through its manipulated production and boycotted the
referendum. To the extent that opposition members expressed themselves publicly
about the referendum at all, they disqualified it as a farce—a farce in the midst of
the unfolding Syrian tragedy. Loyal regime supporters could be expected to react
quite differently. Regardless of what the constitution might have to say to them, they
would remain loyal to al-Assad in his war of scorched earth. It would appear that his
primary aim in revising the constitution was to impress and discipline the competing
elites, to show them he was in charge of constitutional matters, too. Possibly al-Assad
also wanted to force his opponents to recognize his power, with a constitutional act
and project of order in the midst of the civil war. The constitutional revision and
referendum may have been intended to convey the image of a strong president who,
despite war and chaos, had matters under control and mastered the autocratic monster
constitutionally and not only with the help of the military and secret police. These
purposes and addressees suggest locating al-Assad’s project in the first field of the
grid. Not implausible is also a reading that the autocrat aimed to send a signal to the
undecided, the non-organized opposition, to get them to support the regime: enter the
constitutional circle, it will be of advantage to you. Likewise, in the second quadrant
34 Instructive: the ‘Two-States-Theory’ concerning the legal existence of the Federal Republic of
Germany and the German Democratic Republic. See the decision of the German Constitutional
Court—BVerfGE 36, 1; also the One-China-Doctrine: ‘Taiwan is part of the sacred territory of
the People’s Republic of China. It is the lofty duty of the entire Chinese people, including our
compatriots in Taiwan, to accomplish the great task of reunifying the motherland’ (Preamble of the
Constitution of the People’s Republic of China, 1982).
falls the elevation of martyrdom to the highest constitutional value, the realization
of which, after all, entails state support.35
Whether the revised Syrian Constitution was designed to influence (and excite)
an external audience is doubtful. What argues against this is that the official legal
recognition of Syria by the community of (un)civilized states was not endangered.
However, al-Assad’s reshuffling might have been an attempt to demonstrate to the
outside world that the regime was in charge and powerful enough to re-organize the
country in times of civil war. This message would place the new constitution as a
show of force in the fourth sector of the grid. Finally, one may ask whether al-Assad
wanted to reach an external audience or not. Syria’s ‘constitutional moment’ was
hardly noticed by the populations of neighboring countries. It is rather unlikely that
the elaborate, redundant affirmation of democracy and popular sovereignty would
have impressed anyone there.36 Yet, it cannot be overlooked that the new constitu-
tion addressed the interventionist power of the USA with the formula ‘the rule of
the people by the people and for the people’, a quotation from one of the cher-
ished legends of US constitutional history, namely Abraham Lincoln’s Gettysburg
Address of 1863.37 al-Assad may have made the (probably unsuccessful) attempt
to win the trust of the Obama administration and/or to weaken the image of brutal
authoritarianism (Sect. 7.4).
7.4.1 Authoritarian Constitutions as Governance Manuals
In the local or national terrain, the focus—according to the grid presented here
(Fig. 7.2)—is on the coordination of actions and the consequences thereof. The first
variant of authoritarian constitutionalism stresses its instrumental character as script
instructing autocratic governance. It focuses on the construction, stabilization and
enforcement of an order and functions as a kind of instruction manual. Scripts of
authoritarianism oscillate permanently between normalcy and states of exception.
Authoritarian political orders are generally characterized by a structure that provides
only more or less modest elements of normativity in a general situation of lawless-
ness, either for reasons of reputation or because the transition from democracy to
autocracy has not been completed and requires democratic masquerade, for example
through elections. The flexible, institutional dispositive of authoritarianism covers a
35 ‘Martyrdom for the sake of the homeland shall be a supreme value, and the State shall guarantee
the families of the martyrs in accordance with the law’ (Constitution of Syria 2012, Preamble).
36 ‘The system of governance in the state shall be a republican system; Sovereignty is an attribute
of the people; and no individual or group may claim sovereignty. Sovereignty shall be based on
the principle of the rule of the people by the people and for the people; The People shall exercise
their sovereignty within the aspects and limits prescribed in the Constitution’ (Constitution of Syria
2012, Art 2).
37 Sean Conant (ed), The Gettysburg Address: Perspectives on Lincoln’s Greatest Speech (New
York NY: Oxford University Press 2015); John L. Haney, ‘Of the People, by the People, for the
People’ (1944) 88 Proceedings of the American Philosophical Society 359 ff.
144 G. Frankenberg
Fig. 7.2 Variants of authoritarian constitutionalism
considerable range of manifestations of regimes: according to the criterion of legality,

‘dual states’ combine varieties of the prerogative state with the law/normative state.
For the stability of an authoritarian order, dual-state constructions have the ines-
timable advantage that they wrap some of the coercive measures in the mantle of
legality38 with the help of (constitutional) special powers, martial law or exceptional
law, while preserving legitimacy.
In contrast, the institutional dimension of the authoritarian dispositive also qual-
ifies as a ‘deep state’,39 according to the criterion of publicity, as far as it links the
constituted governmental institutions with a ‘state within the state’ that has perma-
nently grown in the background or has been constructed quite deliberately in violation
of or by bypassing the constitution. It lends itself to conspiratorial theories that inter-
twine the security apparatus (military, secret services and the police) and the state
apparatus (government, administration and judiciary) because it largely operates in
the arcane sphere and thus eludes democratic or judicial control.40
The constitutions of the USA and Turkey do not indicate that structures of a ‘deep
state’ have long since developed there. It is a foregone conclusion that a covert,
powerful conglomerate of interests of its own kind has established itself in the USA
in recent decades, sidestepping the constitution and democratically elected govern-
ments. It is composed of lobbyists, Wall Street, Silicon Valley, the secret services, the
military and its supply industry, parts of the media and the judiciary. The analytical
power of the ‘deep state’ theory is not, unfortunately, strengthened by the fact that it
38 For references, see G Frankenberg (n 9), Ch 8.

39 As for instance, the ‘deep state’ in Thailand that includes the monarchy: Eugénie Mérieau,
‘Thailand’s Deep State, Royal Power and the Constitutional Court (1997–2015)’, (2015) 46 Journal
of Contemporary Asia, 445 ff.
40 See Mike Lofgren, The Deep State: The Fall of the Constitution and the Rise of a Shadow
Government (New York: Penguin 2016).

is sometimes indiscriminately linked to other theorems, such as that of the ‘military-

industrial complex’, or that it adopts conspiracy theories and the right-wing populist
jargon that reveals its defamatory connotations of ‘system’ or ‘establishment’.
Turkey has also been home to the ‘deep state’ for decades. Naturally, this state is
even further removed from the constitutional text than Fraenkel’s prerogative state.
The established and exercised network consists of members of the armed forces and
the secret services, (former?) Kemalist organizations in association with organized
crime. It is suspected that the ‘deep state’ had a hand in the repeated coups d’état,
including the failed one in 2016. The same applies to the ‘dirty war’ against the
Kurdish PKK in the 1980s and 1990s.41 It may be no coincidence that most of the
crimes committed against journalists and politicians who belong to the political left
have remained unsolved.
The instrumental characteristics of authoritarian constitutionalism initially orient
the construction of order toward the presumed and actual behavior of the population.
However, very few charters of autocracies offer a matrix that allows distinguishing
illegitimate from legitimate expectations. Nor do they define zones of permitted
opposition and tolerated dissent. They impose on the population the risk of disloyalty
and contradiction, above all by failing to protect the certainty of expectations and
guarantee predictability of state action. Some constitutions can be exempted from
this verdict. Soviet constitutionalism reduces the dangers of expecting too much from
rights by basically identifying them as programmatic and not justiciable. Moreover,
the constitution’s normative ‘purchasing power’ is linked in advance to the conditions
of socialist legality42 and its use is bound to serve the working population and the
interests of society.43
Post-Soviet Russia, or more precisely the Putin regime, tends to follow a different,
but ultimately similar maxim, embracing a Machiavellian approach to the acquisi-
tion and retention of power. Since Vladimir Putin’s networks of vertically directed
authoritarianism have ensured order, no protection can be expected from (funda-
mental) rights and no information can be derived from the constitutional allocation
of competencies.44 Reports of arbitrary detentions, systematic torture of detainees by
the police, murder of opponents of the regime, extrajudicial executions, intimidation
and killing of journalists, neglect and cruelty in orphanages, violations of children’s
rights, discrimination, racism, and assassinations of members of ethnic minorities,
41 Soner Cagaptay, ‘What’s Really Behind Turkey’s Coup Arrests’ (Foreign Policy, 25 February
2010) https://foreignpolicy.com/2010/02/25/whats-really-behind-turkeys-coup-arrests/ accessed
28 December 2018.
42 See Scott Newton, The Constitutional Systems of the Independent Central Asian States. A
Contextual Analysis (Bloomsbury Publishing 2017).

43 ‘…the press, radio, television, movies and other organs of the mass media are State or social
property and can never be private property. This assures their use at the exclusive service of the
working people and in the interest of society’ (Constitution of Cuba 1976/2002, Art 53).
44 For a look at the dark side, see David Satter, Darkness at Dawn: The Rise of the Russian Criminal
State (Yale University Press 2003); and Jonathan Weiler, Human Rights in Russia: A Darker Side of
Reform (Lynne Rienner Publishers 2004); Anna Politkovskaya, A Dirty War: A Russian Reporter
in Chechnya (Harvill Secker 2001).
146 G. Frankenberg
and more speak a particularly brutal language of authoritarianism. With alarmingly

strong approval from the Russian population, its instrumental dimension is (still) not
doing what is expected of it even in semi-democracies that are somehow related to
the rule of law. The transformation of ‘the racket’, a mafia state into a government
has yet to happen.45 During his terms of office, Putin has been able to systemati-
cally build up a ‘vertical of power’ alongside the constitutional institutions, under his
control, that allows him to eliminate all residual forms of democracy and separation
of powers.46
Against the backdrop of less drastic state practices, numerous constitutions signal
on the citizen-oriented side that fundamental rights of political communication are
inherently limited or that their use is fraught with considerable risk. On the gradually
rising scale of the validity of those rights in the context of political authoritarianism,
the former British protectorate and now Sultanate of Brunei Darussalam refrains
most clearly from being sacrifices for democracy. The constitution is designed as a
purely organizational statute of absolutist rule, which denies its subjects any basic
rights, without offering any compensations for this deficit, as, for example, socialist
constitutions do, by granting social protection.
It is generally characteristic of the constitutions of autocracies (which follow the
rhetoric of guaranteeing fundamental rights) that (a) freedoms are linked to obliga-
tions and (b) reservations in favor of the security and stability of the public order,47
(c) that they contain clauses prohibiting abuse of rights, (d) provide for restrictions
on or the lifting of restrictions in exceptional situations such as riots, war or disas-
ters,48 and/or (e) are subject to a general legal reservation.49 Thus, the repressive
state practice in Turkey toward the political opposition can already be seen on the
surface of the constitution, inscribing itself into the barriers to freedom of assembly
and association.50
It can be inferred from fundamental rights and their manifold barriers in the
Turkish constitution that, although authoritarian constitutionalism would allow for
the meticulous observance of forms of a constitution, its terminology subjects civil
liberties—above all the freedom of opinion, assembly and the press (Articles 26, 28
45 ‘Die Grundform der Herrschaft ist das Racket.’[‘The basic form of rule is the racket.’] Max
Horkheimer, ‘Zur Soziologie der Klassenverhältnisse’, Gesammelte Schriften XII (Frankfurt am
Main: Fischer1985) 75 ff.
46 Margereta Mommsen, ‘Putins “gelenkte Demokratie”: “Vertikale der Macht” statt Gewal-
tenteilung’, in Matthes Buhbeand Gabriele Gorzka (eds), Russland heute – Rezentralisierung des
Staates unter Putin (VS Springer 2007) 235 ff.
47 For a rather elaborate version, see the limitation of the freedom of occupation in the Thai Consti-
tution: ‘The restriction of such liberty under paragraph one shall not be imposed except by virtue
of a provision of law enacted for the purpose of protecting public interest, for maintaining public
order or good morals, or for preventing or eliminating barriers or monopoly’ (Art 40).
48 The Constitution of Thailand permits censorship in times of war: ‘Censorship by a competent
official of any news or statements made by a media professional before the publication in a newspaper
or any media shall not be permitted, except during the time when the country is in a state of war’
(Art 35).
49 For example, the Constitutions of Singapore (1963/2016) and Vietnam (1992/2013).
50 Constitution of Turkey of 1982/2017, Art 68–69.
and 33)—to a repressive conception of public order and security, public morality
and economic interests and practically places them in a system of averting political
dangers.51
Often the wording of the constitutions of authoritarian regimes cannot be trusted,
because the text not only conceals important elements of the instrumentality of the
authoritarian dispositive but clearly misinforms the readers. This applies, if one
does not treat them as irony, to the explicit prohibitions on usurping power52 that
is particularly common in post-Soviet documents, as well as to the silence on the
transformation of a democratic constitution into an authoritarian one, as exemplified
in Russia’s ‘Putin state’ and Hungary’s ‘Frankenstate’,53 in the Central Asian ‘-stans’
as well as, albeit currently with less dramatic consequences, in Poland.
Finally, the instrumentality of authoritarian constitutions also includes, and to no
small extent, the ability to anticipate and control the reactions of competing elites,
members of the regime’s cadres or the political opposition. Stalin’s constitution of
1936, Assad’s constitutional revision of 2012 and Erdoğans Constitutional amend-
ments of 2016 are each different examples of how constitutions can be designed to
function as a disciplinary instrument. Preemptively, following the logic of preventing
political dangers, they send a message to all those who compete with the leader or the
leadership clique for political power that even in crisis situations, such as the escala-
tion of the economic crisis in the Soviet Union, the civil war in Syria and the recent
coup d’état in Turkey, the regime has the tentacles of the autocratic monster under
control at all times and will tolerate neither dissent nor disloyalty. The Constitution
of Myanmar (2008) serves as another example. In several places—in the National
Security Council (No. 201) and in the singular task of the defense forces to protect
the constitution (No. 20)—the military regime is remembered in the text of the
constitution as a ruler and a force for order.
Discipline and loyalty could also be keywords to at least partially explain why
Hitler did not completely cut the already strained umbilical cord of his totalitarian
regime on the Weimar Constitution. In 1937 and 1939, he had the Enabling Act
extended twice without external necessity and in 1943 extended its validity indef-
initely by ‘Führer Decree’. Since the ‘Law against the Formation of New Political
Parties’ of 14 July 1933, Germany had, for all intents and purposes, a single-party
system and the Reichstag (parliament) had been eliminated as well. The Weimar
Constitution had been de facto suspended since 23 March 1933. In view of the
51 TurkulerIsiksel, ‘Between Text and Context: Turkey’s Tradition of Authoritarian Constitution-

alism’, (2013) 11 International Journal of Constitutional Law, 702 ff.; Li-Ann Thio, ‘Constitu-
tionalism in Illiberal Polities’ in Michel Rosenfeld and Andras Sajó (eds), Oxford Handbook of
Comparative Constitutional Law (Oxford University Press2012) 134 ff.
52 The Constitution of the Russian Federation of 1993 proclaims: ‘Nobody may usurp power in
the Russian Federation.’ Moldavia’s Constitution of 1994/2016 calls the usurpation of power ‘the
most serious crime against the people’ (Art 2). The GDR Constitution ordained in ‘Soviet times’:
‘….under no circumstances shall other than the constitutionally determined organs exercise state
power.’—See also Constitution of Venezuela, Art 138.
53 Kim Lane Scheppele, ‘The Rule of Law and the Frankenstate: Why Governance Checklists Do
Not Work’, (2013) 2 International Journal of Policy Administration and Institutions 559 ff.
148 G. Frankenberg
normative power of the factual, especially the terror of Nazi state practice, the exten-
sions could, at best, have been instrumental in disciplining the monster of totalitarian
dictatorship. Incidentally, it is reasonable to assume that Hitler was interested in
preserving the façade of legality of the document to the outside world.
7.4.2 Authoritarian Constitutions as Symbolic Politics
As with the demonstrative elimination of their opponents, autocrats also try to show
off constitutional moments: in Stalin’s case, the reconstitution in 1936 and in Assad’s
case, the demonstration of achievement of order in the civil war in 2012. Erdoğan
demonstrated his power through the rededication of the constitution with a refer-
endum in 2017. Orbán, an authoritarian-nationalist, invoked the spirit of a long-dead
king to conceal his autocracy; Chávez introduced a left-wing populist manifesto.
And there are more.
In the second grid field, the accent of the dispositive shifts from the technique of
legal coordination and disciplining to the normatively more demanding mobilization
of people to cooperate and join the pursuit of common values in an (imaginary)
community. Moreover, the second grid represents concepts of collective identity and
commits people to loyalty to the regime.54
Co-operative projects that address the citizenry are often launched in situations
of radical upheaval, such as after a revolution or liberation, or after catastrophic
events. However, they also come in handy for the everyday support of an autocracy.
Manifesto-style constitutions meet the task of mobilizing people for collective values,
such as freedom, progress, unity, social justice, prosperity or security.55 The same
logic, that is to defend values, guides calls to prevent a relapse into the dark epoch of
54 As for instance, Saudi Arabia’s Basic Law of 1992/2013, Art 11: ‘The Saudi society shall hold
fast to the Divine Rope. Its citizens shall work together to foster benevolence, piety and mutual
assistance; and it avoids dissension.’ And Art 34: ‘Defending the Islamic faith, the society and the
homeland shall be the duty of each and every citizen.’
55 The authors of the Constitution of Angola (2010) feel obliged by ‘the commitment to the values
and fundamental principles of the independence, sovereignty and the unity of a democratic state
based on the rule of law, pluralism of political expression and organization, the separation and
balance between the powers of bodies that exercise sovereign power, the market economy and
respect and guarantees for fundamental human rights and freedoms, which constitute the essential
pillars supporting and structuring this Constitution’. Similarly, the Constitution of Myanmar (2008)
propagates a catalog of ‘eternal values’, among them ‘justice, freedom, equality, wealth, equality of
races, patriotism’. The duty to strive for reunification is laid down in the constitutions of partitioned
nations (China, North Korea, the original version of the German Basic Law, whereas the GDR-
constitutions sported a two-states theory (nevertheless the first constitution of 1949 followed the
example of the One-China-Principle: ‘Deutschland is an indivisible democratic republic’ (Art 1)
and ‘There is only one German nationality’).
foreign rule,56 barbarism, exploitation57 or genocide,58 or fight for or ‘adher[e] to the

(eternal) values of humanity’.59 The emphasis on (inner) peace in the Constitution
of Bhutan, which admittedly fits the goal of ‘Gross National Happiness’ propagated
there, falls outside the standard framework of authoritarian value politics (Article 9).
Cooperation-oriented symbolism (for example, China: ‘The state must rely on the
support of the people’: Article 27) clearly attends to political authoritarianism, in so
far as it represents the people as a unified body60 through regressive symbolism61
(in the Nazi regime: ‘One People, One Reich, One Leader’ or ‘Volksgemeinschaft’),
carries out integration (through values) top-down and propagates unity as homo-
geneity and togetherness to keep out all kinds of enemies (immigrants, according
to Trump, are ‘poison’). The authors of the first two Soviet Constitutions of 1918
and 1924 were likely to set themselves the task of providing the addressees with a
register of (constitutionalized) ideology, interpreting the post-revolutionary world of
the Soviet state and adapting it to the new legitimacy. In 1924, the focus shifted to
reaffirming in the Union the competencies of the (Soviet) ‘supreme organs of power’
and limiting the rights of the republics.
It is striking that Soviet constitutions62 address themselves with a double thrust.
Internally, they reached out to those who participated in the revolutionary project in
the socialist camp of ‘mutual trust and peace, national freedom and equality’ and to
potentially reactionary forces and organizations. Outwardly, they promised the allies
‘peaceful coexistence and fraternal cooperation among peoples’ and threatened the
reactionary forces—the enemies in the capitalist camp:
There, in the camp of capitalism, there is national enmity and inequality, colonial slavery
and chauvinism, national oppression and pogroms, imperialist cruelties and wars.
Here, in the camp of socialism, mutual trust and peace, national freedom and equality,
peaceful coexistence and fraternal cooperation of peoples prevail.63
Leaders and ruling clans and cliques, who, unlike the Bolsheviks, cannot furnish
a compact ideology, will look for other ways to demonstrate their legitimacy, one of
them being collective goals laid down in the constitution. To make a repressive regime
56 See the constitutions of Egypt (1956); Iran (1979); Algeria (1989); and Hungary (2016).
57 The first Russian Constitution after the October Revolution promised to ‘pursue the goal to end
the exploitation of man by man and introduce socialism where there would be no social classes’
(Russia 1918, Art II no. 9).
58 See the Constitution of Rwanda, 2003.
59 Examples are the Constitution of Cuba 1976; the constitutions of Belarus (1994), Bahrein (2012)
and Myanmar (2008). The Constitution of Turkey invokes ‘the eternal existence of the Turkish
Motherland and Nation and the indivisible unity of the Sublime Turkish State’.
60 As to the body metaphor, see the examples mentioned before: ‘We honor the achievements of our
historical constitution and we honor the Holy Crown, which embodies the constitutional continuity
of Hungary’s statehood and the unity of the nation’ (emphasis added).
61 In constitutional monarchies, this symbolization corresponds to the pre-democratic tradition, e.g.,
Cambodia: ‘Nation, Religion, King’, in Morocco: ‘God, the Land, the King’.
62 After 1924 followed the (Stalin) Constitution in 1936 and the Brezhnev Constitution in 1977.
63 Constitution of 1924: Declaration concerning the formation of the union of Socialist Soviet
Republics.
150 G. Frankenberg
look better, raise expectations of a bright future and, if necessary, appease opponents,
constitutional elites can opt for provision to mobilize for a collective agenda, like
nationalism64 or the Socialist International,65 or against (imaginary) enemies. And
there have been and are quite a few candidates: the American conspiracy against
Iran, the ‘Islamization’ of Hungary, the Jewish conspiracy, and more. So, a set of
collective values always comes in handy.66
Complementary to the value project or enemy projection, societies are presented
as a homogenous unit and given a collective identity. In this way, Hungary’s Basic
Law, orchestrated by the Orbán regime, seeks to restore ‘the spiritual and mental
unity of our nation torn to pieces by the storms of the past century’. Algeria’s consti-
tution defines Islam, its membership of the Arab community and Amazighité 67 as
‘fundamental components’ of collective identity. Members of the Syrian Islamic-
Arab community are required to recognize martyrdom as the supreme value. Morocco
went down a different constitutional path toward unity and, to this end, laid down
general values and forbade political parties to organize themselves on a religious,
ethnic, linguistic, ethnic or regional basis so as not to endanger unity. More generally,
human rights are protected from party programs that could provide a discriminatory
basis contrary to human rights (Article 7, Constitution of the Kingdom of Morocco,
2011).
Values and duties fit particularly well into the constitutions of authoritarian
regimes for two reasons. On the one hand, values can do anything, while obliging a
government to do virtually nothing. Bhutan’s ‘Gross National Happiness’ target, to
cite a particularly striking example, cannot be appealed to and does not allow citizens
to bring an action for its enforcement. Therefore, it has no influence on government
policy. It simply sounds good. In any case, happiness is obviously not benefiting
the Nepalese part of population, which has been subjected to discrimination and
persecution for years.68 On the other hand, values and duties have an inherently
authoritarian tendency. They must be implemented top-down. Since they have no
civil society support, they are ideally suited to be implemented with government
programs to gain general support or loyalty.
The effects of constitutional symbolism on interested ‘circles’, competing elites,
indifferent groups or even supporters are more difficult to assess. Whether they are
enthusiastic about cooperative projects or can be won over to an imaginary commu-
nity is unlikely to depend solely on constitutional imagery and rhetoric, but rather
64 The Constitution of Egypt (1956), the constitutions of Hungary and Poland today.
65 See the GDR-Constitution of 1949, Art 6.
66 See above. Also the value catalogs of the constitutions of Myanmar (2008), Iran (1979), Vietnam
(1992), and China (1982).

67 Berbers understand Amazighe as the complex of their culture, language and identity. See Consti-
tution of Algeria 1989/2016, Art 84. Morocco’s 2011 Constitution speaks with a sense of diver-
sity of the ‘convergence of its Arab-Islamic, Berber [amazighe] and Saharan-Hassan components,
complemented and enriched by its African, Andalusian, Hebrew and Mediterranean influences’.
68 Fernand De Varennes, ‘Constitutionalizing Discrimination in Bhutan: The Emasculation of
Human Rights in the Land of the Dragon’, (2008) 2 Asia–Pacific Journal on Human Rights, 47
ff. with further references.
on the fact that they are promised compensation for discipline, toleration and loyalty
or that they can expect significant legal or material premiums (social benefits).
Russia’s 1918 Constitution may have been less important as a document that
convinced the working class of the legitimacy of the newly established Bolshevik
rule and called on it to defend workers’ interests than as a demonstrative message
addressed to opposition cadres and organizations that a revolutionary order and state
power had now been established: the ‘dictatorship of the urban and rural proletariat
and the poorest peasantry in the form of a powerful All-Russian Soviet authority’, the
Bolsheviks. The new authority was given sharp contours and threatening potential by
the virtually Schmittian enumeration of political enemies who were excluded from
the right to vote and from participating in any discussion of political legitimacy:
The following persons enjoy neither the right to vote nor the right to be voted for […]: (a)
Persons who employ hired labor in order to obtain from it an increase in profits; (b) Persons
who have an income without doing any work, such as interest from capital, receipts from
property, etc.; (c) Private merchants, trade and commercial brokers; (d) Monks and clergy of
all denominations; (e) Employees and agents of the former police, the gendarme corps, and
the Okhrana [the Tsars’ secret police – G.F.], also members of the former reigning dynasty;
….. (g) Persons who have been deprived by a soviet of their rights of citizenship because of
selfish or dishonorable offenses, for the period fixed by the sentence.69
Hungary’s constitutional father, Orbán, who is, incidentally, very keen on erasing
the prehistory of Soviet state socialism,70 is probably unwittingly perpetuating it
in the fight against Hungary’s enemies, using a political concept also informed by
Schmitt’s recipe71 :
Traitors and internal enemies of the nation had made deals with hostile foreigners in order to
hand over the country and its people to the bureaucrats of the European Union, speculators
and the international financial industry. But the nation decided to no longer live in the captivity
of foreigners, it would fight against colonization and for its self-determination. Let’s get our
troops in place!72
7.4.3 Constitution as Identity Card
Spectators and readers beyond national borders are not likely to pay special atten-
tion, if at all, to the tools authoritarian constitutions display, which means their
functions as a manual for governing and identity card. This is of interest to neigh-
boring governments, international organizations and legal experts, in case they need
to be convinced that the state is constituted and its practice constitutional. Quite
a few regimes, without exception the post-Soviet ones, emphatically affirm their
69 Constitution of Russia 1918, Art 4, no. 65.

70 Basic Law of Hungary 2011/2016, Art U.
71 Carl Schmitt, The Concept of the Political (University of Chicago Press 2007).
72 ‘Ungarn: Feldzug gegen die EU’, Viktor OrbánquotedbyBundeszentrale für politische Bildung
(bdp.de) (27 February 2014) https://www.bpb.de/179664/ungarn-feldzug-gegen-die-eu accessed 30

June 2019.
152 G. Frankenberg
‘stately’ order.73 Moreover, those who, after foreign rule and other forms of defi-
cient sovereignty, have reason to seek recognition as a state and to shake off colo-
nial or other subalternity.74 A constitution thus complements the traditional three
elements—a politically and legally organized association of persons (the people)
that has given itself its own order (state) on a delimited space (national territory).
These elements still are the essential aspects for a state to be recognized under inter-
national law. This is also evident from the fact that recognition can already take place
when governmental authority has been established but does not yet have any fixed
institutional structures. In the concert of the international community of states, a
constitution can also help dispel doubts about the willingness of an autocracy to act
in conformity with international law,75 notably by transforming human rights pacts
into national law.76 Admittedly, the confessional, constitutional statements provide
little information about what actually remains in state practice of the affirmation of
the separation of powers, the rule of law, international human rights, etc.77
While state diplomacy may be able to accommodate a blatant divergence between
constitutional law and constitutional reality, this is not necessarily true for economic
actors. Egyptian President Sadat made this experience with his rule of law agenda
based on the Constitution of 1971 and with tax incentives for foreign companies. All
too clearly, this message contradicted his arbitrary rule, the re-Islamization of Egypt
based on the Sharia and an obviously manipulated referendum, the result of which
invalidated Egypt’s constitutional identity card.78
Autocrats sometimes have an interest in persuading foreign companies to invest
in the country. Then they may also use constitutions to provide explicitly for the
73 See, the Preamble and Art B of Hungary’s Basic Law. Kazakhstan’s Constitution (1995/2017)
adopted the formula of the ‘unitary state’, similarly Moldvia (1994/2016). Kyrgyzstan’s Constitution
(2010/2016) corroborates the ‘plenitude of state power’ (Art 1).
74 E.g.: Constitutions of Eygpt (1953); Democratic Republic of Congo (2005/2011); Djibouti
(1992); Eritrea (1997), Preamble and Art 1. As regards the subalternity of states: Mahmood
Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton
University Press 1996).
75 Whether it works or not depends on context and constellations, see Qatar 2003: ‘The State respects
the international charters and treaties and works on executing all international agreements, charters
and treaties to which it is a party.’
76 The Russian Constitution of 1993 confirms the validity of human rights (which does not mean
they mean much in Putin’s governmental practice): ‘The recognition, observance and protection of
human and civil rights and freedoms shall be an obligation of the State’ (Art 2). More restrained the
Constitution of Turkey: ‘The fundamental rights and freedoms in respect to aliens may be restricted
by law compatible with international law’ (Art 16).
77 Morocco’s Constitution (2011) is quite explicit: ‘The constitutional regime of the Kingdom is
founded on the separation, the balance and the collaboration of the powers, as well as on participative
democracy of [the] citizen, and the principles of good governance and of the correlation between
the responsibility for and the rendering of accounts.’ Exaggerated or not, the statement was at least
put into practice by reforms.
78 The referendum was officially accepted by 99.98%. See generally, Tom Ginsburg and Tamir
Moustafa (eds), Rule by Law (Cambridge University Press 2008).

protection of the ‘legitimate interests of foreign companies’.79 Vietnam went further

than other ‘closed societies’ by opening up the economy as laid down in the Consti-
tution of 1992. The government was at least partially successful in changing its
economic identity by combining the planned economy, family economy and the
private sector on a constitutional basis. In order to legitimize one-party rule, which
had been criticized for its lack of effectiveness, by more economic growth, Vietnam
(the CPV) flanked its controlled and internally not uncontroversial open-door policy
with constitutional guarantees for foreign companies, in particular protection against
nationalization, and the possibility of resorting to arbitration courts.80
7.4.4 Constitution as Showcase
In the fourth sector of the grid, constitutional symbolism addresses an international

or supranational audience, primarily the governments of other states, international
organizations and probably also global economic actors. Complementary to the legal
identification of statehood and investment protection schemes, constitutions of auto-
cratic regimes operate in the transnational, external service as media for the propa-
gation of trust, reliability and predictable cooperation.81 Such confidence-building
measures are in demand above all from potential partners in political alliances and
economic treaties. Authoritarian constitutionalism can contribute to, or at least try
to lend seriousness to the solicitation of partners or the application for membership
in an alliance. This will be briefly illustrated below with a few examples and ‘basic
forms’—of personal, military and party-based authoritarianism.
Sober hermeneutics is needed to prevent the final chord of Haiti’s constitution of
1805 from being written off as wishful thinking or empty rhetoric, and instead to
decipher in this brief statement the reference to the dangers of the (renewed) fight
against slavery directed at the neighbors and the (former) colonial powers:
We commend [the Constitution] to our descendants and, in homage to the friends of freedom
and the people of all countries, as a sign of divine goodness that, as a result of His Immortal
Judgements, has given us the opportunity to break our chains and to constitute ourselves as
a free, civilized and independent people. (Haiti 1805)
In 1805, Haiti’s constitutional elite gave political significance to racial distinc-

tions based on skin color. They demonstratively held up a black universalism against
79 China’s Constitution of 1982/2004, Art 18: China ‘permits foreign enterprises, other foreign
organizations und individual foreigners to invest in China…’.
80 ‘The State encourages, provide favorable conditions for entrepreneurs, enterprises and indi-
viduals, and other organizations to invest, produce, and do business, contributing to the stable
development of the economic branches and national construction. Private possessions of individ-
uals, organizations of investment, production, and business are protected by the law and are not
subjected to nationalization’ (Vietnam 1992).
81 Examples for such cooperation offers: the Constitutions of Morocco (2011) and Oman
(1996/2011). See also above Vietnam 1992.

154 G. Frankenberg
the colonial slave-owning societies surrounding them. As the governors set about to
reverse the liberation of slaves in Haiti, this small island empire in the Caribbean and
close to the United States dared to confront Franco-American constitutionalism with
a normative revolt that was actually more radical and more risky than the Declara-
tions of Philadelphia 1776 and Paris 1789: ‘Calling all Haitians, regardless of skin
color, black is a gesture like calling all people, regardless of the sex, women: it both
asserts egalitarian and universalist intuitions and puts them to a test by using the
previously subordinated term of the opposition as the universal term’.82 If one reads
the constitution of the quite authoritarian Empire d’Haïti as a text written for specific
purposes, this political manifesto reveals itself also as an address to slaveholders that
turns their world upside down. Internally, in a society of overwhelmingly illiterate
people, it had an important symbolic and at the same time educational significance.
Former slaves were mobilized as actors for liberation and recognized on the consti-
tutional stage as a generically ‘black’ composite of Lafayette, Madison and Abbé
Sieyes.
In terms of constitutional window dressing, the strategy of King Mohammed VI of
Morocco since 2011 has been quite smart. Whereas the absolutist style of his father,
Hassan II, had ruined the reputation of the country and the royal house, Mohammed
VI invented himself as a reformer. Apart from the domestic political necessity in
2011 to cautiously adopt and accommodate the ‘Arab Spring’, to cool it down and
to contain protests, Mohammed VI presented to the world public, especially to the
region and to companies willing to invest, in the guise of a revised constitution, a
moderately reformist, monarchical authoritarianism that was suitable for ‘consol-
idating and strengthening the institutions of a modern state’.83 Since Mohammed
VI was willing to make some democratic concessions, he was able to dismantle the
absolutism and feudalism of his father’s regime in a controlled manner. This gave
him the room for maneuver to modernize the school system and family law (within
limits), to initiate infrastructure projects, to promote foreign trade and to deal with
the crimes of the Ancien Régime, among other things. In doing so, he did not have to
give up his commitment to traditional values, Islam as the state religion, his dual role
as head of state and head of the faithful (Amir Al Mouminine) or his considerable
financial entanglements.
Military regimes naturally find it difficult to modernize their external image or
to advertise themselves. Too deeply rooted in their DNA is the forced assertion of
their instrumental mindset and ideas of order and discipline. Burma/Myanmar has
been the home of military authoritarianism since 1962. In Myanmar, it took constant,
massive public protests to bring about change. The regime initially tried to crush the
protests. After the failure of this strategy and after international criticism, the military
made an attempt to intercept the protests with a constitutional project. However, the
chosen path of ‘disciplined democratization’ (rather than a direct military rule) left
82 Sibylle Fischer, Modernity Disawowed (Duke University Press 2004), 227–228 and 233.
83 Constitution of the Kingdom of Morocco 2011, Preamble.
the military’s controlling leadership role untouched.84 The icon of the opposition,
Aung San Suu Kyi, became the symbolic figure of a military regime liberalized and
democratized only on the constitutional shell, to which she was to give a human face.
The strategy supported by the new constitution seemed to work at first. Admittedly,
the symbolic head of government recently lost much of her reputation as an ‘ambas-
sador of good conscience’ (and abroad a number of honorary titles were withdrawn
from her) when she had little to say about the military’s massacres of the Rohingya
and their expulsion.85
Constitutional window-dressing, however, is likely to be successful only if it
adjusts self-advertising to the horizon of the recipients. In this respect, the program-
matic opening of Vietnam and its economy (Ðôimó,i) mentioned before, which has
ĳ
been underway since 1986, must be judged ambivalently. On the one hand, the (consti-
tutional) legal instruments provided were sensible and economically efficient: reduc-
tion of inflation, current and balance of payments under control and steady growth.86
On the other hand, Vietnam’s self-portrayal is too much like the prose of a kind
of reform socialism that certifies its own compliance with the law (Article 12). An
enumeration of state virtues alone—not matched by state practice—is unlikely to be
externally effective as a marketing strategy.87
Hungary contributes an unusual example to the showcase. In the conflict with the
European Union, it has neither demonstrated its loyalty to the Union in the legal sense
(quadrant 3) nor has it shown to the outside world (quadrant 4) that it is a reliable
partner. On the contrary, there is no lack of opportunities, and the constitutional
revision of 2011 was one of them, in which the government conspicuously behaved as
an executor of the interests of that crown. While King Saint Stephen is only tangible
in myth today, his autocratic revenant raises the flag of a historically stretched,
nationalist authoritarianism: ‘The EU is 65 years old, the IMF 67 years, the United
States 236 years, but Hungary is 1116 years old.’88
84 Marco Bünte, ‘Burma’s Transition to “Disciplined Democracy”: Abdication or Institutionaliza-

tion of Military Rule?’, (2011) GIGA Working Papers https://www.giga-hamburg.de/en/system/
files/publications/wp177_buente.pdf accessed 21 February 2020.
85 ‘Aung San Suu Kyi: Myanmar democracy icon who fell from grace’(BBC News, 23 January
2020) https://www.bbc.com/news/world-asia-pacific-11685977/ accessed 21 February 2020. See

also G Frankenberg (n 9), Ch 7.
86 Peter Boothroyd and Pham Xuan Nam (eds), Socioeconomic Renovation in Viet Nam. The Origin,
Evolution, and Impact of Doi Moi (Ottawa: International Development Research Centre 2000).
87 That is why Sadat’s invitation to foreign investors was generally not considered ‘inviting’.
88 ‘Ungarn – von der Krisenbewältigung zum Aufstand gegen das EU-Regime’, (2014) 4 Gegen-
Standpunkt. Politische Vierteljahreszeitschrift 14 https://de.gegenstandpunkt.com/artikel/ungarn-

krisenbewaeltigung-zum-aufstand-gegen-eu-regime/ accessed 30 June 2019.
Chapter 8
Understanding the Contours
and Contexts of the Rechtsstaat:
A German Concept?
Markus Kotzur
Abstract This study illuminates the significance of the concept of the ‘Rechtsstaat’.
Setting out from the constitutional concept of the ‘Rechtsstaat’ through a German
constitutional law lens, this study aims at illustrating various notions and distinctions
of the ‘Rechtsstaat’ by contouring the essential facets to this term. Against the back-
drop of globalization and pluralization, the study further intends to contextualize the
understanding of this concept in the light of constant change and ever-new challenges
and threats in the fields of economics and politics.
8.1 The indispensability of the idea of the Rechtsstaat
It is almost impossible to put the idea of the Rechtsstaat into a catchy formula
that reveals its history and context. For instance, the literature on the distinction
between ‘Rechtsstaat’ and ‘rule of law’1 fills many library shelves.2 Similarly, the
M. Kotzur (B)
Chair for Public Law, European and International Public Law & Vice Dean for International
Relations, University of Hamburg, Hamburg, Germany
e-mail: markus.kotzur@jura.uni-hamburg.de
1 Legal cultures have committed to the rule of law in very different and heterogenous condition. From
the German literature on the relevance of contexts and preliminary understandings in constitutional
theory. KP Sommermann, Art 20 GG in H v Mangold, F Klein and Ch Starck (eds), Kommentar
zum Grundgesetz (vol 2, 7th edn 2018) Art 20 MN 229; H Schulze-Fielitz, ‘Zur Geltung des
Rechtsstaats: Zwischen Kulturangemessenheit und universellem Anspruch’, (2011) 5 Zeitschrift
für vergleichende Politikwissenschaft, 1 ff.; see also K. Stern, Das Staatsrecht der Bundesrepublik
Deutschland (vol I, 2nd edn, 1984) 764 ff.
2 The Rechtsstaat is of course a uniquely German doctrinal expression, see K Stern, Das Staatsrecht
der Bundesrepublik Deutschland (vol I, 2nd edn, CH Beck 1984) 764, with reference to K. Michaelis,
Die Deutschen und ihr Rechtsstaat (De Gruyter 1980) 5. However, it (also) means rule of law in
the sense of comprehensive legal binding of all sovereign power, as in the English legal expression
‘rule of law’ or in the French term ‘prééminence du droit’, on this A v Bogdandy, ‘Founding
Principles’, in A v Bogdandy and J Bast (eds), Principles of European Constitutional Law (2nd
edn, Hart Publishing 2010) 9 ff., 28 ff.; J Gerkrath, L’émergence d’un droit constitutionnel pour
l’Europe - Modes de formation et sources d’inspiration de la Constitution des Communautés et de
l’Union Européenne (Université de Bruxelles 1997) 347.
158 M. Kotzur
sub-elements from which the overarching idea of the Rechtsstaat is formed and
thanks to which normative concretizations can be gained are also too diverse.3
Some German scholars even complain that the expanding/mushrooming differen-
tiation of ever newer facets either denatures the principle of the Rechtsstaat into an
empty formula or, by foregrounding the gray areas between ‘hard’ constitutional
law and ‘soft’ political programmatics, the Rechtstaat could be charged with arbi-
trarily stipulated content.4 There is also the notional and conceptual variations that
are themselves presuppositional: Rechtsstaat, Rechtsstaatlichkeit, Rechtsstaatsidee,
Rechtsstaatsprinzip; further, without reference to the state but with a particularly
programmatic impulse, the ‘rule of law’, Article 2 of the Treaty on European Union
(TEU), even postulates the rule of law as the value basis of the European Union.5
Abstracting from these notions and distinctions of the Rechsstaat, this paper throws
light on this constitutional concept from a German constitutional law perspective,
without losing sight of its universal contents. The aim is to contour and contextualize
the universal, perhaps even global significance of the concept for the formation and
organization of political orders.
The ‘affirmative recourse’ (Ph. Kunig) to the Rechtsstaat stands for nothing more
than the sum of these elements: from the separation of powers6 to the protection of
legitimate expectations7 to effective legal remedies, from the Vorbehalt des Gesetzes8
3 On these concretizations R Breuer, Konkretisierungen des Rechtsstaats-und des Demokratiege-

bots, in Festgabe 50 Jahre Bundesverwaltungsgericht (Heymanns 2003) 223 et seq.
4 K Stern, Das Staatsrecht der Bundesrepublik Deutschland (vol I, 2nd ed, C.H. Beck 1984) §
22 II 2; E. Schmidt-Aßmann, Der Rechtsstaat, Standort und Entwicklung des grundgesetzlichen

Rechtsstaats in J Isensee/P Kirchhof (eds), Handbuch des Staatsrechts (vol 2, 3rd edn, CF Müller
2005) § 26 MN 7; F Schnapp, in I v Münch and Ph Kunig, Grundgesetz-Kommentar (vol I, 6th edn,
CH Beck 2012) Art. 20, MN 32.
5 In its jurisprudence, the European Court of Justice already acknowledged early that the European
Community is based on the rule of law, see, Les Verts v European Parliament [1986] C-294/83,
ECLI:EU:C:1986:166, at [23].
6 T R S Allan, Constitutional Justice - A Liberal Theory of the Rule of Law (OUP 2003) 31 et seq.; E
Barendt, ‘Separation of Powers and Constitutional Government’, in Richard Bellamy (ed), The Rule
of Law and the Separation of Powers (Routledge 2005) 599 ff.; R Bellamy, ‘The Political Form of the
Constitution: the Separation of Powers, Rights and Representative Democracy’, 44 Political Studies
3 (1996) 436 ff.; A v Arnauld, ‘Gewaltenteilung jenseits der Gewaltentrennung. Das gewaltenteilige
System in der Verfassungsordnung der Bundesrepublik Deutschland’ (2001) 32 Zeitschrift für
Parlamentsfragen, 678 et seq; U. Di Fabio, Gewaltenteilung, in J Isensee and P Kirchhof (eds),
Handbuch des Staatsrechts (vol. 2, 3rd edn, CF Müller 2005), § 27; Ch. Möllers, Die drei Gewalten
(1st edn, Beck 2008); M Cornils, ‘Gewaltenteilung’ in O Depenheuer/Ch Grabenwarter (eds),
Verfassungstheorie (Mohr Siebeck 2010), § 20.
7 D Barak-Erez, ‘The Doctrine of Legitimate Expectations and the Distinction between the Reliance
and Expectation Interests’, in (2005) 11 European Public Law, 583 et seq.; on legitimate expectations
in English law, C F Forsyth, ‘The Provenance and Protection of Legitimate Expectations’ (1988)
47 Cambridge LJ 2, 238 et seq.; perspectives in German literature, H-J Blanke, Vertrauensschutz
im deutschen und europäischenVerwaltungsrecht (Mohr Siebeck 2010).
8 Again, this is a specifically German concept which could literally be translated as ‘legislative
reservation’. On this concept in a European context, G Piccirilli, ‘What remains of the centrality of
parliamentary legislation in continental Europe?’ (2015) Jean Monnet Working Paper 07/15 http://
jeanmonnetprogram.org/wp-content/uploads/JMWP-07-Piccirilli.pdf accessed 29 April 2020.; see
8 Understanding the Contours and Contexts of the Rechtsstaat ... 159
to liability of the state for wrongful acts9 —and last but not least to another major
topic, legal certainty.10 If this is so, then why speak abstractly of the Rechtsstaat as a
universal, abstract model or a timeless constant? Just because of custom and tradition?
Was the German Constitution11 well advised not to talk about Rechtsstaat—at least
not expressis verbis—in its Article 20 or elsewhere? There is, however, a very good
reason to stick to the term of the Rechtsstaat—and to do so in view of its ever-new
threats.12 It is a cipher for the liberal organization of power. Behind the idea of the
Rechtsstaat—and the term ‘idea’ is now used very consciously—is the constitutional-
theoretical claim that political as well as social power in the community is not to
be oriented toward aspects of opportunity or the simple ‘can’, but to be exercised
according to the principles of law and justice. In this perspective, which, following
natural law traditions, commits all state action to the goal of material justice and
wants a genuine rule of law, not just simple rule by law, the Rechtsstaat stands for an
idea of freedom that is equally constitutive for the modern constitutional state and a
liberal world order.
Precisely because this idea of freedom is constantly being challenged anew in
the course of time—thinking of Hungary and Poland, but also of the former Trump
administration’s more or less great ignorance of a rule-based international legal
order—it is important to adhere to it with emphasis. The attribute Rechtsstaat has
an identity-determining effect on every liberal form of rule, in or beyond the state.
It may sound paradoxical to say that the Rechtsstaat does not depend on the state.
In contrast to the principle of democracy, the principle of nomocracy is not bound
to ‘supposed ontological variables’ such as the ‘people’ (or even the ‘state’), but is
solely bound to the existence of ‘institutionalized power’.13 It is precisely for this
reason that further discourses on rule—and institution-based political order-building
are hardly conceivable without the narrative of the Rechtsstaat—right up to the talk
of an ‘international rule of law’14 and more or less successfully tested ‘rule of law
further P Lerche, Vorbehalt des Gesetzes und Wesentlichkeitstheorie, in: D Merten and H-J Papier
(eds), Handbuch der Grundrechte (vol III, edn 2009) § 62.
9 See further D Fairgrieve, State Liability in Tort: A Comparative Law Study (OUP 2003).
10 M Fenwick et al (eds), The Shifting Meaning of Legal Certainty in Comparative and Transnational
Law (Hart Publishing 2017).

11 Formally referred to as ‘Grundgesetz’ (‘GG’), which simply means ‘Basic Law’. This is for
historical reasons.
12 See for example N Lacey, ‘Populism and the Rule of Law’, (2019) 15 Annual Review of Law
and Social Science 79 et seq.

13 A v Arnauld, ‘Rechtsstaat’ in O Depenheuer and Ch Grabenwarter (eds), Verfassungstheorie
(Mohr Siebeck 2010), § 21 MN 13, 58 et seq (own translation).

14 There is a broad discussion on this in international law, see for example J Carter, ‘The Rule of
Law and the State of Human Rights’ (1991) 4 Harvard Human Rights Law Journal, 1 et seq.; A
Watts, ‘The International Rule of Law’ (1993) German Yearbook of International Law 36, 15 ff.; I
Brownlie, The Rule of Law in International Affairs, International Law at the Fiftieth Anniversary
of the United Nations (Springer Netherlands 1998); G Hafner, ‘The Rule of Law and International
Organizations’ (2005) Liber Amicorum J. Delbrück, 307 et seq.; S Chesterman, ‘Rule of Law’
(2012) Max Planck Encyclopedia of International Law https://www.mpepil.com accessed 29 April
2020; J E Nijman, ‘Non-State Actors and the International Rule of Law: Revisiting the ‘Realist
160 M. Kotzur
dialogues’.15 After all, this is precisely why the paradigm of Rechtsstaat is assigned
to political unity-building: it is about the ‘binding of sovereign power in the interest
of individual freedom’.16
8.2 On the Overarching Framework: The Dimensions

of the Rechtsstaat
How is it possible to approach the varying notions of power in a liberal state?17 Ideas
often originate less from the Platonic heaven of ideas than from findings of reality.
Therefore, the state must preferably be a construction of the existential needs and
experiences of injustice of those who want to form and live in a political commu-
nity: the individuals. Being at the mercy of arbitrariness is probably one of their
most existential experiences of injustice. It arises everywhere where rule does not
have to legitimize itself, knows no boundaries and eludes all control. But there is a
second reference to reality: ideas want to regulate and change reality. This normative
claim directs the view to the functions. The establishment, limitation and control of
sovereign power by law in legally ordered procedures, therefore, do form the nucleus
of the Rechtsstaat: its functional triad.18
‘Rule of law’ always means inter alia ‘rule by law’, but it also always means
more than mere ‘rule by law’. Law in this sense serves as an instrument of rule and
forms the standard of legitimation for a rule. The aspect of the justification of power
itself requires justification since this function is primarily attributed to democracy.19
The democratic sovereign, however, realizes political self-determination through the
establishment of law, first and foremost constitutional law, being legally limited by
universal human rights. Like any form of sovereignty, popular sovereignty is only
bearable because it is ultimately legally limited.20
Theory’ of International Legal Personality’ (2010) Amsterdam Center for International Law, 7 et
seq. https://ssrn.com/abstract=1522520 accessed 29 April 2020.
15 For example the German-Chinese Rule of Law Dialogue, on this the German Ministry of Justice
(24 March 2015). https://www.bmjv.de/EN/EU/Topics/GermanChineseLawDialogue/GermanChi

neseLawDialogue_node.html accessed 29 April 2020.
16 A Voßkuhle, ‘Rechtsstaat unter Druck’ [2018] Die Zeit 40, 6 (own translation).
17 U. Scheuner, Die neuere Entwicklung des Rechtsstaats in Deutschland, in E v Caemmerer and E
Friesenhahn/R. Lange (eds), Hundert Jahre deutsches Rechtsleben, Festschrift zum hundertjährigen
Bestehen des Deutschen Juristentages 1860-1960 (vol II, CF Müller 1960) 229 et seq., at 234.
18 This triad corresponds with the functions of the constitution itself.
19 P Häberle, however ‘explicitly regards the pluralistic democracy as the organizational conse-
quence of human dignity’, see P. Häberle, ’Human Dignity as the Foundation of the Constitutional
State and the Political Community’, in M Kotzur (ed), Peter Häberle on Constitutional Theory:
Constitution as Culture and the Open Society of Constitutional Interpreters (2018) 167 et seq., 206
et seq.
20 The clause in Article 79 para 3 of the German Constitution does this by excluding certain funda-
mental principles (e.g., the guarantee of human dignity, but also the principle of the Rechtsstaat)
from constitutional revision.
The second central dimension or function of the Rechtsstaat is that of recogni-

tion.21 This may at first seem surprising because recognition is primarily a social-
philosophical, not a legal term. But this attempt to construct the Rechtsstaat is, as just
outlined, guided by reality and therefore cannot avoid the admission that political and
social freedom can only be thought of within reasonable conditions of recognition.
In the use of freedom and in social claims to the validity of experience, the individual
is dependent on the reciprocal recognition by the others.22 Social science findings
show that the ‘socially detached’ radicalize and become susceptible to populism of
any provenance when their fears and needs are no longer taken seriously by politics,
when they no longer feel respected and recognized.23 Certainly, such recognition
can only be demanded normatively to a limited extent, but the Rechtsstaat wants
to set the normative framework for this. Article 1 para. 1 clause 1 of the German
Constitution does this by placing the state in the service of the human being, and by
guaranteeing every human being dignitary and therefore an irrevocable recognition
by the sovereign power. And Article 1 para. 1 clause 2 as well as Article 1 para. 2
of the German Constitution do this by imposing on the state duties to protect funda-
mental rights,24 by making fundamental rights the basis of every human community
by forming a social order in which the individual may not be denied a minimum
of recognition by the others.25 The consequence, specifically to the Rechtsstaat, is
that everyone has a ‘right to have rights’26 on the one hand, and, on the other hand,
this is guaranteed as the fundamental conditions of human existence, without which
the effective use of freedom (including the exercise of the necessary rights) would
not be possible. Therefore, the recognition-based Rechtsstaat is always also a social
Rechtsstaat.27
21 See A Honneth, The I in We: Studies in the Theory of Recognition (1st edn, Polity 2014); A
Honneth, Anerkennung. Eine europäische Ideengeschichte (Suhrkamp 2018) (English version:
Recognition. A Chapter in the History of European Ideas, forthcoming in 2021).
22 Again A Honneth, Anerkennung. Eine europäische Ideengeschichte (Suhrkamp 2018).
23 In this context: B Moffitt, The Global Rise of Populism (Stanford University Press 2016); M
Kotzur (ed), Wenn Argumente Scheitern. Aufklärung in Zeiten des Populismus (Mentis 2018).
24 Ch Starck, ‘State Duties of Protection and Fundamental Rights’ (2000) 3 Potchefstroom
Electronic Law Journal, 21 et seq.

25 On this see the established jurisprudence of the German Federal Constitutional Court, e.g.
BVerfGE 7, 198. For an international human rights perspective on this topic see I. Kanalan, ‘Hori-
zontal Effect of Human Rights in the Era of Transnational Constellations: On the Accountability
of Private Actors for Human Rights Violations’, in M Bungenberg et al (eds), European Yearbook
of International Economic Law (2016) 423 et seq.
26 In reference to H Arendt, The Origins of Totalitarianism (Mariner Books 1994) 296; see further
P Häberle, ‘Human Dignity as the Foundation of the Constitutional State and the Political Commu-
nity’, in M Kotzur (ed), Peter Häberle on Constitutional Theory: Constitution as Culture and the
Open Society of Constitutional Interpreters (Hart Publishing 2018) 167 et seq.
27 In German: ‘sozialer Rechtsstaat’, see E Benda, Der soziale Rechtsstaat, in E Benda, W Maihofer
and H-J Vogel (eds), Handbuch des Verfassungsrechts der Bundesrepublik Deutschland (2nd edn,
De Gruyter 1994) § 17. Further on the relation between the rule of law and the welfare state H W
Jones, ‘The Rule of Law and the Welfare State’ (1958) Columbia Law Review 58, 143 et seq.
162 M. Kotzur
Finally, there is a third central dimension of the Rechtsstaat which can also be
presented as a consequence of the first two dimensions: the peaceful and law/rule-
based settlement of disputes. This means much more than effective legal protec-
tion by courts. Only those who can be sure of the enforceability of their rights and
who can therefore trust judicial authorities will be willing to submit themselves to
sovereign power. Legal remedies and dispute-settlement mechanisms are therefore
a prerequisite for legitimizing sovereign power. It is precisely through the protec-
tion of fundamental rights that judicial authority sets concrete limits to sovereign
power and allows for its control. For this reason, the modern liberal constitutional
state is primarily a ‘Grundrechtsstaat’28 —a Rechtsstaat of fundamental rights. In the
European contexts of the Council of Europe and the European Union, ‘rule of law’
means primarily ‘rule of fundamental rights’.29 In the Grundrechtsstaat, those who
can claim their rights are recognized and acknowledged as effective actors in an open
society.30 In other words: rule-based dispute settlement enables recognition-based
interaction within a social community.
This leads us to an interim conclusion: on the one hand, the Rechtsstaat serves
to establish, limit and control sovereign power, and on the other hand, it serves the
individual’s claim to recognition. Both are achieved not least through (participa-
tory) procedures of peaceful and rule-based dispute settlement. These overarching
dimensions, or functions, refer at the same time to the formal and the material, the
procedural and the substantial, the institutional and the individual human rights side
of the Rechtsstaat.31 Just as binary structures often remain under-complex, it would
be wrong, however, to think of these sides separately, or even as pairs of opposites.
They rather condition and complement each other. The formal side of the organiza-
tion of power would be devoid of meaning if it were not in the service of material
28 P Häberle, ‘Wechselwirkungen zwischen deutschen und ausländischen Verfassungen’ in D

Merten and H-J Papier (eds), Handbuch der Grundrechte in Deutschland und Europa (vol I, CF
Müller 2004) § 7 MN 31; P Häberle, Europäische Verfassungslehre (5th edn, Nomos 2008) 330 et
seq.; P Häberle, Verfassungslehre als Kulturwissenschaft (2nd edn, Duncker Humblot 1998) 715 et
seq.
29 J Limbach, ‘Die Kooperation der Gerichte in der künftigen europäischen Grundrechtsar-
chitektur—Ein Beitrag zur Neubestimmung des Verhältnisses von BVerfG, EuGH und EGMR’
[2000] Europäische Grundrechte-Zeitschrift (EuGRZ) 417: ‘Herrschaft der Grundrechte’. For a
comparative perspective see further A. Narváez Medécigo, Rule of Law and Fundamental Rights:
Critical Comparative Analysis of Constitutional Review in the United States, Germany and Mexico
(Springer 2016).
30 Fundamentally on this idea, P Häberle, ‘The Open Society of Constitutional Interpreters – A
Contribution to a Pluralistic and ‘Procedural’ Constitutional Interpretation’, in M. Kotzur (ed), Peter

Häberle on Constitutional Theory: Constitution as Culture and the Open Society of Constitutional
Interpreters (Hart Publishing 2018) 129 et seq., at 137 et seqq.
31 On the distinction between formal and substantive sides of the rule of law, P Craig, ‘Formal and
Substantive Conceptions of the Rule of Law: An Analytical Framework’, in R Bellamy (ed) Public
Law (Sweet & Maxwell Stevens Journal 1997) 467 et seq.
demands on the exercise of power. Procedures are not an end in themselves, funda-
mental rights can be interpreted as institutions, and institutions, for their part, are at
the service of fundamental freedoms.32
Clearly, there are various overlappings and interconnections in these overar-
ching dimensions to be recognized. The specific principles that together form the
‘Rechtsstaat’ each have formal and material, procedural and substantive, institu-
tional and individual human rights aspects. These binary structures can be arranged
according to the functional triad. It must be recognized, however, that these dimen-
sions condition and complement each other. The understanding of the concept of
the ‘Rechtsstaat’ manifests itself in the fundamental rights and the constitution. The
following section draws these contours of the ‘Rechtsstaat’.
8.3 Normative Condensation: The Contours

of the Rechtsstaat
The establishment, limitation and control of sovereign power are first and foremost
based on the comprehensive commitment to fundamental rights and the constitution.
The German Constitution spells this out in Article 1 para. 3 and Article 20 para. 3.33
The principle of legal certainty and determination,34 the concrete requirements for
the delegation of legislative powers from the legislative to the executive branch,35 the
principle of proportionality,36 the prohibition of retroactive effects37 and the protec-
tion of legitimate expectations38 formulate qualitative standards, both for compliance
with law and justice and for the comprehensive obligation of all three state powers
32 On the multi-dimensionality and the institutional side of fundamental rights, P Häberle, ‘Funda-
mental Rights in the Welfare State’, in M Kotzur (ed), Peter Häberle on Constitutional Theory:
Constitution as Culture and the Open Society of Constitutional Interpreters (Hart Publishing 2018)
7 et seq.
33 Art 1 para 3: ‘The following basic rights shall bind the legislature, the executive and the judiciary
as directly applicable law.’ Art 20 para 3: ‘The legislature shall be bound by the constitutional
order, the executive and the judiciary by law and justice.’ This and all subsequent translations of
the German Constitution by C Tomuschat et al, ‘Basic Law for the Federal Republic of Germany’
https://www.gesetze-im-internet.de/englisch_gg/ accessed 29 April 2020.
34 Fairgrieve (n 10).
35 E.g., Art 80 para 1 of the German Constitution allows such a delegation of legislative powers
under certain conditions: ‘The Federal Government, a Federal Minister or the Land governments
may be authorized by a law to issue statutory instruments. The content, purpose and scope of the
authority conferred shall be specified in the law. Each statutory instrument shall contain a statement
of its legal basis. If the law provides that such authority may be further delegated, such subdelegation
shall be effected by statutory instrument.’
36 Comprehensively on the topic see further: G Huscroft et al (eds), Proportionality and the Rule
of Law: Rights, Justification, Reasoning (CUP 2014).

37 See further Ch Sampford, Retrospectivity and the Rule of Law (CUP 2006).
38 Allan (supra n 7).
164 M. Kotzur
to observe fundamental rights. The separation of powers39 is a central functional

condition for limiting and controlling power. The dangers of an unrestricted rule
are not least sought to be averted by the state’s liability for wrongful acts,40 in that
it does not relieve the authorities of responsibility for injustice. To what extent the
function of the Rechtsstaat to establish, limit and control power implies a minimum
of coherence, and therefore to what extent the legal system can be demanded to be
free of contradictions remains controversial for practical reasons alone.
The dimension of recognition is primarily represented by the guarantee of human
dignity41 from which the fundamental rights of the individual are ultimately derived.
The dimension of rule-based dispute settlement is concretized by the guarantee of
effective legal remedies,42 judicial independence,43 the right to a lawful judge44 or
the right to be heard before a court.45 This list cannot claim to be exhaustive due to
the fact that the concretizations of the Rechtsstaat are historically contingent and new
challenges to freedom require new answers of rule-based safeguarding of freedom.
To put it bluntly, although the principle of the Rechtsstaat is—due to its functional
logic—based on indispensable and insofar timeless core elements, it must remain
an open principle. It must remain open to react adequately to new experiences of
injustice. In view of such dynamics, an overhasty retreat into a state of emergency
certainly does not offer an adequate solution.46 The self-assertion of the Rechtsstaat 47
will certainly not succeed by abandoning its premises.
39 Les Verts v European Parliament (supra n 6).

40 Piccirilli (n 9).
41 P. Häberle (n 18).
42 In the German Constitution, this is the function of Art 19 para 4: ‘Should any person’s rights be
violated by public authority, he may have recourse to the courts.’

43 Art 97 para 1 of the German Constitution: ‘Judges shall be independent and subject only to the
law.’
44 Art 101 para 1 of the German Constitution: ‘No one may be removed from the jurisdiction of his
lawful judge.’
45 Art 103 para 1 of the German Constitution: ‘In the courts every person shall be entitled to a
hearing in accordance with law.’

46 Classically, C Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Univer-
sity of Chicago Press 1922), translated by G Schwab, foreword by T B Strong, 2005. This topic is
dealt with in contemporary literature e.g. by G Agamben, State of Exception (University of Chicago
Press 2005); K Harms, Verfassungsrecht in Umbruchsituationen (Nomos 1999) 125 et seq.; M
García-Salmones, ‘The Ethos of the Rule of Law in International Legal Discourse: Portrait of an
Outsider’ (2008) 10 International Community Law Review 1, 29 et seq., at 33.
47 In allusion to O Depenheuer, Die Selbstbehauptung des Rechtsstaats (Ferdinand Schöningh
2007).
8.4 Classification in the Real World: The Contexts

of the Rechtsstaat
The open conception of the Rechtsstaat allows it to respond to various real-world

changes and contexts. The strongest pressure for change arises from globalization
and the pluralization of powerful actors that the latter entail. If sovereign power,
which was formerly exercised purely by the state, is now exercised both in supra-
national cooperation contexts and by non-state actors, the establishment, limitation
and control of sovereign power are no longer limited to the state.48 Whoever exer-
cises sovereign or quasi-sovereign power needs legal containment in this exercise of
power: the supranational European Union as well as classical international organiza-
tions, transnational corporations as well as intergovernmental associations. The fact
that the nation-state experiences a loss of function and control, caused by de facto
processes of increasing interdependence and delimitation, calls for a rule-based,
international order that compensates these losses.49 The functions of the Rechtsstaat
have to be internationalized.50 This is especially true in view of new threats typical
of globalization, such as international terrorism, which bring about a paradigm shift
in national and international law and make risk prevention the defining leitmotif of
political order formation. This is accompanied by a precarious renaissance of the idea
of a ‘state of emergency’ in the scholarship ranging from Carl Schmitt to Georgio
Agamben.51 A careful distinction must be made between legally tamed emergency
regulations and a state of emergency—in the sense of Schmitt—which is hostile
to freedom.52 Selective emergency measures can be in harmony with fundamental
human rights obligations and thus with the minimum requirements of the rule of law,
but a perpetuated state of emergency would be the end of freedom.
Closely related to the context of globalization is a progressive differentiation,
even fragmentation and hybridization of law. The danger of a diffuse amalgamation
of legal standards cannot be completely dismissed. To give just two examples: how
can ‘soft law’ be interpreted in terms of the Rechtsstaat when its adoption does not
take place in the formal procedures that are so typical of the Rechtsstaat? How to
48 Not least the debate on globalization and constitutionalism in international law seeks answers to
this question. From the extensive literature see further for example J Klabbers et al, The Constitution-
alization of International Law (OUP 2009); Th Kleinlein, Konstitutionalisierung im Völkerrecht.
Konstruktion und Elemente einer idealistischen Völkerrechtslehre (Springer 2012).
49 A theory proposal, also from the international legal constitutionalization debate, see A Peters,
‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms

and Structures’ (2006) 19 Leiden J Int’l L 3, 579 et seq.
50 The idea of an ‘international’ or ‘global’ rule of law has already been mentioned, see A v Arnauld
(n 13).
51 I Miethke, Giorgio Agambens Homo-Sacer-Projekt im Völkerrechtsschrifttum. Eine völkerrecht-
sphilosophische Untersuchung, nach rezeptionstheoretischen Grundlagen abgehandelt (Duncker

Humblot 2017).
52 For more information on this, see M Kotzur, ‘Die Weltgemeinschaft im Ausnahmezustand?’, in
S Boysen, M Kotzur and R Uerpmann-Wittzack (eds), Archiv des Völkerrechs 42 (2004), 353 et
seq.
166 M. Kotzur
deal with religious law in the Rechtsstaat when it is not under any worldly pressure of
legitimation?53 And yet it would be naïve to negate the plurality of normative systems
and to assume a legislative monopoly of the state, which in this sense no longer exists
today. Rather, the question arises as to how much legal pluralism the Rechtsstaat can
permit, and how it can do justice to its functional triad—the establishment, limitation
and control of sovereign power—in a legally pluralistic way.54
This also addresses the third context: the changing real-world conditions of the
democratic organization of power, often referred to with catchwords such as ‘post-
democracy’55 or ‘post-parliamentarism’.56 These expressions were coined by the
British political scientist C. Crouch who fears ‘post-democratic’ times in which
democratic institutions are still formally intact, but are more or less empty shells
due to serious functional losses and the shift of power to the (transnational) execu-
tives, sometimes even to private actors.57 This worry about an ‘executive authority
which has made itself an independent power’,58 a formulation that K. Marx also used
with regard to Bonapartism, clearly has a connection to the Rechtsstaat. It concerns
not only the erosion of democratic ties but also of the containment in principles of
the Rechtsstaat. By reserving the decision of substantial weight to the democrati-
cally elected parliament—and thereby expressing the primacy of the legislator and
the law—the German Federal Constitutional Court acknowledges this connection.59
The structurally adequate pluralization of instruments of legitimation is therefore an
essential task for the future of the Rechtsstaat, just like the task of securing effective
participation in polyarchic orders.60
The three reference fields of globalization, hybridization of law and the changing
conditions of democratic rule are, of course, only a part of the picture. Many further
53 E.g., S Mokhtari, ‘The Search for Human Rights Within an Islamic Framework in Iran’ (2004)
94 The Muslim World 4, 469 ff.
54 See N Walker, ‘The Idea of Constitutional Pluralism’, (2002) 65 Modern Law Review 3, 317 ff.;
M Maduro, ‘Contrapunctual Law: Europe’s Constitutional Pluralism in Action’, in N Walker (ed),

Sovereignty in Transition (Hart Publishing 2001) 501 ff.
55 C Crouch, Post-Democracy (Polity Press 2004).
56 S S Andersen and T Burns, ‘The European Union and the Erosion of Parliamentary Democracy:
A Study of Post-Parliamentary Governance’, in S S Andersen and K A Eliassen (eds), The European

Union: How Democratic Is It? (SAGE Publications Ltd 1996) 227 ff.
57 C Crouch (n 56) on this eg H Pünder, ‘Wahlrecht und Parlamentsrecht als Gelingensbedin-
gungen repräsentativer Demokratie‘ in G Biaggini, C Walter and K-F Gärditz/H. Pünder (eds),
Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 72 (De Gruyter 2013), 191 et
seq., at 193.
58 K Marx, ‘The Eighteenth Brumaire of Louis Bonaparte’, in D McLellan (ed), Karl Marx: Selected
Writings (OUP 2nd edn 2000) 329 ff. at 352; in the German original: ‘verselbstständigte Macht der
Exekutivgewalt’, K Marx, Der achtzehnte Brumaire des Louis Bonaparte (2nd edn., Meißner 1869)
95.
59 So-called ‘Vorbehalt des Gesetzes’ or ‘Parlamentsvorbehalt’; from the jurisprudence of the
German Federal Constitutional Court: BVerfGE 49, 89 (129); 61, 260 (275); 73, 280 (294, 296); 82,
209 (224 et seq., 227); 83, 130 (142); 108, 282 (311); 120, 378 (407); 128, 282 (317). See further
(n 8).
60 R A Dahl, On Democracy (YUP 2000) 93 et seq.
contexts would have to be added. One may only think of the principles of state
structure, which are laid down in Article 20 of the German Constitution along with
the Rechtsstaatsprinzip: the principles of democracy, federalism, social state and the
republican principle.61 One may also think of the broad fields of economics and poli-
tics, and not least of the cultural matters which no constitutional theory sensitive to
cultural sciences can ignore.62 Nevertheless, I will leave it at these three exemplary
contexts, because they describe the future tasks of the democratic Rechtsstaat in their
essential facets as they implicitly consider many of the other contexts—but above all
because they explicate the cantus firmus of this attempt at contouring and contextu-
alizing the Rechtsstaat: the common roots, the interwoven and interdependent nature
of freedom in democracy and in the Rechtsstaat.
8.5 The Imperative of the Rechtsstaat
This leads to the final quintessence. The Rechtsstaat is certainly an open collective
term. But it is even more a bundling concept which ties all its relevant partial elements
and partial principles back to the idea of freedom through rule-based, law-based orga-
nization of power. It is concerned with the unequivocal rejection of absolute power63 ;
it knows, inspired by classical masterminds such as Immanuel Kant, Robert von Mohl
or Johann Christoph Freiherr von Aretin,64 that the comprehensive legal binding of
all sovereign power is a living condition; in other words, an ‘anthropological neces-
sity’65 of a free society and a political community ordered in freedom. As such, it is
much more than a specifically German concept. It is rather of fundamental signifi-
cance for every liberal democratic order as the aforesaid discussion has shown. For
this reason, in a time of rampant populism and increasing attractiveness of the author-
itarian, the Rechtsstaat is not only the topic but also the order of the day. If threats
to liberal democracy, as it embodies the Rechtsstaat, are not nipped in the bud, the
end has already begun.
61 An overview on some of these principles is given by D P Kommers and R A Miller, The Consti-
tutional Jurisprudence of the Federal Republic of Germany (3rd edn, Duke University Press 2012)
79 et seq.
62 P. Häberle, Verfassungslehre als Kulturwissenschaft (2nd edn., Duncker Humblot 1998); P
Häberle and M Kotzur, EuropäischeVerfassungslehre (8th edn, Nomos 2016); P Häberle, ‘The
Rationale of Constitutions from a Cultural Science Viewpoint’, in M Kotzur (ed), Peter Häberle on
Constitutional Theory: Constitution as Culture and the Open Society of Constitutional Interpreters
(Hart Publishing 2018) 229 ff.; P Mankowski, Rechtskultur (Mohr Siebeck 2016).
63 K Stern, Das Staatsrecht der Bundesrepublik Deutschland (vol I, 2nd edn, CH Beck 1984) 765.
64 Dealing with these classical texts, K Stern, Das Staatsrecht der Bundesrepublik Deutschland (vol
I, 2nd edn, CH Beck 1984) 769 et seq.

65 H Ryffel, Grundprobleme der Staats- und Rechtsphilosophie (Luchterhand 1969) 416: ‘anthro-
pologische Notwendigkeit’.
Chapter 9
Does Authoritarian Legality Work
for China?
Qianfan Zhang
Abstract This article begins with a genuine reform aiming to modernize the Party–
state relationship—the brave blueprint presented by General Secretary Zhao Ziyang
in 1987 at the 13th National Congress of the CCP, proposing to separate the Party
and administration. Like any previous genuine reform in China, however, the sepa-
ration reform quickly foiled and has been forgotten since the crackdown in 1989.
The article moves on to discuss reform in the very opposite direction—the central-
ization of political and judicial powers since General Secretary Xi Jinping took over
in 2013, accompanied by massive anticorruption campaigns and, at the same time,
systematic restriction of civil and political rights. It then refutes the claim that the
centralization reform is buttressed by reliable public opinion support and follows the
logic of authoritarian legality. It predicts that, without reliable grassroots support, a
purely top-down reform characterized by an elaborate supervisory system and the
anticorruption campaign will fail to achieve its stated purpose, nor will the judicial
reform make substantive progress. The article concludes by reinstating that the sepa-
ration of the Party and administration is the only path for China’s legal reform to
make genuine progress under the existing regime.
9.1 Introduction
Since March 2018, when the National People’s Congress of China removed the term
limit of the state presidency, much of the world has lost faith in the prospect of its legal
and political reforms. To be sure, under the current Constitution enacted in 1982, the
The paper was presented at the Workshop on Parties, Partisanship, and the Constitution, University
of Oxford in June 2019 and China Reform Forum 2019, Georgetown University in August 2019.
I thank Ewan Smith, Tom Kellogg and Donald Clarke for their invitations and comments on the
paper, and the participants for helpful discussions. Certain sections of this chapter draw from the
author’s previous work: Qianfan Zhang, ‘The Communist Party Leadership and Rule of Law: A
Tale of Two Reforms’, (2020) Journal of Contemporary China https://doi.org/10.1080/10670564.
2020.1852743 accessed 6 March 2021.
Q. Zhang (B)
School of Law, Peking University, Beijing 100871, China
170 Q. Zhang
President of the State is a figure of largely ceremonial significance. Still, this move
sent a disturbing signal to the world that is justifiably worried, particularly because
the state presidency has been held since 1993 by the same person who holds the posi-
tions of the Secretary-General of the Chinese Communist Party (CCP) and is also the
Chairman of the Central Military Commission, the two most powerful positions in
China.1 As these two positions are limited to two terms only by an unwritten conven-
tion established in the early 1980s,2 eliminating the term limit of the state presidency
raises the serious possibility of rolling back the clock of political reform that has
been going nowhere since June 1989 and further concentrating the already highly
concentrated power of the General Secretary, which has been held by Xi Jinping since
late 2012.3 Given the tremendous success of the anticorruption campaign within the
officialdom, which has apparently established the absolute authority of Xi within
the ruling Communist Party, and the comprehensive crackdown of the inchoate civil
society in the past several years—the massive arrest and persecution of human rights
lawyers since July 2015 (the 7/09 Event),4 the heightened grip on all forms of media,
particularly the official news media which is now required to pay ‘absolute loyalty to
the party’,5 the graded punishment of outspoken liberal intellectuals and the encour-
agement of student informants on campus, the large-scale cross-burning movement
1 Jiang Zemin became the General Secretary of the CCP Central Committee in June 1989, the
Chairman of CMC in March 1990 and the President of the State in March 1993, and held these
positions until 2002, March 2005 and March 2003, respectively.
2 Deng Xiaoping, ‘On the Reform of the System of Party and State Leadership’,
18 August 1980, https://dengxiaopingworks.wordpress.com/2013/02/25/on-the-reform-of-the-sys

tem-of-party-and-state-leadership accessed 15 December 2020. The seven members of the Central
Consultative Committee (zhongyang guwen weiyuanhui) agreed to resign their party posts before
the convening of the Thirteenth National Congress of the CCP in 1987, setting the precedent for
abolishing the life tenure of leading cadres, while Deng Xiaoping remained the Chairman of the
CMC until 1990. See Sun Liping, ‘Deng Xiaoping’s Strategic Decision and Historical Achieve-
ment for Abolishing the Life Tenure of Cadre’s Leadership Positions’, Studies in Party History
of the CCP 2014 http://www.zgdsw.org.cn/n/2014/0804/c349708-25399566-3.html accessed 15
December 2020.
3 Cheng Li, Chinese Politics In The Xi Jinping Era: Reassessing Collective Leadership (Brook-
ings Institution Press 2016); Stein Ringen, The Perfect Dictatorship: China in the 21st Century
(Hong Kong University Press2018); Suisheng Zhao, ‘Xi Jinping’s Maoist Revival’, (2016) 27:3
Journal of Democracy 83, 92–96; Andrew Nathan, ‘China: Back to the Future’, The New
York Review, (10 May2018) http://www.nybooks.com/articles/2018/05/10/china-back-to-the-fut
ure/; Jiayang Fan, ‘Xi Jiping and the Perils of One-Person Rule in China’, The New Yorker (1
March 2018) https://www.newyorker.com/news/daily-comment/xi-jinping-and-the-perils-of-one-
person-rule-in-china accessed 16 December 2020.
4 On that day the police stormed the Beijing Fengrui Law Office and arrested a dozen lawyers,
summoning hundreds of lawyers nationwide to investigate their connections with Fengrui. Zhou
Shifeng, its director, was forced to openly confess the commission of subversion of state regime
on the China Central Television (CCTV), and was sentenced to seven years imprisonment. The last
lawyer defendant, Wang Quanzhang, was tried and convicted after being detained for three and half
years after his arrest. See ‘Wang Quanzhang: China jails leading human rights lawyer’, BBC News
(28 January 2019) https://www.bbc.co.uk/news/world-asia-china-47024825.
5 Recently, 45 correspondents are arrested for their association with Bitter Winter, a magazine
devoted to China’s religious freedom and human rights. See Marco Respinti, ‘The Fate of 45
9 Does Authoritarian Legality Work for China? 171
and the disbanding of unregistered churches under the new Religious Affairs Regu-
lation—the list may go on,6 the world witnessing all these changes has good reason
to suspect that China has resolutely turned its back on the constitutional promise
for ‘establishing a socialist state of rule of law’.7 Added to that list is the recent
crackdown on Hong Kong, which effectively turns the ‘one-country, two systems’
into the ‘one-system’—one that has been practiced in the Mainland China.
China has not, of course, always been this way. The 1980s was the golden age not
only for economic reforms but also for legal and political reforms, culminating in the
‘separation of the Party and the Administration’ (dangzheng fenli) proposal in the
report of the CCP’s 13th National Congress in 1987. Although the political reform
has permanently been stalled since June 1989, hopes for legal, even constitutional
reforms reinvigorated after Deng Xiaoping’s Southern Tour (1992) succeeded in
bringing economic reform back to life. In 1999, the Constitution was amended to
incorporate the commitment of ‘ruling the state in accordance with the law (yifa
zhiguo) and building a socialist state of rule of law (fazhi guojia)’.8 An ambitious
judicial reform was launched by the Supreme People’s Court (SPC) in the same year,
under the leadership of President Xiao Yang, who avowed to make a Chinese judge
‘the judge in real sense’.9 In 2001, the SPC applied the Constitution for the first time
since its founding in a decision on the right to education.10 In another two years, when
Hu Jintao, Xi’s predecessor, assumed power in 2003, the Sun Zhigang tragedy ignited
a prairie fire of national protest that pushed the State Council under Premier Wen
Jiabao to revoke within three months of the event a regulation restricting personal
freedom, opening a new era in which ordinary people may air their grievances and
defend their rights by access to the constantly renovating forms of new social media,
when the official media, all state-owned, had failed to work. The so-called ‘Sun
Zhigang model’, with all its inevitable deficiencies, had been the way of possibly
getting some things done in the post- (or neo-) totalitarian China in the decade that
followed.11 Prior to 2013, when Xi took over the power, both the burgeoning public
intellectuals of the country and the outer world saw genuine hope in its project of
economic reforms and rule of law that had continued for over three decades since the
downfall of the Gang of Four in 1976. Indeed, they were so optimistic that over 70
prominent scholars signed a petition calling for comprehensive reforms at the end
Arrested Correspondents’, Bitter Winter (11 February 2019) https://zh.bitterwinter.org/fate-bitter-

winters-45-arrested-reporters/ accessed 16 December 2020.
6 See Carl Minzner, ‘China’s Turn Against Law’, (2011) 59 AM. J. COMP. L. 936.
7 PRC Constitution, Art 33.
8 PRC Constitution, Art 5.
9 ‘The Outline of the Five-Year Reform of the People’s Court’, Xinhua Daily (25 October 1999),
B1.
10 ‘Reply Regarding Whether One Who Violated the Constitutionally Protected Basic Right to
Education of the Citizen Should Bear Civil Obligation’, Judicial Interpretation [2001] No. 25.
11 Qianfan Zhang, ‘A Constitution without Constitutionalism? The Paths of Constitutional Devel-
opments in China’, (2010) 8 Int’l J. Const. L. 950. See also Mary E Gallagher, ‘Mobilizing the Law
in China: “Informed Disenchantment” and the Development of Legal Consciousness’, (2006) 40
L. & Soc’y Rev. 783.
172 Q. Zhang
of 2012,12 shortly after Xi became the Secretary-General, with full hope that some
aspects of the petition would be endorsed by the new party leader.
Unfortunately, as Susan Shirk pointed out, the post-Mao institutionalization of
leadership politics had not proceeded far or deeply enough to prevent an ambitious
leader from restoring personalistic dictatorial rule.13 Ten years after the Sun Zhigang
event, the trend was unmistakably reversed. Even though the reeducation-through-
labor (laodong jiaoyang) program, another restrictive regulation with consequences
more serious than that caused the Sun Zhigang tragedy, was finally abolished during
the 18th National Congress of the CCP in 2013, the event marked the end of the
progressive era. In fact, during the same Congress, together with another two public
intellectuals,14 I myself suffered from a ‘gag order’ that permanently removed all
my domestic blogs (boke) and micro-blogs (weibo), before I had time to congratu-
late another civil rights victory and the apparently progressive reforms outlined in
the report of that Congress. Even the revocation of the reeducation-through-labor
program has lost much of its significance due to seriously abusive use of prosecu-
tional measures under the name of ill-defined crimes such as ‘picking a quarrel’
(xunxin zishi), which seems to serve in its stead the same purpose of putting behind
bars those ‘trouble makers’ in the eyes of central and local officials, not to mention
the now much wider and capricious application of national security crimes to human
rights activists.15 With the crackdown on civil society on the one hand, and the
concentration of national political power on the other, China seems to be turning the
clock quickly back to its totalitarian past, when the law was used to suppress freedom
and deny private rights, followed by lawless chaos when the countless innocent were
persecuted with mob violence.16
So we are left with a conundrum: is it possible for an authoritarian one-party
system to genuinely promote rule of law?17 This article begins with a genuine reform
aiming to modernize the Party–state relationship—the brave blueprint presented by
General Secretary Zhao Ziyang in 1987 at the 13th National Congress of the CCP,
proposing to separate the Party and the Administration. Like any previous genuine
12 ‘Prominent Chinese scholars push for consensus in hope of mild political reform, not revolution’,
Fox News (26 December 2012) http://www.foxnews.com/world/2012/12/26/prominent-chinese-sch
olars-push-for-consensus-in-hope-mild-political-reform-not/ accessed 17 December 2020.
13 Susan Shirk, ‘The Return to Personalistic Rule’, (2018) 29 J. DEM. 22. See also Elizabeth
Economy, ‘China’s Neo-Maoist Moment: How Xi Jinping Is Using China’s Past to Accomplish
What His Predecessors Could Not’, Foreign Affairs (1 October 2019) https://www.foreignaffairs.
com/articles/china/2019-10-01/chinas-neo-maoist-moment accessed 17 December 2020.
14 Both were prominent public intellectuals: Wang Ying, an entrepreneur, and independent historian,
Zhang Lifan.
15 Eva Pils, China’s Human Rights Lawyers: Advocacy and Resistance (Routledge 2015); Eva Pils,
Human Rights In China: A Social Practice In The Shadows Of Authoritarianism (Polity 2017).
16 For the analysis of the Cultural Revolution (1966–76), see Gao and Yan Jiaqi, The Ten Years
History of The Great Cultural Revolution, 1966–1976 (Tianjin renmin chubanshe 1986).
17 Although it is inaccurate to describe contemporary China as ‘authoritarian’, and there is an on-
going debate whether it should be characterized as ‘post’ or ‘neo’ totalitarian regime, I will not get
into such a debate in this article and will use these terms interchangeably. See Qianfan Zhang, ‘The
Construction and Deconstruction of Totalitarianism’, (2016) 1 China Strategic Analysis 25–53.
reform in China, however, the separation reform quickly foiled and has been forgotten
since the crackdown in 1989. The article moves on to discuss reform in the very
opposite direction—the centralization of political and judicial powers since General
Secretary Xi Jinping took over in 2013, accompanied by massive anticorruption
campaigns and, at the same time, systematic restriction of civil and political rights.
I then refute the claims that the centralization reform is buttressed by reliable public
opinion support and follows the logic of authoritarian legality. I predict that, without
reliable grassroots support, a purely top-down reform characterized by an elaborate
supervisory system and the anticorruption campaign will fail to achieve its stated
purpose, nor will the judicial reform make substantive progress. Finally, I analyze
the causes that contributed to the failure of both separation and centralization reforms
as well as the political conditions for a successful reform to take place, and conclude
by restating that the separation of the Party and administration is the only path for
China’s legal reform to make genuine progress under the existing regime.
9.2 Separating the Party and the Administration: The

Right Reform that Never Took Place
How is it possible for a post-totalitarian party to realize some version of rule of law,
while explicitly insisting on its own leadership? Is it not an oxymoron to assert ‘rule
of law under party leadership’ since the maintenance of the latter necessarily under-
mines the realization of the former? Have we not witnessed the ineluctable working
of the totalitarian ‘three-in-one’ logic—one ideology, one party, one leader,18 which
ultimately surrenders all power to one man, culminating in the great catastrophe of
the Great Leap Forward and the total destruction of rule of law (or rule by law, if
you prefer) during the Great Cultural Revolution? These are legitimate questions to
ask, which the Chinese have so far answered in the negative: the party leadership
and rule of law in their pure forms cannot cohabit, even though interventions can be
made to create a system of law, as China did after it initiated reforms in 1978, and
to fix illegalities here and there.
We will shortly come back to the practical point, but if we are allowed to indulge
for a moment in imagining a logical solution to that conundrum, we will quickly find
that there is a possibility to reconcile the party leadership and rule of law, a possibility
that the government under Deng Xiaoping and Zhao Ziyang did perceive and make
an effort to turn into reality in the later 1980s. And I insist in this article that this is
indeed the only possibility that the party leadership can be made logically consistent
with rule of law, even though it is practically difficult to convert such possibility into
reality.
18The rule of party was expounded first by Sun Yat-sen in his Outline of Founding the National
Government in 1924, and fully implemented by his successor Chiang Kai-shek during the 1930s.
See Li Guilian, ‘From Rule of Law to Rule of Party: The Transformation of Sun Yat-sen’s Thought’,
(2013) 6 Yanhuang Chunqiu 42.
174 Q. Zhang
9.2.1 The Possible Solution to the Party Leadership—Rule

of Law Paradox
That possibility was brought to light in October 1987 by Zhao Ziyang, who had
just succeeded Hu Yaobang as the Secretary-General of the CCP after the latter
was forced to resign under the political pressure of the conservative old guards. In
his speech at the preparatory meeting of the 7th Plenary Meeting of the 12th CCP
Central Committee (CCPCC), Zhao prepared the ground for a fundamental change
to the Party–state relationship by explaining the necessity for reforming the highly
centralized regime that fused the Party and the state together:
The centralized regime was formed during the era of revolutionary wars, and strengthened
during the frequent political movements. It was tailored to the planned economy model char-
acterized by highly centralized commands. Now the situation is different. The construction
for modernization needs to bring into play the initiative of various organizations and from
every aspect, and requires the establishment of normal order of various organizations. The
war time regime no longer fits the need during the peace time, just as the mass movement
regime no longer fits the need of modernizing construction, and the highly centralized regime
no longer fits the need of developing commodity economy.19
Zhao’s reform advocacy was almost perfectly in line with the orthodox Marxist
thinking that, when the underlying economic foundation changes, the political system
as part of the ‘superstructure’ needs to change accordingly. As the CCP decided to
depart from the planned economy, which had failed catastrophically by producing
enormous waste and low efficiency, driving the country to the edge of bankruptcy, the
political system needed adequate adjustment in order to fit the new, ‘socialist market
economy’.20 The primary source of mismatch is derived from the lack of separa-
tion between the Party and the state that was characteristic of a highly centralized
Soviet-type of regime, where a strong ruling party is instrumental in formulating and
executing uniform central policies. Such an old regime produced not only inefficiency
but also corruption and abuse of power since the Party was incapable of supervising
itself meaningfully when it wielded every power in its own hands. Without citing
Montesquieu or Acton, whose teachings were already widely known by that time
to the Chinese intellectuals, Zhao convincingly explicated, for the first time within
the Party leadership, the necessity for the ‘separation of the Party and the Admin-
istration’,21 a notion bound to be of landmark significance in the history of China’s
political reform:
19 Zhao Ziyang, ‘On the Separation of the Party and Administration, Speech on the Preparatory
Meeting for the Seventh Plenary Session of the 12th CCPCC’, 14 October 1987.
20 The notion was formally recognized in the Constitution through amendment only in March 1993,
while the amendment in 1988 merely legalized private economy and the transfer of the right to use
land.
21 Dangzheng fenli, here translated as the separation of the party and the administration rather than
politics (zhengzhi) or government (zhengfu), since under this notion, the ruling party would still
play a leading (though now limited) role in politics and government.
The lack of separation between the Party and the administration has made the party committee
(dangwei) itself the executor [of decisions]. Only the separation of the Party and the admin-
istration can make the party committee truly equipped with the supervisory function. The
administrative system must be strengthened in order to improve efficiency, but precisely
for the same purpose, it must strengthen supervision. One cannot supervise oneself. If you
monopolize the administrative works, you will lose the qualification for supervising the
administration.22
Here Zhao openly embraced the basic tenet of rule of law that one cannot be the
judge in their own case. He foresaw the need for strong administrative leadership in
regulating a quickly developing economy, which in turn called for effective supervi-
sion. The Party could not properly exercise both powers. Someone did the work and
had to be supervised by someone else. Zhao apparently treated the supervisory power
to be one of a higher order: had the Party assumed the specific function in charge of
daily operation, the government, which is supposed to be led by the Party, cannot
‘supervise’ the Party in its proper sense. So it had to be the Party that supervised the
government that keeps the daily operation of the state. In this way, the separation
reform would promote rule of law and check against administrative abuses while
maintaining, even enhancing, the Party leadership. Only by separating itself from
the administrative power can it acquire the adequate ‘qualification’ to supervise the
administration. To be sure, the Party leadership is not limited to supervision; more
importantly, it is also in charge of major legislations that set the basic tone for the
social, economic and legal development of the state. In this way the Party leadership
is made perfectly in line with rule of law: the Party makes—to be more precise,
leads the legislature to make—the laws, and supervises the administration to ensure
that its laws are faithfully executed.23 Although the notion of ‘supervision’ leaves
certain room for manipulation, the basic logic of rule of law is left intact in the
separation thesis. After being stripped of the administrative power in handling daily
business, the Party should be interested in effectively supervising the administration
to impartially implement laws of its own making.
On October 25, 1987, in the landmark Report of the 13th National Congress of
the CCP, Zhao advocated that the long-term objective of the reform was to ‘estab-
lish a highly democratic, legally complete, efficient and energetic socialist polit-
ical system’.24 He defined at some length the newly oriented Party leadership, now
separate from the administrative and judicial functions:
22 Zhao Ziyang (n 19).

23 This would require the party secretary to take over the leadership of the people’s congress at the
same level, which has been the trend in the recent decade. Dingping Guo, ‘The Changing Patterns
of Communist Party-State Relations in China: Comparative Perspective’, (2015) 31J. E. ASIAN
AFF. 65, 67. The merging of the Party with the legislature has not been followed by the detachment
of the Party from the administration and judiciary as proposed in the political reform during the
1980s.
24 Zhao Ziyang, ‘March Along the Socialist Road with Chinese Characters, Report on the 13th
National Congress of the CCP’, 25 October 1987 http://cpc.people.com.cn/GB/64162/64168/

64566/65447/4441804.html accessed 17 December 2020.
176 Q. Zhang
The Party has led the people in enacting the Constitution and the laws. It should act within the
bounds of the Constitution and the laws…… The Party leadership is by its nature political
leadership, i.e. the leadership in terms of political principles, political direction and important
major decision-making, as well as reflected in recommending important cadres to the power
organs of the state. The methods of political leadership exercised by the Party over the
state affairs are the following: making the Party propositions the will of the state through
legal procedure, leading the vast people and mass through the Party-organized activities
and the exemplar effect of the Party members, thereby realizing the Party’s political course,
guidelines and policies. The nature, function, organizational form and working method of
the Party differ from those of the state authority. The Party leadership system shall be
reformed, the functions of the Party organization and state authority clearly demarcated, and
the relationship between the Party organization and the People’s Congresses, the government,
the judiciary, the mass associations, the enterprise institutions and various forms of social
organizations straightened out, so that each entity exercises its own duty and gradually moves
toward institutionalization.25
As a companion reform to the horizontal separation of the Party and the adminis-
tration, the report also proposed the vertical separation of the national and local func-
tions. The two separations are interconnected since the Party leadership is essentially
top-down. Merging the Party and state had inevitably led to the fusion of functions of
various levels of governments and the predominance of the center over the local; the
CCPCC would monopolize all local affairs, while the local governments are obliged
to follow the command of the party organ at the superior levels. The separation of
the Party and the administration demands and leaves room for the vertical separation
of the central and local powers since the governments at various levels, each being
freed from the dominance of the party organizations and having to operate within the
bound set by its own rules and norms, are no longer situated in a simple top-down
structure. As a result, the legislative competence needs to be divided, both between
the Party and the administration as well as among various levels of administration.
The major legislation and decision-making are, to be sure, the realm of the national
power, but China is so vast and its local disparity so enormous as to make the central-
ized mode of ‘one knife cuts all’ (yidaoqie) obviously inadequate. To meet the local
needs within the framework of law, the local governments shall enjoy a degree of
autonomy in making rules and regulations.26 Zhao’s report laid down the principle
of local autonomy, which is tantamount to the subsidiarity principle implemented in
the European Union and its member states27 :
The general principle is that whatever affairs suitable for the local (xiamian) to handle shall
be decided and implemented by the local. On the central-local relationship, the uniformity
of national policies shall be guaranteed, on which basis the central and local duties shall
25 ibid.
26 The word ‘law’ (falv) in its technical sense has been exclusively reserved for the legislations
passed by the National People’s Congress or its Standing Committee, while some local people’s
congresses and governments have the power to pass local regulations (fagui) and rules (guizhang),
respectively. See Qianfan Zhang, The Constitution Of China: A Contextual Analysis (Hart Publishing
2012), Ch 3.
27 Treaty of European Union, Art 3b; See also, the German Basic Law, Art 23.1. The French adaption
of the subsidiary principle can be found in the Charter of Deconcentration, Decree No. 92–604, 1
July 1992.
be made clear, realizing that the local affairs be locally managed, the central responsibility
being the proposition of major policies and supervision [of their implementation].28
With vertical devolution and horizontal separation brought within the vision of
the party leadership, the CCP was ready for its modernization, which would catapult
it into the orbit of rule of law.
9.2.2 The Failure of the Separation Reform
That, of course, never happened. Less than two years later, the post-1980s political
reform was derailed by the crackdown of the populist movement at the Tiananmen
Square. Deng Xiaoping’s Southern Tour, which reinvigorated the economic reform
put on hold since June 1989, set the tone of China’s reform by definitively negating
the political reform:
We found that our generation could not resolve the problem of [how to realize] lasting
order and security. So we recommended the others, someone in the third generation [of the
Communist revolution] that we really wanted to find, but the problem is still unresolved.
Both [i.e., Hu and Zhao] have failed. And they fell not before the economic problems, but
before the problem of fighting against the bourgeois liberalization.29
Unsurprisingly, the post-1992 reform has been carried out without the political
component, and the same pattern has remained to this day. Having permanently
shelved the separation experiment, the Party has been stoutly defying any structural
reform that would bring it closer to a modernized party system consistent with rule of
law. If there is any change, the recent years have witnessed the very opposite trend to
be expected from the separation of the Party and the state: the Party has managed to
augment its power vis-à-vis the state, as reflected in the substantial transfer of power
from the State Council to various party ‘groups’ (xiaozu), and the power within
the Party has significantly been concentrated in the hands of its ‘core’ (hexin), the
top leader who heads these party groups and manages to secure the loyalty of his
subordinates with, among other things, the threat of anticorruption investigation.30
Aiming to strengthen ideological control within and outside the Party, the CCP is
making a genuine effort of moving China back to the ‘one ideology, one party and
one leader’ scenario of an ideal-type totalitarian regime.
Although the recent development has to do with personal idiosyncrasies—a matter
of necessity for any authoritarian regime that critically depends on its leader, it shall

29 Deng Xiaoping, ‘Speech on the Southern Tour’, 2 January 1992 http://finance.ifeng.com/opinion/
zjgc/20111231/5389402.shtml accessed 17 December 2020.
30 The other 24 members of the CCP Politburo, including the other six members of its Standing
Committee, the supreme organ of the Party, are now required to periodically submit to Xi written
‘debriefing’ (shuzhi), reporting their works and activities, and to reflect on any deficiencies: see
http://www.xinhuanet.com/politics/leaders/2019-02/28/c_1124176936.htm accessed 17 December
2020.
178 Q. Zhang
come as no surprise since the potential of reversion is inherent in a post-totalitarian

regime that has failed to fundamentally reform its political structure. Even without
the 1989 crackdown, the separation experiment was almost doomed to fail. While
the primary concern of such paramount leaders as Deng Xiaoping was that the Party
should remain in power—which is usually enough to kill any radical reform proposal,
the ‘Party’ has never been a holistic entity abstract from living reality; it is composed
of individual members, each primarily self-interested. Although progressive reforms
as the one proposed by Zhao Ziyang as the General Secretary in 1987 might have
helped to improve the legitimacy of the Party as a whole and thus prolong its lifetime,
their impact on individual cadre is most likely to be the very opposite. And it is
necessarily so: the Party improves at the expense of its cadres, and vice versa; the very
aim of the political reform is to make the Party clean, and thus to deprive its cadres
the means to enrich themselves by rent-seeking. The more successful is the political
reform, the poorer are the cadres at all levels, who will unite to either suffocate the
reform before it even takes place or, perhaps more often, adapt themselves to the
reform and keep exacting the rent under its name.
Separating the Party from daily administration is one of those progressive reforms
that, if faithfully carried out, would dramatically diminish the power and rent of
the party officials. Zhao’s report insisted that ‘the Party is the political leader and
ought to do the work of political leadership. Distributing money and assets, deciding
projects and approving requests (pi tiaozi)—all of these ought to be the daily affairs
of administrative departments.’31 By separating the Party from the administration,
‘the Party is in the detached position of controlling the conflicts and orchestrating
the overall situation’, thus exercising its leadership by ‘coordinating all parties’.32
Once limited to the legislative, supervisory and coordinating roles, and freed from
the daily petty business of implementing concrete decisions, the Party is situated in a
truly transcendent status, focusing solely on major policy-making. To the extent that
the Party is thus elevated, however, its power and practical influence are reduced,
so is its capacity of empowering its members to exact rent from the daily act of
governance. What brings immediate profit is not making laws or major policies,
but precisely the daily petty businesses of ‘distributing money and assets, deciding
projects and approving requests’ since these acts control the fate of specific living
individuals—be they potential candidates for career promotion, entrepreneurs who
covet particular projects, or parties to a litigation desiring a favorable judgment.
Administration and implementation of policies are not only a burdensome duty but
also a lucrative opportunity for administrators to seek rent in concrete decision-
making. If the Party has for long acquired comprehensive ruling power, from which
its cadres have derived substantial profits, why will they be willing to give it up?
This is the very contradiction that inhered in all progressive reforms like the
separation of the Party and the administration. Such reform is self-defeating: it is good
for the Party, but not the party members, and the Party risks falling into disintegration
without the whole-hearted support of its members. It requires that an already highly

32 ibid.
centralized Party stands aloof before huge material temptations and recedes to the
backseat (tuiju erxian) of daily governance, thus sacrificing the welfare of its key
components—cadres who profiteer substantially from the illicit exercise of their
power. In a word, the idea of separating the Party and the state, just like the idea of rule
of law itself, is good in theory but practically inoperative. This is a paradox inherent
in the one-party rule that even an ambitious and enlightened General Secretary cannot
resolve.
9.3 Merging the Party and the Administration: Can

the Wrong Reform Beget Rule of Law?
Or can he? Can General Secretary Xi succeed where General Secretary Zhao failed?
Most commentators would quickly dismiss the question since the two party leaders
have exact opposite characters and approaches to getting things done. Carl Minzner
lamented in 2011 China’s ‘turn against law’ since 2008, as a reaction to the ‘by-
products’ of the liberalizing reform in the past two decades, i.e. the rise of litigation,
social protest and civil rights (weiquan) lawyers, who ‘sought to use the law to
constrain the Party-state itself’.33 In 2018, he would probably view the deviation
from legal professionalism during 2008–13, e.g. the nation-wide judicial mediation
campaign, as trivial compared to what has happened in the following five years
and more. Into his second five-year term, Xi has acquired apparently solid supreme
leadership in virtually all areas—political, economic, military, and put his men in
key posts to be in charge of the party discipline, cadre selection, propaganda, security
service, etc., so much that he was confident enough to eliminate the term limit of
the state presidency during the Third Plenary Meeting of the 19th CCPCC in March
2019. Under his leadership, the Party, which was never clearly separated from the
state since the miscarriage of the 1987 reform, has more closely been integrating
with the state. With the Party’s substantial takeover of and absolute dominance over
the state, and the personal worship of the Party leader reaching its peak both within
the Party and the state, Xi attempted to bring the Party within the orbit of its rules
and the state machinery under the governance of law.34
9.3.1 Centralization in the Party and Judicial Reforms
Indeed, Xi launched a new judicial reform as soon as he took power, and the new
reform plan was more progressive and comprehensive than any of its predecessors.
33 Carl Minzner, ‘China’s Turn Against Law’, (2011) 59 AM. J. COMP. L. 936. See also Carl
Minzner, End of An Era: How China’s Authoritarian Revival is Undermining its Rise (OUP 2018).
34 Ling Li, ‘“Rule of Law” in a Party-State: A Conceptual Interpretive Framework of the
Constitutional Reality of China’ (2015) 2 Asian J L & Society 93.

180 Q. Zhang
The plan was so progressive that, writing in 2014–15, I could hardly resist striking a
sound of optimism: ‘The Third Plenary Meeting of the 18th CCPCC opened a new era
for judicial reform in China.’35 The Decision issued at the end of the Third Plenary
Meeting rehabilitated the ambitious judicial ‘professionalization’ reform initiated by
the first reform plan in 1999 and stalled by the third in 2008. It vowed to ‘guarantee
independent and fair exercise of judicial and procuratorial powers according to law,
to reform the judicial administration system’ by
improving the mechanism of exercising judicial powers, …reforming the judicial committee,
improving the accountability of trial judges or the panel of judges in adjudicating cases, so as
to make the trial judges decide the cases and the deciders accountable [to the judgments].36
While such a progressive reform might be the product of the professional staff
in the SPC,37 it could not have been promulgated without Xi’s approval. In fact,
Xi was the chairman of the Central Leading Group of Comprehensively Deepening
the Reform? established by the Third Plenary Meeting. The third conference of
that Group, held in June 2014, issued the ‘Framework Opinion Concerning Several
Issues of Judicial Institutional Reform Experiments’, kicking off the fourth stage
of the judicial reform. Consistent with Xi’s inclination for political centralization,
the keynote of the new reform is the centralization of judicial power by promoting
uniform administration of the personnel, property and assets of local courts and
procurator offices below the provincial level.38
In the meantime, the Party has been busy making party legislations and enacted
more than a dozen rules since the enactment of the Rule for Party Legislations of the
CCP in May 2013. The enactment process was fast-tracked as the Party Constitution
of the CCP was revised in 2017 and the Second Five-Year Plan for the Enactment of
the Central Party Regulations started in 2018. By August 2018, the CCP has accumu-
lated an impressive body of norms, with a total of 4,200 party legislations at various
levels, among which 140 are enacted by the Central Party Committee.39 The major
party legislations include the CCP Disciplinary Regulation (2018), the Regulation
of Rural Grassroots Organization Work of the CCP (2018), the Regulation of Polit-
ical and Legal Work of the CCP (2019), the Working Regulation for the Selection
and Appointment of the Party and Government Leading Cadres (2019) (hereinafter
as the ‘Cadre Selection Regulation’), and the Regulation for the Assessment of the
Party and Government Leading Cadres (2019) (hereinafter as the ‘Cadre Assessment
Regulation’).
35 Qianfan Zhang, ‘Judicial Reform in China: An Overview’, in John Garrick and Yan Chang
Bennett eds, China’s Socialist RuleOfLaw Reform Under Xi Jinping (Routledge 2018)17–29.
36 ‘The CCPCC Decision on Several Important Issues Concerning Comprehensively Deepening the
Reform, The Third Plenary Meeting of the 18th CCPCC’ http://www.chinanews.com/gn/2013/11-

15/5509681.shtml accessed 17 December 2020.
37 Minzner shared with this estimate: ‘recent personnel appointments at the Supreme People’s Court
have left no doubt that liberal-leaning legal technocrats have been given significant sway in that
institution’: Carl Minzner, ‘Legal Reform in the Xi Jinping Era’, (2015) 20 Asia Pol. 4.
38 Donald C Clarke, ‘China’s Legal System and the Fourth Plenum’, (2015) 20 Asia Pol’y 10.
39 Song Gongde, ‘All-round Advancement of Building a System of the Party Legislations and
Institutions’, People’s Daily (27 September 2018).

Unlike Zhao’s separation reform proposed three decades ago, part of which was to
devolve the central power, all the party regulations enacted during Xi’s terms unmis-
takably highlight further centralization and personalization of political power. The
Cadre Selection Regulation states in its opening clause that its purpose is to ‘adhere
to and strengthen the comprehensive leadership of the Party’ (Art. 1). The selection
and appointment process must put the ‘political standard’ (zhengzhi biaozhun) in
the first place (Art. 3). Similarly emphasizing the comprehensive party leadership
in its first article, the Cadre Assessment Regulation declares that the number one
criterion for ‘comprehensively assessing a leadership team’ is whether it has ‘reso-
lutely upheld the core of General Secretary Xi Jinping’s Party Central Committee
and the core status of the whole Party, and resolutely upheld the authority of the
Party and its centralized uniform leadership’ (Art. 7(1)). Cadre’s leadership capacity,
achievements and integrity, which used to be the primary assessment criteria since
the 1980s, are relegated to secondary criteria. This constitutes a return to the pre-
1980 era,40 when the main standard for assessing cadres was a political one—one
that was quickly repealed in 1983 and replaced by non-political standards such as
virtue, capacity, diligence and achievements.41 Of course, the CCP in the 1980s and
later stages was also against personal worship, which was commonly held as a key
factor that led to the catastrophe of the Cultural Revolution. Over half a century later,
however, these lessons seem to have been totally forgotten or ignored, and the power
is being unstoppably centralized in the Party and its General Secretary.
Thus, the political and judicial logic of reform joins together in centralization,
and the judicial reform continues to be dominated by the party leadership. Despite
the abuse of the Political and Legal Committee (zhengfawei, hereinafter as PLC)
during the era of Zhou Yongkang (2007–2012), now imprisoned as one of Xi’s
political rivals under the name of corruption, the status of the PLC is further enhanced
rather than reduced.42 Citing the Party Constitution before the state Constitution
and laws as its legal grounds, the CCP Regulation of Political and Legal Work
declares its purpose to be ‘adhering to and strengthening the absolute leadership of
the Party over the political and legal work’ (Art. 1).43 The major task of the PLC
is to ‘conduct work under the resolute leadership of the CCPCC, whose core is
Comrade Xi Jinping’ (Art. 5). As ‘an important organizational form for the Party
leadership over the political and law work’ (Art. 3), a local PLC is composed of
40 See The CCPCC Ministry of Organization, ‘The Notice of the Opinion on Implementing the
Institution for Examining Cadres’, 21 November 1979 https://www.lawxp.com/statute/s579449.
html accessed 17 December 2020.
41 In 1988, the CCPCC Ministry of Organization issued the Scheme for Examining the Annual
Work of the Leading Cadres in the Working Departments of Local Government (Trial), which elab-
orated these standards in great detail: see https://www.lawxp.com/statute/s579449.html accessed
17 December 2020.
42 Zhou Yongkun, ‘On Reforming the Politics and Legal Committee of Party Committee’, (2012)
5 Legal Science Monthly3-13.

43 ‘The Central Committee of the Communist Party of China issued the “Regulations on Political
and Legal Work of the Communist Party of China”’, Xinhua News Agency (Beijing, 18 January
2019) http://www.gov.cn/zhengce/2019-01/18/content_5359135.htm accessed 17 December 2020.
182 Q. Zhang
the leaders of the court, the procuratorate, the public security and the state security
sectors, and is led by the local party committee with respect to matters relating
to state security, particularly ‘political security, with regime security (zhengquan
anquan) and institutional security (zhidu anquan) at its core’ (Art. 10(1)). It is also
noticeable that stability maintenance (weiwen), which used to preoccupy the PLC
as its primary task, is now placed second on the list of priority (Art. 10(2)). The
shift of priority from ‘stability’ to ‘security’, various types of which have repeatedly
been urged in Xi’s speeches and the Party documents,44 heightens the necessity of
centralized control. As the local party committee is made responsible to its superior
at the next level through cadre assessment and the patrol (xunshi) and inspection
(xuncha) system,45 ultimately to the ‘absolute leadership of the CCPCC’, the cascade
of vertical centralization is complete for both the Party and the judiciary.
9.3.2 The Logic of Centralization Reform
Will Xi’s centralization reform work? The question itself is ambivalent since the
answer depends on the expectation from the reform. No observer expects that such
reform would lead to anything close to rule of law in the western sense, understood
as the law being effective in binding the acts of the state,46 even though a ‘socialist’
version of it is promised in the Constitution (Art. 5). By definition, a centralizing
reform—if it is still within the authentic sense of ‘reform’—allocates more power to
the leaders at the superior levels vis-à-vis their inferiors, making effective checks and
balances even less likely to occur than before. At least in China, the most ‘inferior’
of all is the ordinary people. Centralization is perfectly consistent with an overall
crackdown of civil rights, as witnessed in the persecution of active lawyers, priests
and public intellectuals, as well as in the severe tightening of censorship on both
traditional and new social media. To be sure, things don’t have to be this way;
centralization of power can also get along with the respect and protection of civil
rights, both joining hands in clamping the caprice of local public power. The fact
is, however, that Xi took the opposite course, and staged an all-front campaign not
only to discipline corrupt officials but also to attack civil rights activists. When the
channels of civil society to monitor and scrutinize the state are seriously blocked,
the ruling Party and state machinery are almost bound to corrupt and abuse the
44 In his speech on the National Security Commission on 17 April 2018, Xi advocated the ‘totality of
national security’, emphasizing the foundational importance of ‘political security’: see ‘Xi Jinping:
Fully implement the overall national security concept and create a new situation in national security
work in a new era’, Xinhua News Agency (Beijing, 17 April 2018) http://www.xinhuanet.com/pol
itics/leaders/2018-04/17/c_1122697734.htm accessed 17 December 2020.
45 The CCP Regulation of Inspection Work, Art 5 available at http://www.china-cic.cn/detail/19/
25/1409/ accessed 17 December 2020.

46 Stanley Lubman, Bird In A Cage: Legal Reform In China After Mao (SUP 2000); Pitman B Potter,
‘Review Essay: Legal Reform in China: Institutions, Culture, and Selective Adaptation’, (2004) 29
Law & Soc. Inquiry 465.
unchecked powers against helpless people. Madison was perspicacious in his classic
exposition on the separation of powers that the ‘dependence upon the people is, no
doubt, the primary control on the government’,47 the void of which cannot be filled
by the ingenious designs of ‘auxiliary precautions’, i.e. separation of powers however
necessary, they are in their own right—and Xi’s reform, of course, is doing exactly the
opposite to separating powers. It is plain enough that the rule of law, premised on the
separation of powers and protection of individual rights, cannot possibly be procured
by a ‘reform’ that undermines the separation of powers and individual rights.
What is debatable is whether centralization and fusion of the Party and the state,
with all its inherent perils and repressive capacity, may nevertheless still promote
a ‘thin’ form of rule of law, be it called ‘rule by law’48 or mere ‘legality’.49 There
are three related propositions made in the literature under the broader banner of
‘authoritarian legality’.50 First, unlike the liberal states where the law rules over
both the governed and the government, an authoritarian regime uses the law as an
instrument to rule its people and maintain social and political stability, hence the
notion ‘rule by law’.51 In China the distinction is captured by two phrases sharing
the same phonetic fazhi; one characterized by ‘knife’ and the other by ‘water’,52
and seized much attention of the legal community during the 1980s, culminating
in the formal recognition of the latter in the constitutional amendment of 1999.53
Since it is the ruler who makes and implements the law, and a self-interested ruler
will not make a law or implement it in the way against his own interest, either the
legal system itself is heavily biased against the governed or its implementation is
highly selective—provisions unfavorable to the ruler’s interest will simply be left
unimplemented. The primary example is the Chinese Constitution itself, which has
never been enforced by the highest court in China except in a judicial decision that had
long ceased to be effective.54 Hence China has been stuck with ‘a constitution without
47 Alexander Hamilton, James Madison & John Jay, The Federalist Papers, No. 51 (Clinton Rossiter
ed, 1961), 320–324.
48 Randall Peerenboom, China’s Long March Toward Rule Of Law (CUP 2002); Fu Yulin and
Randall Peerenboom, ‘A New Analytic Framework for Understanding and Promoting Judicial
Independence in China’ in Randall Peerenboom ed, Judicial Independence In China (CUP 2010),
95.
49 Mary E Gallagher, Authoritarian Legality In China (CUP 2017); Yan Lin & Tom Ginsburg,
‘Constitutional Interpretation in Law-Making: China’s Invisible Constitutional Enforcement Mech-

anism’, (2015) 63 AM. J. COMP. L. 467; Taisu Zhang & Tom Ginsburg, ‘Legality in Contempo-
rary Chinese Politics’, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3250948 accessed 20
December 2020.
50 Tom Ginsburg & Tamir Moustafa (eds), Rule By Law: The Politics Of Courts In Authoritarian
Regimes (CUP 2008); Tom Ginsburg & Alberto Simpser (eds), Constitutions In Authoritarian
Regimes (CUP 2014); Mark Tushnet, ‘Authoritarian Constitutionalism’, (2015) 100 Cornell L. Rev.
391.
51 Randall Peerenboom (n 48).
52 Ning Jie, ‘From Rule by Knife to Rule by Water’, People’s Court Daily (15 October 2007).
53 In this article, ‘rule of law’, ‘rule by law’ and ‘legality’ will be used interchangeably unless
otherwise specified or plainly suggested by the context.

54 ‘Reply Regarding Whether One Who Violated the Constitutionally Protected Basic Right to
Education of the Citizen Should Bear Civil Obligation’, Judicial Interpretation [2001] No. 25.
184 Q. Zhang
constitutionalism’, the same situation in which many African states find themselves,
for which the notion was first coined.55 Apparently, the judicial enforcement of the
Constitution would not only revoke bad laws that hurt the interest of ordinary people,
but also bind the Party and the state powers, and prevent them from exercising the
political powers in their own interest. This is ultimately why China’s judiciary is not
allowed to touch the Constitution and acquire full independence and institutional
capacity.
Second, as a result, the law is often reduced to pure formality without substantive
effect. For a variety of reasons, an authoritarian regime might make ‘good laws’—
laws that would have favored the interest of the governed if faithfully implemented,
either to pacify the multitude,56 to embellish the outlook of the regime on the inter-
national stage,57 or simply as an act of good conscience of the ruling elites, often
without fully realizing the consequence of its full implementation.58 An example of
the last was the call for political reform by the CCP General Secretaries Hu Yaobang
and Zhao Ziyang in the 1980s, with Deng Xiaoping’s approval at the time, but the
reform was peremptorily reversed once it was found to ignite student and social
movements that would threaten Party rule. Another typical example is the people’s
congresses, hailed as the ‘fundamental institution’ of the state. The 1982 Constitu-
tion, supplemented by the Organic Law of the National People’s Congresses and the
Organic Law of the Local People’s Congresses and Local People’s Government at
Various Levels, lays out rather precisely the election of and the powers exercised by
the people’s congresses at all levels, as well as the procedures of conducting their
businesses. While the formal requirements have been followed quite rigorously, the
people’s congress at every level remains a ‘rubber stamp’ (xiangpi tuzhang).59 In
such cases, the formality of the Constitution seems to be meticulously followed,
without substance and spirit.
Finally, while good laws have a hard time getting implemented, it is nevertheless in
the Party’s long-term interest to implement them in order to safeguard the people’s
basic interest and the social and political stability—so long as the interest of the
Party and its massive body of cadres in charge of law implementation is not hurt as
a result. At least three types of interests are involved here: the interest of the people,
55 H.W.O. Okoth-Ogendo, Constitutions Without Constitutionalism: Reflections On An African

Political Paradox (American Council of Learned Societies 1988).
56 China’s Labor Contract Law (2008) is an example of such laws, designed to improve the welfare
of millions of workers. See Gallagher (n 49).

57 Virtually all socialist constitutions fell into this category, see Giovanni Sartori, ‘Constitutionalism:
A Preliminary Discussion’, (1962) 56 Am. Polit. Sci. Rev.853.

58 Conscientious legislators may well be motivated to enact good laws. Xin Chunying, Deputy
Director of the Legal Works Committee (fagongwei) of the NPCSC at the time, might have played a
key role in promoting the Labor Contract Law. See Wang Jing, ‘Xin Chunying Interprets the Labor
Contract Law’, Legal Daily (8 December 2007).
59 cf Melanie Manion, ‘“Good Types” in Authoritarian Elections: The Selectoral Connection in
Chinese Local Congresses’, (2014) Comparative Political Studies; cf Melanie Manion, ‘Author-
itarian Parochialism: Local Congressional Representation in China’, (2014) 218 China Q. 311–
318. The author observed that, although LPCs do not allow public participation, they do serve as
pork-delivering device for local citizens.
the interest of the Party and the interest of the individual cadres of the Party in charge
of governance at various levels. While the Party’s interest in its permanent leadership
rests on successful governance and the satisfaction of the people’s basic interest, the
two interests do not always overlap. For example, it may well be in the best interest
of the people to exercise the right to election and virtually unlimited freedom of
speech, press, assembly and association, provided, respectively, in Articles 34 and
35 of the Constitution, but the Party may have good reason to believe that effective
exercise of these rights poses a serious threat to its leadership. Nor does the Party’s
interest necessarily coincide with the interest of its cadres, even though the latter
derives from and depends on a sustained monopoly of the Party rule. An enlightened
leader may find it in the Party interest, for example, to promote local (not national)
elections and judicial independence so that local officials are better selected, their
powers effectively checked and the people happier, but that simply means that the
local officials have to give up their rent-seeking capacity. To an extent, of course,
the Party can force, e.g. by disciplinary measures, its cadres to give up part of their
rent-seeking power and expectations, but for a country of China’s scale, the agency
cost is likely to be extremely high if the Party relies purely on centralized, top-down
control.60 The three interests are in harmony only when the Party, feeling itself secure,
can somehow keep the rent-seeking behavior of its cadres in check so that the people
can protect their own interest without resorting to the exercise of political rights that
might bring an end to the one-party monopoly.
This brings us back to the judicial reform, apparently a non-political, relatively
low-profile realm in which the people may use law and legal apparatus for their own
protection. The scenario outlined above, however, leads to bifurcated court deci-
sions, a ‘dualism ‘of ‘ordinary cases’ and ‘sensitive cases’ (mingan anjian) involving
political oppositions, issues of massive impact (e.g. rural land taking or city house
demolition projects that affect the lives of many families) or high-profile criminal
trials.61 If a court cannot remain independent from political interference in the latter
cases, hopefully, it can decide impartially in the former, provided that the Party and
its cadres are not interested in deciding their outcome. In this way, the Party leader-
ship may coexist with a degree of rule of law in certain judicial domain.62 In fact, as
Albert Chen pointed out, an enlightened Party leader may choose to actively invest
in the legal institutional buildup, as reflected in significant increases in the numbers
of cases, lawyers, law graduates, as well as in legal aid funding in China’s last two
decades.63 If a competent judicial machinery is capable of properly deciding ‘ordi-
nary cases’, which might greatly outnumber those politically sensitive cases, Xi’s
60 See, e.g. Murray Scot Tanner & Eric Green, ‘Principals and Secret Agents: Central Versus Local
Control Over Policing and Obstacles to “Rule of Law” in China’, (2007) 191 China Q. 644.
61 Fu Hualing, ‘Building Judicial Integrity in China’, (2016) 39 Hastings Int’l & Comp. L. Rev.
167. For another view of dualism, arguing that the CCP serves the dualist role of law violator and
the guarantor of court judgment enforcement, see Ling Li, ‘The Chinese Communist Party and
People’s Courts: Judicial Dependence in China’, (2016) 64 Am. J. Comp. L. 37.
62 Albert H.Y. Chen, ‘China’s Long March Towards Rule of Law or Turn Against Law?’, (2016) 4
Chinese J. Comp. L. 1, 30.

63 ibid 24–26.
186 Q. Zhang
judicial reform could ‘greatly improve the lives of most Chinese citizens’, as Peeren-
boom expected.64 And centralization, the centerpiece of the ongoing judicial reform,
is not necessarily a bad move. While political centralization means a diminution
of local democracy and legislative autonomy, judicial centralization is very much a
precondition to the uniform application of laws across the nation, against myriads
of locally protective measures that would impede economic efficiency and amputate
rule of law. Even political centralization might have the virtue of curbing judicial
corruption, thereby making an independent judiciary more feasible. The question is
whether judicial and political centralization combined, on the one hand, and suppres-
sion of civic freedom on the other would work toward achieving the rule of (or by)
law within a limited scope.
Given the visible deterioration of the civil rights record since 2013, most commen-
tators seem to be negative about China’s future of rule of law. In their most updated
and thorough analysis of Xi’s centralizing approach, however, Zhang and Ginsburg
made a strong claim defending Xi’s achievement of judicial reform, while not denying
the repressive effects of the centralization reform. They began with a modest argu-
ment that ‘the Party-state is moving towards legality, in which the technical letter of
the law is enforced more rigorously and afforded greater political respect, rather than
toward the rule of law’.65 The assessment they aimed to reach, however, sounded
ambitious: ‘It is probably safe to say that the courts have never been as independent,
professional, and powerful in PRC history as they currently are.’66 The crux of their
argument, to summarize, is that:
The CCP under Xi Jinping has indeed centralized power and control to an almost unprece-
dented extent, but it has done this in a highly legalistic way, empowering courts against other
state and Party entities, insisting on legal professionalism, and bringing political powers
that were formerly the exclusive possession of the Party under legal authorization and
regulation.67
The main evidences bolstering the above statement include the court’s growing
financial independence from local governments, expanding jurisdiction over admin-
istrative disputes, the creation of circuit courts as the SPC deputies overseeing
the provincial courts, ‘substantially stronger enforcement powers’ enabled by such
means as the enforcement of the Social Credit System, and heightened levels of
legal proficiency and professionalism among judges.68 These measures, if faithfully
implemented, will admittedly improve China’s judicial structure and performance,
64 Randall Peerenboom, ‘Fly High the Banner of Socialist Rule of Law with Chinese Characteristics!
What Does the 4th Plenum Decision Mean for Legal Reforms in China?’, (2015) 7 Hague J. Rule
Of Law 49.
65 See Taisu Zhang and Tom Ginsburg, ‘China’s Turn Toward Law’, (2019) 59 Virginia Journal of
International Law322–325. ‘We use ‘legality’ in the most conventional sense of the word: ‘attach-
ment to or observance of law.’ ibid at 316. Although this latter publication somewhat moderates the
claims made in Zhang & Ginsburg (n 49), their arguments remain essentially the same.
66 Zhang & Ginsburg(n 65) at 311.
67 Zhang & Ginsburg (n 49) at 3.
68 ibid at 5.
which Xi may take as personal credit, even though any other leader with a reasonable
mind may well have taken similar measures.
Zhang and Ginsburg used the authoritarian legality logic to explain what in their
view has happened to China’s judicial reform. According to that theory, an autocrat,
who never expects himself to be bound by the constitution or laws, may nevertheless
have an incentive to invest in legal institutions that tend to bring about long-term social
stability without directly undermining political autocracy. That incentive becomes
particularly intense when an aspiring autocrat attempts to centralize power against
other competitors, creating factional instability, a condition in which legal organi-
zation and legitimation are critically important.69 The dismantling of the political
status quo also compels him to seek support outside the establishment and acquire
populist legitimacy by legal reform if it is well-received among law-conscious people.
Through mechanisms such as administrative litigation, the improvement of legality
also helps the Party and the central government to enforce its own rules and keep
the local government under control, thus alleviating the principle-agent problem. In
the process of institutional buildup, the judiciary gains more power and respect from
other political actors so much that it may even acquire a degree of independence in
deciding cases against political interference, which now becomes more costly: ‘The
more political leaders empower legal institutions, the more they boost their social
and political salience, and the greater the costs of “turning against law”.’70
Zhang and Ginsburg argued that the logic outlined above underlies the course
of China’s judicial reform that is actually taking place. Here are the basic elements
of the argument: (1) unlike the separation reform during the 1980s, Xi’s central-
ization reform rejected any version of ‘de-facto federalism’, and is thus compelled
to combat local corruption and abuse through rigorous law enforcement in order to
solve the severe principal-agent problems; (2) the Party leadership seems ‘strongly
committed to shoring up the judiciary’s institutional independence vis-a-vis all state
and Party entities, but with the major exception of itself’, and in doing so ‘has actually
strengthened its capacity to accomplish core governance tasks of controlling local
agents, settling disputes, and producing social order’71 ; (3) since this ‘highly legal-
istic’ reform is desired by ‘the great majority of people—including, and especially,
intellectual and political elites’, Xi’s push for legality is among ‘the most impor-
tant achievement’, to which his personal popularity among the general population
is closely tied; (4) on the other hand, since both the Party and state are more insti-
tutionalized, the risks of centralization are substantially less than what they were in
the Mao era.72 In a word, an authoritarian regime may have both the incentive and
capacity for conducting a legalist reform toward rule of law, and China under Xi has
done just that.
69 ibid at 8.
70 ibid.
71 ibid at 24.
72 ibid.
188 Q. Zhang
9.3.3 Limits of the Centralization Reform
Although the authoritarian legality theory has its merits and may have actually worked
for regimes like Peru or Chili, China since 2013 has followed a different logic. In
my judgment, many presuppositions that are required to make that theory work are
simply not met in the Xi Jinping era, and Zhang and Ginsburg mischaracterized the
recent judicial reform as one of authoritarian legality.
To begin with, Xi certainly had its challengers during his ascendency, but they
were eliminated primarily by systematic and specifically targeted anticorruption
campaigns conducted by the disciplinary system under the leadership of his close
ally Wang Qishan, and replaced with Xi’s lieutenants—usually his old classmates or
subordinates when he governed Fujian, Zhejiang and, briefly, Shanghai. Although
the disciplinary process has some legal elements, it is essentially a political process
without the guarantee of basic due process of law.73 In other words, the mode of
centralization was primarily political, not legal. It is not clear at all whether the
apparently legalistic judicial reform was in fact any part of Xi’s calculation for
achieving popularity and legitimacy. Certainly, Xi had an incentive to appeal to the
public support shortly after he ascended to power in late 2012, and the abolition of
the infamous education-through-labor program could be seen as a part of that effort.
But if the progressive judicial reform was any part of his calculation in winning
the power competition, it seems to be a very minor part, far from significant for
the purpose of defeating his competitors. At any rate the authoritarian legality logic
seems to be self-defeating for Xi’s case since, if it had ever played a role at all, it
should have ceased to do so by now since Xi has apparently won a complete victory
over his political rivalry and should feel no more urge to promote rule of law than
paying it lip service? My judgment is that he has been paying lip service all along
since the anticorruption campaign is essentially a political movement that sets itself
above law. In fact, the anticorruption campaign driven by disciplinary measures fit
the authoritarian legality logic far better than the judicial reform did; it was (and still
is) extremely effective, and it did receive loud cheers from the popular spectators
(chigua qunzhong), at least for quite a while before the repeated play of essentially
the same drama developed fatigue in its theatric effect.
73Fu Hualing, ‘Wielding the Sword: President Xi’s New Anti-Corruption Campaign’ in Susan
Rose-Ackerman and Paul Lagunes (eds), Greed, Corruption, and the Modern State (Edward Elgar
Publishing 2015) 134. Fu Hualing, ‘China’s Striking Anticorruption Adventure: A Political Journey
towards the Rule of Law’, in Weitseng Chen (ed), The Beijing Consensus? How China Has Changed
Western Idea Of Law And Economic Development (CUP 2016). Fu pointed out that China’s anti-
corruption is characterized by the dual system of disciplinary and legal, with the former dominating
over the latter. Many investigated officials revealed torture of different forms during the ‘double
designation’ (shuanggui) process, usually taking place in closed rooms and isolated buildings. Some
even committed suicide or, perhaps, were deliberately killed. See, e.g. the mysterious death of Xu
Ming, who served as witness on the trial of Bo Xilai, see Cui Xiankang, ‘The Major Briber of Bo
Xilai Case Died of Disease in Prison’, CAIXIN (6 December 2015) http://china.caixin.com/2015-
12-06/100882462.html accessed 17 December 2020.
Second, although it is true that rule of law—not only over the governed but also
over the government—has been a consensus shared by a large part of the populace and
the intellectual elites, there is no evidence that Xi attempted to evoke such consensus
to gain personal popularity. He did present an encouraging speech, within two months
of becoming the General Secretary, to commemorate the twentieth anniversary of
the 1982 Constitution, underlining implementation as the ‘life’ and ‘authority’ of
the Constitution.74 But it could simply be that he, like his predecessors, had not
realized what constitutional implementation and rule of law meant to the exercise
of his political power. His deeds since the speech amply showed that he was not
prepared to implement the core of the Constitution, i.e. Articles 34 (right to election),
35 (freedom of speech) and 36 (religious freedom). For that reason he obviously
alienated—to say the least—China’s liberals, who would have supported him had
a genuinely legalistic judicial reform been carried out. In fact, much of the leftist
activists were also alienated by the harsh crackdown on the workers, independent
unions and student supporters since 2016.75 And many officials loath his style and the
lawless anticorruption campaigns that expose them and their families to grave risk.
Thus, it is way too simplistic to claim that Xi enjoys personal popularity, much less
that? His popularity is attributed to successful judicial reform. Zhang and Ginsburg
did not present any direct evidence that much of the general populace, who might
hold him in awe under the daily storm of state-owned media propaganda, do so
because he promoted rule of law.
Third, the judicial reform, with an ambitious plan and much public expectation,
has achieved at most a mixed success, a far cry from a magnificent success as Zhang
and Ginsburg claimed it to be. As the personnel reform has been carried out, those
elevated to the rank of formal judges now stand above the rest of court, but the
political structure stays largely the same, and judges are strictly required to spend a
considerable amount of time on political study. The judges’ salary has been raised by a
significant amount, but that does not seem to have done much to improve their morale
or prevent those capable ones from quitting. The centralization of judicial finance
was carried out only to an extent and has not produced signs of more independent
judgeship. Even if the local court finance directly flows from the province (or even
the central government), it is still unlikely that local judges are able to decide cases
free from local political pressure since salary and office supply are not the only thing
they care about; living in the locality, they and their family depend on the local
supply of many goods, and the local government has plenty of ways to make their
life hard if they fail to comply with their demands. The recent judicial reform did
74 Xi Jinping, ‘Speech on the General Conference in the Capital Commemorating the 30th Anniver-
sary of the Promulgation and Implementation of the Current Constitution’, Xinhua News (4
December 2012) http://www.xinhuanet.com/politics/2012-12/04/c_113907206.htm accessed 17
December 2020.
75 For the crackdown on the student supporters of the arrested union workers in Shenzhen, see
Weiquan in ‘Shenzhen Jiashi: The Process that the Supporters Were Taken Away by Police’, BBC
News (29 August 2018) https://www.bbc.com/zhongwen/simp/chinese-news-45341005 accessed
17 December 2020.
190 Q. Zhang
make an effort to reduce political influence by requiring the court to record extra-
legal instructions and submit them to its superior,76 but the effort is laughable since
powerful cadres hardly need any written instruction to get things done. Anyways, the
recent farcical plot of a judge stealing the SPC dossier showed,77 in addition to the
instructions to the reviewing judges from various sources of the court leadership, the
existence of ‘subsidiary dossier’ (fujuan) hitherto little known to the public.78 While
a formal court dossier is accessible to lawyers for both parties, a subsidiary dossier,
containing leaders’ instructions on court decision and reply to judge’s inquiries as
well as the exchange of opinions within the court, is classified as a state secret. It
is virtually impossible to reduce judicial corruption when political interference is
institutionalized in systems such as secret subsidiary dossier.
Fourth, while corruption may be curbed to an extent by the centralization of power,
even though the anticorruption campaign has been selectively targeted against Xi’s
political rivals, its effect on rule of law is fundamentally limited by the political
nature of the campaign and thus should not be overestimated. On the contrary, since
the Party leadership implies capacity for political interference, the anathema to rule
of law, it hardly makes sense to improve judicial performance by political central-
ization of power, and it is hard to expect that the judiciary will become more inde-
pendent when the current SPC President, Zhou Qiang, has repeatedly emphasized
unconditional submission to the Party leadership.79 Zhang and Ginsburg seemed
to have mischaracterized the Party–state relationship when they claimed that both
the Party and state have become ‘stronger and more institutionalized’,80 while what
has actually happened seems to be no more than the further “partyfication” of the
state. A typical example is the newly established supervisory commission (jiancha
weiyuanhui) system, which used to be a Party organ (disciplinary committee) now
76 The Central Office of the CCP and the State Council, Provisions on Recording, Circulating
and Investigating the Leading Cadres’ Interference of Judicial Activities and Intervention of the
Handling of Specific Cases, Art 5.
77 Xu Hao, ‘Dossier for the Hundred-Billion Mineral Right Case Mysteriously Missing: Rent
Seeking Behind Fight for Dirty Money’, China Economy Weekly (30 December 2018) http://news.
sina.com.cn/c/zj/2018-12-30/doc-ihqfskcn2602611.shtml; Investigation Team Headed by Central
politics and Law Committee Published Investigation Result of Dossier Loss in the Cageley Case,
22 February 2019.
78 The two separate dossier system was established by the SPC regulation enacted in 1984, the
Method of Archiving the Document Rolls of People’s Court Litigations. See Liu Renwen and Chen
Yanru, ‘The Court Subsidiary Dossier System Shall Not Be Kept’, Southern Weekend (19 May
2016).
79 Michael Forsythe, ‘China’s Chief Justice Rejects an Independent Judiciary, and Reformers
Wince’, NY Times (18 January 2017) https://www.nytimes.com/2017/01/18/world/asia/china-chief-

justice-courts-zhou-qiang.html accessed 17 December 2020.
80 Zhang & Ginsburg (n 49) 62.
being turned into a state institution.81 Yet, in practice, the supervisory commis-
sion and disciplinary committee operate as one institution, with the scope of power
expanded by the revised Criminal Procedure Law; the legalized term ‘retention’
(liuzhi) is but another name for shuanggui, and can now be legally applied to private
citizens (Art. 1), while the latter used to be limited to those with public status. Far
from the institutionalization of the state, it is plainly an intrusion of the Party into
the state, and is governed by political imperative rather than rule of law.
The merging of the Party and the state has also been taking place outside the
area of law. The election of village committee used to be seen as the only vestige of
democracy in China, though its election and functionality have never been freed from
the party interference at the town or township level. In May 2019, the CCPCC and
the State Council jointly issued an Opinion calling for the nation-wide merging of the
village party secretary and the director of village committee in order to strengthen
the Party leadership at the grassroots.82 It requires the village party secretary to take
over the directorship of village committee ‘through legal procedure’, and the village
committee and party committee should have ‘overlapping appointments’ (jiaocha
renzhi). The area of press and broadcasting has always been heavily regulated by the
state agencies under the Party leadership. In March 2018, it is placed under the direct
leadership of the Party. The move was part of the Plan for Deepening the Party and
State Institutional Reform, issued at the close of the Third Plenary Meeting of the
19th CCPCC.83 The Central Propaganda Department, the Party organ in charge of
ideological control, now directly took over the responsibility of censorship over press,
under the name of the newly established state agency ‘National Press and Publication
Administration (National Copyright Bureau)’. Since then the Party has significantly
tightened regulation of press.84 It is curious how Zhang and Ginsburg could substan-
tiate the claim that these merges of Party and state institutions or functionalities ‘also
imposed a much stronger dose of legality on the Party.’85
Last but far from least, even if the centralization reform actually improves formal
legality, its substantive effect should not be overstated since it usually means no more
than the speedy implementation of bad laws.86 Rule of law is desirable because it
means laws—good or bad—get effectively implemented. But is it still desirable if it
81 The Central Disciplinary Committee and the National Supervisory Commission now share the
same office building and a formal administrative partnership, and issue all decisions under both
names. From its official website, it is clear that the Party entity is perfectly merged with the state
entities: see http://www.ccdi.gov.cn/xxgk/ accessed 17 December 2020.
82 The CCPCC and the State Council, Opinion Regarding the Establishment and Perfection of the
Mechanism for Simultaneously Developing (ronghe fazhan) Cities and Countryside, 5 May 2019.
83 CCPCC, Plan for Deepening the Party and State Institutional Reform, Art 1.20, available at http://
www.xinhuanet.com/politics/2018-03/21/c_1122570517.htm accessed 17 December 2020.

84 Wang Yao and A Tang, ‘The Mainland Press Industry under the Reduction of Publica-
tion Number: From Self-Censorship to Closely Following the “Party Guidelines”’, Initium
Media(30 May 2019) https://theinitium.com/article/20190503-mainland-publication-number-con
trolling/ accessed 17 December 2020.
85 Zhang & Ginsburg (n 49) at43, n245.
86 See Zhang (n 11) at 952–953. Minzner expressed the same point that, ‘in a broader political
environment where party officials remain hostile to concepts such as an autonomous bar, independent
192 Q. Zhang
means that only the bad laws, such as regulations on land taking or house demolition
at substandard compensation, get implemented while the good ones systematically
don’t? Zhang and Ginsburg used the establishment of supervisory commission as
an example to show Xi’s fondness for legality—indeed, constitutionality, since the
Constitution was revised, in response to scholarly challenges,87 to allow such an
institution that essentially incorporates the Party’s disciplinary committee into the
state and is as beyond the limit of law as its predecessor was before the incorporation.
The same was said about the elimination of the term limit for state presidency: even
though he might have done a bad thing, he at least did so through the Constitution.
I seriously doubt how much one can infer from these examples to prove his respect
for constitutional formality. The intention behind eliminating the term limit of an
insubstantial post may well be to send a political signal to the country, or to show
off his triumph on the centralization of all powers in his hands. The current regime
is more confident and ‘candid’ than its predecessors in openly enacting bad laws
or even constitutional amendments, which it is perfectly willing to implement, but
it is far too early to conclude that such a negative trend means anything positive
for legality or rule of law. In June 2020, the National People’s Congress Standing
Committee amended the Annex III of the Basic Law of Hong Kong SAR to include
the Law of the PRC on Safeguarding National Security, and it was immediately
implemented with the effect that several Hong Kong activists were already arrested
on that ground.88 Everything about that law was done with perfect formal legality,
but who would salute that as a victory of law in any sense?
Of course, there are politically neutral laws, the faithful implementation of which
will hopefully benefit society at large. Impartial resolution of civil and economic
disputes, for example, will obviously promote social stability, which the Party also
desires. This brings us back to the dualism thesis that presupposes a realm of ‘ordinary
cases’, which the Party is hopefully not interested in interfering. But such a scenario
tends to underestimate the propensity to intervene by powerful cadres at various
levels who constitute the core of the ‘Party’. No case is simply an ‘ordinary’ case,
immune from corruptive interference; every case is susceptible to interference so long
as the parties, who presumably desire the dispute to be decided in their favor, are able
to find avenues to influence the judges, who are as powerless to resist as they were
before. The dossier-stealing case is one telling example. It involved a controversy
over the ownership of a mineral field worth a hundred billion RMB, and remains
mysterious and opaque to the public despite high-profile exposure by Cui Yongyuan,
judiciary, and external checks on party power, the components of rule-of-law reforms that are most
likely to be enacted successfully are the ones that most closely resemble existing party practices.’
Carl Minzner, ‘Legal Reform in the Xi Jinping Era’, (2015) 20 Asia Pol. 4, at 8–9.
87 See, e.g. Han Dayuan, ‘The Supervisory System Reform Should Return to the Constitutional
Orbit’, 14 November 2017 http://zhanlve.org/?p=3246 accessed 17 December 2020.

88 See, e.g. Bill Birtles, ‘China carrying out political purge in Hong Kong’, ABC News (11
August 2020) https://www.abc.net.au/news/2020-08-11/agnes-chow-arrested-hong-kong-china-

security-laws/12544476 accessed 20 December 2020.
a former anchor and now a social media celebrity.89 The anticorruption campaign
might have made overt political interference riskier and more costly, but to the extent
that the power is further centralized in the Party or, more accurately, in the hands of
some cadres as opposed to others in the Party; it works against its original purpose
since the judiciary will be even less able to resist extra-legal interference. In criminal
trials, this suggests that procedural abuses are likely to persist, at least in certain
types of ‘sensitive’ cases. In the end, the picture is not nearly as sanguine as one
that the vast majority of ‘ordinary cases’ are fairly decided, leaving out a handful of
victims, such as outspoken activists or unlucky losers of political competition. Since
the propensity to abuse power is built into the system, it can be safely expected that a
larger population will be hurt by the lack of rule of law even in those ordinary cases,
though the exact number of victims cannot exactly be identified.
The labor law reform is a good example to illustrate the limit of authoritarian
legality in China. As Mary Gallagher pointed out in her careful study, China’s
single-party regime enjoys the unique capacity of choosing a suboptimal method
to enforce an apparently high labor protection standard: ‘It makes the rule; it does
not necessarily bind itself to those rules…. Authoritarian legality as an instrumental
play for power and political stability is ultimately contradictory’90 ; ‘China’s half-
hearted and half-way adoption of legality undermines the state’s goals of improved
governance by exposing the gaps between law on the books and law in reality’, and
is therefore ‘bounded, limited, and unstable’.91 The Labor Contract Law adopted
in 2008, bitterly contested by private entrepreneurs for increasing labor cost and
reducing mobility, among other things, was meant to improve work protection for
millions of Chinese laborers. For a moment, the new law made a dramatic effect;
the labor disputes produced a floodgate at courts.92 The pitch was quickly turned
down, however, by requiring labor disputes to go through mediation as a manda-
tory condition prior to litigation. In the judgment of Wang Jiangsong, a labor law
expert at the China University of Labor Relations, such a convoluted, costly and
time-consuming process, the return of which is usually meager and uncertain, has
made the Labor Contract Law useless for work protection.93 Worse, it is a ‘trap’
that keeps the workers from resorting to more effective (and thus riskier) strategies.
According to Wang, the only feasible way to protect labor is organized movement and
collective action, i.e. collective bargaining, demonstration and strike. This judgment
is consistent with our deliberative polling experiment conducted with representa-
tives of Shenzhen’s workers and entrepreneurs shortly after the Labor Contract Law
89 ‘Behind the Case Fighting for Hundred-Billion Mineral Rights in Shanxi: Several Officials Were
Punished’, Huaxia Times (28 January 2018) http://www.sohu.com/a/219652611_367891 accessed
17 December 2020.
90 Gallagher (n 49) at 92–93.
91 ibid at 65.
92 Li Jianfei and Jin Youcheng, ‘The Rapid Increase in the Number of Labor Cases and Decrease in
the Cost of Labor Weiquan after Implementation of Labor Contract Law’, Peasant Worker’s Public
Opinion Network (13 August 2013) http://nmgyq.org/index.php?c=show&id=3088 accessed 20
December 2020.
93 Interview with Professor Wang Jiangsong, 16 May 2019.
194 Q. Zhang
was revised in 2008.94 Nearly all worker representatives preferred electing work
union to the protective provisions in the new law, which few of them believed would
produce real effects. Yet neither work union representation nor legalization of strikes
is acceptable to the Party, even if they are limited to private enterprises. The Party
simply outlaws any organized movement and collective action, particularly given
the Polish lesson of Solidarity Union, which eventually replaced the Communist
regime. The skyrocket rise of strikes since Xi’s assumption of power suffices in itself
to show the futility of the Labor Contract Law, but the only option on the Party’s
table remains the ineffective law and harsh suppression of all collective actions that
are more effective for the purpose of protecting labor rights.95
To conclude, in my judgment, both the elites and grassroots in contemporary
China do share a strong consensus on rule of law as a fundamental objective for
the state to pursue, and the recent judicial reform might (or could) have contributed
somewhat to improving rule of law, but these have little to do with Xi’s deliberate
calculation in his political struggle with rivals. On the contrary, his power is primarily
derived from political centralization enabled by large-scale, selectively targeted anti-
corruption campaign which, coupled with feverish propaganda of state media, has
contributed to his personal popularity among the masses. Although centralization
underlies both political competition and judicial reform, they differ in nature and
work at cross purposes. Far from promoting judicial reform, Xi’s political central-
ization, demanding absolute leadership of the Party, seriously undermines it. As
an example, the constitutional establishment of the supervisory commission, which
incorporates the Party disciplinary committee into the state, fuses the Party and the
state more closely, and the latitude of power it enjoys in politically motivated criminal
investigations is simply beyond any limit within judicial capacity. Without political
centralization, the judicial reform, with its centralization as an important component,
would have taken place all the same, only that the realization of judicial independence
and professionalism would have been made much easier and speedier. The Chinese
judges would have become increasingly more professional, thanks to thousands of
law graduates entering the job market each year, who receive on the whole decent
legal education, which can only be improved if freed from political hyperboles. All of
these can be achieved while China remains an authoritarian regime, without having
its clock being turned back to its totalitarian past. In the end, we would very much like
to see some sort of authoritarian legality taking place in China, which is unfortunately
missing in Xi’s centralization reform.
94 Qianfan Zhang, ‘How to Protect Labor Rights? Insight from Dialogue between Labor and Capital
in Shenzhen’, China Economic Times (22 August 2008).
95 The strikes skyrocketed in 2016, with the average of 242 per month and a total of 1,454 in first
half of the year. Massive labor incident involving over 1,000 workers rose to 52 in the first nine
months of 2014. Cited in Gallagher (n 49) at 180–181.
9.4 Making Reform Work: Factors
9.4.1 Model and Application
Reforms are almost doomed to fail. This has been true, at least in China since the
last (Qing) dynasty had decided to commit itself to genuine constitutional reform
after it suffered a disgraceful defeat in the Sino-Japanese War in 1894. To be sure,
‘reform’ can be interpreted as a value-neutral term that stands for both good and bad
changes,96 but normally it is meant to be something ‘good’. ‘Genuine’ reform here
means institutional or policy changes for the betterment of society—those powerless
and disadvantaged common people, implying that the powerful status quo has to give
up part of its power and privileges since the redistribution of a limited quantity of
goods and resources is usually a zero-sum game. That is what makes reform so hard:
it is simply irrational—why would self-interested rulers, who are able (at least in
their own perception) to keep the power and preserve their privileges, willingly give
up their power and privileges? Perhaps the rulers are willing to give up part of their
instantaneous pleasure in exchange for the long-term stability of their reign. This
had been the main rationale of Confucian persuasion presented to the rulers dynasty
after dynasty, from as early as Mencius (372–289 B.C.). It seemed to have worked
for some emperors, who were enlightened enough to see the political necessity of
benevolent governance and control over abuses. The late Qing emperor Guangxu
was one of them. Enlightened by the intellectual reformers and empowered by the
Empress Dowager Cixi, who held the ultimate ruling power behind the curtain, he
set out for the Hundred-Day Reform (wuxu bianfa) in 1898, during which over 100
progressive royal edicts were issued. The frenetic reform was called off abruptly,
however, and the Emperor himself was kept as prisoner. Things started full of hope,
only to end in failure and despair, eventually leading to the Xinhai Revolution in
1911.97
This was the closest shot that China has ever had so far; the ruler at the very top,
in name at least, genuinely wanted to reform the old regime. But he was quickly
defeated and stopped by the dominant power of that regime. Zhao’s reform in the
late 1980s was almost an exact replica of the Hundred-Day Reform a century earlier,
with Zhao taking the position of supreme head of the Party in name, subject to the
approval of the paramount leader, Deng Xiaoping, and other conservative old Party
veterans. The failure of these reforms suggests that good reforms rarely succeed;
their success is premised on strict social and political conditions, which were not
met in China in 1898 or 1989. It is, therefore, necessary to explore the conditions
that are required for a reform to succeed.
96 While the Japanese distinguish ‘good’ reform (kairyo) versus ‘bad’ (kaiaku), the Chinese does
not have ‘bad reform’ (gai’er) in its vocabulary, implying that ‘reform’ is meant to be good only.
97 See, e.g. Jonathan D Spence, The Search For Modern China (W W Norton & Company1990),
230–243.
196 Q. Zhang
9.4.2 Political Conditions for a Successful Reform
The first condition for a successful reform is, obviously, that there is such a leader who
has the right idea and capacity to bring about institutional changes that tend to balance
the unbalanced distribution of power and privileges. This sounds fortuitous, but an
authoritarian regime does not have better alternatives since its selection of leaders is
not securely and predictably institutionalized.98 Good leaders—capable, far-sighted
and well-intentioned—are hard to come by, though they do appear. China was not
particularly unfortunate in this respect, despite its repeated failures in constitutional
experiments. Emperor Guangxu, General Secretaries Hu Yaobang and Zhao Ziyang
did appear to be in the right position at the right time.
The authoritarian legality theory might challenge the necessity of the first condi-
tion by arguing that it is subjective; what needed is not the altruistic intention of
political leaders, but their perception of self-interest in pushing for certain reform
that simultaneously benefits themselves in the long term and society at large. And
building an institutionalized judiciary is one realm in which the interest of the ruler
and the ruled might overlap so long as it does not directly challenge the Party leader-
ship. In other words, a leader who sees and pursues his enlightened interest should be
deemed to have ‘good intention’. Actually, this has been the CCP’s claim ever since
its founding, and it has been emphasizing at least since 2008 the ‘organic unity’ of the
Party leadership, the people’s basic interest, and governing the state according to the
law (yifa zhiguo). As I argued in Part II, the only consistent logic that unites the three
was expressed in the separation of the Party and administration proposal in 1987.
Having rejected that proposal, the Party essentially pits itself against the people,
and there is no way to reconcile the two distinct and inherently conflicting interests.
The authoritarian legality logic expressed by Zhang and Ginsburg, however, appar-
ently suggested that there is another way around. They seemed to presuppose that
the Party’s long-term interest and the people’s interest can largely be reconciled by
finding the right design of non-political institutions. I will not involve myself here in
debating the foundation of liberal democracy, which quickly leads to the conclusion
that the self-interested Party cannot be reconciled with its people without genuine
election; I will instead respond to the authoritarian legality logic shortly below.
Second, the right leader must have enough supporters within the regime (tizhi
nei) who share with him the ideals, objectives and basic strategies of reform. The
success of reform will be reassured if he happens to represent the strongest faction
within the regime, particularly if he is able to put the armed forces under control
or in line with his cause. Atatürk was bound to be rare, however. If the ultimate
power of the regime lies in the hands of the conservative status quoits, the reformers
need to be extremely cautious to avoid antagonizing the conservative forces, lest
they overturn the reform perceived as a threat to its privileges. The more radical
reformers surrounding Emperor Guangxu were quickly isolated and sidelined by the
conservative faction with Empress Dowager at its core and ousted when they plotted a
coup d’etat against the Empress. Zhao Ziyang’s political reform was likewise derailed
98 Robert Barros, Constitutionalism And Dictatorship (CUP 2002).

by the conservative core of the Party, which saw the massive student movement as
a call to end Communist rule. For the sake of stability, Deng Xiaoping chose to put
three powers into the hands of one person; since 1993, the General Secretary of the
CCP has also held the positions of the Chairman of the State Military Commission
and the President of the State. The question, discussed below, is whether such a
person might have any intention for genuine reform in post-1989 China.
Third, successful reformers usually need to seek and mobilize their own supporters
outside the regime in order to expand space for reform and overcome inertia and
resistance of the status quo, while keeping radical factions offshore. A classic example
is the post-war Japanese constitutional reform under the American occupation. The
General Headquarters not only drafted a new constitution for the Japanese Diet,
which passed essentially the same document despite minor linguistic maneuver but
by implementing such a constitution, it freed the social forces formerly suppressed
by the militarist regime, thereby preparing a solid social foundation for the new
constitution.99 Of course, if the preponderant force is held by the conservative status
quo, which can be used at any time to crush any reform that touches its vested interests,
the room for maneuvering can be very limited. Post-war Japan succeeded in building
its constitutional regime largely because the possibility of militarist intervention was
rooted out by the American occupation. China’s reformists during the 1980s did
manage to augment their force at both the central and local levels, and the student
movement in 1989 did mobilize considerable social support, but the conservative
mainstream of the Party put all efforts back to naught by a military crackdown.
The predicament of China’s reform has been to search for the remnant of ‘healthy
forces’ (jiankang liliang) within the regime after the reformists were thoroughly
purged or chose to exit at all levels after 1989. In my view, such search has so far been
in vain. Many liberals expected Xi Jinping to represent such a healthy force that would
lead China toward some political liberalization but witnessed the exact opposite.
Intellectual speeches in virtually all areas are restricted, liberal media is reorganized
with politically conservative leaders, house churches are closed, politically active
priests charged with crime of seditious subversion, brave civil rights lawyers are
arrested, harassed and their legal practice suspended etc. No one denies that China
today is in its most repressive stage of the past four decades. The question is whether
any reform can meaningfully take place in such a political climate—particularly,
whether judicial reform can achieve its goal of professionalism in an increasingly
more politicized environment. More specifically, when all pressures from below are
forcibly blocked, can the Party still remain wise by itself in major policymaking and
keep its cadres loyal and away from corruption purely through centralized control?
Is it possible to make the monolithic Party leadership serve the interest of the vast
majority by sacrificing the basic rights of small minorities?
99Koji Yamamoto, ‘The Story Of The Supreme Court: Fifty Years Of Japanese Judiciary’, Sun
Zhankun and Qi Zheng trans. (Peking University Press 2005), 62–68;Wei Xiaoyang, Institutional
Breakthrough And Cultural Transformation: A Century Of Japanese Constitutionalism (Peking
198 Q. Zhang
9.4.3 The Failure of China’s Reforms
9.4.3.1 Why Is the Centralization Reform Doomed to Fail
China had learned plenty of lessons in the first 30 years since 1949 to answer these
questions. The ‘Party’ is not a mysterious monolithic whole. When it is commanded
by one person, that person might commit grave crimes that bring monstrous calamities
to both the nation and the Party itself. And the Party is made of millions of cadres
who are able to become corrupt, abuse their power and serve their own interest rather
than the interest of the people. In the next four decades, China has been following
the authoritarian logic of finding a pareto-optimal path for both the Party and the
people. Since 1978, economic and legal reforms appeared to be the solid consensus
shared by the people and the Party—if not the whole Party, at least the enlightened
part of it. Massive corruption, among other things, quickly ensued and convinced
the enlightened Party leaders to prepare for political reform, which proposed to limit
the Party leadership by separating it from daily administration. Unfortunately, the
proposal did not have a chance for a serious experiment before it was permanently
shelved by the crackdown in 1989. Had it been tried, however, the experiment was
highly likely to fail, for the same reason that the student movement had failed: they
both tried to limit—whether by the Party itself or by society at large—the Party
leadership, which was the very source of the power and privileges enjoyed by its
cadres. As the fate of the first constitutional reform—the Hundred-Day Reform of
1898—presaged, genuine reform is doomed to fail.
But does that mean that what succeeds under such a regime is necessarily bad or
fake? Keeping the political system intact and the Party leadership unchallengeable,
the whole nation has plunged into profit-making labeled as ‘economic development’
since Deng’s Southern Tour in 1992. The economy did grow rapidly and continuously,
together with law and civil society, as if as an exchange for massive corruption
of the officialdom. China appeared to have reached a tacit new ‘social contract’.
While cadres at all levels have made a fortune in the process of development, the
life of the hard-working people is also visibly improved—at least they think it is,
despite severe pollution of air, water and soil. The new Party leader since 2013,
however, seems to be determined to stop the trend and pull the clock back—not
exactly to Mao’s old days, but to something of crucial semblance: a clean and strongly
ideological Party, the absolute loyalty of cadres to the Party’s ‘core’ (which happens
to be himself),100 the comprehensive leadership of the Party over all areas, which
means rapidly shrinking space for civil society…. China’s reform—if it can still
100 Lifang, ‘Xi Asks Officials to Remain Loyal to Party “at Any Time, and Under Any Circum-
stance”’, Xinhua (Beijing, 11 January 2018) http://www.xinhuanet.com/english/2018-01/11/c_1
36888644.htm accessed 17 December 2020. In a speech in 2016, Xi Jinping required the party
members to pay ‘absolute loyalty to the Party’, where ‘absolute means sole, thorough, uncondi-
tional, unadulterated, and full’: Li Wen, ‘The Absolute Loyalty to the Party Is a Basic Political
Requirement’, People’s Daily (15 February 2016).
be characterized as ‘reform’101 —has traveled a full circle. If centralization makes

reform more likely to succeed, it also makes it unlikely to be genuine reform.
Xi Jinping achieved political centralization with remarkable success in his first
term (2013–18), mainly through storms of anticorruption campaign, which replaced
the major rivals under corruption charges with his own men. In that sense he has
apparently satisfied the second condition of successful reform. Indeed, by taking
control over the CMC, the police and security forces, he is in a much better position
than Hu Yaobang, Zhao Ziyang, or any leader since 1949 except Mao and Deng to
push for genuine institutional reform. Unlike Hu and Zhao, he would not confront
any credible threat or challenge if he chooses to do so, and he would win many
supporters, at least among the liberals. Perhaps because he has crushed all visible
rivals within the regime, however, he does not seem to care about gathering serious
support outside the regime. On the contrary, he offended both the liberals and leftists
by empowering the state machinery to crush all dissenting opinions, in an attempt to
impose strict Party leadership over society, just as he imposed personal leadership
over the Party.
It is clear that Xi’s reform has been purely top-down, without credible bottom-up
support. By ‘credible’ I mean spontaneous initiatives from the grassroots, without
the deliberate organization or intervention on part of the Party or state. To be sure, a
totalitarian regime, whether prefixed by post or neo, always lives on positive propa-
ganda and its brainwashing effect. The visible popular support in such a regime never
fails to be high if not exactly 100%, but no one can be sure how much of it is real. The
reason that all forms of media are under severe censorship is precise that the autocrat
himself cannot be sure how much support he can confidently claim. In their defense of
Xi’s centralization reform, however, Zhang and Ginsburg believed that Xi’s legalistic
reform is not only top-down driven, but also enjoys and reinforces social support for
the Party, and buttressed such assessment with ‘Xi’s robust personal popularity’.102
While I agree that Xi enjoys ‘personal popularity’ as autocrats in an authoritarian
regime usually do, I disagree that such popularity is ‘robust’ in any proper sense.
With daily personal propaganda saturating all state media—which means traditional
media of all forms in China, it is difficult to connect personal popularity with policy
success.
Zhang and Ginsburg also alluded to a ‘highly unusual public debate’ over constitu-
tionalism around 2013 as evidence that Xi desired to mobilize popular support for his
constitutional reform, which ‘has substantially boosted the Constitution’s social and
political profile’.103 To my knowledge, such ‘debate’ had never taken place, much
less anything carried on ‘state-run or Party-run outlets’.104 Orthodox party media
had never spoken for ‘constitutionalism’, not even ‘socialist constitutionalism’; if
101 See Wu Guoguang, ‘On the Reform and “Second Reform”’, (2004) 3 Twenty-first Century11,
for categorizing the post-1992 era as ‘second reform’.
102 Zhang & Ginsburg (n 49) at 64.
103 ibid at 34.
104 ibid at 24. The authors cited Hu Shuli, a liberal CEO who published an editorial on Caixin,
a media of her own creation, to support Xi’s speech on the 30th anniversary of the constitutional
promulgation: ‘For China to Rise, So Must Status of Its Constitution’, Caixin (12 December 2012).
200 Q. Zhang
anything, they would condemn constitutionalism as ‘western bourgeois institution’,

to which China must resolutely reject.105 As Tom Kellogg pointed out, while ‘the
debate demonstrated a growing consensus among moderate reformist scholars on the
need for reform’, the reaction of the Party was to ‘turn to ultra-conservative voices
to keep the moderates in check’.106 I agree with such an assessment, except that the
event after May 2013 was hardly a ‘debate’ in any sense. It started as a frontal, leftist
attack on constitutionalism, claiming that ‘the critical elements and theory of consti-
tutionalism belong only to capitalism and capitalist dictatorship rather than socialist
people’s democracy’.107 Since the article was highly recommended by an orthodox
leftist journal, it could well be officially inspired by the Party right after Xi’s ascent
to power. Although that article was heavily criticized by the liberal intellectuals, the
criticisms were never carried by any domestic official media. In fact, even before
the article was published, the CCP already listed in a secret Document No. 9 (jiuhao
wenjian) ‘seven taboos’ (qi bujiang) that could not be discussed on any media, and
constitutionalism was among the top of the list.108 So much for the ‘constitutional
debate’, nothing but a prelude of the official injunction of all constitutional debates.
Likewise, it seems to be a simple misinterpretation of facts to claim that an ‘enor-
mous media campaign’ was launched for Xi’s constitutional amendment in March
2018.109 Unlike the previous amendment in 2004, when the Party widely solicited
public opinion on the content of the amendment, only a very small circle of ‘trusted’
officials and scholars were consulted before it was approved during the Second
Plenary Meeting of the 19th CCPCC held on January 18–19, 2018. The bulletin
published at the end of that Meeting mentioned the Party’s approval of the amend-
ment and its basic principles, without revealing any specific content.110 The full
content of the constitutional amendment was first released to the public more than
But Caixin is far from an orthodox party media, and Hu’s editorial had nothing to do with the later
event.
105 See, e.g. Zheng Zhixue, ‘Recognizing the Essence of “Constitutionalism”’, Party Building
(30 May 2013) http://theory.people.com.cn/n/2013/0529/c83855-21652535-3.html accessed 17

December 2020.
106 Thomas E Kellogg, ‘Arguing Chinese Constitutionalism: The 2013 Constitutional Debate and
the “Urgency” of Political Reform’, (2015) 11 U. Pa. Asian L. Rev. 337. See also Rogier Creemers,
‘China’s Constitutionalism Debate: Content, Context And Implications’, (2015) 74 China J. 91.
107 Yang Xiaoqing, ‘A Comparative Study of Constitutionalism and People’s Democratic System’,
(2013) 10 Red Flag Manuscript 3.

108 The seven taboos were made known to the public in early May 2013 by the weibo of Zhang
Xuezhong, a law faculty at the East China Politics and Law University, who was soon removed of
his teaching post. Independent correspondent Gao Yu, who harshly criticized Xi for suppressing
freedom of speech, was convicted on the alleged crime of ‘leaking state secret’ to foreign media.
‘Veteran Chinese Journalist Gao Yu Jailed for Seven Years for Leaking State Secrets’, South China
Morning Post (15 April 2015) https://www.scmp.com/news/china/society/article/1768290/veteran-
chinese-journalist-gao-yu-jailed-seven-years-revealing accessed 17 December 2020.
109 Zhang& Ginsburg (n 49) at 45.
110 Bulletin of the Second Plenary Meeting of the 19th CCPCC,19 February 2018. It is also notice-
able that the Second and Third Plenary Meetings were separated by barely over a month, which was
unusually close compared to same meetings for previous sessions, suggesting the Party’s procedural
a month later,111 just barely over a week before it was to be voted by the NPC.
The whole amendment process was so surreptitious that, when the NPC passed
the amendment containing the elimination of the presidential term limit, it shocked
both the world and China. The state propaganda machine was then mobilized to
defend the constitutional amendment that was extremely unpopular at least among
the liberals. Nor would genuine leftist support such an ‘undemocratic’ constitutional
amendment.112 The only support he may count on is from those beneficiaries of the
regime who post ‘patriotic’, nationalistic speeches out of dubious motives. A good
example is Zhou Xiaoping, who became a popular blogger and the vice-chairman of
a provincial Writers Association after he was openly praised by Xi at a literary talk
forum organized by the CPD.113 Another is the infamous ‘fifty-cents party’ (wumao
dang), an amorphous group organized and paid by the party propaganda machinery
and published on social media according to its direction.114 These so-called grassroot
supports, deliberately manufactured by the regime itself, can be used to brainwash
the populace, to misguide public opinion or to suppress opponents or critics, but they
can hardly sustain once the material Party assistances are removed. In other words,
Xi does not enjoy any credible public support from below.
Failing to satisfy the third condition for a successful reform makes Xi’s reform
suspicious that it has failed the first condition to begin with—that it might not consti-
tute a genuine reform at all. Otherwise, why not allow different voices to freely
express themselves? After all, most liberal academics simply demand freedom of
speech and press so that the decision-makers may know better what the people really
need; even the die-hard lawyers (sike lvshi) limit themselves to a vigorous defense
of their clients, without the ambition to topple the Party leadership. How can a legal
reform succeed if courageous lawyers are punished for vigorously defending crim-
inal suspects and only timid lawyers are allowed to remain in legal practice? And
what kind of reform can it be if the common people cannot freely express their likes
or dislikes for the ‘reform’? The authoritarian legality logic is destined to fail in the
rational choice framework since a law respecting public interest is ultimately has to
be implemented and defended by the public itself. Why would a ruler care about the
interest of the ruled if the latter cannot in any way affect the prospect of his rule
short of violent rebellion, a highly risky and unlikely event? Of course, a wise ruler
irregularity caused by the constitutional amendment. For example, the Second and Third Plenary
Meetings of the Eighteenth CCPCC, also under Xi, were separated by well over eight months.
111 The CCPCC Recommendation on Revising Part of the Content of the Constitution, 25 February
2019.
112 Lin Heli, self-labeled as a lefist scholar, for example, described the elimination of term limit as
‘moral coup d’état’. Mai Yanting, ‘CCP Four-Month Discussion Eliminated Term Limit of State
President Implemented for 36 Years’, RFI (3 June 2018) http://cn.rfi.fr/中国/20180306-中共4个
月讨论即取消实行36年的国家主席任期限制 accessed 17 December 2020.
113 Xi Jinping, ‘Speech on Symposium of Literary Work’, Xinhua(14 October 2015) http://www.
xinhuanet.com/politics/2015-10/14/c_1116825558.htm accessed 17 December 2020.

114 For a statistical analysis of China’s sophisticated scheme of social media control, see Gary King,
Jennifer Pan, and Margaret E Roberts, ‘How the Chinese Government Fabricates Social Media Posts
for Strategic Distraction, not Engaged Argument’, (2017) 111 Am. Polit. Sci. Rev. 484–501.
202 Q. Zhang
should foresee the danger and a degree of overlap between his interest and that of
his subjects. But if he is confident enough about his capacity of keeping everything
under control, there is no way to ensure his modesty and scrupulousness. Plus, while
the ‘Party’ may have its long-term perspective, as a hereditary king might have for
his kingdom, any individual cadre within the Party has only a limited tenure and life,
and even its top leader is limited in his scope of concern when choosing actions in
the best interest of the Party. The label of ‘People’s Republic’, if capable of nothing
else, does remove the life tenure of the leadership and, at the same time, its unlimited
loyalty to the rule of the Party if the Party’s interest in permanent leadership suggests
against unmitigated maximization of the leaders’ personal interest in their limited
career, and cadres at all levels have moved their family overseas together with assets
they have collected through corruption and abuse of public power,115 to avoid any
future disturbance that may arise with the decline of the Party rule caused by their
mischief. China’s not-so-distant past itself has adduced enough evidence to support
Lord Acton’s motto: absolute power corrupts absolutely. The absolute personal rule
is bound to be willful and capricious, prone to the gravest errors in human history.116
For the sake of argument, however, let’s take for granted that Xi is such a wise ruler
and does desire genuine reform. After all, he must have the intention of making the
people happy and keeping his cadres clean, particularly given the explicit elimination
of the term limit, indicating his intention for a lifetime tenure, which extends his scope
of consideration for the long-term interest of the Party. And he did approve a judicial
reform aiming at professionalization, which shares with his political campaign the
same strategy of centralization. I have argued in Part III that the two centralizations
work against each other if the judicial centralization truly improves judicial inde-
pendence and impartiality. The question I now address is whether a purely top-down
reform has a chance to succeed simply because it is desired by a benevolent pater-
nalistic ruler, who can push for it with all the public power in his control, without
meaningful participation from the bottom? China had plenty of nightmares of central-
ized power in its recent past. What makes Xi’s reform any different from the previous
failures?
Assuming Xi has the right idea for China’s reform, e.g. a reform to eradicate
corruption and to make judges more professional. Since he has chosen to rely exclu-
sively on the top-down approach, treating the grassroot support as no more than
puppet trumpets, he has to devise an elaborate top-down control mechanism. And
since China is such a massive state, the top-down control has to be structured in a
complicated cascade, capable of carrying the command from the very top to the
bottom of the massive pyramid. The supervisory commission, charged with the
115 Celia Hatton, ‘Panama Papers: How China’s Wealth is Sneaked Abroad’, BBC News (6 April
2016) https://www.bbc.co.uk/news/world-asia-china-35957228 accessed 17 December 2020.
116 For a minor example—minor compared to the later calamities, the Chinese participation in
the Korean War was essentially decided by Mao alone, against the opinions of virtually all other
CCP leaders at the time. The War led to the death of at least half million Chinese soldiers, a total
destruction of the Sino-U.S. relationship, and one of the most brutal regimes in the world, which
has succeeded three generations by the same family and lasted to this day. See Shen Zhihua, Mao
Zedong, Stalin and the Korean War (3rd edn, Guangdong renmin chubanshe 2013).
mission to fight corruption and keep the Party clean, is an integral part of such a
system. In an ideal scenario, a local supervisory commission will make full use of
its plenary power to investigate all local corruption and misuse of power and make
itself accountable to its superior at the next level. The same process continues until
it reaches the National Supervisory Commission, which answers to the supreme
leadership, Xi himself. Even if we are warranted to assume the perfect benevolence
of Xi’s leadership—a highly doubtful assumption, the well-known principle-agent
problem immediately kicks in. The realm of corruption and illegality is fraught with
secret self-dealing behaviors, where information is an extremely rare resource. It is
imperative that Xi has a perfectly reliable, vertically integrated team of supervision,
capable of digging out major corruption at all levels. Xi must have appointed his
trusted aid to head the NSC, which is composed of several hundred members. If he
can trust the head, can he also trust the rest of the members?117 How can he make
sure that someone in a team of such a size will not collude with the investigated
and become corrupt themselves? A private source suggests that the division within
the Central Disciplinary Committee in charge of investigating corruption has turned
out to be most corrupt, with the majority of its members investigated and arrested.
Moving down to the local levels, the principle-agent problem quickly gets worse
and the cost of monitoring multiplies.118 Although the supervisory system seems
to be more vertically organized than the court and procuratorate are, and presum-
ably the head of a local supervisory commission is decided by its superior at the
next upper level, it necessarily has a horizontal connection in China’s constitutional
framework,119 facilitating local collusions. It will not at all be surprising that several
years from now the supervisory commission, holding enormous discretionary power
over the Party cadres, becomes the most corrupt institution of all.
Since information is the key to resolving the principle-agent problem, it is possible
that centralized control may use contemporary technology to its avail. After all,
China’s planned economy, like planned economy elsewhere, failed largely due to
ignorance and willful caprice—due to lack of information on the demand side which
would have enabled the Party to make wiser supply-side decisions. The caprice of the
Great Leap Forward led to a famine, about which Mao knew nothing until millions of
peasants died of starvation.120 A paternalistic central planner has a better chance of
117 For an example of a corrupt high-level inspector of the Central Disciplinary Committee, see
http://www.xinhuanet.com/legal/2019-05/27/c_1124548209.htm accessed 17 December 2020.
118 Nationwide, the supervision commission has to be a giant institution since the National Super-
vision Commission reported that, in 2018, it received 3.44 million petitions and dealt with 1.67
million problems, filed 638,000 cases, and punished 621,000 cadres: see http://www.ccdi.gov.cn/
toutiao/201901/t20190108_186570.html accessed17 December 2020.
119 A local supervisory commission is supervised by the LPC and its standing committee at the
same level, see Supervision Law, Art 53.

120 Omnipotent as he seemed, for example, Mao Zedong twice inspected Zhengzhou, the capital
of Henan province, in 1959–60, during which he was led by the provincial leaders to see harvest
in the field, without any knowledge that as many as a million peasants were starving to die in
Xinyang, a plentiful prefecture barely 300 km away. See Zhang Shufan, ‘The Xinyang Event: A
Tragic Historical Lesson’, (1999) 12 Bainianchao 39, 39–44.
204 Q. Zhang
success today, at least in avoiding great calamity of that enormous scale. Technology
liberates; it promotes informational circulation even in a state without the institutional
protection of freedom of information and helps that state to avoid at least stupendous
mistakes. It also empowers the state, no less than it empowers the people, by helping
the rulers to monitor the ruled and the top ruler to monitor the minor rulers. In this
way, it will hopefully help to reduce the scope of corruption. Since the monitoring
enhanced by new technology works only in one direction—top-down not bottom-up,
an effective supervisory system can hopefully prevent corruption of the inferior but
does little to check against if not positively facilitates corruption of the superior. The
chain of top-down supervision breaks, however, as soon as the scrutiny from the very
top is relaxed.
That is the best possible scenario for an authoritarian regime wired together
primarily by the chain of top-down supervision. It presupposes a perfect dictator
making decisions with perfect information, assisted by an incorruptible team that
oversees faithful execution of his benevolent will. In reality, of course, such a person
is to be found nowhere. A real autocrat is always limited in benevolence, vision,
knowledge and information. Information technology helps him to monitor his cadres
and society at large, but a society in the age of information is also a fluid and complex
one, defying monolithic control. At least thus far the information is far from complete
to allow the regime to know everything in its jurisdiction. Even equipped with the
best advisors and most advanced technology, the autocrat as the ultimate decision-
maker will err in decision-making, and no one in a purely top-down system is in the
position to correct his errors. In a perfect regime, each cadre is supposed to be a little
screw, fixed somewhere in a gigantic totalitarian machinery, unfailingly performing
its functions. In reality he is not; he has interest and personality, and will find and
invent new means for rent-seeking. For a country of China’s scale, it is truly a task
beyond Hercules to keep cadres at all levels and localities under control. Almost
from the start the autocrat will have to reach a ‘contract’ with his cadres, authorizing
the latter to corrupt and abuse their power in exchange for their service so long as the
corruption and abuses are not so overtly massive as to agitate an uprising. Such a deal
is inevitable since the autocrat relies on the whole bureaucratic team; whose service
is not free. Besides everything else, the autocrat, his family and close associates are
often terribly corrupt themselves, a fact that easily becomes common knowledge in
an age of information and undermines both his moral image and bargaining capacity.
In other words, the agent always has some power to bargain with his principal and
get what he wants. No matter how advanced, new information technology will not
change this basic reality in a regime held together by top-down control, which is
never tight enough to keep its cadres clean.
If political centralization is bound to fail its stated mission, will judicial reform fare
any better? It might, if judicial centralization can truly reduce judicial corruption and
political interference while improving judicial independence. The key question here
is whether it is possible to delimit judicial independence and the ‘Party leadership’ so
that political interference is limited to a handful of ‘sensitive’ cases. As I argue in Part
III.3, such delimitation is difficult if not impossible. Oddly enough, the recent judicial
reform underlines both professionalism and the Party leadership, which is stressed
in virtually at every court at a high pitch. If the Party leadership is not rendered
lip-service—it obviously is not meant to be, then someone in the Party has to lead
the court. More precisely, the Party has to reserve the institutional power to lead the
court, a power that by definition is beyond the limit of law and court. In the best
possible scenario, judges enjoy independence in deciding ‘ordinary’ cases but yield
to political leadership in those sensitive cases in which the professional judiciary has
no say. Authoritarian legality may be saved if only a handful of outspoken lawyers
or activists are sacrificed, leaving the vast majority of ordinary cases to be decided
impartially by a judiciary capable of maintaining its independence. Defined this
way, however, the so-called judicial independence is not really independence, but
dependence—it depends on the self-discipline of political power, a power it cannot
limit. And every unlimited power has the propensity to overflow. Since judges have
to listen to the Party in some cases, why not in other cases as well? What makes them
independent enough to say no in the latter cases? If the Party’s local leadership decides
to intervene in an ordinary case, the only possible check comes from its political
superior rather than the court itself. The prevention of judicial corruption ultimately
hinges on centralized political control, which we already know is unreliable.
To illustrate my argument, perhaps it is the right point to introduce an arguably
‘sensitive’ religious dispute. One concrete achievement of judicial reform was the
abolition of substantive review of case filing (li’an) process, which had been highly
discretionary in rejecting cases that the court did not want to involve itself in. Since
the judicial reform reduced case filing to a registration procedure (dengji),121 one
would imagine that every case will now automatically reach the judge’s purview. That
is not quite the case, while the arbitrary discretion of individual courts has some-
what been restricted and, in response, the number of cases rose quite dramatically,122
even though the rejection of ‘sensitive cases’ is still commonplace. In 2017, the SPC
issued a notice meant to ensure the review of administrative law cases. Near the end,
however, it authorizes courts to reject several ill-defined types of cases, including
those filed ‘with the purpose of sabotaging the religious policy of the state’.123 Despite
the progressive reform that apparently eradicated an arbitrary judicial procedure,
courts nationwide have relied on the SPC notice to reject the religious cases, and a
whole category of people are barred from using the court to defend their constitution-
ally protected fundamental right.124 As Wang Jiangsong pointed out in the labor law
context, the law is useless without the pressure brought by grassroot movements.125
121 The SPC Provisions on Several Issues Concerning the Registration of Cases at the People’s
Courts, SPC Interpretation (2015) 8 https://www.chinacourt.org/law/detail/2015/04/id/148127.
shtml accessed 17 December 2020.
122 For the increase of administrative law cases due to the case filing reform, see He Haibo, ‘The
Effectiveness in the Implementation of the New Administrative Litigation Law from the Perspective
of National Data’, (2016) 3 China Law Review.
123 Art 15, Several Opinions on Further Protecting and Regulating the Parties’ Exercise of Right
to Administrative Litigation According to Law, SPC Release (2017) 25, http://www.court.gov.cn/

fabu-xiangqing-59772.html accessed 17 December 2020.
124 PRC Constitution, Art 36. The so-called unregistered churches in China amount to tens of
millions of Christians, who have experienced various forms of repression and hardship in the recent
years.
125 Interview with Prof. Wang Jiangsong on 16 May 2019.
206 Q. Zhang
Deprived of the simple, direct and most effective means of protecting themselves (e.g.
collective action for labor), the disadvantaged will become even more powerless in
their struggle against the powerful group despite seemingly protective laws, and ‘the
gaps between law on the books and law in reality’ will grow even greater.126 Zhang
and Ginsburg might argue that, despite the ‘major chilling effect on rights-activism’
produced by intimidation and arrest of civil rights lawyers, at least all these have been
done ‘in a formally legal manner’.127 But how much sense and difference does such
legality really make? Is it warranted to expect from such thin legality that ‘everyday
administration, law enforcement, and adjudication to become more rules-based, to
the extent that most individual interactions with the Party-state become regularized
and predictable’?128
Since the top-down approach cannot possibly make the Party at the top account-
able, nor can it reliably bind the cadres at various levels below, the only sure effect
it might produce is the docility of the very bottom—the common people. Zhang and
Ginsburg cited the recent implementation of the Social Credit System as a major
boost of judicial competence since private non-compliance with court orders and
judgments is a core component of its rating scheme.129 Rating every individual resi-
dent and distributing punishment and reward accordingly, the system has obvious
utility in promoting order and compliance with the law—elements of authoritarian
legality. Equally obvious, it facilitates the comprehensive Party–state control over
society by placing every individual in a pigeonhole, where the virtue and vice of his
deeds are thoroughly examined by the Party–state, where he will be trained, condi-
tioned and converted to a ‘model citizen’.130 Will such an Orwellian system succeed
in procuring legality? Can law and order coexist with the repression of individual
rights and liberty? Is promoting legality in the interest of the vast majority consistent
with sacrificing the freedom of a handful few, who are speaking for nothing else than
the general interest? In a word, can we expect a purely top-down authoritarian regime
to fix a legal order over a people who have been conditioned to passive obedience and
timidity? My answer is no, for the reasons given above. The only comforting sign
is that the Social Credit System and its risks are being discussed, at least among the
legal experts, even though the discussion began only after the system was installed.
This falls far short of any insurance against abuse of the system on regular basis.131
126 Gallagher (n 49)at 38.

127 Zhang& Ginsburg (n 49) at 62.
128 ibid at 64.
129 ibid at 20.
130 Wang Yiqing, ‘From Archive Portfolio to Social Credit Score: Is China Marching Toward the
Orwellian Society? ‘BBC News (17 October 2018) https://www.bbc.com/zhongwen/simp/chinese-

news-45886126 accessed 17 December 2020.
131 There must have been disputes since the system has stopped as many as 23
million ‘discredited’ travellers from buying train or plane tickets: Lily Kuo, ‘China
bans 23m from buying travel tickets as part of ‘social credit’ system’, The Guardian
(1 March 2019) https://www.theguardian.com/world/2019/mar/01/china-bans-23m-discredited-cit
izens-from-buying-travel-tickets-social-credit-system accessed 17 December 2020. To my knowl-
edge, however, the court has not accepted any of these cases.
9.5 Conclusion
This article has compared two reforms with opposite inclinations: the separation
reform outlined in the Report of the 13th CCP Congress in 1987, aimed to detach the
Party from the regular business of state administration; the centralization reform still
being undertaken at present, on the other hand, has been merging the Party with the
state ever closer, making institutional and personal centralization of power the central
theme of the current reform. Both reforms failed to garner loyal support from cadres
at the middle level since the former would reduce their power and resource, while the
latter’s anticorruption campaign has created among them much fear and insecurity.
Successful reform requires resolute leadership at the top and widespread support
from the grassroots so that the bulk of ‘middle-level obstruction’ can be marginalized
and overcome.132 While the progressive separation reform had gathered significant
support from citizens, particularly students who undertook massive demonstrations
in 1989, it was quickly put down by the old guardians of the communist regime. The
recent reform, taking place a quarter-century later, when all of the old guardians have
passed away, was carried out almost single-handedly by General Secretary Xi Jinping
with the aid of Wang Qishan, who is in charge of the party disciplinary measures.
Compared to the ousted General Secretary Zhao Ziyang, Xi is in a much better
position to push for political reform, which would have received massive social
support. As a result, many liberals expected Xi to carry out political reform after
he took over the power, and some even speculated that he would carry out political
reform after he had succeeded in centralizing vital party powers in his hands, but they
witnessed precisely the opposite. As I point out, by its very nature the centralization
reform cannot possibly win any reliable public opinion support since it suppresses
free debates and discussions, from which reliable public opinion can be formed
and discerned. On the contrary, the current regime is preoccupied with attracting
sycophants both within and outside the cadre system, hiring the ‘fifty-cents party’ to
ensure alignment of public opinion with the Party line, but these snobbish parasites
of political power will change their position as soon as the political tide switches its
direction.
While the political centralization is obviously obstructive to the judicial reform,
the question is whether the judicial reform may succeed to a degree despite the overall
leftist political and ideological environment. Zhang and Ginsburg argued that Xi’s
reform was along the line of authoritarian legality, which suggests that, under certain
conditions, an authoritarian regime may have the incentive for strengthening rule
by law and empowering a politically neutral judiciary. The authoritarian legality
thesis also relates to the dualist characterization of China’s judicial system, the ques-
tion here being whether the judiciary is able to decide the vast majority of ‘ordinary’
132Zhonggengzu was commonly observed during the reforms in the 1980s as well as in the 2010s.
See Qianfan Zhang, ‘Reflections on the Twenty Years Memorial of the Southern Tour’, (2012) 2
Leaders 80–89; Wang Jin et al., ‘Administrative Simplification and Devolution Confront Middle-
Level Obstruction’, Economic Reference Daily (4 March 2015) http://dz.jjckb.cn/www/pages/web
page2009/html/2015-03/04/content_2662.htm accessed 17 December 2020.
208 Q. Zhang
cases impartially while dictated by the Party in politically ‘sensitive’ cases. Although
authoritarian legality in politically non-sensitive cases is logically possible, they are
practically unlikely in China. The dualist divide presupposes that the Party, politi-
cally omnipotent and beyond the capacity of judicial restraint, is able to demarcate
the fuzzy area judiciously. The Party is not, however, one deliberation machine
that is capable of exclusively focusing on its own long-term interest and accurately
predicting the consequences of all possible actions or inactions; it is composed of
tens of millions of cadres with their own motives and interests, and are prone to
errors in their calculations. If the court is ultimately subject to the political control
of the Party, there is no guarantee that judicial injustice will be limited to a handful
of ‘sensitive’ cases. China’s judiciary has been found to bend the law in areas not so
politically sensitive such as land taking, city development, labor rights and freedom
of religious practices not directly offensive to the Party’s bottom line. These cases
affect tens of millions of workers, farmers, ordinary residents or religious believers,
far from a small handful of outspoken political dissidents. And, despite improved
monitory techniques and disciplinary measures, cadres and judges may remain as
corrupt as they used to be, at least those who are shrewd enough to escape expo-
sure and punishment. The fate of the centralization reform hinges critically on the
ability of the supervisory committees to check against corruption, but who is there
to supervise the supervisory committees? China’s sheer size and scale defy purely
top-down control as an effective scheme of maintaining the integrity and efficiency
of the massive army of political power holders who are naturally inclined to trade
their power with personal gains.
I thus conclude that, although judicial centralization is necessary if properly
carried out, political centralization, doomed to fail in China, will fatally obstruct
judicial reform and any form of legality. Even if the Party leadership desires to
achieve rule of law to the extent that the professional judiciary does not conflict with
its own interest, the highly centralized political system makes the judicial reform
unlikely to achieve substantive progress. In order to improve legality, the Party will
have to detach itself from the daily exercise of governing power which would, as
Zhao Ziyang pointed out more than 30 years ago in his report to the Party Congress,
disqualify the Party as the neutral, transcendent supervisor of the exercise of state
power. The centralization reform contradicts itself by centralizing more power in the
Party and its leadership, wishing to keep the cadres clean. Such a system will corrupt
the Party from its very top all the way down to the bottom, making anticorruption
and judicial integrity illusory promises. Although the separation reform had failed
before it even started, it is the only way to deliver the promises of genuine reform.
We do not know, however, that after the crackdown in 1989, when if ever another
chance for feasible reform will come to fall upon China.
Chapter 10
Durham, Dyarchy, and Difference:
India’s Constitutional Development
Kamala Sankaran
Abstract This paper examines the nature of the ‘colonial difference’ between India
and other British colonies that impacted constitutional developments within India.
In particular, it examines the initial refusal, and subsequent delay, on the part of
the British to introduce forms of responsible government in India, despite the legal
view upheld by the Privy Council that the ‘reception’ of English law had taken
place much earlier within India. This paper also focuses on the Durham Report
on responsible government that shaped constitutional developments in Canada (and
eventually the adoption of the British North America Act, 1867) and influenced
constitutional developments in India. It examines, in particular, the influence of the
Durham Report upon the introduction of dyarchy and communal electorates within
India and its role in dealing with religious, caste, and other differences in India’s
constitutional development.
10.1 Introduction
Constitutional developments in Britain and its former colonies had a greater influence
on the drafting of the Indian Constitution, as compared to the constitutions of civil law
countries.1 As has been pointed out by some legal scholars, despite their resistance
to colonialism, the models proposed in newly independent countries furthered the
1See Edward McWhinney, ‘Presidential and Parliamentary Executives Today: Utility and Limits of
‘Reception’ of Foreign Constitutional Ideas’ (1986) 28 Journal of the Indian Law Institute 1, 1–13.
This is a revised version of a paper prepared initially for the Globalizing Confederation: How
Governments, Nations and Communities Around the World Viewed the Emergence of Canada in
1867 conference, at York University, 2016. I am grateful for the comments received from the
conference reviewers, as well as Professor Upendra Baxi and Professor Jacqueline Krikorian. All
errors are mine.
K. Sankaran (B)
Campus Law Centre, Faculty of Law, University of Delhi, Delhi, India
210 K. Sankaran
‘colonial heritage.’2 The Constitution of India borrowed several features from those
Constitutions with which members of the Constituent Assembly were familiar.3
Pre-colonial forms of government and administration (including those of the
ancient Indian republics) were not the models that many of the constitutional framers
necessarily had in mind.4 Yet, the theme of Indian exceptionalism and the need to
draw on Indian political thought also animated the contributions of several members
of the Constituent Assembly. For instance, Dr S Radhakrishnan, who went on to
become the President of India, observed that the country was opting to get out of the
British Commonwealth for the reason that India was unlike Australia, New Zealand,
Canada, and South Africa. He went on to say that these latter countries were ‘bound
to Great Britain by ties of race, religion, and culture. India has a vast population,
immense natural resources, a great cultural heritage, and has had an independent
career for a very long time, and it is inconceivable that India can be a Dominion like
the other Dominions.’5
This paper examines how this ‘colonial difference’ between India and other British
colonies impacted constitutional developments here.6 This ‘difference’ manifested
itself in the delay or denial by the British of constitutional frameworks in colonies
such as India, and in the differential treatment accorded by the Privy Council to
cases coming from colonies such as India.7 This paper focuses, in particular, on the
2 See Upendra Baxi, ‘The Colonialist Heritage’ in Pierre Legrand and Roderick Munday (eds),
Comparative Legal Studies: Traditions and Transitions (Cambridge University Press 2003).
3 Writing in the Hind Swaraj or Indian Home Rule (originally written in Gujarati in 1908 and
banned by the British; the English translation of which was published in the Aryan Path (Special
Hind Swaraj Number) in September 1938, < https://www.mkgandhi.org/ebks/hind_swaraj.pdf >
accessed 13 July 2020. Gandhiji declared that, ‘My firm opinion is that the lawyers have enslaved
India, have accentuated Hindu-Mahomedan dissensions and have confirmed English authority.’
Notwithstanding this view, many members of the Constituent Assembly were lawyers and barristers,
some of whom left their lucrative practice to plunge into India’s freedom movement. For details,
of the educational and professional background of some of the key members of the Constitution
Assembly, see Granville Austin, The Indian Constitution: Cornerstone of a Nation (Clarendon
Press 1966), Appendix III; Constituent Assembly Members < https://www.constitutionofindia.net/
constituent_assembly_members > accessed 13 July 2020. It may be mentioned in passing that many
members of the Constituent Assembly were trained in Britain, spoke and wrote in English during
the drafting process, and referred to the experience of Britain and other colonial countries.
4 The ideas of Hind Swaraj (Indian Home Rule) and village panchayats (village-level councils) as
forming the basic building blocks of the political structure were also not incorporated in the course
of the Constitution’s drafting.
5 Speech of Dr S Radhakrishnan, Constituent Assembly Debates, 20 January 1947.
6 Partha Chatterji used the expression ‘rule of colonial difference’ to describe colonial rejection
of the universality of notions of self-government in colonies such as India. See Partha Chatterji,
Nation and its Fragments: Colonial and Postcolonial Histories (Princeton University Press 1993).
See, Elizabeth Kolsky, ‘Codification and the Rule of Colonial Difference: Criminal Procedure in
British India’ (2005) 23 Law and History Review 3, 631–683.
7 See, a comparison in the manner in which the Judicial Committee of the Privy Council dealt
with appeals from Australia, Canada and India, which in turn was a product of the differential
approaches to constitution-making in each of these colonies in Beaudry Jonas-Sébastien, ‘The
Empire’s Sentinels: The Privy Council’s Quest to Balance Idealism and Pragmatism’ (2013)1
Birkbeck LR 1, 15–62.
10 Durham, Dyarchy, and Difference: India’s Constitutional … 211
Durham Report on responsible government that shaped constitutional developments

in Canada (and eventually the adoption of the British North America Act, 1867
(BNA, 1867),8 and its influence on constitutional developments in India.9
10.2 A Dominion Like No Other—Indian Exceptionalism
For a long time, India’s freedom movement had demanded that India be given
Dominion status. The self-governing aspect of a Dominion was at the heart of
this demand. The Imperial Conference of 1926 had held that Dominions were
‘autonomous communities within the British Empire’. The reluctance of the British
to accede to the demand for dominion status during that period has been noted by
commentators.10
The term ‘Dominion’ had a complex history, and KC Wheare noted that the term
Dominion comprised three criteria: ‘It was completely self-governing; it owed alle-
giance to the Crown; and it was freely associated with other self-governing countries,
which also owed such allegiance, as a member of the British Commonwealth.’11 The
term Dominion was felt to be inappropriate for a country such as India, since, as KC
Wheare went on to note, ‘though long subordinate to Briton, were not peopled by
British stock and had a history of independence in the past.’12
The political past of colonies such as India, which had experienced large and
well-administered empires prior to British colonialism, posed peculiar political and
constitutional challenges to the British rulers. The applicability of British law within
India, and more particularly, the extent to which constitutional ideas of the British
8 I have used the term BNA, 1867, rather than the Constitution Act, 1867, since several references
of an earlier period and cited in this paper, use that term.
9 There is a rich tradition of scholarship that has examined the influence of foreign constitutions and
precedents on Indian law. Without being exhaustive, earlier studies include, Pradyumna K Tripathi,
‘Foreign Precedents and Constitutional Law’ (1957) 57 Columbia Law Review 3, 319–347; Rajeev
Dhavan, ‘Borrowed Ideas: On the Impact of American Scholarship on Indian Law’(1985) 33.The
American Journal of Comparative Law 3,505–526; MC Setalvad, The Role of English Law in India
(Oxford University Press 1966); William O Douglas, From Marshall to Mukherjea: Studies in
Indian and American Constitutional Law (Tagore Law Lectures 1939) [also available as William
0. Douglas, We the Judges: Studies in American and Indian Constitutional Law from Marshall to
Mukherjea (Doubleday & Co., 1956)]; CH Alexandrowicz, ‘American Influence on Constitutional
Interpretation in India’(1956) 5 The American Journal of Comparative Law 1,98–105; PK Tripathi,
‘Perspectives on the American Constitutional Influence on the Constitution of India’ in Lawrence W
Beer (ed),Constitutionalism in Asia: Asian Views on American Influence (University of California
Press 1979).
10 See Rohit De, ‘Between midnight and republic: Theory and practice of India’s Dominion status’
(2019) 17 I•CON 4,1213–1234.

11 KC Wheare, The Constitutional Structure of the Commonwealth (Clarendon Press 1960) 12.
12 ibid, 16. He observes that the term ‘member of the Commonwealth’ rather than the terms
Dominion or colony better captured the unfolding political situation of the time.
212 K. Sankaran
political tradition were to be used within India, had been a contested one within
colonial India.
One of the persistent debates about the nature of colonial legality during the nine-
teenth century in India was with regard to the nature of British ‘settlements’ and
the lex loci applicable in the areas controlled by the East India Company (EIC).13
The EIC carried out the basic groundwork during the period 1600–1858 for the
subsequent direct British rule in India. The EIC expanded its territorial control and
authority through trade and conquest of local Indian kingdoms, as well as success-
fully competed with other European powers, such as the French, Portuguese, and
the Dutch, who were also involved in the ‘scramble’ for India in the 1600–1800
period. Professor Upendra Baxi notes that violence and coercion have accompanied
colonial domination in India, and that the term ‘law’ dignifies it with a sense of
orderliness and legitimacy that colonization lacked.14 This expansion of power and
authority of the EIC eventually set the stage for direct British rule in 1858 after what
has been variously termed the First War of Independence/Indian Rebellion/Indian
Mutiny/Great Revolt.
The EIC’s first ‘settlement’ in India was not an occupation of, or a settlement in,
terra nullius, but was a factory that the local Mughal Governor permitted the EIC
to establish in Surat. This permission was subsequently placed on a sounder footing
when James I sent an ambassador who came to the court of the Mughal Emperor
Jahangir in 1615, and obtained a firman (royal permission) granting them the right
to trade and also to be governed by their own religion and laws without interference.
The ‘natives’ in such factories continued to be subject to the laws that were applicable
to each community prior to the advent of the EIC. These ‘settlements’ were governed
by a Council whose chief member was a governor or a president. In time, the EIC
set up three Presidency towns in Madras, Bombay, and Calcutta. The British Charter
of 1726 granted the subordinate power of legislation to the governments of these
three Presidency towns. The Charter also established Mayor’s Courts in these three
presidencies and granted appeals to the Governor-in-Council of these towns, and
further appeals to the King-in-Council.15
The Privy Council analysed the nature and transition of power in these Presidency
towns and concluded (and in its own benefit) that, over a period of time, sovereignty
had transitioned from the local ruler to the Crown. As AB Keith notes, the Royal
Charters dealing with the consequences of such conquest ‘rest on the doctrine that
13 British law treated a settlement as a British possession which had known no previous ruler, and
which had no legislature of its own. See for instance Advocate General of Bengal v RaneeSurnomoy-
eeDossee2 Moore NS 22, 15 ER (1863), where the Privy Council held, ‘Where Englishmen establish
themselves in an uninhabited, or barbarous country, they carry with them not only the laws, but the
Sovereignty of their own State; and those who live amongst them and become members of their
community, become partakers of and subject to the same laws’, at 811 available at < http://www.geo
cities.ws/englishreports/15ER811.pdf > accessed 13 July 2020. See generally, Atul Chandra Patra,
Journal of the Indian Law Institute (January-March 1963, Vol 5, No 1) 81–131.
14 See Upendra Baxi (n 2).
15 Arthur Berriedale Keith, A Constitutional History of India 1600–1935 (D.K. Publishers 1930,
reprinted 1996), 18.

acquisition of territory by conquest necessarily vested not merely the sovereignty but
also the property therein in the Crown, while peaceful acquisition gave the Crown the
sovereignty only but not proprietary rights.’16 The military and political conquests
and the question of the legality of the exercise of authority and power in areas
controlled by the British were simply glossed over by the Privy Council which held:
...the settlement of the Company in Bengal was effected by leave of a regularly-established
Government, in possession of the country, invested with the rights of sovereignty, and exer-
cising its powers; that by permission of that Government, Calcutta was founded.....At what
precise time, and by what steps, they exchanged the character of subjects for that Sovereign,
or rather, acquired by themselves, or with the help of the Crown, and for the Crown, the
rights of sovereignty, cannot be ascertained. The sovereignty has long since been vested in
the Crown...17
As pointed out by commentators, such a view treated the settlement of Calcutta

as a ceded or conquered colony, and the Crown could therefore claim to legislate for
such settlements.18
This significant constitutional moment in the colonial history of India set the
stage for the British to introduce not only laws but also political institutions and a
constitutional structure that it had developed in its other colonies. It is indeed an irony
of history that the right to self-governance was a right granted by the Mughal Emperor
to the British EIC. Following this significant Privy Council ruling, seizure of power
by the EIC in India was legitimized, and paved the way for future constitutional
developments as well as the subsequent demand for restoration of Swaraj (self-rule)
by the Indians.
The Charters issued by the British Crown were deemed to have introduced British
law into Presidency towns in India. The judgement of the Supreme Court at Calcutta
by the Chief Justice, Sir Barnes Peacock, delivered on 19 April 1861, held that ‘It
is a well-recognized doctrine, and one which has been acted upon by this Court for
more than half a century, that, speaking generally, the first introduction of English
law into Calcutta, was effected by the Charter of George the First, by which, in the
year 1726, the Mayor’s Court was established.’19 The First Law Commission, set
up by the British in 1835, took the view that the pre-existing Hindu and Muslim
laws in India were merely religious laws, and that there was no lex loci in place, and
that, therefore, in all British settlements, it was the English law that was to prevail.
Yet, the English law did not apply in its entirety to the ‘natives’ and was always
modified ‘according to justice and right’ in cases between parties.20 However, the
16 ibid 20.
17 See Mayor of Lyons v East India Company 1 Moore’s Indian Appeals 175 per Lord Brougham 22
February 1837. For understanding the role of colonial officials in developing the notion of ‘quasi’
sovereignty in Indian Princely states, see, Lauren Benton, ‘From International Law to Imperial
Constitutions: The Problem of Quasi–Sovereignty, 1870–1900’, (2008) 26 Law and History Review:
Law, War, and History 3, 595–619.
18 MP Jain, Outlines of Indian Legal History(Wadhwa 5th ed./reprint 1990/2003) 395.
19 Cited in the decision of the Privy Council in appeal from the judgment of Supreme Court at
Calcutta in Advocate General of BengalvRaneeSurnomoyeeDossee (n 13) at 811.

20 See MP Jain, Indian Constitutional Law (Wadhwa and Co. 5th ed, 2003) 37 and 401.
214 K. Sankaran
Privy Council took a slightly different position regarding the reception of English
law into India, and held, ‘The English law, Civil and Criminal, has been usually
considered to have been made applicable to Natives, within the limits of Calcutta, in
the year 1726, by the Charter, 13th Geo. 1. Neither that nor the subsequent Charters
expressly declare that the English law shall be so applied, but it seen is to have been
held to be the necessary consequence of the provisions contained in them.’21
While the modified English laws were held applicable within British India, most
importantly, the British constitutional principles of representative or responsible
government were certainly not received in British India by the Charter of 1726.
British rule in India took the form of ‘Crown Colony Government’, of British parlia-
mentary control exercised through a Secretary of State in London operating through a
Governor-General in India.22 The Governor-General, assisted by a Council consisting
of officials, held both executive and legislative powers, and was answerable only to
the Secretary of State in London. This form of executive control was not exactly
the type of constitutional arrangement applicable in England. If the Charter of 1726
had imported English law into India in 1726, it had certainly not imported English
constitutional and political arrangements into the country, and British rule in India
was characterized by all legislative and executive power centralized in the hands of
the executive directly appointed by the Crown. The large-scale wave of resistance
that erupted in several parts of India against British colonial domination in 1857 led
to several steps taken by the British government for addressing the legitimacy and
acceptability of British rule within India.
10.3 The Durham Report and Accommodation

of Differences
Constitutional development in Canada had initially addressed the challenge of

dealing with two European cultures, with the corresponding differences in the English
common law and the French civil law heritage. (Later constitutional developments
have acknowledged the place of indigenous people in Canada, as well as recognized
migration of other groups into that country; these developments are beyond the scope
of this paper).23 For the period that is the focus of this paper, we turn to the accom-
modation of differences and the emergence of responsible government suggested
in the Durham Report that was applied, with suitable modification, in the Indian
constitutional story.
21 Advocate General v RaneeSurnomoyeeDossee(n 13) per Lord Kingsdown on appeal from the
Supreme Court at Calcutta.
22 R Coupland, The Constitutional Problem in India, Part I. The Indian Problem, 1833–1935 (Oxford

23 See Patrick Macklem, ‘The Form and Substance of Aboriginal Title: Assimilation, Recogni-
tion, Reconciliation’ in Peter Oliver, Patrick Macklem & Nathalie Des Rosiers (eds), The Oxford
Handbook of the Canadian Constitution (Oxford University Press 2017).
Lord Durham, who had been appointed Governor-General of British North

America, was sent to Canada in the wake of unrest between English speakers and
French speakers in what were then known as Upper Canada and Lower Canada
(created by the then Constitutional Act of 1791). Durham’s Report to the British
Crown, commonly referred to as the Durham Report, led to the Act of Union 1840
that merged these two areas with one common legislature. Durham also recom-
mended that colonies should enjoy the form of responsible government as obtained
in Westminster, i.e., where the Executive was responsible to the elected legislature.24
The subsequent British North America Act, 1867, adopted by the British Parliament
for Canada, following the Quebec Resolutions, indicated in its preamble that the
Dominion so formed would be a ‘Constitution similar in Principle to that of the
United Kingdom.’
The Durham Report provided the British with the basis for accommodating
differences in Canada—religious (Protestant/Catholics) and linguistic (Anglo-
phone/Francophone)—by modifying the more homogeneously conceived federalism
in the United States’ Constitution. This complex form of representative democracy
and accommodation of differences was fine-tuned further for India by British Parlia-
ment in the various Constitution Acts from 1891 to 1935, and eventually adapted
further in the Indian Constitution of 1950.
Durham’s Report had famously noted while referring to the then British North
America, ‘I found two nations warring in the bosom of a single state’ and proceeded
to give his recommendations for dealing with the matter.25 The British principle
of representative government also stood modified, perhaps influenced by the prism
through which Durham had viewed communities in North America. In place of a
single homogenous constituency, Durham provided representation for each religious
and linguistic community in the single legislative assembly that was set up through
the Act of Union of 1840. Yet this ‘sectional equality’ could not last long and with
demographic changes, representation was determined proportionally on the basis
of population in Canada (the BNA, 1867, relied on a ‘quasi-federal’ framework to
protect local and provincial concerns).26
24 See Marcell Firmani and Jennifer Smith, ‘The Crown in Canada’ in Peter Oliver, Patrick Macklem
& Nathalie Des Rosiers (eds), The Oxford Handbook of the Canadian Constitution (Oxford
25 Report on the Affairs of British North America submitted by the Earl of Durham, Her Majesty’s
High Commissioner (Durham Report) (1839), 16, accessed from: < https://archive.org/details/lor
ddurhamsrepor02durhuoft > accessed 13 July 2020. Durham also, unfortunately, recommended the
assimilation of the French-speaking population as a means of ‘dealing’ with the situation. See,
David Schneiderman, ‘Canadian Constitutional Culture: A Genealogical Account’ in Peter Oliver,
Patrick Macklem& Nathalie Des Rosiers (eds), The Oxford Handbook of the Canadian Constitution
(Oxford University Press 2017) and also JV Naik, ‘Address of the Section President: Nationalism
in India and Canada: An Overview’ (1992) 53Proceedings of the Indian History Congress, 1992,
543–561. For an assessment of colonial reformers such as Durham, see Gowher Rizvi, ‘Transfer of
power in India: A ‘re-statement’ of an alternative approach’, (1984)12 The Journal of Imperial and
Commonwealth History 2,127–144.
26 Robert Vipond, ‘1867: Confederation’ in Peter Oliver, Patrick Macklem & Nathalie Des Rosiers
(eds), The Oxford Handbook of the Canadian Constitution (Oxford University Press 2017). Much
216 K. Sankaran
This modified principle of representative government in the Durham Report, and

the subsequent nuancing of its proposals to deal with differences among communi-
ties, was to have an enormous impact within India. After the ‘great revolt’ of 1857, the
British introduced constitutional reforms in India (initially in 1861, 1892, and 1909,
and later in 1919 and 1935), to provide a more representative form of government
through the device of communal representation to accommodate different groups
within a single legislative assembly. The Morley–Minto reforms, which led to the
Indian Councils Act, 1909, introduced elections (partly in place of the earlier nomi-
nation system) to the legislative councils, but in a manner that was reminiscent of
Durham’s Report. Instead of constituencies of the usual democratic type (demar-
cated geographically, based on population, and with no reference to identities) found
in Britain and its other colonies, separate electorates were conceded to Muslims,
and later Sikhs. These separate electorates were to be a huge source of strife and
conflict for decades to come within India. In addition, occupation/vocation-based
separate electorates in the various provinces could elect their representatives to the
provincial and central legislative councils. These electorates included landholders;
chambers of commerce; corporations, municipalities and district boards; universities;
jute and tea plantation communities; and millowners.27 Yet, the approach of having
specific provisions to deal with differences now finds a place in the Constitution.28
The Constitution did away with communal electorates, introduced universal adult
franchise with provisions for reservation of proportional constituencies for Sched-
uled Castes and Scheduled Tribes. Following the constituent assembly’s Advisory
Committee on Fundamental Rights of Citizens and Minorities, special provisions to
deal with women, children, socially and educationally backward classes of persons,
reservations for Scheduled Castes, Scheduled Tribes, other backward classes, Anglo-
Indians, provisions to protect religious and linguistic minorities, and special federal
features for scheduled and tribal areas are now to be found in the Constitution.29
Thus, the beginning initiated by the Durham Report to have specific provisions for
distinct groups in constitutional design, rather than provisions of universal appli-
cability, was adopted and refined in India’s constitutional development to address
India’s diversity.
has been written about the role of the Privy Council in countering the centralizing powers under
the BNA, 1867 and its subsequent interpretation. For an Indian analysis of these developments,
see Pradyumna K Tripathi, ‘Foreign Precedents and Constitutional Law’ (1957) 57 Columbia Law
Review 3, 319–347.
27 See R Coupland (n 22). Also see Rohit De, ‘Constitutional Antecedents’ in Sujit Choudhry,
Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution
(Oxford University Press 2016).
28 See for instance, Granville Austin (n 3) and Gurpreet Mahajan, Identities and Rights: Aspects of
Liberal Democracy in India (Oxford University Press 1998).

29 See for instance, Kamala Sankaran, ‘Dealing with Difference: Experiments in Constitutional
Pluralism?’, in P Ishwara Bhat (ed) Constitutionalism and Constitutional Pluralism (Lexis

Nexis 2013); Katharine Adeney, ‘Constitutional Centring: Nation Formation and Consociational
Federalism in India and Pakistan’ (2002) 40 Commonwealth & Comparative Politics 8.
Another aspect of the Durham Report, which found its eventual modified home in
the BNA, 1867, was the need to have a federal and responsible form of government
to accommodate racial and other differences within a single government. In the next
section examines the influence of these ideas on the form of the federal government
(as incorporated in the Government of India Act, 1935, and in the eventual Indian
Constitution).
10.4 Dyarchy, ‘Responsible’ Government, and Federalism
In his report regarding Canada, Lord Durham described the prevailing views on the
colonial rule as follows: ‘The wisdom of adopting the true principle of represen-
tative government and facilitating the management of public affairs, by entrusting
it to the persons who have the confidence of the representative body, has never
been recognized in the government of the North American Colonies.’30 Durham
had, accordingly, recommended for Canada, a shift from a system of representative
government to responsible government (in provincial matters) in line with constitu-
tional developments in England. However, imperial interests would continue to be
protected by the ‘simple but ingenious device,’31 of dividing powers between the
British Government and the local colonial government, by allowing matters such as
foreign policy, defence, and the control of overseas trade to remain in the hands of
the former, while permitting the colonial government to handle domestic affairs.
Durham had clearly rejected the American model of a constitution that was based
on a separation of powers, opting instead for a fusion of powers, with a great deal of
overlap between executive and legislative functions, that the system of responsible
government entailed. This model of government, tested by the British in Canada,
was to serve British interests well in other colonies, including in India.
The need to mould political institutions, and the trajectory of political develop-
ments in a manner familiar to British constitutional thought, required the formation
and nurturing of institutions that transitioned from official to representative to respon-
sible forms of government. But this by-now familiar route of British constitutional
thought, which was tried and tested in Canada, took far longer to develop in India.
In India, the move from a purely official government (nominated by London) to
a system of representative government, and subsequently to a form of responsible
government, took over a 100 years to accomplish. The British made a preliminary
move from ‘enlightened and paternal despotism’ 32 towards a representative govern-
ment through the Indian Councils Act, 1861, allowing for half the members of the
Legislative Councils to be nominated non-officials. This was followed by cautious
30 Durham Report (n 25) 77.

31 R Coupland (n 22) 39 referring to the Durham Report.
32 Both James Mill and Macaulay stated in British Parliament that India was yet not suited for
representative democracy but ‘an enlightened and paternal despotism’. See R Coupland (n 22) 20.
218 K. Sankaran
steps in the Morley–Minto reforms of 1909 (a step that created ‘the status of a political
debating society’)33 permitting some members to be elected.
The principle of dyarchy as developed by the British in India drew upon the
distinction that Durham had drawn between the imperial interests and interests of
the colony, and the calibrated manner in which power was to be transferred to the
representative government in the colony so that it could be eventually given the shape
of a responsible government.34 The system of dyarchy developed in India divided
the executive branch into the reserved and the transferred parts, the first responsible,
through the Secretary of State for India to the British Parliament for certain matters,
and the latter (transferred) part of the government responsible, through the provincial
Legislative Council, to the Indian electorate, for the administration of enumerated
other subjects.35 What is interesting for Indian scholars is how colonial differences
played out when Indians demanded of the British the same principle of responsible
government, and the response of the British Parliament, in the form of a modified
system of responsible government, viz., dyarchy, as suited to the racially different,
‘other’ in India.
The Montagu–Chelmsford Report, upon which the Government of India Act,
1919, was based, recommended that in each province, certain subjects should be
transferred to the control of ministers who would be chosen by, and responsible to, the
majority in the Legislative Council. The Report stated that its goal was the ‘progres-
sive realization of responsible government in British India as an integral part of the
British Empire’. Many Indian leaders opposed the system of dyarchy. For instance,
Dr Ambedkar felt that dyarchy was ‘an unworkable system of government’. He was
of the view that dyarchy introduced dualism in the division of subjects, and also that
the Executive was unable to have a unified policy.36 The Government of India Act,
1935, fine-tuned the system of dyarchy without yielding final control to the legisla-
tures in India. This was notwithstanding the fact that India had signed the Treaty of
Versailles, 1919, and was a member in her own right of the League of Nations and
33 See the judgment of Kania CJ in Re Delhi Laws Act, AIR 1951 SC 332. The need for a system of
elections for representative government met with mixed response even within India. For instance,
speaking at the meeting of the Governor-General’s Council in 1883, an Indian member expressed the
view that, ‘So long as differences of race and creed and the distinctions of caste form an important
element in the socio-political life of India, and influence her inhabitants in matter connected with
administration and welfare of the country at large, the system of election pure and simple, cannot
be safely adopted.’: Speech of Syed Ahmad Kahn, speaking on the Central Provinces Local Self-
Government Bill, 1883 (reproduced in R Coupland (n 22) 156.
34 See for instance, Durham Report, 281–284.
35 A Appadorai, Dyarchy in Practice (Longmans, Green and Co. Ltd 1937) 8. Also see, Stephen
Legg, ‘Dyarchy: Democracy, Autocracy, and the Scalar Sovereignty of Interwar India’ (2016) 36
Comparative Studies of South Asia, Africa and the Middle East 1, 44–65.
36 Dr Babasaheb Ambedkar: Writings and Speeches, Vol 2, Compiled and Edited by Vasant
Moon, Government of Maharashtra, 1982, reprinted 2014 by Dr. Ambedkar Foundation, at

324 < https://ruralindiaonline.org/library/resource/dr-babasaheb-ambedkar-writings-and-speeches-
vol-2/ > accessed 28 July 2020.
the International Labour Organization.37 Under the Government of India Act, 1919,
the Governor-General’s Executive Council continued to be responsible only to the
Secretary of State in London, but India was still short of the Dominion Status that
was enjoyed by other ‘overseas nation-members of the British Commonwealth’ at
that time.
The system of dyarchy had within it the seeds of a nascent federal structure too. The
sharing of powers between the imperial power and the colonial power was mimicked
in many important ways in the division between the central and provincial colonial
governments within India and states. In this arrangement, the British Parliament,
which enacted the Government of India Act of 1919, borrowed from the BNA, 1867,
that had retained a ‘dualist’ form of power in the office of the Governor-General and
the Governor of each province. The BNA, 1867, had retained the royal prerogative
of assenting to, or the withholding of assent to, any legislation proposed to be passed
by a Colonial legislature. This aspect of the absolute unfettered power of the Empire
was used in the BNA, 1867, in Canada, and subsequently featured in the Constitution
Acts (1919 and 1935) prepared for India. Following the resolutions of the Imperial
Conference of 1930 (where India was represented by the Secretary of State), the
British Crown would no longer exercise its royal prerogative of assent or refusal
(upon the advice of its Ministers) with respect to its Dominions.
This royal prerogative power of assent/refusal, which constituted the core of the
dualist power of dyarchy, was also superimposed upon the form of federalism, which
was created in Canada in 1867, and subsequently found its place within the consti-
tution acts adopted for India by the British Parliament. For instance, Section 90 of
the BNA, 1867, requires the Lieutenant Governors of Canadian Provinces to reserve
bills for the consideration of the Governor-General of Canada. The Indian Supreme
Court was quick to point out that a similar feature was to be found in the Constitution
Act of 1935, stating:
The provisions in the Constitution Acts of India and Canada... are now used for substantially
the same purpose, namely, to ensure that a Provincial Legislature does not enact a law which
is illegal or unconstitutional in whole or part, or a law clashing with the legislation of the
Federal Legislature. The necessity for a provision of this kind in the Indian Constitution Act
is the greater, as in a large number of matters the Federal and Provincial Legislatures have
concurrent powers.38
India was to become a Dominion only by the Indian Independence Act, 1947
(IIA, 1947), enacted by the British Parliament. The IIA, 1947, provided for the
establishment of two ‘Dominions’, viz., India and Pakistan. India continued to be a
Dominion until her new Constitutions came into force on 26 January 1950. Section 6
of the IIA, 1947, provided that ‘so much of any Act as relates to the disallowance of
37 See P Chandrasekhara Rao, The Indian Constitution and International Law (Taxmann 1993
and Kamala Sankaran, Freedom of Association and International Labour Standards (Lexisnexis
Butterworths Wadhwa 2009).
38 Sir Kameshwar Singh v Province of Bihar AIR 1951 Pat 246, decided on 24 January 1950, two
days before the Indian Constitution, 1950 adopted by the Constituent Assembly came into force.
The reference is to the GOI Act, 1935.
220 K. Sankaran
laws by His Majesty or the reservation of laws for the signification of His Majesty’s
pleasure thereon or the suspension of the operation of laws until the signification of
His Majesty’s pleasure thereon shall not apply to laws of the Legislature of either of
the new Dominions’.
Thus, the royal prerogative power to grant or withhold its assent with regard to any
legislation, enacted by the colonial legislature that prevailed in the earlier colonial
periods, was used by British Parliament to shape the nature of legislative relations
between the central and provincial legislatures in Canada and subsequently in India.
This same device (albeit in a modified form of not merely granting prior assent but
also permitting subsequent powers of legislative override to the central Parliament)
was also used in the eventual Indian Constitution adopted in 1950, to tone down a
‘pure’ federal form of the Constitution, into what has been variously described as a
quasi-federal, amphibian, cooperative form of federalism.39
The Indian Statutory Commission (Simon Commission, 1930), set up by the
British to recommend the constitutional structure for India, argued that a country as
diverse as India needed a federal structure that could accommodate its different
sections.40 These were developed further in the Constituent Assembly that met
between 1946 and 1949 to draft and adopt the present-day Indian Constitution.
10.5 Durham and the Drafting of the Indian Constitution
Speaking at the first meeting of the Constituent Assembly of India held on 9

December 1946, which was tasked with drafting and adopting the Constitution of
India (1950), the Provisional Chairman of the House, Dr Sachchidananda Sinha
spoke on the importance of a Constituent Assembly in the drafting of a self-governing
Constitution, and went on to observe:
The first to benefit by the American system was Canada, the historic Convention of which
country, for drawing up a self-governing constitution, met in 1864, at Quebec. This Conven-
tion drew up the Canadian Constitution, which was subsequently embodied in what is still
on the Statute Book as the British North American Act, passed by the British Parliament
in 1867. …[t]he British North American Act, under the provisions of which the first self-
governing Dominion of the British Commonwealth of Canada, came into existence, in 1867.
The British Parliament accepted [the] Canadian Convention’s scheme in its entirety, except
39 See for instance, State of West Bengal v Union of India (1964) 1 SCR 371; State of Karnataka v
Union of India, 1978 (2) SCR 1; S.R. Bommai v Union of India (1994) 3 SCC 1; Kuldip Nayar v
Union of India AIR. 2006 SC 3127.
40 The Simon Commission, while dealing with the shape of constitutional changes in India, noted
that there was a debate in India about whether self-governing status could be granted to India and
noted the exceptionalism of the Indian case as compared to its erstwhile colonies and stated that,
‘The difficulties of the Indian military situation simply do not exist elsewhere in the Empire, and
it is therefore no use claiming that the absence of such difficulties elsewhere proves that India can
proceed, smoothly and rapidly, to complete self-government by ignoring the formidable obstacle
in her path.’: Report of the Indian Statutory Commission Vol 1(1930) 99.
for making only one drafting amendment. I hope and pray, Hon’ble Members, that your
labours may be crowned with a similar success.41
Reference was once again drawn to the Canadian experience at the concluding
session of the Constituent Assembly. Speaking on 25 November 1949 a day before the
Constitution of India was adopted in the Constituent Assembly, one of its members
had occasion once again to refer to the BNA, 1867, stating:
It is thus that we have converted a dependency into a cooperative commonwealth. Who dares
to say that this not an achievement worthy of our labours, and worthy of this great country,
and all in the space of three years? When Canada was emancipated, her people assembled
in 1842 when Lord Durham, the Lord High Commissioner was dubbed by the London
Times as the "Lord High Seditioner," and the Canadian Constitution was only finalized in
25 years thereafter, i.e. in 1867, whereas we have taken three years in order to complete this
Constitution.42
The eventual Indian Constitution did draw upon the BNA, 1867, in several ways. It
chose to go with a more quasi-federal structure, and in particular, chose the Canadian
model of enumeration of three lists and the granting of residual powers to the Centre
rather than the provinces. As noticed above, various legislative devices ensure the
paramountcy of the central Parliament over that of the states in certain situations.
The Indian courts have had several occasions to draw on the interpretation developed
by Canadian courts in these areas, most notably in developing the tests of ‘pith and
substance’, and the ‘double aspect doctrine’ while interpreting the legislative lists.
The Privy Council, the Federal Court, and later the Supreme Court have drawn from
the interpretation of legislative lists, the trade and commerce provisions, and the
principles of residuary power, and other related matters which are beyond the scope
of the present paper.43
The Westminster form of government lies at the core of the form of ‘respon-
sible’ government selected by the British for India. The Canadian example had
demonstrated that the Westminster style with its fusion of powers could be success-
fully mapped onto federal constitutions. It was this constitutional scheme that found
41 From the Inaugural Speech of Dr Sachchidananda Sinha, the Provisional Chairman of the
Constituent Assembly, at the first meeting of the Constituent Assembly of India in the Constitution
Hall, New Delhi, on Monday, the 9th December 1946.
42 Speech of Dr B Pattabhi Sitaramayya, Friday, the 25th November 1949.
43 See for instance, In re Presidential Reference 1964 3 SCR 787; ChhotabhaiJethabhai Patel and
Co v Union of India AIR 1962 SC 1006; State Of Madras v GannonDunkerley& Co.,(Madras) AIR
1958 SC 560; Prafulla Kumar Mukherjee v Bank of Commerce, Khulna AIR 1947 PC 60. Also see,
Benegal Narsing Rau, India’s Constitution in the Making (B. Shiva Rao (ed)) (Orient Longmans
1960); B Shiva Rao, The Framing of India’s Constitution: Select Documents (Indian Institute of
Public Administration 1966), Granville Austin (n 3); MP Jain (n 20); Tony Blackshield, ‘Working
the Metaphor: The Contrasting Use of Pith and Substance in Indian and Australian Law’ (2008)
50 JILI518; V Niranjan, ‘Legislative Competence: The Union and the States’ in Sujit Choudhry,
Madhav Khosla and Pratap Bhanu Mehta (eds) The Oxford Handbook of the Indian Constitution
(Oxford University Press 2016). For parallels in constitutional developments, see also, Vivek Krish-
namurthy, ‘Colonial Cousins: Explaining India and Canada’s Unwritten Constitutional Principles’
(2009) 34 Yale J Int’l L < https://digitalcommons.law.yale.edu/yjil/vol34/iss1/6 > accessed 28 July
2020.
222 K. Sankaran
favour with the British while determining the future course of constitutional devel-
opments within India between 1858 and 1935. This trajectory was not significantly
disturbed when the Constituent Assembly met to draft the Constitution for inde-
pendent India during 1946–49. The traditional Indian form of panchayat, with an
indirectly elected central government that was favoured by Gandhiji, was rejected in
favour of the Westminster form of government under the new Constitution in 1950.
This form of government with its fusion of powers continues to retain some of the
(earlier royal) prerogative powers in the hands of the executive, such as the power
to enter into treaties and declare war, untrammelled by the dictates of parliamentary
approval. The 1950 Constitution chose to continue this quasi-federal form of respon-
sible government, given its proven flexibility and suitability to a country with such
an extraordinary diversity.
Chapter 11
Relevance and Significance
of Constituent Assembly Debates
in Constitutional Interpretation:
A Comparative Analysis with Reference
to Amendments
P. Ishwara Bhat
Abstract Constituent Assembly Debates, as a resource of ideas, inspire various

schools of interpretation. However, the originalists abide by its faith quite strongly.
It gives a picture of subjective purpose which ought to be balanced and integrated
with the textually explicit provisions and structure of the Constitution in order to
promote the constitutional goals. In determining the limits of amending power, ambit
of amendments and the method of overarching them with the unamended parts, the
Constituent Assembly Debates throws useful light and inspires to build unwritten
principles in support of foundational values. The two extreme positions, originalism
and living tree notion, developed in the US and Canada and the moderate approach
evolved in India have both diverse experiences and similar outcomes. The interface
between time and space occurring in this domain is a continuous dialogue a society
has to engage in for balancing between continuity and change.
11.1 Introduction
Constituent Assembly acts as a conduit pipe to receive the general will or shared
values of the community. It crystallises them into specific principles and formulates
them as superior norms for the present generation and the posterity in the form of
a constitution. Its deliberations throw light on the purposes or intention with which
such principles are incorporated into the Constitution. It is a forum where the dele-
gates express the ‘subjective purpose’1 and ‘original intention’2 underlying specific
1 It connotes author’s real intention. See, Aharon Barak and Sari Bashi, Purposive Interpretation
in Law (Princeton University Press 2005, Rept. Universal Law Publishing Co 2007) 120.
2 It connotes intention of the Framers and Ratifiers and public understanding at the time of adop-
tion. See, Lawrence B Solum, ‘What is Originalism? The Evolution of Contemporary Original
Theory’ in Grant Huscroft and Bradley W Miller (eds), The Challenge of Originalism: Theories of
Constitutional Interpretation (Cambridge University Press 2011) 12–41.
P. I. Bhat (B)
Karnataka State Law University, Hubballi, India
224 P. I. Bhat
constitutional idea or provision. There is a controversy about the extent to which the
Constituent Assembly Debates (CAD) can be taken into account in constitutional
interpretation especially in the backdrop of the ‘living constitutionalism’ concepts
which posit that a constitution grows in response to the social, economic and political
factors and cannot be frozen to a definite period of its birth. Further, the approach
of subordinating the ‘subjective purpose’ of the Framers to the ‘objective purpose’
of the written constitutional text in case of conflict in order to evolve the ‘ultimate
purpose’ has its own ramification in constitutional politics.3 While the original inten-
tion theories have extensively dealt with various aspects of these issues, alternative or
additional principles of interpretation developed in various jurisdictions—textualism,
structuralism, living constitutionalism, progressivism, purposive interpretation and
balancing—have certain basis in the CAD discourse in their own way. This paper
intends to discuss the theoretical justifications and limitations of referring to CAD in
constitutional construction; the circumstances and methods of its use; and its contri-
butions in determining the extent of amending power and the scope and content
of constitutional amendments. Although it has considerable impact in other related
spheres like fundamental rights and welfare, representative democracy and feder-
alism and pluralism, this paper confines to the discussion to the area of amendments
for avoiding an unwieldy treatment. It argues that the prominent concepts such as
basic structure theory, constitutional morality and holistic understanding are based on
the CAD discourse, and brought out in the effort of culling out ‘ultimate purpose’. It
also contends that the best outcome is possible with an eclectic approach. The judicial
approaches, trends and practices in different jurisdictions in this sphere is diverse,
albeit their similarities in some respects. This chapter tries to expose and evaluate the
comparative positions prevalent in the United States of America, Canada and India
on these matters. The reasons for choosing these systems for comparison consist in
varieties of their responses to different levels of thrusts for social transformation,
different types of socio-economic and political problems faced, the similarities in
and diversity of juridical developments, experiences and their consequences.
11.2 Theoretical Justifications and Limitations
Making of a constitution is a special event in the life of a nation soon after its liber-
ation from a foreign rule or a mother country’s effort of creating a new polity or
a revolutionary development which brings it into existence. The lessons of history,
social experiences, economic realities, political challenges, cultural ethos and deter-
mination to plan for future developments to realise the values of justice are operating
in this process. It determines national identity. In the four-stage sequence of consti-
tution making which John Rawls has contemplated, the CAD belongs to the second
stage where people’s representatives carrying people’s aspirations, ideas and wishes
3 Aharaon Barak (n 1) 384–5.

11 Relevance and Significance of Constituent Assembly … 225
meet in the Constitutional Hall to formulate the Constitution.4 The first stage being
birth of constitutional ideas in the minds of people in their ‘original position’, and
CAD gains legitimacy and democratic character by its churning process of public
opinion with a vision of translating basic idea of justice.5 CAD engages in lifting the
‘veil of ignorance’ that haunted at the first stage and tasks the well-ordered society’s
design to advance the good of its members effectively regulated by a public concep-
tion of justice.6 It centre-stages the primary subject of justice as the basic structure
of society, creates the major social institutions to distribute fundamental rights and
duties and determine the modalities of social cooperation. Arranging for just distri-
bution of primary goods is also its aim. The subsequent two stages of legislative and
judicial contributions are further un-veiling polity’s choices and reinforcing to find
the best constitution. Of all four stages, the stage of CAD is crucial in crystallising
and concretising constitutional norms. In India, the CA members possessed qualities
such as creative leadership, wisdom based on actual social experience, deep knowl-
edge of social problems as well as constitutional principles required for their solution.
They had the vision of and commitment to values of dignity, equality, liberty, unity,
fraternity and welfare, which arouse in subsequent generations profound respect for
their views and statements expressed in the floor of the CA.7 They faced problems
which are either continuing or similar to ours.8 Reference to CAD links the past to
the present for gathering meaning. The sanctity carried out by CAD and the reasons
for fidelity to the original intentions are reflected in the discussions on originalism.
But CAD stands for purposes beyond originalism and serves other principles of
interpretation too.
Originalism is a concept of multiple understanding with labyrinth literature in the
US. It aspires to interpret the constitutional text in the light of original intentions
or understandings of the framers and ratifiers.9 Judicial usage of this approach is
traceable to Chief Justice Taney’s observation in the Dred Scot case to the effect
that the constitutional text must be construed as it was understood at the time of
its adoption since it was believed that the same words convey the same meaning
4 John Rawls, A Theory of Justice (Harvard University Press 1971) 196–7; also see Ronald Moore,
‘Rawls on Constitution-Making’ Nomos. (1979) Vol. 20, Constitutionalism 238–268.
5 Infirmities in the composition of CA become insignificant because of the valuable work of the CA
and people’s acceptance of the same. On public participation in the constitution making process
see, Rohit De, A People’s Constitution: The Everyday Life of Law in the Indian Republic (Princeton
University Press 2018) 2–7.
6 Rawls (n 4) 5.
7 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press
1966 rept 2019) 10–31.

8 Walter Murphy, James E Fleming, Sotiosa Barber and Atephen Macedo, American Constitutional
Interpretation (3rd ed, Foundation Press 2003) 405.

9 Paul Brest, ‘The Misconceived Quest for the Original Understanding’ 60 B U L Rev 204 Solum.
(n 2) 13.
226 P. I. Bhat
in the matter of rights, privileges or delegation of powers.10 Originalism has influ-

enced judicial reasoning in constitutional litigation during the latter part of twentieth
century, and is relevant now too.11 Scholarly writings reflect various shades of orig-
inalism: abstract, narrow and broad.12 Abstract originalists led by Ronald Dworkin
call for fidelity to the Constitution as written, and believe in fusion of constitu-
tional law and moral philosophy.13 The general concepts such as ‘We the People’,
‘Due Process’, ‘Equal Protection’ and so on are to be perceived by open minded, self-
critical and evidence-based philosophical reflections to perform the duties underlying
such concepts.
Narrow or concrete originalists (original intention originalists) emphasize on strict
and exclusive adherence to the intention of the Framers or ratifiers as reflected in the
constitutional text or literature of constitution-making. Cooley states, “The meaning
of the constitution is fixed when it is adopted, and it is not different at any subsequent
time when a court has occasion to pass upon it.”14 Advantage of stability, avoidance
of fluidity or frequent changes according to public opinion, adherence to oath of
office, immunity from violence of public passion are the reasons supporting this
position.
Robert Bork argued that in deriving any right from restraints on governmental
process or from a constitutionally recognised right regard shall be had to the specific
values which the framers actually had intended.15 Justice William Rehnquist finds
three serious difficulties in the idea of living constitution and implicitly favours
original intention theory: the Constitution is designed to enable the elected branches
of the government, not the judicial branch, to keep the nation abreast; disastrous
experiences arise with judicial handling of contemporary problems; and the political
value judgments cannot be handled by a free-wheeling judiciary with its own concepts
of socially desirable goals.16 Justice Antonia Scalia regards originalism as lesser
evil because it gives a reliable frame of thoughts on fundamental values, avoids
illusion between liberty and restraints, and provides consensus which is lacking in
10 Dred Scott v Sandford 60 US (19 How) 393 (1867); 15 L Ed 691; however, there was erroneous
application of this approach in the factual matrix of the case that involved constitutionality of a
federal law that rendered slaves free when they entered a state where slavery is prohibited. The
intention underlying the Preamble and other historical materials did not suggest disapproval of the
legislative policy. See Justice William H Rehnquist, ‘The Notion of a Living Constitution’ (1976)
54 Tex L Rev 693.
11 Ingraham v Wright 430 US 651 (1977); Oregon v Mitchell 400 US 112 (1970) at 165; Roper
v Simmons 543 US 551 (1977) at 626; District of Columbia v Heller 128 S. Ct. 2783 (2008);
McDonald v City of Chicago 130 S Ct 3020 (2010).
12 For this classification, see Sotiriosa A Barber and James E Fleming, Constitutional Interpretation:
Basic Questions (Oxford University Press 2007) 79.

13 Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard
University Press 1996) 7–12.

14 Thomas M Cooley, A Treatise on Constitutional Limitations Which Rest Upon the Legislative
Powers of the States of the American Union (8th ed, Little brown & Co 1927) 54–55.
15 Robert Bork, ‘Neutral Principles and Some First Amendment Problems’ 47 Ind L J 1 at 17.
16 Rehnquist (n 10).
non-originalism.17 Raoul Berger accuses the judiciary as not following the original
intention of Framers in interpreting the Fourteenth Amendment. Jefferson Powell
identifies the original intention of Framers as confining to interpreting according to
the express language of the Constitution.18 By focusing on ratifiers’ views as the
original intention some scholars broad-based the exploration.19
Originalism got integrated with a process, what Bruce Ackerman calls, ‘discov-
ering the Constitution’ by focusing on constitutional politics that took place ‘during
the rare periods of heightened political consciousness’.20 Ackerman argued that orig-
inal meaning of the constitutional content is to be determined by ‘We the People’.
As faithful agents of ‘We the People’, judges have to handle with great care what
Alexander Bickel names ‘countermajoritarian difficulties’.21
Broad or public meaning originalists strike a middle path between the above
two positions and widen the sphere of values by accommodating public meaning
at the time of adoption and also conjecturing the present generation’s perception of
what would have been the answers of the Framers/ratifiers to the new problems in
the changed social and political circumstances.22 Keith Whittington considers that
originalism is compatible with other theories of interpretation, and that pluralism
within originalism is its strength.23 Its virtue consists in fidelity to the constitution
rather than in judicial self-restraint or democratic majoritarianism.24 The funda-
mental choices made by successive generations might be falling within the ambit of
constitutional text, thus building a ‘living originalism’ as per Jack Balkin.25 Exploring
and extrapolating are the means of constructing new meaning under this category.
In support of originalism, Kent Greenwalt argues that it avoids unconstrained
judicial discretion, respects the role of political branches, and projects fidelity to the
Constitution.26 Jeffry Goldsworthy lists the following justifications: (i) reliance on
17 Justice Antonia Scalia, ‘Originalism: The Lesser Evil’ 57 U Cin L Rev 849.
18 Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment
(Liberty Fund 1977).
19 Richard Fallon, Jr., ‘Judicially Manageable Standards and Constitutional Meaning’ 119 Harv L
Rev 1275 at 1317; Charles A Miller, The Supreme Court and Uses of History (Belkap Press 1969);
Henry P Monaghan, ‘Our Perfect Constitution’ 56 NY U L Rev.353 at 375.
20 Bruce A. Ackerman, ‘The Storrs Lectures: Discovering the Constitution’ (1984) 93 Yale L J
1013.
21 Alexander M Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics
(Bobbs -Merrill 1962).

22 Randy E Barnett, Restoring the Lost Constitution (Princeton University Press 2004); Keith
Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Harvard

23 Keith Whittington, ‘On Pluralism within Originalism’ in Grant Huscroft and Bradley W Miller
(ed) (n 2) 70–86.
24 Jeffry Goldsworthy, ‘Originalism in Constitutional Interpretation’ (1997) 25 Fed. L. Rev 1.
25 Jack M. Balkin, ‘Original Meaning and Constitutional Redemption’ (2007) 24 Const. Comment
291.
26 Kent Greenwalt, ‘Constitutional and Statutory Interpretation’ in Julius Coleman and Scott Shapiro
(eds.) The oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press 2002)
300.
228 P. I. Bhat
pre-existing meaning is logical; (ii) for changing the meaning of a law, law itself
should be changed; (iii) availability of ‘utterance meaning’ or general meaning in
textual or non-textual evidence solves the issue of plurality of original intention;
(iv) presence of the amendment clause implies that for amending the constitution,
judicial change of law is not proper; (v) changing the law through judicial action
contradicts rule of law and democracy; (vi) revealing the pre-existing meaning is
a judicial duty; (vii) originalism does not obstruct progress as it allows creative
interpretation, permits overruling of bad precedent, tolerates departure from literal
meaning and accommodates changes in the process of application; and (viii) origi-
nalism accommodates flexibility to avert injustice.27 It is a well-known in civil law
system that a resort to travaux preparatoris (legislative material, TP) is of great help
in understanding the legislative intention.28 Moreover, the stature and competence of
CA members and rational way in which they resolved or rather deferred the deeper
problems of ‘divided societies’29 fill confidence in posterity’s mind. Thus, there are
sound reasons for reliance on CAD.
Paul Brest has shown the following shortcomings of originalism: it is difficult to
ascertain the institutional intention of CA; identifying the intention at the framing
and ratifying level is complex; inferring from the constitutional structure is problem-
atic; non-participation of women and slaves in CA strips originalism’s democratic
legitimacy; and adherence to original intention uniformly in all circumstances brings
unjustified rigidity.30 It is also criticised that the originalist search is hunting a mirage
as a real original intention is non-existent31 ; that blind fidelity to the original inten-
tion brings incongruity, bad result or injustice32 ; and that, as framers did not call for
interpreting in accordance with their intention, the whole exercise is futile.33 Mitchell
Berman makes a scathing criticism of Originalism on account of democracy for its
claim that when original intention is discernible, it shall be invariably followed or
preferred.34 He argues that the method of reflective equilibrium calls for interaction
of wide range of claims or propositions, and that a narrow approach of Originalism
is unworkable and harmful.35 Hence, much caution is needed in handling CAD.
Diametrically opposed to the original intention theories is the English approach
of excluding TP from consideration in ascertaining the plain meaning of the words
27 Jeffry Goldsworthy, ‘The Case for Originalism’ in Grant Huscroft and Bradley W Miller (ed) (n
2) 44–69.
28 M D A Freeman, Lloyd’s Introduction to Jurisprudence (Eighth Ed. Sweet & Maxwell, 2008)
1555.
29 Hanna Lerner, ‘The Indian Founding: a comparative perspective’ in Sujith Choudhry, Madhav
Khosla and Pratap Bhanu Mehta (eds) The Oxford Handbook of the Indian Constitution (Oxford
university Press, 2016) 55–70 at 59–64.
30 Brest (n 9); also see Solum (n 2).
31 Murphy et al. (n 8) 398–99.
32 Gregoire C N Webber, ‘Originalism’s Constitution’ in Huscroft and Miller (n 2) 147–178 at 177.
33 Murphy et al. (n 8) 404–5.
34 Mitchell N Berman, ‘Originalism is Bunk’ (2009) 84 (1) NYU L Rev, 1–96 at 74–75.
35 Mitchell N Berman, ‘Reflective Equilibrium and Constitutional Method: Lessons from John
McCain and the Natural Born Citizenship Clause’ in Huscroft and Miller (n 2) 246–284 at 283.
used in the statute. Since common law is the major premise, judiciary has no role to
fill the gap whereas in the civil law system legislation is the major source of law, and
finding intention of the legislature is a method of understanding the law.36 Growth of
parliamentary supremacy had put the ‘mischief rule’ and other rules of interpretation
into the back seat.37 It is only to avoid the absurdity of meaning of a statutory word
that reference to the intention of legislature is permitted. In practice, courts refer to
legislative intention in applying the grammatical rules.38 But these are exceptions.
Taking a clue from exclusionary rule, the Judicial Committee of the Privy Council
in Edwards v. AG Canada39 refused to rely on original intention in interpreting the
provision in the British North America Act, 1867 which authorised the Governor
General to nominate qualified persons to the Senate. In this case, the Prime Minister
had rejected the claim of five women for Senate membership on the ground that
the word ‘person’, as understood in 1867, would not have extended to women.
The Supreme Court upheld the PM’s order over which appeal was preferred before
the Privy Council.40 The Judicial Committee allowed the appeal and held that the
special law was deliberately designed to evolve in response to the changing social
circumstances, and moral and political views. It observed:
The British North America Act planted in Canada a living tree capable of growth and
expansion within its natural limits. The object of the Act was to grant a Constitution to
Canada. Like all written constitutions it has been subject to development through usage and
convention.
The Committee was inclined to give a large and liberal interpretation to the provi-
sions of the Act instead of cutting down its scope through narrow and technical
construction. Called as ‘living tree’ doctrine, the rule played a crucial role and is still
the major strategy of constitutional construction in Canada.41 The obvious advantage
of this approach was to free the judicial reasoning from being frozen into the past. In
the United States, while upholding a federal law implementing international treaty
on migrant birds Mr. Justice O. W. Holmes had referred to the Constitution as a living
organism:
(W)hen we are dealing with the words that are also constituent act, like the Constitution of
the United States, we must realize that they have called into life a being the development of
which could not have been foreseen completely by the most gifted of its begetters. It was
enough for them to realize or to hope that they had created an organism; it has taken a century
and has cost their sweat and blood to prove that they created a nation. The case before us
36 MDA Freeman (n 28) 1555.

37 ibid.
38 Ejusdem generis rule, Quazi v Quazi [1979] 3 WLR 833 at 839; expressio unius exclusio alterius,
R v Padfrey and Sadler [1970] 2 All E R 12.

39 (1930) AC 124.
40 Edwards v Canada (Attorney General) [1928] SCR 276.
41 W J Waluchow, ‘The Living Tree’ in Peter Oliver, Patrick Macklem and Nathale Des Rosiers (eds)
The Oxford Handbook of the Canadian Constitutional Law (Oxford University Press 2017) 890–
909; James Allan, ‘The Curious Concept of the “Living Tree” (or Non-Locked-In) Constitution’ in
Huscroft and Miller (n 2) 179–202.
230 P. I. Bhat
must be considered in the light of our whole experience and not merely in that of what was
said a hundred years ago.42
The metaphor of living tree or living organism envisages natural growth nourished
by society. Continuity and change are its eternal features. Exposure to the past is
for enlightenment and not for shackling. For a long time, the Canadian judiciary
abstained from admitting TP even for perusal. Now, however, mere production is
permissible, but the Courts take care not to be influenced by it.43
In India, the Constitution Makers intended the Constitution to be an instrument of
social transformation and meticulously built the concepts, mechanisms and institu-
tions for effectuating this idea.44 Hence, reference to CAD could not be retrogressive.
The judicial experiments with textualism in the initial years of the Constitution did
not evolve sound approach in the matter of use of CAD. By declining to refer to
CAD and confining to the text, A K Gopalan had narrowed down the extent of proce-
dural safeguards in preventive detentions.45 Ignoring of the pro-reform discussions
on property right in CAD in land reform cases had resulted in obstruction to economic
justice.46 Regarding the Directive Principles of State Policy (DPSP), Courts limited
the historical survey to CAD and did not go beyond,47 and as a result, treatment
of Fundamental Rights and DPSP together as conscience of the Constitution got
delayed.48 In the matter of right to equality, the Court’s reference to history and
brooding spirit of the times made it clear that the court was desirous of keeping the
constitutional words highly dynamic. Along with the grand debate on basic structure
of the Constitution, the force, direction and limits of change within the Constitu-
tion came to the forefront.49 The idea of living constitutionalism emerged in the
NTWU case with a progressive outlook.50 Shifting from textualism to structuralism
and purposive interpretation brought a revolutionary change in the Indian consti-
tutional law as it expanded the scope, content and efficacy of fundamental rights.
Realising that original intention theories have harmed or that they cannot serve the
progressive growth of constitutional jurisprudence, it was viewed by some judges
in K S Puttaswamy that they are not applicable in India.51 There was also a view
42 Missouri v Holland 252 US 416 (1920).

43 Peter W Hogg, ‘Canada: Privy Council to Supreme Court’ in Jeffrey Goldsworthy, Interpreting
Constitutions: A Comparative Study (Oxford University Press 2006) 55–105 at 78–79.
44 S. Radhakrishnan, Speech in Constituent Assembly Debates 20th January 1947, Book I, 269–273.
45 A K Gopalan v State of Madras AIR 1950 SC 27.
46 In Kesavananda Bharati v State of Kerala [1973] AIR SC 1461, paragraph 1801) the Court
said, ‘In the State of West Bengal v. Bela Banerjee (1954) S.C.R. pp. 558, 563–4, the expecta-
tion entertained by the Constituent Assembly that the Court will not interfere with the fixation of
compensation by Parliament was belied.’ Also see P Ishwara Bhat, Fundamental Rights: A Study
of their Interrelationships (Eastern Law House 2004) 510–526.
47 State of Madras v Champakam Dorairajan AIR 1951 SC 226.
48 Minerva Mills v Union of India AIR 1980 SC 1789.
49 I C Golaknath v State of Punjab AIR 1967 SC 1643; Kesavananda Bharati (n 46).
50 National Textile Workers Union v P R Ramakrishna AIR 1983 SC 759.
51 Justice K S Puttaswamy v Union of India AIR 2017 SC 4161.
that original intention theory supported a theme that by virtue of organic nature of
the Constitution, the original intention of the Constitution Makers was to ensure
that it does not get weighed down by originalist interpretations or remain static or
fossilised, but changes evolve to suit the requirements of time.52 In spheres other
than basic rights and welfare, especially in the matters of representative democ-
racy, federalism, judicial independence and multiculturalism references to CAD has
been greatly enriching feature, as will be discussed in this paper. These approaches
evolved by judiciary over seven decades are in response to the challenges of changing
times and have tended towards theoretical coherence standing between the US and
Canadian approaches. Creative and careful use of CAD becomes appropriate while
deliberate distancing it for abundant caution deprives a valuable source of inspiration.
Whether CAD or TP becomes relevant for other rules of constitutional interpre-
tation may be briefly discussed now. Textualism relies upon plain or literal meaning
of the clauses in the Constitution. This would apparently suggest that reference to
TP is insignificant.53 But even the extreme proponents of this approach also refer
to history of the Amendments that guarantee rights. For example, Justice Black’s
dissent in Griswold 54 refers to the history of Ninth Amendment to show that the
Framers did not intend to broaden the powers of the Court to recognise unnamed
rights like right to privacy but only to limit the Federal Government’s power. But
the majority relied on structuralism by finding the spirit, penumbra and emanations
of First, Third, Fourth, Fifth and Ninth Amendments and referred to Madison’s
statement on the Ninth Amendment for recognising right to privacy.55 Doctrinalism
searches for principles in precedents, and in this process refer to the Framers’ view-
points. For example, in Calder v. Bull56 Justice Chase refers to the approach of the
Framers not to extend ex post facto prohibition to property transactions. Similarly,
the Lemon test which insists on secular legislative purpose, non-advancement of reli-
gion and avoidance of excessive entanglement with religion was built by referring
to the Framers’ intention.57 Developmentalism or progressivism, while canvassing
gradual constitutional changes in correlation with progressive marks of maturing
society has relied on reference to legislative history. In Trop v. Dulles58 Justice Earl
Warren refers to the historical developments starting from Magna Charta to the
making of the Eighth Amendment which prohibits imposition of cruel and unusual
52 ibid, Sanjay Kishan Kaul J, paragraph 448; Dhananjay Chandrachud J observed that in the
changing technological world where earlier models become soon obsolete, it is injustice to the
Constitution and its Makers to freeze its meaning into originalist interpretation. Constitution can
survive as a living instrument only if it has resilience (paragraph 151).
53 Textualists like Justice Antonin Scalia considered that they look no further than the words of the
constitution to reach a decision, and they do not care about the intent and secret meaning which the
framers had in their mind. See Antonin Scalia, ‘A Theory of Constitutional Interpretation’ Remarks
at the Catholic University of America, Washington DC, 18 October 1996.
54 Griswold v Connecticut 381 US 479, 14 L Ed 2nd 510 (1965).
55 ibid, per Justice Goldberg, Chief Justice Warren and Justice Brennan.
56 3 US (Dall) 386; 1 L Ed 648 (1798).
57 Lemon v Kurtzman 403 US 02 (1971).
58 Trop v Dulles 356 US 86, 2 L Ed 2d 630 (1958).
232 P. I. Bhat
punishments. Philosophical approach of making moral judgments gathers support or

limitation from the Framers’ views. For example, in the Second Flag salute case59
while holding that coercion of any individual to commit himself to accept polit-
ical ideas violates the First Amendment freedom, the Court referred to the Framers’
knowledge of such practice and their determination to forbid the same. The dissenting
judges also referred to the Framers’ view that judges are not to be vested with super-
visory powers over the legislature and judiciary cannot decide religious questions. It
is interesting to know the inconsistent purposes for which the framers’ views could
be used.
Purposive interpretation is another rule which amply uses Framers’ intention. The
purposes stated in the Preamble invite the judiciary to bestow their thoughts for their
implementation. Madison spoke of ‘common ends’ like people’s welfare for whose
sole purpose the Constitution is framed.60 Aharon Barak lists subjective purposes of
a constitution to include goals, interests, values, aims, policies and functions that the
founders of the constitution sought to actualize. Its sources include the constitutional
text and constitutional history, which includes the history of the procedures by which
the constitution was framed.61 The constitutional amendments and case law are also
the sources from which purposes can be gathered. Objective purposes include the
goals and aims intended to be actualized through the constitutional text. The structure
and interrelationship within the Constitution, nation’s experience as a whole, pre
and post-enactment history, case law and comparative lessons are the sources of
objective purpose.62 Study of subjective purpose is holding a dialogue with the past
by honouring its importance and understanding its perspectives from the angle of
objective purpose or constitutional goal. Barak views that balancing between the
past and the present, and preference of the objective purpose in cases of conflict
with subjective purpose by addressing changing realities of life are the methods of
attaining ultimate purpose.63
In brief, reference to CAD is not synonymous with originalism. Its theoretical
justifications and limitations beckon for creative use of constitutional history with a
spirit of living constitutionalism.
59 West Virginia Board of Education v Barnette, 319 US 624 (1943).

60 Madison, Federalist No 45 and 51; also see Murphy et al. (n 8) 419.
61 Barak (n 1) 375.
62 ibid 377–383.
63 ibid 385–388.
11.3 Application of CAD or Legislative History in the US,

Canada and India
11.3.1 Preliminary Remarks
From the angle of authorship, availability and systematic arrangement, the source
materials exposing the Framers’ viewpoints in the three jurisdictions have diverse
positions. In the US and India, the authors who drafted and adopted the Consti-
tution were citizens of free countries after obtaining national independence. The
dispassionate wisdom, experience, judgment and prudence exhibited by persons like
Madison, Washington, Adams, Marshall, Hamilton and Jefferson command respect
not out of filial piety but from pragmatism.64 Insofar as India is concerned, the CA
was blessed with people of great stature, practical experience, moral vision, political
skill and legal acumen—Nehru, Patel, Prasad, Dr Ambedkar, Munshi, Alladi and
others forming the microcosm of India– who worked on the original draft prepared
by B N Rau, discussed for more than two years both in committees and the whole
house, addressed complicated issues and amendments proposed by members and
produced a great constitution.65 They worked in an atmosphere of serious chal-
lenges—poverty, food scarcity, communal riots, refugee settlement, consolidation
of numerous princely states and provinces, cultural diversity and caste system—
and tried to solve the problems through the fundamental law.66 Exposure to press,
public discussion and petitions made the process a democratic exercise.67 The Cana-
dian Constitution was originally outcome of a series of conferences of British North
American provinces in Charlottetown, Quebec City and London (England) from 1864
to 1867.68 The British North America Act, 1867 (named as Constitution of Canada
in 1982) was enacted by the Imperial Parliament. Canada continued its affiliation
with the British Crown although gradually it gained autonomy under the Statute of
Westminster 1931. The BNA Act had not provided for power to amend the Act, and
technically the power was vested with the Imperial Parliament until the Canada Act
1982. It appears this peculiar position of difficulty in amending the constitution made
the Canadian judiciary to evolve constitutional law mainly through interpretation by
64 Murphy et al. (n 8) 405. Justice Brandeis observed in his dissent in Olmstead v United States,
277 US 438; 72 L Ed 944, 956: ‘The makers of our Constitution undertook to secure conditions
favourable to the pursuit of happiness. They recognized the significance of man’s spiritual nature,
of his feelings and intellect. They knew that only a part of the pain, pleasure, and satisfaction of
life are to be found in material things. They sought to protect Americans in their beliefs, thoughts,
their emotions and their sensations.’ He culled out right to privacy from the original intention.
65 Austin (n 7) 10–31.
66 Ramachandra Guha, India After Gandhi: The History of the World’s Largest Democracy (Picador,
2007) 105.
67 Rohit De (n 5); Guha (n 65).
68 Peter W Hogg, Constitutional Law of Canada (Third ed, Carswell 1992) 4, 1286; also see Robert
Vipond, ‘1867: Confederation’ in Peter Oliver, Patrick Macklem and Nathale Des Rosiers (eds) The
Oxford Handbook of the Canadian Constitutional Law (Oxford University Press 2017) 83–101.
234 P. I. Bhat
the ‘living tree’ doctrine.69 But the instances of judicial treatment of legislative history
are growing in number.70
All the three jurisdictions are federal systems, but at the anvil of constitution-
making, federalism was in evolutionary stage as many territories joined the union
subsequently. It is only in America that the process of ratification took place. In
India, participation of States in constitution-making was through representatives
in CA while in Canada it was through initial discussion in conferences.71 Non-
ratification of the constitution by the Indian states was the reason for rejecting the
relevance of CAD in constitutional interpretation in I C Golaknath.72 In earlier cases,
for the reason that CAD is extrinsic evidence or that individual speech reflected only
subjective intention and not inarticulate mental process underlying majority vote it
was rejected.73 But the subsequent developments recognised the relevancy of CAD
as a means of identifying the intention.74
Of all the three systems, it is in India that CAD is properly recorded, and the
committee proceedings are also systematically compiled. But CAD is not the only
source as the Parliamentary Debates on 103 constitutional amendments also throw
light on the intention of amendment makers. Recent valiant effort of Samaraditya Pal
compiling clause-wise discussion of CAD and amendments with relevant case law
highlighting the original intention in 10 volumes has eased the task of reference.75
Bulkiness of the Constitution, enthusiastic participation by around 300 members, and
controversial issues had added to the voluminous CAD reports. Compared to this, the
source materials available on Framers’ intention in US and Canada are less in volume
and lack in systematic recording. In the US, 85 essays written by Alexander Hamilton
and Madison defending the constitutional draft in order to gain support for ratification
from the States are the only evidence about the proceedings of the constitution making
body.76 They, no doubt, provide ‘great insight into the objectives and intent of the
69 When originalists argue that change in meaning should be only through constitutional amendment,
and when opportunity for such amendment is denied or unduly delayed in the Constitution, it
becomes imperative for judiciary to depart from originalism and dare to make a new law through
interpretation. See Jeffry Goldsworthy (n 24); also see James Allan (41); also see Grant Huscroft,
‘Vagueness, Finiteness, and the Limits of Interpretation and Construction’ in Huscroft and Miller
(n 2) 203–222.
70 Hogg, (n 67) 1290–92; W C Waluchow (n 41) 894–904.
71 Incidentally residuary power vests with the federal government.
72 I C Golaknath v State of Punjab, AIR 1967 SC 1643; Also see for similar approaches, Union of
India v H S Dhillon [1971] 2 SCC 779.

73 State of Travancore Cochin and others v Bombay Company Ltd AIR 1952 SC 36; A K Gopalan
v State of Madras [1950] AIR SC 27.

74 Kesavananda Bharati (n 46); S R Chaudhuri v State of Punjab AIR 2001 SC 2707; Manoj Narula
v Union of India AIR 2014 SC 2597; TMA Pai Foundation v State of Karnataka AIR 2003 SC 355;
Supreme Court Advocates on Record Association v Union of India AIR SC 5457.
75 Samaraditya Pal, India’s Constitution: Origins and Evolution, Volumes 1 to 10 (Lexis Nexis
2014).
76 The History Editors, ‘The Federalist Papers’ < https://www.history.com/topics/early-us/federa
list-papers > accessed on 18 August 2020.

nation’s founders’.77 They emphasise on the instrumental nature of the Constitution

in enhancing the nation’s liberty, dignity and happiness; advantages of nation’s unity
in establishing a large commercial republic; the Constitution’ role in resolving the
problem of unequal society and factions; and the energy underlying responsible
government and dynamics of separation of powers. In identifying abstract purpose
or the philosophy underlying the Constitution, these writings help immensely.78
Discussion at the stage of ratification also throws light on the original intention.
In Canada, the proceedings of three Conferences preceding the Imperial Parlia-
ment’s deliberations are either very scanty or in the form of resolutions not throwing
light on discussion.79 Based on biographies and writings of individual members
of Conferences some materials are available.80 Thus both in the US and Canada,
references to private documents are necessitated. However, the proceedings of the
legislative assembly of united province of Canada on Confederation Debate 1865
and the UK Parliament’s debates are available. Regarding the 1982 Act, the discus-
sion in House of Commons and Senate of Canada, proceedings of federal-provincial
agreements and the debates in the UK Parliament are available. Thus, deciphering
original intent in scattered documents and scanty resources is a challenging task.
Another notable factor is better representative quality of the Indian Constituent
Assembly which included women, religious minorities, depressed classes, indige-
nous communities, and representatives from various provinces and territories.81 In
resolving the sensitive issues like reservation, women’s rights, language rights and
protection of tribal communities an inclusive composition of CA provided for a better
result. Both in the US and Canada, women and racial minorities were not repre-
sented in the constitution-making task, which had adverse impact on the constitu-
tional design.82 Further, the transformative spirit and specific orientation for planned
change is a distinguishing feature of the Indian Constitution, which requires the CAD
discourse in judicial process to be change-friendly.
In the background of above theoretical discussion and preliminary remarks, a
comparative survey of experiences of the three systems in relation to interpretation
of amending clause and amendments is provided in the following section.
77 Lee Epstein and Thomas G Walker, Constitutional Law for a Changing America: Institutional
Powers and Constraints (7th ed, CQ Press 2010).
78 Barber & Fleming (n 12) 36–37.
79 Hogg (n 67) 1286; Vipond (n 67)/.
80 Vipond (n 67) 89–96.
81 Austin (n 7) Chapter 2.
82 Vipond (n 67) 97.
236 P. I. Bhat
11.3.2 Judicial Treatment of CAD on Amending Power

and Amendments
The nature, procedure and limits of power to amend the Constitution have been
matters of controversy in constitutional jurisprudence. Amendment alters the preva-
lent constitutional position and poses challenge for reconciling between change and
continuity in the course of interpretation. In these matters, the CAD is a valuable
source material for intellectual discourse on the limits of amending power and nature,
content and scope of amendment. The following discussion with the help of case law
is only illustrative and not exhaustive.
11.3.2.1 United States
In the US, procedural issues about time and process of ratification of constitutional
amendments have bothered the minds of courts and asked for help from the Framers’
intention. In Hawke v. Smith, the US Supreme court asked a pertinent question, “What
did the framers of the constitution mean in requiring a ratification by ‘legislatures’?”
and answered the same by saying that referendum did not serve the purpose.83 The
questions whether ‘two third of both Houses’ meant two-third of members present and
not two-third of members of the entire membership; whether ratification once given
can be abrogated by subsequent legislation; whether time limit prescribed for ratifica-
tion is depriving legislative discretion; and whether an amendment proposal rejected
earlier can be ratified after 13 years of its rejection are decided by the Supreme
Court by referring to the Framers’ intention that ratification is a matter of federally
conferred power to be exercised according to the federally prescribed procedure.84
On substantive limitations on amending power, Hamilton stated in Federalist papers
that mathematical demonstration of political truth of States’ collective views was
crucial for amendments.85 Citing from Hume’s writings to the effect that balancing a
large society or State through constitution-making requires united action of reason,
reflection and judgment of many, guidance of experience, time’s competence for
perfection and readiness of polity to correct the mistakes in response to experiments,
he appealed to the lovers of union to be moderate and guard against hazarding anarchy,
civil war and despotism. It was a strong caution against abuse of amending power.
The first ten amendments were relating to guarantee of basic human rights. While
the First Amendment refers to Congress as the person of incidence, other amendments
83 253 US 1 (1920); Laurence H. Tribe, American Constitutional Law (3rd ed, Foundation Press
2000) 102.
84 National Prohibition case, 253 US 350 (1920); Leser v Garnet 253 US 130 (1922); United States
v Sprague, 282 US 716 (1931); Dillon v Gloss 256 US 368 (1921); Coleman v Miller, 307 US 433
(1939).
85 The Federalist Papers: No. 85, Zale Law School—The Avalon Project: Documents in Law, History
and Diplomacy < https://avalon.law.yale.edu/18th_century/fed85.asp ≥ accessed on 18th August

2020.
use general language about the authority bound by the constitutional guarantee. Chief
Justice John Marshall in Barron case86 held that the whole bill of rights restricted only
the federal government and hence the Fifth Amendment due process clause could
not be applied against the States. He reasoned on the basis of framers’ intention that
the federal constitution was ordained to govern the people and national government
and not for governing the individual states, for which individual state constitutions
take the responsibility. After referring to the language of the Amendments and also
the original constitution which expressly prohibits the states from enacting bill of
attainder or ex post facto laws,87 he stated, “Had the framers of these amendments
intended them to be limitations on powers of the state governments, they would have
imitated the framers of the original constitution, and have expressed their intention.”
He referred to the discussion during the process of adoption and ratification of the
Fifth Amendment and arrived at a conclusion that there was no evidence about the
extraordinary occupation of Congress engaging in improving the constitutions of
several states by providing additional safeguards from the exercise of power by their
own governments. This blind adherence to the Framers’ intention without acting
upon the Preamble’s promise of availing blessings of liberty to all or the American
Declaration of War of Independence, or the general language of the Fifth Amendment
or the purpose of the Constitution as a whole had obstructed the free growth of
fundamental rights jurisprudence.
The most infamous case in American history that brought scornful result of justi-
fying slavery and obstructing modest egalitarian principle, Dred Scott,88 is based
on erroneous application of legislative history and unwarranted abandonment of
holistic approach. The majority led by Chief Justice Taney extensively referred to
the subjective views of Framers that the African American slaves were not citizens
and not even ‘persons’ who were born free and equal; that the Congress’ power of
making all needful rules and regulations respecting new territories did not include the
power to provide for manumission of slaves; and that right of property in slaves was
recognised during the constitution making process and in the very text of the Consti-
tution. Justice McLean and Justice Curtis, in their dissent, elaborately discussed the
legislative history and gathered support for a progressive outlook from the views of
Madison and Hamilton to the effect that a slave entering into a free state without
breach of law cannot be converted into slave. Mustering strength from structure and
spirit of the Constitution, Justice McClean observed, ‘A slave is not a mere chattel.
He bears the impression of his Maker, and is amenable to the laws of God and man;
and he is entitled to an endless existence.’89 This reflects an inclination to promote
the ultimate purpose of upholding human dignity. Dred Scott strongly warns against
callous application of legislative history, ignoring the synchronisation of subjective
86 Barron v The Mayor and City Council of Baltimore, 32 US 243 (1833).

87 Article I section 9; in Calder v Bull 3 U S (Dall) 386 (1798) Justice Chase had viewed for
majority that the Framers had not considered restraint on ex post facto laws as extending to prohibit
deprivation of property right for public purpose without just compensation.
88 Dred Scott v Sandford 60 US 393 (1857).
89 ibid para 599.
238 P. I. Bhat
and objective purposes. Its monstrous effect of triggering civil war was responded
to by making of the Thirteenth Amendment, which abolished the practice of slavery,
and the Fourteenth Amendment, which incorporated the ‘privileges and immunities’
clause, the due process clause and the equal protection clause against the States.90
In spite of the potentiality for revolutionary change, the Fourteenth Amendment
faced the problem of launching. The Barron story of federalism blocking the guar-
antee of rights owing to the founders’ intention continued here also. In the Slaughter
House cases,91 upholding the Louisiana law of monopoly, the Supreme Court inter-
preted the ‘privileges’ clause by referring to the original constitution’s usage in
Article IV section 2, and included within it the right to get governmental protection,
the right to acquire property, and the right to pursue safety and happiness subject
to governmental restraints on ground of general good. It rejected an argument that
the privileges clause of the Fourteenth Amendment intended to extend the State’s
protection to all the rights of US citizens. The equality clause was interpreted by
applying the mischief rule to the effect that it meant only to end racial inequality
and did not provide for right to equality in other spheres. For both the propositions,
the Court relied on the Framers’ intention and thrust of the text. By declining to go
for bag-and-baggage incorporation, the Supreme Court went ahead with selective
incorporation in subsequent cases. Four prominent approaches92 in this regard can
be highlighted pointing out the impact of the Framers’ intention:
(a) Since the due process protection of liberty has no rigid content but varies with
changing times except that it should not yield unfair results, States as federal
units can keep their own law of the land for trying the criminals. In Hurtado,
the Court upheld the California law providing for trial by information rather
than by grand jury by reasoning that growth of the law ever since the Magna
Carta had provided for flexibility.93 This approach gives leeway to the States to
decide about their responsibility towards basic rights. Justice Harlan, in dissent,
relied on the views of the Framers to emphasise on the requirement of trial by
grand jury.
(b) The textualist approach of Justice Hugo Black is to the effect that all the
provisions from 1st to 8th Amendments are incorporated against the States
and that availability of such right is not dependent upon judicial formula based
on justice. His dissenting view in Adamson made a deep investigation of the
history of the Fourteenth Amendment.94
90 ‘No State shall make or enforce any law which shall abridge the privileges and immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty or property,
without due process of law; nor deny to any person within its jurisdiction the equal protection of
the laws’.
91 The Butchers’ Benevolent Association of New Orleans v The Crescent City Live-Stock landing
and Slaughterhouse Company, (Slaughterhouse case) 83 US 36 (1873).

92 Murphy et al. (n 8) 148.
93 Hurtado v California, 110 US 516 (1884).
94 Adamson v People of State of California, 332 US 46 (1947).
(c) Justice Cardozo’s two-pronged tests evolved for the filtering process viz.,
whether the right claimed is ‘implicit in the concept of ordered liberty’ and
whether it stems from ‘a principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental’ makes use of objec-
tive and subjective purpose. While the first test is largely pertaining to the
area of First Amendment rights, the latter reflects due process rights. Cardozo
reasoned on the basis of intensive doctrinal analysis of case law rather than
indulging in tracing the legislative history.
(d) The approach that due process of the Fourteenth Amendment incorporates all
the components of the Bill of Rights, and in addition, includes ‘fundamental
rights’ not included there. Justice William Douglas in Poe (dissenting) and
Griswold (majority) considered that the penumbras emanating from specific
guarantees give life and substance to the new rights. [Poe v. Ullman, 367
US 497 (1961); Griswold v. Connecticut, 381 US 479 (1965)]. His reference
to the Framers’ intention is only to point out the indispensable character of
substantive and procedural rights for a free society, a factor that expands with
time. Thus, these approaches had diverse perspectives about legislative history,
and were tending towards an eclectic approach and suitably balancing between
federalism and rights approach.
In interpreting the equal protection clause, the restrictive approach started with the
Civil Rights case: that it is not applicable to racial discriminations in private services
in public places, an approach too textualist while the dissenting view of Justice Harlan
inferred reformative measures from Framers’ intention to abolish the institution of
slavery.95 In Plessy v Ferguson,96 the majority held that the intention behind the Four-
teenth Amendment did not include achievement of social equality and that private
corporate acts of discriminations in the form of separate-but-equal supported by State
could not be invalidated by it. The dissenting view of Justice Harlan, by hinting about
the colour-blind character of the Constitution, reflected philosophical value of human
dignity and equal human worth.97 Without delving much into legislative history, in
Brown,98 while overruling Plessy, the Supreme Court found irrelevance of separate-
but-equal in the domain of education: which is the foundation of good citizenship,
awakener of cultural values and trainer for professional life. Purposive interpreta-
tion is implicit here. In Allan Bakke, reference to the intention of the Framers of
the Fourteenth Amendment bridging the distance between the Negro minority and
the White majority, growth of remedial measures of equality and effort to satisfy
the interests of the disadvantaged, poor and the racial minority provided valuable
input for judicial reasoning.99 The discourse on the ameliorative role of equality and
justice had supported the main line of reasoning. Thus, in expanding the contours of
equality, the gain from historical inquiry is significant but not exclusive.
95 United States v Stanley (Civil rights case) 109 US 3 (1883).

96 163 US 537 (1896).
97 ibid para 43.
98 Brown v Board of Education of Topeka 347 US 483 (1954).
99 Regents of the University of California v Allan Bakke 438 US 265 (1978).
240 P. I. Bhat
In determining the content of any right or its relationship with other rights or
interests, the relevance of the Framers’ intention has come to the forefront. In limiting
the application of the clear and present danger test to such abuses of speech which
really caused imminent and severe danger, Justice Brandeis and Justice Holmes in
Whitney drew strength from the beliefs of ‘those who won our independence’ that
deliberative forces shall prevail over the arbitrary and that liberty to think as one
wills and to speak as one thinks are means indispensable to the discovery and spread
of political truth.100 In the infamous Lochner, neither the majority nor the dissenting
judges invoked the Framers’ intent.101 The textualist approach of the majority and
the approach of philosophical and purposive interpretation by the dissenting judges
point out the limitation in realising the original intention of making the blessings
of liberty and pursuit of happiness for the benefit of ‘We the People’. In the latest
case on right to keep and bear arms for personal use or self-defence, Heller,102
extensive reference to legislative history can be found. The majority (5: 4) led by
Justice Antonin Scalia took support from the founding-era sources to conclude that
the right was available for self-defence and was not confined to use of arms for militia
purposes. The prefatory clause could not control the conferment of right. In contrast,
the dissenting judges like Justice Stephen Breyer relied on founding era sources that
there were restraints on gun firing within the city and evolved interest-balancing test
to determine its content. The majority additionally looked into the structure of the
Second Amendment’s language and purpose of the Second Amendment and the law.
11.3.2.2 Canada
Absence of an amendment clause in the original constitution, dependence on the

UK Parliament for amendment and the ultimate patriation of amending power into
Canada are the peculiar factors which made Canada traverse a different path.103 In
contrast to the US, in Canada, the application of Living Tree doctrine in the Patri-
ation Reference case104 has upheld the Federal Government’s power of submitting
amendment proposals to UK Parliament even though it deviated from the constitu-
tional convention that Provinces shall be consulted before altering the constitutional
structure.105 The repatriated amending power under Part V of the Canada Act of
1982 has five different categories, wherein two are relating exclusively to the federal
100 Whitney v California 274 US 357 (1927).

101 Lochner v New York 1898 US 45 (1905).
102 District of Columbia v Heller 554 US 570 (2008).
103 For discussion see Benoit Pelletier, ‘Amending the Constitution of Canada’ in Peter Oliver,
Patrick Macklem and Nathale Des Rosiers (eds) The Oxford Handbook of the Canadian
Constitutional Law (Oxford University Press 2017) 253–275.
104 Re Resolution to amend the constitution (1981) 1 SCR 753.
105 See for discussion, W J Waluchow (n 41) 894–896. In an interesting development in 1982,
when Quebec objected against the amendment, the Supreme Court ruled that no province had any
conventional veto power. Re: Objections by Quebec to a Resolution to amend the Constitution
(1982) 2 SCR 793.
or provincial governments to be handled by Parliament or Provincial legislatures

as the case may be. The third one requires unanimous consent of all the Provin-
cial Governments and the federal government. The fourth one requires approval at
the federal level and by the affected province/s. The fifth one has a ‘7/50’ formula
where approval by not less than two thirds of provinces which have a population
of more than 50 percent of Canada’s population along with approval by the federal
Parliament.106
A question arose in 1998 whether Quebec has unilateral amending power to secede
from Canadian federal system and whether it has the right of self-determination
according to international law. In the Secession Reference case, the Supreme Court
answered both the issues in the negative but made it clear that principle of feder-
alism and democracy required reciprocal consultation to negotiate constitutional
changes.107 Although the court did not advise about the appropriate method, as
viewed in a subsequent case, Senate Reform Reference case,108 the ‘7/50’ formula
was to be followed. Meanwhile, the flourish of rights and freedoms under the Charter
of 1982, the clauses on multiculturalism and distinct society and the political devel-
opments have made the people rethink. However, the Secession Reference case has
made a big breakthrough in the Canadian constitutional jurisprudence because of the
philosophical treatment of various core concepts on the basis of Canada’s history and
tradition and filling the interstices with non-positivist thinking.109 This development
is comparable to the evolution of basic structure doctrine of India.110 Mere textual
approach was inadequate. It located beneath the written words ‘an historical lineage
stretching back to ages, which aids in the consideration of the underlying constitu-
tional principles. These principles inform and sustain the constitutional text: they
are the vital unstated assumptions upon which the text is based.’ These constituted
the very lifeblood of Canada’s constitutional structure. The mutually interrelated
four fundamental organising principles of the Constitution, according to the Court,
were federalism, democracy, constitutionalism and rule of law, and the respect for
minorities.
Firstly, the principle of federalism which emerged from a legal response to under-
lying political and cultural realities that existed in Confederation has continued to
date. The cultural and linguistic diversities were to be accommodated within the
structure of federalism. Secondly, the idea of a free and democratic society envis-
ages compliance with the consent of the governed. The democratic institution must
rest on legal foundation, people should participate in the governance, and power
holders shall be accountable to the people. Thirdly, legal order shall enjoy legiti-
macy because of people’s acceptance and participation. Constitutionalism shall also
106 P W Hogg, Canadian Constitutional Law (3rd edn, Carswell 1992) 70–82.
107 Reference re: Secession of Quebec [1998] 2 SCR 217.
108 Reference re: Senate Reform (2014) 1 SCR 704.
109 Jean Leclair, ‘Constitutional Principles in the Secession Reference’ in Peter Oliver, Patrick
Macklem and Nathale Des Rosiers (eds) The Oxford Handbook of the Canadian Constitutional
Law (Oxford University Press 2017) 1019–1020.
110 Kesavananda Bharati v State of Kerala AIR 1973 SC 1461.
242 P. I. Bhat
be a philosophy emerging from the people’s bosom. Thus, institutional stability

and the system of ordered society become feasible with the pillars of constitutional
morality. Fourthly, the majority, however strong it might be, has the responsibility of
safeguarding the minority interests and individual rights. These principles are oper-
ative by collaborative efforts of all the organs and levels of government and people.
The interplay between democracy and federalism operates in such a way that in all
the provinces, different and equally legitimate majorities hold the reins of power
and shoulder the responsibility of coexistence. The dynamic relations among these
four components, in actuality, limit the power of amendment. This, in fact, happened
when the Supreme Court ruled that proposal for reform of Senate can take place only
with the unanimity method. Similarly, rejection of unilateral amending procedure
for secession by any province has rescued the polity from the tragedy of disinte-
gration for the time being.111 Thus, limits on amending power arise from historical
forces, social factors, constitutional morality, political considerations and economic
realities.
In the interpretation of constitutional amendments, especially the newly inserted
Charter of Rights and Freedoms, the Canadian judiciary has opened up its mind
for eclectic approach. This is in contrast to an ostrich-like aversion to legislative
history in the light of the Living Tree doctrine. The doctrine has guided for inter-
pretation in a large, liberal and comprehensive spirit. In Skapinker, a case involving
application of equal right in the matter of access to livelihood, the Supreme Court
observed, ‘The Charter is designed and adopted to guide and serve the Canadian
community for a long time. Narrow and technical interpretation, if not modulated
by a sense of the unknowns of the future, can stunt the growth of the law and hence
the community it serves.’112 Reconciliation between individual and collective rights,
development of the principles relating to reasonable limits upon the Charter rights
and restrictive scope of overriding clauses were to be done through the task of inter-
pretation. In Big M Drug Mart, the Supreme Court held the Sunday closure law as
violating the freedom of conscience and religion because of its preference to specific
community.113 According to the Court, the meaning of a Charter right is to be ascer-
tained by analysis of the purpose of such guarantee and the interest meant to be
protected. And the purpose is to be gathered from the character and larger object
of the Charter, language chosen, historical origins of the concepts, and the meaning
of other rights associated in the text. These factors help in bringing constitutional
developments within the ‘natural limits’114 of the Living Tree doctrine as enunciated
in Edward.115 This is explicitly making the tree to live with the past, present and
111 Leclair (n 105) 1026.

112 Law Society of Upper Canada v Skapinker [1984] 1 SCR 357.
113 R v Big M Drug Mart Ltd (1985) 1 SCR 295.
114 The category of ‘natural limits’ guiding the Courts to decide permissibility of same-sex marriage
came before the Supreme Court in relation to legislative power on marriage under the BNA Act
in Reference re same Sex Marriage (2004) 3 SCR 698. In the context of conflicting submissions,
the Court expressed inability to exclude same-sex marriage within the concept of marriage. For a
discussion on determination of moral question within natural limits, see Huscroft (n 68) 210–211.
115 Edwards v Canada (Attorney General) [1930] AC 124 at 136.
future. In fact, tree implies existence of roots of the past and the present, and split-
ting of shoots in branches at the top. Rendering the doctrine itself flexible releases
the potentiality of living constitutionalism. In interpreting the phrase ‘principles of
fundamental justice’ in section 7 of the Charter in B C Motor Vehicles case, the Court
was inclined to give a generous and not legalistic meaning.116 The Court viewed that
the phrase meant a wider category than the ‘principles of procedural (natural) justice’
and that common law courts have historically considered more than natural justice in
construing the statutes. But the Court kept the originalist arguments away when the
legislative history within the Parliament and Committee were cited by reasoning that
in the context of multiplicity of role players in drafting and adoption of the Charter,
selecting the view of specific member over others is a clueless exercise and that
proof of intention is difficult to discern. The Court held that it is a mistake to keep
the meaning of any phrase fixed by the framers’ intention at the time of adoption.
Without allowing the possibility of growth and adjustment over time in response
to social needs, undue emphasis on historical materials would stunt its growth, the
Court said.
Whether the guarantee of right to life, liberty and security of persons against
deprivation except in accordance with the principles of fundamental justice provided
any protection to economic and social rights such as right to adequate standard of
living, housing, health care or education was an issue that came before the Court in
Irwin Toy Ltd 117 and Gosselin.118 In Irwin Toy the question was set aside as precip-
itous although the Court was categorically excluding property right from the same.
In Gosselin, the Court declined, although not categorically, to recognise positive
economic right within it. The hesitant approaches of the judiciary have attracted a
criticism that Canada produced weak Charter right jurisprudence.119
The overall trend in the Canadian judicial contribution consists in developing a
bundle of interpretative strategies—‘Living tree’ concept, purposive interpretation,
progressivism, textualism, holistic construction and philosophical approaches—and
making them available for suitable choice or combinations. The efforts of building
sound constitutional jurisprudence on the basis of unwritten constitutional principles
and non-positivist reasoning have also laudable result.
11.3.2.3 India
In India, the nature and limits of amending power, and interpretation of new clauses
in the light of both new and old views constitute an important theme of constitutional
jurisprudence. Justice Mudholkar in the Sajjan Singh case started the basic feature
(structure) debate by raising the question whether CA as repository of sovereign
power in providing for a written constitution with separation of powers, responsible
116 Reference re Section 94 (2) of the Motor Vehicles Act (1985) 2 SCR 486.
117 Irwin Toy Ltd v Quebec (Attorney General) [1989] 1 SCR 927 at 1003–1004.
118 Gosselin v Quebec (Attorney General) [2002] 4 SCR 429.
119 Peter W Hogg (n 43) 101, Grant Huscroft (n 68) 222.
244 P. I. Bhat
government, federalism, fundamental rights, judicial duty to uphold the Constitution

had not intended to give permanence to the basic features of the Constitution.120
In I C Golaknath, the majority led by Chief Justice K Subba Rao referred to the
Motilal Nehru Committee report and views of Jawaharlal Nehru and Dr Ambedkar
about transcendental character of fundamental rights.121 They also inferred from the
Constituent Assembly’s rejection of Sri H V Kamath’s proposal to insert a clause
declaring that any provision of the Constitution can be amended as impliedly keeping
Part III outside the scope of amendment.122 But they were not prepared to give any
binding status to CAD.123 Justice Wanchoo and other dissenting judges observed,
We are of opinion that we cannot and should not look into the debates that took place in the
Constituent Assembly to determine the interpretation of Art. 368 and the scope and extent of
the provision contained therein. It may be conceded that historical background and perhaps
what was accepted or what was rejected by the Constituent Assembly while the Constitution
was being framed, may be taken into account in finding out the scope and extent of Art.
368. But we have no doubt that what was spoken in the debates in the Constituent Assembly
cannot and should not be looked into in order to interpret Art. 368.124
Justice Bachawat in his dissent referred to the views of Dr Ambedkar relying upon
Jefferson’s view that democracy did not permit one generation to prevail upon the
subsequent generation absolutely, a position quite different to the majority view.125
In Kesavananda, the un-amendable character of basic constitutional values was
perceived by an effort of constructing ultimate purpose by combining the subjective
and objective purposes to use the language of Aharon Barak. Justice Jaganmohan
Reddy viewed,
In the frame of mind and with the recognition of the dominant ’mental makeup and the silent
immaculate premise of our outlook’ which became the outlook of the people, the framers of
our Constitution could not have provided for the freedoms inherent as a part of the right of
civilised man to be abrogated or destroyed. The interest of the community and of the society
will not be jeopardised and can be adjusted without abrogating, damaging, emasculating or
destroying these rights in such a way as to amount to abrogation of the fundamental rights.126
Chief Justice of India S M Sikri observed, ‘It is, however, a sound rule of construc-
tion that speeches made by members of a legislature in the course of debates relating
to the enactment of a statute cannot be used as aids for interpreting any of provi-
sions of the statute.’ He referred to the view of Justice Patanjali Shastri in State of
Travancore-Cochin case,127 that in view of exclusionary rule, use of speeches in
CAD for constitutional interpretation was unwarranted. The reasons given in A K
Gopalan for such a position were cited: ‘A speech made in the course of the debate on
120 Sajjan Singh v State of Rajasthan AIR 1965 SC paragraph 57.

121 I C Golaknath v State of Punjab (1967) 2 SCR 762.
122 ibid para 19 and 20.
123 ibid para 21.
124 ibid para 92.
125 ibid para 49.
126 Kesavananda Bharati (n 110) para 1174.
127 State of Travancore-Cochin v Bombay Co Ltd AIR 1952 SC 366.
a bill could at best be indicative of the subjective intent of the speaker, but it could not
reflect the inarticulate mental process lying behind the majority vote which carried
the bill. Nor is it reasonable to assume that the minds of all those legislators were in
accord, or, as it is more tersely put in an American case- Those who did not speak
may not have agreed with those who did and those who spoke might differ from
each other.’128 Further, as discussed in Privy Purse case,129 the fact that the Rulers
or Rajpramukhs of States accepted the Constitution in its final form, and not subject
to speeches of members, was also the reason to keep CAD at low key. The learned
judge referred to UDHR, legislative history, textual provisions and observed, ‘The
expression “amendment of this Constitution” does not enable Parliament to abrogate
or take away fundamental rights or to completely change the fundamental features of
the Constitution so as to destroy its identity.’ According to Justices Shelat and Grover,
‘If the historical background, the Preamble, the entire scheme of the Constitution,
and the relevant provisions thereof including Article 368 are kept in mind there can
be no difficulty in discerning that the following can be regarded as the basic elements
of the constitutional structure.’130 Justices K S Hegde and Mukherjee reasoned, ‘We
find it difficult to accept the contention that our Constitution makers after making
immense sacrifices for achieving certain ideals made provision in the Constitution
itself for the destruction of those ideals. There is no doubt as men of experience and
sound political knowledge, they must have known that social, economic and political
changes are bound to come with the passage of time and the Constitution must be
capable of being so adjusted as to be able to respond to those new demands.’ (Para
667) About relevance of the CAD, Justice H R Khanna observed,
The speeches in the Constituent Assembly, in my opinion, can be referred to for finding the
history of the constitutional provision anti the background against which the said provision
was drafted. The speeches can also shed light to show as to what was the mischief, which was
sought to be remedied, and what was the object which was sought to be attained in drafting
the provision. ...The draftsmen are supposed to have expressed their intentions in the words
used by them in the - provisions. Those words are final repositories of the intention and
it would be ultimately from the words of the provision that the intention of the draftsmen
would have to be gathered.131
The search for ultimate purpose in Justice Khanna’s reasoning starts with the
observation, ‘The framers of our Constitution were conscious of the desirability of
reconciling the urge for change with the need of continuity. They were not obliv-
ious of the phenomenon writ large in human history that change without continuity
can be anarchy; change with continuity can mean progress; and continuity without
change can mean no progress.’132 He traces orientation to welfare and human rights
protection in the text, and in excluding right to property from the basic structure, he
explores the ultimate purpose. The dissenting judges also invoked CAD in support
128 A K Gopalan v State of Madras AIR 1950 SC 27.

129 Madhav Rao Jivaji Rao Scindia v Union of India AIR 1971 SC 530.
130 ibid para 599.
131 ibid para 1379.
132 ibid para 1401.
246 P. I. Bhat
of arguments of flexibility, people’s and democracy’s competence for constitutional

changes.
In the basic structure scrutiny of 39th, 42nd and 99th Constitution Amendment
Acts respectively in Indira Gandhi, Minerva Mills and NJAC cases, the Court referred
to and relied upon CAD. For developing a theme that democracy and separation of
powers constitute basic structure of the Constitution, the Court in Indira Gandhi
relied on CAD.133 In the Minerva Mills case134 for the proposition that a balance
between FRs and DPSPs constitutes basic structure of the Constitution, the judges
gathered great support from CAD, especially speeches of Dr Ambedkar, Nehru and
Dr. Radhakrishnan and the collective decision about the equilibrium between liberty
and economic justice. There was an elaborate reference to CAD in the NJAC judg-
ment135 to the effect that the proposals for panel system and for legislative partic-
ipation for judicial appointments were rejected and Dr. Ambedkar’s middle course
that the executive ought not to have ‘supreme and absolute authority in the matter of
making appointment’ of judges became policy underlying ‘consultation’. The long-
followed constitutional convention, reliance on CAD, the thrust of the first three
judicial appointment cases along with the idea of collegium convinced the majority
to declare the 99th Amendment incorporating NJAC as violating the basic structure
of the Constitution.136 CAD, which was sidelined during 1950–1973, became a game
changing resource to stabilise the position that ‘consultation’ with Chief Justice of
India meant ‘concurrence’. The Court’s extensive reference to CAD speeches on
independence of judiciary and separation of powers supports the basic structure
status for judicial independence.
Along with as many as 103 constitutional amendments, the tasks of applying
the basic structure doctrine in post-Kesavananda amendments, interpreting them by
referring to parliamentary debates and integrating them with the values of the orig-
inal constitution arose. The broad spheres in which such process has taken place are
property right debate, reservation policy and anti-defection law as well as Panchayat
raj amendments. These pertain to Justice, economic, social and political. The story of
judgments triggering amendments, and amendments begetting judgments, became
a routine practice in the matter of property right and reservation. That jugal bandhi
between judiciary and Parliament has a theme of searching for stable principles in
the values of economic, social and political justice.137 Interpretation of the terms
‘compensation’, ‘estate’, ‘amount’ in lieu of compensation, extent of protections
under Articles 31-A, 31-B and 31-C, limiting the openness of Ninth Schedule and
saga of fair compensation to the land holders under article 300-A in case of acqui-
sition of their land revolve around the theme of rendering economic justice. The
Court did not refer to CAD in Bela Banerji on finality of legislative determination
of compensation in case of land reforms and belied the expectations of CA about
133 Indira Nehru Gandhi v Raj Narain AIR 1975 SC 299, para 684 per Y V Chandrachud J.
134 Minerva Mills v Union of India AIR 1980 SC 1789, paras 109 and 110.
135 Supreme Court Advocates-on-Record Association v Union of India AIR 2015 SCW 5457.
136 ibid para 58, per Khehar J.
137 P Ishwara Bhat, Law and Social Transformation in India (Eastern Book Co 2009) Chap. 4.
agrarian reforms.138 The amendment to Article 31(2) making compensation not ques-
tionable in Courts had no impact in Vajravelu Mudaliar as the term ‘compensation’
still remained in Article 31(2).139 Kesavananda ruling favoured reasonable quantifi-
cation of amount, and declined to allow any illusory compensation. The court did
not refer to CAD but relied on general principles of justice. In Jilubhai, the Court
referred to CAD and gained guidance about finality of legislative measure about
compensation in case of land reforms and reasonable compensation in case of other
acquisitions.140 The Court in I R Coelho read CAD as guiding for balancing between
individual liberty and public good and between FR and DPSP, and hence, Ninth
Schedule could not protect laws not providing for economic and social justice.141 In
K T Plantation Company case, while interpreting Article 300-A inserted by the 44th
Amendment, the Court used objective purpose underlying equality and liberty, and
observed,
The legislation providing for deprivation of property under Article 300A must be “just, fair
and reasonable” as understood in terms of Articles 14, 19(1)(g), 26(b), 301, etc. thus in each
case, Courts will have to examine the scheme of the impugned Act, its object, purpose as also
the question whether payment of nil compensation or nominal compensation would make
the impugned law unjust, unfair or unreasonable.142
This meant that CAD is not a panacea, and the ultimate purpose is to be carved out
from the very structure of the Constitution in order to provide for economic justice.
In the matter of reservation-related amendments, social justice is the key factor
that called for balancing between formal equality and substantive equality. On the
scope of the words ‘special provision’ under Article 15(4), which was inserted by
the First Amendment, the Supreme Court in M R Balaji proceeded with a balancing
approach about extent of reservation and identification of the beneficiaries.143 The
Court referred to the background of inserting Clause (4) to Article 15 in response
to the rejection of reservation policy in educational institutions in Champakam,144
pointed out the need to interpret it in the light of Article 15 (1) as a ‘special provi-
sion’ and as an exception to Article 15(1) [an approach that was abandoned in N M
Thomas and subsequent cases] and evolved the ceiling limit of 50 per cent for reser-
vation in educational institutions. In Indra Sawhney, this core principle of balancing
was extended to Article 16(4) by gathering support from CAD.145 In response to
138 State of West Bengal v Bela Banerji AIR 1954 SC 170.

139 Vajravelu Mudaliar v Special Deputy Collector AIR 1965 SC 1017.
140 Jilubhai Nanbhai Khachar v Stae of Gujarat AIR 1995 SC 142, para 25.
141 I R Coelho v State of Tamil Nadu AIR 2007 SCW 611, para 102.
142 K T Plantation Co. v State of Karnataka AIR 2011 SC 3430, para 122 per SH Kapadia CJI.
143 M R Balaji v State of Mysore AIR 1963 SC 649, para 17.
144 State of Madras v Smt. Champakam Dorairajan AIR 1951 SC 226.
145 Indra Sawhney v Union of India AIR 1993 SC 477, per B P Jeevan Reddy J, para 78: ‘We are
referring to these debates as furnishing the context in which and the objective to achieve which this
phrase was put in clause (4). We are aware that what is said during these debates is not conclusive
or binding upon the court because several members may have expressed several views, all of which
may not be reflected in the provision finally enacted.’
248 P. I. Bhat
the Court’s rejection of claim for reservation in promotion and excessive reserva-
tion, constitutional amendments were made inserting Articles 16(4A) and Article
16(B). Article 16(4B) was further altered to accommodate consequential seniority in
response to the judgment in the Ajith Singh case. In interpreting these provisions in
M. Nagaraj, the Court proceeded with an approach of progressivism and purposive
interpretation.146 The Court gave a theoretical frame and observed, ‘Social justice
is concerned with the distribution of benefits and burdens. The basis of distribution
is the area of conflict between rights, needs and means. These three criteria can
be put under two concepts of equality, namely, “formal equality” and “proportional
equality”.147 The Court followed the Indra Sawhney rule that caste as determinant of
backwardness is to be balanced with the principle of secularism, which is the basic
feature of the Constitution, by bringing in the concept of creamy layer. Upholding
the amendments by applying width and identity test, the Court insisted on the States
to ensure that the compelling reasons for exercise of power by the State under these
provisions are properly addressed in the context of the Scheduled Castes and Sched-
uled Tribes getting the benefits of Articles 16 (4A) and 16(4B): namely, backward-
ness, inadequacy of representation and the overall administrative efficiency are not
obliterated.148 The ruling in M Nagaraj was refined in Jarnail Singh by discontin-
uing the requirement of collecting quantifiable data.149 Again, the Court engaged in
discussing aspects of social justice in the light of sociological difficulties relating
to reservation pointed by Justice Krishna Iyer in N M Thomas case.150 The Court
observed, ‘The whole object of reservation is to see that backward classes of citizens
move forward so that they may march hand in hand with other citizens of India on
an equal basis. This will not be possible if only the creamy layer within that class
bag all the coveted jobs in the public sector and perpetuate themselves, leaving the
rest of the class as backward as they always were.’ Keeping the Presidential Lists
under Articles 341 and 342 intact but giving benefits to the weaker sections within
the groups by application of means test in operationalising the reservation the goals
of social justice were to be attained, according to the Court. Thus, social justice is
an ongoing constitutional scheme whose contours cannot be frozen to the dates of
constitution making; but the thoughts expressed by the Founders on social justice,
means to be employed and the limitations within which it is expected to work guide
the course of interpretation.
146 M Nagaraj v Union of India AIR 2007 SC 71, para 19: ‘Constitution is not an ephemeral legal
document embodying a set of legal rules for the passing hour. It sets out principles for an expanding
future and is intended to endure for ages to come and consequently to be adapted to the various crisis
of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation
should be adopted. A Constitutional provision must be construed not in a narrow and constricted
sense but in a wide and liberal manner so as to anticipate and take account of changing conditions
and purposes so that constitutional provision does not get fossilized but remains flexible enough to
meet the newly emerging problems and challenges.’
147 ibid para 121.
148 ibid para 111.
149 Jarnail Singh v Lachmi Narain Gupta AIROnline 2018 SC 240.
150 State of Kerala v N M Thomas AIR 1976 SC 490.
Socio-political justice also provides input for juridical analysis of constitutional

amendments. The constitutionality of the amendment providing for reservation of 38
percent of seats to Bhutia–Lepcha groups which constituted 20 percent of the popu-
lation and reservation of a seat in the State legislature for Buddhist Sangha was in
issue in the R C Poudyal case.151 The majority (led by Justice M N Venkatachaliah)
extensively referred to the legislative history, the justifications for deviating from
‘one person one vote’ in a parliamentary democracy which responds to the issue
of pluralism and implications of the doctrine of political question vis-a-vis judicial
review. It held that inequality in weightage of votes was inherent in first-past-the-
post system; that in view of socio-political and cultural role of the Sangha in the past
and its continued social significance rather than its mere religious character there
was justification for its accommodation comparable to that of nomination of Anglo
Indian member to the Parliament and not amounting to communal representation;
and that doctrine of political question is not applicable in India. Invoking of CAD
which rejected the idea of communal representation was countervailed by consider-
ations of cultural pluralism. The minority views expressed by Chief Justice of India
L M Sharma and Justice Agarwal not only relied on CAD’s rejection of communal
representation but also on the structure and philosophy of the Constitution in its
entirety. It also addressed the issue of retrogressive feature of the Lama outlook and
practices which had potentiality of obstructing the constitution’s social transforma-
tion competence. It found no justification in deviating from the rule of equality in
weightage of vote, which has a basis in Articles 330 and 332 and Preamble’s refer-
ence to democratic state with We the People’s power. The judicial exploration of
ultimate purpose is convincing in the minority view:
If we proceed to consider the entire Constitution harmoniously along with all the other
materials, relevant in law for this purpose including the ’Enacting History’, there is no
escape from the conclusion that any weightage at the poll in favour of a group on the ground
of religion is strictly prohibited and further, that this is a basic feature, which is not amenable
to amendment. The provisions of S. 7(1A)(c) and the other connected amendments must,
therefore, be held to be ultra vires.152
In interpreting the constitutional amendments relating to strengthening of repre-
sentative and deliberative democracy through combating the menace of political
defections, and establishing panchayati raj system, the Supreme Court has exten-
sively referred to the original intention of the makers of constitutional amendment
and CAD and has gone beyond by integrating the new law with the provisions of
the original constitution. Evidence in support of the proposition can be found in
Kihoto Hollohan153 and Shrimanth Patil 154 cases. In the former, the validity of the
Fifty second constitutional amendment was upheld as definitely strengthening parlia-
mentary democracy in the background of unscrupulous floor crossings by members
151 R C Poudyal v Union of India AIR 1993 SC 1804.

152 ibid para 31.
153 Kihoto Hollohan v Zachilu AIR 1992 SC W 3497.
154 Shrimanth Balasaheb Patil v Speaker, Karnataka Legislative Assembly AIR Online 2019 SC
1448.
250 P. I. Bhat
of political parties which had made deep derogation to honesty in public life and
loyalty to the constituencies. By requiring that the Speaker shall act as a tribunal
and comply with principles of natural justice, the majority upheld its basic struc-
ture compliance. Resorting to harmonious construction of the Tenth Schedule by
recognising the importance of freedom of speech of individual members as a part
of parliamentary privileges, the majority narrowed down the scope of ‘direction’
that can be issued by political parties to the purpose of the anti-defection law, viz.,
ensuring stability of the government and disallowed its application in matters of law
making function unless the legislative policy is staked by the government as essential
for its functioning. The basic idea of promoting democracy and building procedural
safeguards to the same can be seen in the judgment. Anti-defection law had to be
further strengthened by the ninety-first constitutional amendment by limiting the
number of ministers in the council of ministers, removing the disqualification arising
from split and disqualifying the members defected from holding any ministerial post
until re-elected. Questions on their interpretation came before the Supreme Court
and High Courts in a number of cases.155 Shrimanth Patil case is the latest one and
makes a typical use of legislative history, structure of the Constitution and purposive
approach towards satisfactory result. The case involved validity of Speaker’s orders
disqualifying 15 members of ruling coalition, who had submitted their resignation
to membership of the Legislative Assembly, for the rest of the period of Legislative
Assembly’s tenure. The Supreme Court started its reasoning by referring to consti-
tutional morality, discussed the reasons behind the Fifty-second and Ninety-first
Amendments on anti-defection law and examined the Thirty-third Amendment on
requirement of voluntariness and genuineness of resignation. The Court approvingly
referred to the views of Griffith and Ryle to the effect that loyalty to the party is based
on shared belief, electorate’s expectation about adherence to of ideological commit-
ment and reliance on general policy of the party.156 The Court expressed dissatis-
faction that the holders of constitutional positions (legislators and Speaker) had not
acted according to constitutionalism and constitutional morality and fell short of the
expectations of the Founders, and wished that imbibing the constitutional values in
the every day’s functioning is required.157
In interpreting constitutional amendment incorporating Panchayat Raj Institutions
the Supreme Court in Bhanumati case158 referred extensively to the CAD, legislative
history, the visions of freedom fighters such as Gandhiji, Surendra Nath Banerjee
and Bhagat Singh, and inferred that accountability of the Adhyakshas to panchayat
on no confidence motion was an essential aspect of democratic republicanism, which
means that persons heading public bodies can continue in such position only so long
155 Balachandra Jarkhiholi v B S Yeddyurappa (2011) 7 SCC 1; Ravi S Naik v Union of India 1994
Supp (2) SCC 641; Keisham Meghachandra Singh v Speaker, Manipur Legislative Assembly W.P.
(T) No. 7806 of 2011 (decided on 19 March 2020).
156 Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly, AIR Online 2019 SC
1448. para 82
157 ibid para 114.
158 Bhanumati v State of Uttar Pradesh AIR 2010 SC 3796.
as they enjoy the confidence of those bodies. While 73rd Constitutional Amend-
ment does not contain any clause relating to this principle of accountability, CAD
helped in providing insight about this valuable principle which forms the founda-
tion of deliberative democracy. The Statement of Objects and Reasons disclosing
the intention of amendment makers was also used by the Court in this process. In
Usha Bharti,159 while holding that provision about no-confidence motion does not
go against reservation policy the Supreme Court referred to the CAD and took the
Bhanumati approach160 ahead for a position that the inclusive governance voiced in
the Preamble had vital role for ushering in social transformation. The principle of
accountability of the office bearers of cooperative societies to the elected Board of
Management of the cooperative societies was held applicable in Vipulbhai Chowd-
hary161 on lines of Bhanumati case. Conferment of constitutional status to the coop-
erative societies under the 97th constitutional amendment entailed a responsibility on
the part of cooperative societies to act as democratic institution. The Court traced the
legislative history of this amendment by referring to the National Policy on Cooper-
atives, 2002 which had recognised democracy, equality, equity and solidarity as the
essential features of cooperatives. The Court read the requirement of accountability
to fill the legislative gap.
Thus, search for the above interrelated facets of justice constitutes the core
approach of judiciary while using CAD and other legislative history in constitu-
tional adjudication. In making the constitutional development purpose-oriented, this
discourse has greatly helped.
11.4 Conclusion
Theoretically, there are sound justifications for referring to the CAD as they bring out
people’s aspirations expressed on its anvil. Reference to CAD is part of the process of
purposive interpretation as much as of other tools of interpretation. Extreme textual-
ists and proponents of ‘living constitutionalism’ also build their theme by referring to
CAD as it is a valuable resource of collective wisdom. But blind adherence to CAD
brings a lot of subjectivity and ignores the popular will subsequently developed in
response to the changed socio-economic and political circumstances. Combining it
with objective purpose, pragmatism and spirit of the Constitution help in realising
the ultimate goals of the Constitution.
The caution against blind adherence to CAD is explicit in the American experience
in the outcome of infamous cases like Barron, Dred Scott, Plessy and Slaughterhouse.
But the problem was due to improper perception of the legislative history and ignoring
the dominant theme of the struggle for independence. The danger of looking for
guidance in the social history rather than in the authentic discussions in CAD is
159 Usha Bharti v State of Uttar Pradesh AIR 2014 SCW 1981.
160 Bhanumati v State of Uttar Pradesh AIR 2010 SC 3796.
161 Vipulbhai Chowdhary v Gujarat Cooperative Milk Marketing Federation AIR 2015 SC 1960.
252 P. I. Bhat
also troublesome as evident from Poudyal case in India. Inadequate consideration

of CAD also yields bad result as visible in the early land reform cases in India. The
Canadian judiciary’s hesitation in recognising economic and social rights within
the ambit of security of person is attributable to textualist approach rather than the
influence of Framers’ intent. It is a common experience of US, Canada and India that
combination of methods of interpretation assists in avoiding errors. CAD is only a
tool, a resource of ideas for rational analysis. It is ultimately the judiciary’s outlook
which uses CAD that becomes decisive. In India, the rise in the position of CAD
from cipher to a material of great relevance and significance has contributed to the
constitutional jurisprudence.
The differences in approaches of the three jurisdictions with regard to CAD are
traceable to the peculiarities of the constitution-making processes. A confederation
converging into federation in the US made the intention underlying compact more
influential whereas the BNA Act ‘given’ by the Imperial Parliament with no provi-
sion for amendment compelled the Canadian judiciary to pave the path of progres-
sivism. Having populist and transformative spirit central to it supplemented by 103
amendments, the Indian position eschewed incongruity between CAD and reforma-
tive measures. Indian judiciary avoided extreme doctrinal positions about relevance
and application of CAD. CAD became one of the items in the judicial a la carte and
served judicial reasoning in landmark cases.
Framers’ intention guided the US judiciary about the procedure to amend the
Constitution and has potentiality of helping substantive review, whereas both in India
and Canada, the search for unwritten constitutional principles about the foundational
values of the Constitution on the basis of history, structure and spirit has shaped
the amendment jurisprudence. Basic structure limitation in India and procedural
requirements to be satisfied for secession in Canada, both developed on the basis of
CAD or history and tradition, have helped in rescuing the constitutional values.
In the interpretation of the content and reach of amendments also CAD has helped
the task of judicial review. The basic philosophy underlying the speeches in CAD has
inspired the judiciary to expand the scope of guaranteed rights, evolve new rights,
accommodate the ways of rendering socio-economic justice, and balance between
the competing interests. In reinforcing the structure of representative and grass root
democracy on the basis of principles of accountability and constitutional morality,
CAD and legislative history of amendments have played crucial role.
The present paper has not evaluated the CAD’s impact in the spheres of funda-
mental rights, welfare, representative democracy, federalism or pluralism. The
lessons drawn from the analysis made in this paper have inputs for further study.
Part IV
Public Law: Human Rights
Chapter 12
The Regulation and Governance
of Online Hate Speech in the Post-truth
Era: A European Comparative
Perspective
Kyriaki Topidi
Abstract Europe is experiencing an intense dilemma in regulating hate speech and

online harassment. The question in the European continent has shifted from whether
there should be limits to freedom of expression to where these limits should be
placed. The aim of this chapter is to explore the features of some of the approaches
undertaken in Europe on online hate speech regulation within the broader digital
ecosystem, through a comparison between a supra-national and a national example,
the EU and Germany respectively in order to reflect on the broad directions on
the regulation of online content moderation as connected to hate speech. To do so,
the analysis first discusses the normative underpinnings of hate speech regulation
placing emphasis briefly on the main applicable international legal standards on the
issue and then on the (often) invoked concepts of autonomy and dignity as they relate
to freedom of expression. It then proceeds with an overview of the current features
in the governance of online hate speech, approaching two concrete challenges in the
regulation of online hate speech, namely the use of Artificial Intelligence (AI) by
Information Technology (IT) companies and the limits of the role of the states in
online content regulation (digital authoritarianism). The second part of the article
deals with the examples of the EU framework on online hate speech regulation
as compared with the German one, in order to conclude arguing for the need for
more regulatory imagination in combatting hate speech in the digital ecosystem
that escapes the routine of shifting regulation to non-state actors, such as online
intermediaries.
12.1 Introduction
The internet constitutes public space where users generate all forms of speech, from
neutral and benevolent to vitriolic and harmful. Today, Web 2.0 allows the creation
and circulation of a wide range of expressions without discrimination. Yet, what is
K. Topidi (B)
Head of Cluster on Culture and Diversity, European Centre for Minority Issues, Flensburg,
Germany
e-mail: topidi@ecmi.de
256 K. Topidi
protected under the right to freedom of expression still varies across jurisdictions.
There is, additionally, mounting pressure to understand how online inflammatory
hate speech is connected to hate crimes and physical attacks on specific groups (e.g.
racial/ethnic or religious ones).1
Europe is experiencing at present an intense dilemma in regulating hate speech and
online harassment. The main issue that emerges asks for ways to balance the need to
control and limit incitement to violence, in reconciliation with the fundamental right
to freedom of expression. In other words, the question has shifted in the European
case from whether there should be limits to freedom of expression to where these
limits should be placed.
Retrospectively, the circulation of public discourse has been elevated to a crucial
element of democratic legitimacy well before the digital age.2 The concentration of
online platforms in private hands has posed, however, anew a number of governance
and legal questions, given the different characteristics of speech circulation in the
digital era.
One major innovation, in that respect, as a result of digitalization, is the cooper-
ation between governments of states and private entities in the moderation of online
content. The main regulatory implication of this new environment is that states have
delegated to Information Technology (IT) intermediaries, through liability schemes,
the moderation of speech produced by third parties (i.e. the speakers).3 This is due
to the technical complexity of moderating online speech. This collaboration aims
using new techniques of regulation and surveillance to achieve a balance between
freedom of expression and the protection of individuals and groups. The techniques
and tools used, while democratizing the production of online speech, are at the same
time characterized by less transparency and less public visibility in their practice.
More specifically, through these new forms of digital partnerships, states wish to
identify harmful speech and block it indirectly, with emphasis on prevention but also
with low visibility in their use of these practices.4 Some of the important tools used
in this process are for example, filtering,5 equivalent in its effects to prior restraint
and with potential over-blocking effects; and domain name seizures, where states
assert control over a domain name, blocking all content related to the domain name,
again with low visibility and limited procedural protections.
Within this broader framework, the starting assumption of such collaboration
between state and non-state actors (i.e. internet intermediaries or IT platforms)
accepts that the latter cannot identify every case of hate speech. Predictably, regula-
tory and legal responses across the globe have not been uniform. The US approach, in
1 Zachary Laub, ‘Hate Speech on Social Media: Global Comparisons’ (Council on Foreign
Relations, 7 June 2019).
2 Jack M. Balkin, ‘Old-School/New-School Speech Regulation’ (2014) 127 Harvard Law Review
2296.
3 This is the key concept of collateral censorship.
4 According to Balkin these are the two main features of new-school regulatory goals. ibid, 2341.
5 Filtering systems block online speech, without an opportunity to contest the filter or any procedural
protection or visibility for speakers. SeeBalkin (n2) 2318.

12 The Regulation and Governance of Online Hate Speech in the Post-truth … 257
this respect, for instance has been to prioritize free expression along with economic
development (of such companies) allowing hate speech not to be perfectly moni-
tored.6 In Europe, however, there is a growing tendency to impose stricter legal
duties on IT platforms and tech companies, accepting possible limitations of the
freedom of expression.
The aim of this chapter is to explore the features of some of the approaches
undertaken in Europe on online hate speech regulation within the broader digital
ecosystem, through a comparison between a supra-national and a national example.
The first—the European Union-has initially relied on soft law approaches (e.g. codes
of conduct) while the second—Germany—has insisted from the start on the use of
‘hard’ law in the form of administrative and criminal law tools to incentivize online
intermediaries to share with states the task of moderating effectively online content
and eradicating online hate speech. It will be argued that both approaches have begun
to gradually converge towards a common regulatory purpose: the shifting of liability
towards IT (non-state) actors for the moderation of online content. Before, however,
providing details on the trajectories of these approaches to online hate speech regula-
tion, the analysis first discusses the normative underpinnings of hate speech regulation
placing emphasis briefly on the main applicable international legal standards on the
issue and then on the (often) invoked concepts of autonomy and dignity as they relate
to freedom of expression. It will then proceed with an overview of the current features
in the governance of online hate speech, approaching two concrete challenges in the
regulation of online hate speech, namely the use of Artificial Intelligence (AI) by
IT companies and the limits of the role of the states in online content regulation
(digital authoritarianism). The third part of the article deals with the examples of
the EU framework on online hate speech regulation as compared with the German
one, in order to conclude by arguing for the need for more regulatory imagination in
combatting hate speech in the digital ecosystem that escapes the routine of shifting
regulation to non-state actors, such as IT intermediaries.
12.2 Normative Underpinnings of Hate Speech Regulation:

Freedom of Expression, Autonomy and Dignity
in the Digital Space
The absence of a universally accepted definition of hate speech does not create
conditions conducive to a more efficient regulation of the phenomenon. Connected
to this conceptual weakness, the implications of regulating hate speech by law raise
a number of questions affecting modern democracies.
6 Daphne Keller, ‘Internet Platforms: Observations on Speech, Danger and Money’ (2018) Aegis
Series Papers No. 1807, 10, < https://cyberlaw.stanford.edu/files/publication/files/381732092-int
ernet-platforms-observations-on-speech-danger-and-money.pdf > accessed 1 May 2020.
258 K. Topidi
International human rights law provides some preliminary answers: it sets a defi-
nition of the freedom of expression in Article 19(2) International Covenant on Civil
and Political Rights (ICCPR) which stipulates:
[e]veryone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media (…)
On the basis of this definition, empirical research has devised a number of indi-
cators connected to the freedom of expression to facilitate its qualitative assess-
ment.7 Additionally, in connection to hate speech, Article 20 ICCPR provides that
‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law’.
In general, restrictions to freedom of expression are possible only under the condi-
tions spelt out in Article 19(3) ICCPR. More specifically, such limitations need to
fulfil a legality requirement (i.e. be provided by a precise, public and transparent
law), a legitimacy condition, whereby the limitation serves to protect rights or repu-
tations of others, national security, public order, public health or morals; and finally,
a necessity/proportionality requirement, where the state must demonstrate that the
means used were the least restrictive to achieve the stated aim.8
In parallel, Article 4 of the International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD) obliges states parties to:
declare an offence punishable by law all dissemination of ideas based on racial superiority
or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to
such acts any race or groups of persons of another colour or ethnic origin.
To add further that states must also:

declare illegal and prohibit organizations, and also organized and all other propaganda activ-
ities, which promote and incite racial discrimination and shall recognize participation in
such organizations or activities as an offence punishable by law.
This web of provisions also signifies that a contrario a person expressing a

minority or offensive interpretation of a religious belief for example, should not
see his/her freedom of expression limited according to international human rights
law.9 At the European level, the European Court of Human Rights (ECtHR) has also
7 Article 19, ‘The Expression Agenda Report 2016/2017: The State of Freedom of Expression and
Information Around the World’ (Article 19, 2017) < https://www.article19.org/xpa-17 > accessed
1 May 2020.
8 David Kaye, Report of the Special Rapporteur on the Promotion and Protection of the Freedom of
Opinion and Expression (A/74/48050, 9 October 2019) para 6 [hereafter Special Rapporteur 2019
Report].
9 Special Rapporteur 2019 Report, paras 10, 21–22. The cases of blasphemy and holocaust denial
seems to fall into this category, according to the Report. A more detailed framework of the interpre-
tation of Article 20 (2) ICCPR, particularly relevant for the criminalization of hate speech is to be
found in the Rabat Plan of Action. The six relevant factors determining the severity towards crim-
inalization of the hate speech act are: the context, the status of the speaker, the intent, the content
confirmed in that respect that the freedom of expression also protects speech that
may ‘offend, shock or disturb’.
Within that framework, the question of liability of IT intermediaries for hate
speech published on their platforms has received a less clear answer in Europe.10
Remedies to hate speech in line with international human rights law require trans-
parent and accessible review processes of platforms decisions to take content down,
the creation of remedies by companies that they will be imposed if violations are
found, as well as soft law approaches to hate speech, such as education, counter-
speech and training.11 The latter approaches are particularly relevant to empower
vulnerable communities, such as ethnic or religious minorities, that tend to be silenced
and made invisible,12 as a result of systematic and targeted expressions of online
hate speech. Social science research is still, however, in the process of unveiling the
patterns of these harmful practices in order to begin reversing them.
Two further normative concepts linked to the protection of freedom of expression
are particularly connected to the regulation of online hate speech: the autonomy of
individuals to express themselves freely and the connection of speech with democ-
racy.13 For the latter, not all forms of speech form part of public discourse, although
the drawing of the line between public and private forms of speech is increasingly
unclear. Indicatively, expressing falsehoods (e.g. fake news) is not necessarily worthy
of the same levels of protection to the extent that people can be drawn to believe in
them.14 Similarly in Europe, the question on the prohibition of hate speech perceived
as a threat to public order seems to gather relative political consensus in favour of
limiting freedom of expression.15
For the point on autonomy of individuals to express themselves, from Jeremy
Waldron’s more egalitarian and inclusive standpoint, everyone in society should be
entitled to be treated as an equal,16 while remembering that society is for everyone to
share.17 This approach does not however solve the tension between the prohibition
of hate speech on account of the harm that is causes to individuals and groups and
and form of speech, the extent/reach of the speech act and the likelihood of harm. See Report of the
United Nations High Commissioner for Human Rights on the Expert Workshops on the Prohibition
of Incitement to National, Racial or Religious Hatred (A/HRC/22/17/Add.4, 11 January 2013).
10 Compare for example Delfi v Estonia Appl. N. 64,569/09, Judgment of 16 June 2015 with MTE
v Hungary Appl. N. 22,947/13, Judgment of 2 February 2016, also discussed further in part IV of
the article.
11 Special Rapporteur 2019 Report para 54.
12 Spécial Rapporteur 2019 Report para 55.
13 Catherine O’ Regan, Hate Speech Online: An (Intractable) Contemporary Challenge?, 71(1)
Current Legal Problems, (2018) 71(1), 403–429, 409.

14 ibid 411–412.
15 For a different argumentation, see Eric Heinze, Hate Speech and Democratic Citizenship (OUP,
2016) where he identifies a causal link between hate speech and public order threats in countries
that are not stable and prosperous democracies. In these cases, prohibition of hate speech in his
view is only necessary for these latter countries.
16 Jeremy Waldron, The Harm in Hate Speech (Harvard University Press, 2012).
17 ibid 5.
260 K. Topidi
equality. The assessment of such harm is of course largely contextual, influenced by

historical, social and political background.
Further to autonomy of speakers and the role of freedom of expression for democ-
racies, the link between hate speech and discrimination represents another important
normative background consideration in designing efficient hate speech regulation.
For example, in Saskatchewan (Human Rights Commission) v Whatcott, the Canadian
Supreme court established that link as follows:
prohibiting representations that are objectively seen to expose protected groups to ‘hatred’
is rationally connected to the objective of eliminating discrimination and the other harmful
effects of hatred.18
Hate propaganda, in particular, is antithetical to freedom of expression, equality

but also the value of multiculturalism, particularly relevant for the Canadian context,
but not only. Freedom of expression (in the Canadian approach)carries a triple norma-
tive dimension, echoing its links with autonomy and democracy: first, as an ‘instru-
ment of democratic government’, second, as an ‘instrument of truth’ (hotly debated
in a post-truth era) and finally as an ‘instrument of personal fulfilment’.19 In that
triple capacity, the qualification of an instance of exercise of freedom of expression
into hateful comments has wider impact than the commonly-used definitions of hate
speech reveal in international human rights law. To return to the Canadian case, the
Supreme Court in 1990 adopted a more holistic approach of the effects of hate speech
when it declared:
Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives
on insensitivity, bigotry and destruction of both the target group and of the values of our
society.20
To add in a different case that hate speech (in the form of propaganda) undermines:
the dignity and self-worth of target group members and, more generally, contributes to
disharmonious relations among various racial, cultural and religious groups, as a result
eroding the tolerance and open-mindedness that must flourish in a multicultural society
which is committed to the idea of equality.21
Confirming the implications of this approach to hate speech, minority groups

are particularly targeted by it: binary categorizations ‘othering’ non-white cultures
reinforce negative xenophobic images of such groups.22 The rise of online hate
speech, apart from being an indication of a cultural change, represents a reversal (and
18 Saskatchewan (Human Rights Commission) v Whatcott [2013] SCC 11.

19 For more see Julian Walker, Hate Speech and Freedom of Expression: Legal Boundaries in
Canada (Background Paper Library of Parliament Publication No.2018–25-E, 29 June 2018) 2.
20 R. v Keegstra [1990] 3 SCR 697.
21 Canada (Human Rights Commission) v Taylor [1990] 3 SCR 892.
22 Pompeu Casanovas and Andre Oboler, ‘Behavioural Compliance and Law Enforcement in Online
Hate Speech’ Proceedings of the 2nd Workshop on Technologies for Regulatory Compliance, (2019)
125–134,125, <https://ceur-ws.org/Vol-2309/> accessed 01 May 2020.
violation) of human dignity, leading to disempowerment. If ‘words create worlds’,23

we are currently faced with a complex scenario:
[t]he anonymity and mobility afforded by the internet has made harassment and expressions
of hate effortless in a landscape that is abstract and beyond the realms of traditional law
enforcement.24
The cross-jurisdictional reach of online speech, the speed of publication and circu-
lation and the relatively limited number of online platforms that act as intermediaries
in the circulation of hate speech seem to change the rules of the game.
Of special interest here is the role and governance of IT intermediaries- often
labelled as ‘private superpowers’25 —in regulating online hate speech within this
complicated framework: while in the US, internet intermediaries are allowed to regu-
late the content of their platforms, in Europe private rulemaking and adjudication are
noted with more concern.
12.3 The Evolution of Governance on Online Hate Speech

Regulation: State and Non-State Actors in Synergy?
The current online environment has dictated a regulatory shift because of the blurring
of the distinction between producers and consumers of web content. Today, users
can generate their own content (in the form of texts, images, audio-visual recordings,
etc.) and share it with other users.26
Mirroring this change in the modalities of production of online content, states
are no longer alone in regulating such content since online speech is managed by
multi-party networks across the public, private and voluntary sectors.27 This type of
governance has been characterized by ‘globalized’ complexity and interdependence,
justifying a call for a differentiated approach to its management. The tools used
in this kind of regulatory environment include laws (civil and/or criminal), codes of
conduct, but also more technical safety-related measures. For the regulation of online
speech, private IT companies, such as for instance Facebook, Twitter and others,
have devised ‘community standards’/ ‘user agreements’ in addition to national and
international laws aimed at rule setting for users mimicking public law regulatory
behaviour. In that framework, hate speech is commonly prohibited. The limited
23 ibid 126.
24 Njagi Dennis Gitari, et al., ‘A Lexicon-Based Approach for Hate Speech Detection’ (2015) 10(4)
International Journal of Multimedia and Ubiquitous Engineering 215–230.
25 Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (Yale University Press,
2016).
26 Majid Yar, ‘A Failure to Regulate? The Demands and Dilemmas of Tackling Illegal Content and
Behaviour on Social Media’ (2018) 1(1) International Journal of Cybersecurity Intelligence and
Cybercrime5-20, 6.
27 ibid 9.
262 K. Topidi
results of this type of ‘industry self-regulation’28 have been pushing states to assume
a more coercive stance, as the example of Germany will illustrate further below. This
circular movement in regulation does not account for the increased agency of users
in conjunction with the knowledge that states can no longer revert to their status as
sole regulators. Instead, IT companies are called to evaluate potential limitations to
freedom of expression in analogous ways that states would. Within that process, the
criteria of necessity and proportionality, when limiting speech, become relevant for
them too.
In essence, the prevalent model for the regulation of online content has become
pluralist with many different actors involved.29 A shift can also be noted in the role
of private non-state actors from facilitators of digital communication to ‘private
governors’30 of the online public space. Conceived as profit-making entities, social
media platforms and IT intermediaries more broadly have, however, approached
regulation from a business-oriented perspective. They rely on content-based moder-
ation helping advertisers to connect with relevant users. In fulfilling their business
approach to capture users’ attention, surveillance has been a necessary element.
Such policies are non-transparent, with little in terms of due process guarantees
for users.31 Interestingly, the more IT companies are able to concentrate power by
collecting and analyzing content, the more states delegate aspects of online content
regulation to them.32 An illustrative case to this effect is the CJEU’s decision asking
Google to develop a bureaucratic system in order to decide whether a particular
article should be de-linked from Google’s search engines, within the context of ‘the
right to be forgotten’,33 before approaching state courts. The system in question repli-
cates administrative law patterns but in the private business sector, while evacuating
responsibility from states.
This ‘transfer’ of duties carries a number of implications: first, users as speakers
have to comply with both sets of private and public governance frameworks. Second,
given the technical complexity of regulating online speech, legal rules and decisions
become often inadequate to address the needs of the situation. Digital surveillance and
manipulation have become real concerns for instance in a number of states, especially
without transparency on how the data is collected and used. Third, protecting online
free speech raises the levels of applicable normative principles: network neutrality is
28 Home Affairs Select Committee Report, Hate Crime: Abuse, Hate and Extremism Online (2017)
10 <https://publications.parliament.uk/pa/cm201617/cmselect/cmhaff/609/609.pdf> accessed 01
May 2020. The Report has suggested that in the case of Google self-regulation had the oppo-
site results, whereby Google ‘profited from hatred and has allowed itself to be a platform from
which extremists have generated revenue.’.
29 Jack M. Balkin, ‘Free Speech as a Triangle’ (2018) 118 Columbia Law Review 2011–2055, 2014.
30 ibid 2021.
31 ibid 2025. Balkin notes as related to transparency the fact that at times certain users are afforded
preferential treatment in some of the platforms in relation to freedom of expression (e.g., the case
of Trump and Facebook).
32 ibid 2029. Balkin refers to this process as ‘privatized bureaucracy’.
33 Case C-131/12 Google Spain SL v Agencia Espagnola de Proteccion de Datos, 2014 ECR 317,
paras 93–94.
one such example, requiring providers to prevent discrimination against content and
applications,34 by not blocking or slowing down specific kinds of content. Fourth, in
the present online ecosystem, users show multiple allegiances to various social media
sites. As such, they act similarly to diasporic communities that maintain multiple links
to different origins.35 The general picture suggests that regulation of hate speech
cannot be fragmented if one wishes to reach specific normative results but has to be
interlinked and normatively connected to other key concepts and parts.
In sum, if digital IT companies are turning into ‘custodians of the public sphere’36
instead of (or together with) states, they have to arguably assume both legal and
social obligations to fulfil their tasks. These tasks would include the organization
of the appropriate framework for public discussion as well as the curation of public
opinion, which may collide or overlap to some extent with their business mission
to provide individualized feeds towards commercial purposes, depending on the
circumstances.
As importantly, the shift from a technological/commercial profile to a public
one includes the discussion on their alignment to international human rights stan-
dards. The range of the duties of IT companies wishing to ‘respect’ human rights
in their business activities, according to the UN Guiding Principles on Business and
Human Rights, involves the development of human rights policies, the assessment
of human rights challenges, due diligence to assess human rights risks as well as the
development of strategies to avoid infringing them.37
With the Guiding Principles having however no legally binding effect, IT inter-
mediaries are regularly trapped in situations where they must decide whether to
intervene or not. In the European human rights landscape, the challenge becomes
even more significant insofar as there is a differing standard in speech regulation
when compared to the international level. Indicatively, the ECtHR has adopted a
more restrictive interpretation of the limits to freedom of expression, upholding
blasphemy bans38 as well as criminal bans on speech denying historic atrocities.39
The legal gaps, nevertheless, persist at the international human rights level, when
considering the means for IT companies to fulfill the regulation of online speech
according to the standards of ‘necessity’ or ‘least intrusive means.’40 The underlying
34 Balkin (n29) 2033.

35 ibid 2036.
36 ibid 2041.
37 United Nations Human Rights, Guiding Principles on Business and Human Rights: Implementing
the United Nations: ‘Protect, Respect and Remedy’ Framework (HR/PUB/11/04 2011) Princi-
ples 13–21 <https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf>
accessed 01 May 2020.
38 European Court of Human Rights, Otto Preminger Institut v Austria, Appl. N. 13,470/87, Ser. A,
17 EHRR.
39 See for example, European Court of Human Rights, Kühnen v Federal Republic of Germany,
Appl. N. 12,194/86, Decision of 12 May 1988.

40 Evelyn Mary Aswad, ‘The Future of Freedom of Expression’ (2018) 17(1) Duke Law and
Technology Review, 27–70, 47.

264 K. Topidi
policy principle in international law in fact moves closer to the US First Amend-
ment standard for banning speech, as it proposes bans only in cases where there
is incitement to imminent violence.41 Such a legal framework pushes for gover-
nance initiatives towards softer policy measures that have conventionally included
the education of users and the dialogue promotion to combat hateful expressions.42
It also includes more technologically-oriented measures such as limiting the circu-
lation boost of contested posts, lowering their ranking in search result and generally
taking measures to decrease their visibility.43 More radical options can also lead to
geo-blocking of specific content, deletion of posts and can range all the way to the
blocking of a user’s account, equated to digital capital punishment.44 Policy-wise,
nevertheless, the effects of such options are not comprehensive: hate-speakers retain
the possibility to move to other platforms with more relaxed regulation and continue
disseminating their hateful expressions there. The contrast with the EU’s approach
to online content moderation is noticeable.
In broader terms, the issue of online content governance posits the question of the
adequate legal framework to combat hate speech but as importantly of the parameters
of social responsibility of platforms to promote good corporate citizenship. Again,
this discussion runs parallel to that of the duties of states to uphold both human
rights and social peace, as connected to the governance liability shift from states to
private actors.45 At the same time, content moderation for internet intermediaries
remains tightly connected to profit maximization. The (provoking) question then
becomes whether we can ever expect IT companies concerned with hate speech
regulation to abstain from restricting speech at the expense of their commercial
interests.46 Connected to that, it has also become necessary to reflect on the limits of
the regulatory pact between states and IT intermediaries.
12.4 Artificial Intelligence (AI), Context and Human

Moderation
Identification and removal of online hate speech by human moderators has reached its
limits in light of the considerable amount of data in need of review by IT companies.47
At the same time, research has begun establishing the concrete ways in which social
41 ibid 48.
42 ibid 48. Evelyn Mary Aswad refers to initiatives undertaken by Facebook to support dialogue
and counter-narrative approaches as well as to Google’s initiatives on media literacy.
43 ibid 49.
44 See for example, Twitter, Our Range of Enforcement Options (2020) <https://help.twitter.com/
en/rules-and-policies/enforcement-options> .
45 Aswad (n40) 66. Evelyn Mary Aswad makes the case for the alignment of corporate regulation
of speech to international human rights law as the most efficient way forward.
46 The question is aptly considered in Aswad (n40) 56.
47 According to Finck Facebook has reportedly hired 20,000 workers to detect hate speech and
YouTube an equivalent 10,000 to check content compatibility with its community standards. Michele
media are being actively used in the production of hateful and extremist speech.48
The pressure to regulate becomes therefore intense: without a uniform definition of
hate speech, the criteria towards regulation become vague leaving potentially wide
discretion to the private IT companies when enforcing national and/or supra-national
law.
In such a context, AI in the form of machine learning is currently used to facilitate
in the performance of the task. Machine learning relies on algorithms that are designed
to identify patterns in datasets. For hate speech, these algorithms are ‘trained’ to
identify particularly patterns of data and then use them on new online content to
automatically detect the patters anew.
From a technical point of view, AI results on hate speech identification are
mediocre because algorithms do not understand and interpret context (e.g. irony,
satire).49 This limitation is not without adverse impact: there is significant risk of
over- and under-blocking, especially since patterns of hate speech change over time.50
Over-blocking remains a more attractive option for IT companies for legal, finan-
cial (i.e. avoidance of fines)51 and reputational reasons. Such an option inevitably
restricts freedom of speech. The contradiction with Article 10 ECHR, which protects
expressions that can ‘offend, shock or disturb’52 is clear.
Overall, the conditions of the regulatory dilemma present themselves as follows:
private (i.e. non-state) IT companies are required (by law) to moderate online content
towards eliminating hate speech, without clear criteria on what constitutes hateful
expression, while retaining discretion in doing so, causing concerns on account-
ability, on possibly (unjustifiable) limitations to freedom of expression but also on
efficiency about being able to ‘take down’ the entirety of the targeted content. In this
process, IT companies are de facto undertaking state-like functions first, in deter-
mining in concreto what fits under the label of hate speech and second in applying it
to actual online content.53 Relying on a combination of AI, user reporting and human
Finck, Artificial Intelligence and Online Hate Speech (Centre on Regulation in Europe, January
2019) 4.
48 For example, Twitter has been used for both Jihadist hate speech as well as right-wing hate
speech. See Finck (n47) 4 (her footnotes 3 and 4).

49 Facebook Publishes Enforcement Numbers for the First Time, (Facebook, 15 May 2018) <https://
newsroom.fb.com/news/2018/05/enforcement-numbers> accessed 01 May 2020.

50 Finck (n47) 6.
51 The German NetzDG is illustrative of this type of pressure due to is fining system.
52 European Court of Human Rights, Handyside v UK, Judgment of 7 December 1976, Series A,
No.24, para 49.

53 Facebook has adopted its own definition of hate speech as:
a direct attack on people based on protected characteristics—race, ethnicity, national origin,

religious affiliation, sexual orientation, sex, gender, gender identity and serious disability
or disease. We also provide some protections for immigration status. We define an attack
as violent or dehumanizing speech, statements of inferiority, or class for exclusion or
segregation.
Hate Speech (Facebook, 2020) <https://www.facebook.com/communitystandards/hate_s
peech> accessed 01 May 2020; Twitter has adopted the diverging concept of ‘hateful conduct’
266 K. Topidi
content moderators, IT companies approach the regulation of online hate speech in

the understanding that each element of their policy is insufficient on its own.
The impact of the way that IT companies moderate their platforms (through the
formulation and implementation of their so-called ‘community standards’) is consid-
erable on human rights. And yet, these same companies manage hate speech online
with limited consideration, at present, of such rights,54 despite the existence of the
UN Guiding Principles Framework on Business and Human Rights, as mentioned.
Similarly, the various IT companies are still in the process of clarifying their
understanding of key concepts such as ‘promotion’, ‘incitement’ or ‘intent’ when
moderating online content.55 Again, this level of ambiguity is particularly relevant
for disadvantaged groups (e.g. minorities) where often expressions relevant for the
promotion of group identity may be treated as instances of hate speech.56 It is also
considerable for the evaluation of political speech that can often, especially in populist
contexts, provoke harm to specific individuals and/or groups.57
Banning or taking down content as hateful can therefore have in general terms two
broad sets of implications: for content that is correctly identified as hateful, it may
lead extremists to ‘darker’ corners of the internet,58 onto smaller and less supervised
platforms, while essentializing mistrust among social groups. For content that is
incorrectly identified as hateful but also nevertheless removed, it can foster a feeling
of marginalization and outrage for the speaker(s).59 This is why counter-narrative
campaigns have emerged as a potential remedy for hate speech.60
12.5 The Limits of Online Regulation and Digital

Authoritarianism
With regard to the limits of online regulation for states, according to international
human rights law, they should not use internet companies to undertake limitations of
online expression. Internet shutdowns, the criminalization of dissent or government
to characterize ‘violence against or directly attack or threaten other people on the basis of race,
ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age,
disability, or serious disease.’ See Hateful Conduct Policy (Twitter 2020) <https://help.twitter.com/
en/rules-and-policies/hateful-conduct-policy> accessed 01 May 2020.
54 Special Rapporteur 2019 Report (n8) para 42 mentions Facebook’s revised statement of values
referring to international human rights standards as a limited exception. Cf. Updating the Values
that Inform Our Community Standards (Facebook, 12 September 2019).
55 Spécial Rapporteur 2019 Report (n8) para 46.
58 Keller (n6) 3.
59 Keller (n6) 22. Keller cites the examples of Muslim communities across Europe.
60 Google’s ‘Redirect Method’ based on counter-messaging at the point of initial interest is one
such example.
criticism are also inconsistent with international law61 as they involve questionable
methods of online content moderation.
The use of digital information technology by authoritarian regimes carries impact
on the (ab)-use of speech. More than 40 countries are currently using nationwide
filters for online speech.62 Technological means or legal acts can also prevent the
development of a democratic model of digital governance.63 For example, in the case
of Russia, online information is regulated through a tight, repressive legal regime
that applies pressure to internet providers to block content without court orders.64
Transparency and accountability of online content regulation has nevertheless
attracted basic consensus on the procedural aspects of speech limitation from states
in a European legal context. In Yildirim v Turkey,65 the issue of online content-
blocking by a state was found contrary to Article 10 ECHR. According to the same
judgement, legislation on internet blocking must provide:
• A definition of those affected by the block
• A definition of the categories of blocking orders (e.g. for websites, IP addresses,
social networks)
• The territorial scope of the blocking order (regional, national or international
effect)
• The duration of the order
• The interests justifying the blocking decision
• A proportionality assessment between freedom of expression and the competing
interest(s) sought
• A necessity assessment
• The designation of the authorities competent to issue such an order
• The procedure to be followed for the issuance of the blocking order
• The notification of the order to the affected party and
• The judicial appeal procedure against the order.66
Additionally, restrictions to online content must be set out in laws that are precise
and clear, to allow internet users reasonable expectations as to how the law will

62 Dawn C. Nunciato, ‘The Beginning of the End of Internet Freedom’ (2014) 45 Georgetown
Journal of International Law383-410.
63 Alina Polyakova and Chris Meserole, ‘Exporting Digital Authoritarianism: The Russian and
Chinese Models’ (2019) Foreign Policy at Brookings 1–22,1.

64 ibid 8. Since 2016, the law (Yarovaya Amendments) requires among others social media platforms
and messaging services to store user data for 3 years allowing authorities to access it. In fall 2017,
new legislation additionally allowed the Russian government to designate media organisations that
receive funding from abroad as ‘foreign agents’ but also to block online content when deemed
‘undesirable’ or ‘extremist’. ibid, 9.
65 Case of Ahmet Yildirim v Turkey Appl. N. 3111/10, ECtHR, 2012.
66 European Court of Human Rights in Yildirim v Turkey, in particular the Concurring Opinion
of Judge Pinto de Albuquerque. The last requirement about the possibility of appeal is fulfilled
when a meaningful opportunity to challenge the decision is afforded. [Cf. Frank La Rue, Report of
the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and
Expression (UN Doc. A/HRC/17/27 May 16, 2011) 24].
268 K. Topidi
apply.67 As importantly, however, the blocking of content without any guarantee of

due process violates the presumption in international human rights law that states
should carry the burden of justifying restrictions of expression and not individual
users.68
The use and application of such control to vast quantities of data also now covers
other sources of monitoring and surveillance (e.g. live video feeds).69 This type of
‘digital repression’, observed for the most in authoritarian regimes, also uses AI
techniques, among other reasons, to keep popular movements under control and/or
to rig elections.70
Further to these undemocratic and deeply illiberal scenarios, AI used in such
a way reinforces inequality and maintains discriminatory practices. AI and human
prejudice are thus not unrelated: ‘AI machines are only as good as the data with
which they are trained’,71 leaving open the possibility that ‘training data’ used to
‘teach’ algorithms may pass on discriminatory patterns in data treatment both within
but also outside authoritarian settings.
Authoritarian approaches to online information manipulation have in the mean-
time evolved and are no longer designed to serve exclusively domestic contexts only
but are gradually becoming exportable, with the aim to destabilize political set-ups
but also polarize entire societies. The tendency of a raising number of governments
across the globe to use state surveillance while manipulating social media content
is now an established fact.72 This practice is particularly observed around election
periods and extends beyond open platforms (e.g. Facebook and Twitter) to less open
ones (e.g. WhatsApp).
12.6 European Approaches to Hate Speech Regulation:

The Example of the EU and Germany
a. The EU framework on online hate speech

The earliest piece of EU legislation affecting online content regulation within the
EU, the e-Commerce Directive, exempts internet intermediaries from liability for
the content included in their platforms, provided that first, if they become aware of
67 Special Rapporteur 2019 Report, (n8) 47–48.

68 Special Rapporteur 2019 Report, (n8) 36.
69 Steven Feldstein, ‘The Road to Digital Unfreedom: How Artificial Intelligence is Reshaping
Repression’ (2019) 30(1) Journal of Democracy 40–52, 41.

70 ibid 43.
71 ibid 47.
72 Freedom House, The Rise of Digital Authoritarianism: Fake News, Data Collection and the Chal-
lenge to Democracy, (Freedom House 31 October 2018) <https://freedomhouse.org/article/rise-

digital-authoritarianism-fake-news-data-collection-and-challenge-democracy> accessed 10 May
2020.
hosting illegal content, they proceed to remove it expeditiously and second, on condi-
tion that they have not generated/endorsed it.73 Additionally, according to Article
15(1) of the same Directive, Member States cannot impose obligations upon inter-
mediaries to monitor the content they manage. This last provision is linked with the
concept of ‘notice-and-takedown’ process, which is commonly used by IT compa-
nies to fulfil their duties under similar legal frameworks. The Directive, however,
does not provide a detailed procedure for such a system of content moderation.74 To
a degree, the system outlined in the e-Commerce Directive indirectly encouraged IT
intermediaries to remain relatively passive towards online hate speech moderation.
It also sat well with the use of the threat by the European Commission to introduce
‘hard law’ measures to regulate IT companies, so as to secure their commitment to a
‘softer’ code of conduct.75 On the practical level, of course, the requirement of notice
to IT intermediaries before taking content down is somehow problematic give the
volume of requests for content review distributed on digital platforms.In 2018, the
European Union (EU) adopted a new directive76 that updates and strengthens regula-
tion on video-sharing platforms and newer forms of media. The new rules emphasise
public interest while directing governments to intervene in media activities in justified
and proportionate terms to serve that public interest. The main aim of the directive
is to tackle “incitement to violence or hatred” and “public provocation to commit a
terrorist offence”. Guided by the overarching objectives of media pluralism, freedom
of speech and cultural diversity, this piece of legislation requires video-sharing plat-
forms to ensure that viewers (especially minors) are better protected from violent or
harmful content, including hate speech.
Indeed, as an alternative to stricter regulation, in 2016, the EU launched an
initiative in the form of an EU Code of Conduct on Countering Illegal Content
Online initially with four major internet platforms (Facebook, YouTube, Twitter and
Microsoft).77 The platforms committed themselves to review requests to remove
73 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain
legal aspects of information society services, in particular electronic commerce, O.J L 178, Article
14.
74 See Christina Angelopoulos, ‘On Online Platforms and the Commission’s New Proposal for a
Directive on Copyright in the Digital Single Market’ (2017) 9, <https://www.repository.cam.ac.uk/

bitstream/handle/n1810/275826/17-2-28%20-%20Julia%20Reda%20Study.pdf?sequence=1&isA
llowed=y> accessed on 2 May 2020. According to Angelopoulos the notice does not have to be
followed necessarily by takedown of the content by the IT intermediaries as the notification ‘may
turn out to be insufficiently precise or inadequately substantiated’; Case C-324/09 L’Oréal SA and
Others v eBay International AG and Others 12 July 2011, para 122.
75 Joris van Hoboken et al., Hosting Intermediary Services and Illegal Content: An Analysis of the
Scope of Article 14 ECD in Light of Developments in the Online Service Landscape (European
Commission Report 2018) 27. The report states that the threat of regulation may be one of the most
significant factors in shaping the incentives of host intermediaries ‘(…) in order to avoid the costs
of complying to additional legally binding regulation at EU level, along with the risks associated
with an eventual non-compliance’.
76 Directive EU 2018/1808 amending Directive 2010/13/EU concerning the provision of audio-
visual media in view of changing market realities, O.J. L3030, 28 November 2018.
77 Google + , Instagram, Snapchat and Daily Motion joined later.
270 K. Topidi
content which was either in breach of their own community standards or illegal
within 24 h, and to publish regular reports yearly from 2017 onwards to monitor
progress. The agreement on self-regulation was reached in an attempt to avoid EU
legislation on the issue as mentioned but triggered concerns over democratic legiti-
macy and accountability.78 Part of the justification advanced for preference for ‘soft
law’ was the underlying concern in Europe that American IT companies were using
(and to some extent imposing) US First Amendment values that in Europe would
treat the same speech as illegal.
Later, the 2017 European Commission Communication on Tackling Illegal
Content Online formally proposed the establishment of notice-and-action mecha-
nisms on the intermediaries’ websites for users to report illegal online content.79 In
parallel, the earlier European Council Framework Decision on combating certain
forms and expressions of racism and xenophobia by means of criminal law stressed
the need for criminalization of serious forms of racism and xenophobia.80 Thus,
‘public incitement to violence or hatred directed against a group of persons or a
member of such a group defined on the basis of race, colour, descent, religion or
belief, or national or ethnic origin must receive effective, proportionate and dissua-
sive penalties’. The Framework Decision, however, was not targeting specifically
hate speech.
So far, the EU legal and policy framework on online hate speech placed a
duty on intermediaries to remove hate speech following a complaint from users.
The IT companies had to provide a procedure for such complaints. The prevalent
(moral)justification for these requirements seemed to be that given the companies’
considerable power in regulating online content, an obligation to monitor and remove
content appeared as a fair counterweight. It did not address, however, the criticism
that in this way the platforms’ power to interpret and enforce speech law both national
and European has also increased.
European case-law, however, is not entirely consistent and coherent on the
contours of this duty of IT intermediaries: the European Court of Human Rights
has found that compelling a news platform to police user comments in search of
defamatory ones would have a ‘chilling effect on the freedom of expression on the
internet’.81 In a similar earlier case, however, the same Court reached the conclusion
that the national court could uphold a platform’s strict liability for user comments
(also in the context of forum comments) without violating the European Convention.
78 Keller (n6) 8.
79 European Commission, Communication on Tackling Illegal Content Online: Towards an
Enhanced Responsibility of Online Platforms (September 28, 2017).
80 Council Framework Decision 2008/913/JHA of 28 November 2008 on combatting certain forms
and expressions of racism and xenophobia by means of criminal law, OJ L 328.

81 MTE v Hungary, Appl. N. 22,947/13 EurCtHR 135 (2016) para 86. The Court ruled that Hungary
failed to adequately balance the right to reputation and the right to freedom of expression when
it awarded damages to a real-estate website for injuries to its business reputation. The Hungarian
courts imposed objective liability for unlawful comments made by readers on a website, and the
ECtHR held such reasoning unduly placed ‘excessive and impracticable forethought capable of
undermining freedom of the right to impart information on the Internet’.
The main difference between the two cases was that in the earlier one the unlawful
content constituted hate speech. The legal argument put forward in the second case
posited that given the strong public interest in regulating hate speech under Euro-
pean law, it was conceivable to limit freedom of expression requiring a news site to
constantly review (and remove as appropriate) users’ comments.82
In an equivalent case before the CJEU, on defamatory and hateful comments
posted on Facebook, the Luxembourg court found that it was lawful for national courts
not only to require the platform to remove the post but also to monitor and ensure
that they would not reappear on the future anywhere in the world.83 The CJEU’s
approach appears therefore wider when compared to the ECtHR, imposing a consid-
erable burden on IT platforms for present and future purposes of content moderation.
The judgement also invoked the possibility that EU member states could require a
‘duty of care’ from IT intermediaries in order to prevent illegal speech/activities. As
importantly, the judgment also implied that IT platforms would be required to define
the limits of free expression more actively, under the persistent threat of liability.
The Facebook case showcased signs of a wider reform on EU liability law for
IT platforms that will affect online hate speech moderation. The Copyright Digital
Single Market Directive84 indeed introduced proactive content filtering duties on
platforms (Article 17 of the Directive applicable in the context of copyright). Should
this approach be extended to hate speech, the use of pre-filtering would pose genuine
threats for equality and non-discrimination. Preliminary findings suggest that erro-
neous filtering affects disproportionately racial and linguistic minority groups.85
As already mentioned, IT platforms often opt for removing lawful content or use
flawed enforcement tools in order to avoid liability or simply please advertisers.
Such choices guided primarily by platforms’ interests (as opposed to users’ inter-
ests) have wider consequences. The upcoming EU’s Digital Services Act, set to
replace the e-Commerce Directive,86 is expected to update the Union’s liability and
safety rules for digital platforms in the near future towards the creation of EU appli-
cable rules against online hate speech and disinformation. The spirit of the new piece
of regulation moves in the direction of more responsibility for content shifted to IT
82 European Court of Human Rights, Delfi v Estonia Appl. N. 64,569/09, Judgment of 16 June
2015, for example at paras 115–116.

83 CJEU, C-18/18 Eva Glawischnig - Piesczek v Facebook Ireland Limited, 3 October 2019 [prelim-
inary ruling]. The Court found no general monitoring obligation on hosting providers to remove or
block equivalent content and covers only essentially unchanged content where the hosting provider
does not have to carry out an independent assessment but can use automated technologies to identify
it.
84 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on
copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and
2001/29/EC, OJ L 130, 92–125.
85 See for example, Evan Enstrom and Nick Feamster, ‘The Limits of Filtering: A Look at the
Functionality and Shortcomings of Content Detection Tools’ (Engine, 2017) <www.engine.is/the-

limits-of-filtering> accessed 10 May 2020.
86 The Digital Services Act was not unveiled yet at the time of writing.
272 K. Topidi
intermediaries. It is reported to consider specific provisions for automated filtering

technologies, within a transparent and accountable framework.
These plans follow up on the EU Commission’s 2018 Recommendation on tack-
ling illegal content online that provided that in cases where hosting providers use
‘automated means’ to review content, ‘effective and appropriate safeguards’ (e.g.
human review) should be used to ensure the well-founded nature of the effects of such
decisions.87 Convergence of the EU’s approach with prior bolder national measures
adopted, such as the German example on IT intermediaries’ liability trends, can be
observed at this point.
b. The German Netzwerkdurchsetzungsgesetz (NetzDG)
Initially, operating in a different regulatory direction, the German Netzwerkdurch-
setzungsgesetz (Network Enforcement Law—NetzDG)88 has been widely discussed
as an example that has paved the way for the EU’s most recent regulatory shift.
Yet, content moderation as regulated in the NetzDG has raised a number of globally
relevant concerns: without wishing to be part of the debate as to whether the law in
question is constitutional, which is outside the scope of this paper, the more rele-
vant issue for the purposes of the present analysis is how this example of regulation
contributes globally to platform regulation of hate speech.
More specifically, the German law shares a current common ground within
the EU in requiring from internet intermediaries effective and transparent proce-
dures to initiate complaints from users about illegal content hosted in their plat-
forms.89 According to the German Law, when the content is found illegal, it must
be removed or blocked within 24 h.90 The standard of assessment of content is that
of it being ‘manifestly illegal’ (offensichtlichrechtswidrig). The NetzDG’s explana-
tory memorandum defines the term as content for which ‘no in-depth examination
is necessary to establish the unlawfulness within the meaning of sec. 1 (3)’. Hate
speech is, nevertheless, defined neither by the Act in itself nor by the German Penal
Code.
87 European Commission, Commission Recommendation on measures to effectively tackle illegal

content online (C (2018) 1177 final). The Council of Europe’s Committee of Ministers in a 2018
Recommendation had similarly stated: ‘Due to the current limited liability of automated means
to assess context, intermediaries should carefully assess the human rights impact of automated
content management and should ensure human review where appropriate’. [Cf. Council of Europe,
Recommendation CM/Rec (2018) 2 of the Committee of Ministers to Member States on the roles
and responsibilities of internet intermediaries, (Committee of Ministers, 2018)].
88 Law for the Improvement of the Legal Regulation of Social Networks, into force on 1 October
2017 and in full operation since 1 January 2018.

89 Network Enforcement Law, s 3(1).
90 Failure to handle complaints may lead to fines up to 5 million euros. According to late October
2019, around 50 million euros worth of fines have been issued against tech companies. See Mark
Scott and Janosch Delker, ‘Germany Lays Down Marker for Online Hate Speech Laws (Politico,
30 October 2019).
To determine the illegality of content, the Law refers to Criminal Code provi-
sions.91 It also imposes a reporting duty on networks that receive a minimum of
100 complaints per calendar year on the ways that these complaints are handled.
Reporting is linked to transparency for the general public and has a secondary use
of findings towards impact assessment. Sect. 2 NetzDG stipulates:
Providers of social networks which receive more than 100 complaints per calendar year
about unlawful content shall be obliged to produce half-yearly German-language reports on
the handling of complaints about unlawful content on their platforms, covering the points
enumerated in subsection (2), and shall be obliged to publish these reports in the Federal
Gazette and on their own website no later than one month after the half- year concerned
has ended. The reports published on their own website shall be easily recognizable, directly
accessible and permanently available.92
The NetzDG has been criticized on a variety of grounds. With respect to its
proposed approach towards online hate speech regulation, the following points are
particularly relevant: the risk of establishing global jurisdiction for its speech regula-
tions as a result of access of Germans to the internet from outside Germany93 is one
such critique. The flip side of this point is that more than one legal order can become
applicable at the same time creating complex jurisdictional problems, a recurring
concern for many national regulatory regimes.
The NetzDG has been also questioned on the extent to which its complaint system
requirement violates fundamental rights.94 The deadlines for removal of content (24 h
for ‘obviously illegal’ content and seven days for not obviously illegal one) may (and
do) lead to over-blocking, especially in the absence of context evaluations and given
the considerable number of requests for removal.95
The German law can be further contrasted to the benchmarks established by the
recent recommendation of the Council of Europe’s Committee of Ministers on the
roles and responsibilities of internet intermediaries96 : according to the Recommen-
dation, intermediaries carry several functions: they moderate content (including the
processing of personal data), they exercise control and influence over the users’
access to information online and they also act as online publishers. Inappropriately
91 Network Enforcement Law s.1(3), with reference to German Criminal Code provisions s.130,
131, 166 on incitement to hatred against a national, racial, religious or ethnic group, glorification
or trivialization of violations to human dignity and defamation of beliefs religious and ideological
organizations in a manner threatening the public space.
92 Official Translation of the German Ministry of Justice. One can note the contrast with Facebook’s
bi-annual Transparency Reports in Britain where the number of takedowns in the 2017 Report for
hate speech were not provided. Similarly, Twitter for the same year did not specify grounds for
complaint removal [Cf. Yar (n26) 12].
93 Balkin (n29) 2030.
94 Wolfgang Schutz, ‘Regulating Intermediaries to Protect Privacy Online -The Case of the German
NetzDG’ (HIIG Discussion Paper Series 2018–01, 2018) 8.

95 For Facebook alone, defamation and hate speech requests range to 100,000 on a monthly basis
for Germany. Cf. Schulz (n 94) at 8.

96 Recommendation CM/Rec (2018) 2 of the Committee of Ministers to Member States on the roles
and responsibilities of internet intermediaries (April 2018).

274 K. Topidi
short timeframes for take-down imposed by states such as in the case of the NetzDG,
according to the Recommendation point 1.37 are not in tune with the set of guidelines
of the Council of Europe.
In addition, reports submitted by social media platforms in pursuance of the
NetzDG do not empirically address the question as to the extent to which over-
blocking is taking place, neither do they provide a grounded evaluation of whether
the NetzDG establishes a form of institutionalized pre-censorship.97 Available data
through these statutorily required reports suggest on the other hand that a large
proportion of complaints is rejected by platforms. They also showcase that because
platforms use different reporting practices, available data cannot be used to extract
general conclusions.98 As such, it is not possible to assess change in public discourse
on and intensity of hate speech.
In sum, the German Law has opted for the imposition of a (statutory) duty on
social media companies to establish a mechanism to consider complaints. This duty,
however, raises a number of recurring public policy concerns that include the fear
that IT companies will ‘over-block’ content to avoid fines, the lack of transparency
and potential discriminatory effects of IT companies’ decisions on complaints or the
arbitrary blocking/deletion of content for some groups more than others.99 It also
carries a risk of privatization of the judiciary due to the review and interpretation
function of criminal law offences being passed on to non-state actors. This is of
particular concern when key legal definitions and criteria become de facto applied at
the platforms’ discretion.100 Proposals to remedy the law’s problematic effects have
suggested the creation of an appeals system for those wishing to have a decision to
block (or not) reconsidered and/or a system of external review for a random sample of
decisions.101 More specifically, amendments to the law in 2020 have increased trans-
parency requirements, adding a clause allowing users to complain when their content
has been mistakenly taken down. Further to these points, the creation of a govern-
mental database has been included where platforms must communicate content with
identifying information about users.102 AI, as another problematic element of the
system, has been found to be poorly adapted to local languages and socio-cultural
context. In Germany’s case, additional measures to force social media platforms
97 Kirsten Gollatz, Martin J., Riedl and Jens Pohlmann, ‘Removals of Online Hate Speech in
Numbers’ (Digital Society Blog, 9 August 2018).
98 ibid.
99 O’Reagan (n 13) 427.
100 Amelie Heldt, ‘Reading Between the Lines and the Numbers: An Analysis of the first NetzDG
Reports’ (2019) 8 (2) Internet Policy Review 2, 5. The users’ right to appeal the platform’s decision
to German courts remains however present.
101 O’Reagan (n 13) at 428.
102 While the Bill was passed by both German legislative chambers, the German President has
refused to sign it due to constitutionality concerns regarding the privacy implications of the Bill:
See < https://www.bundesregierung.de/breg-en/search/bekaempfung-hasskriminalitaet-1738462 >
to proactively report illegal content (e.g. incitements to hatred) to law enforce-

ment services103 were also recently proposed by the German government.104 The
new measures additionally include the extension of the definition of criminal hate
speech.105
More broadly, however, the social context in Germany is not irrelevant to the
features of this piece of legislation and should be also considered: social research
suggests for example a causal link between anti-refugee Facebook posts by the far-
right Alternative for Germany (AfD) party and actual physical attacks on refugees.106
The strong hypothesis that IT platforms—by enabling the targeting of audiences for
advertising purposes—tend to bring together like-minded groups of individuals can
be formulated: ultimately and often inadvertently, they may be thus contributing to
the promotion of extreme content.107
The aim of the NetzDG was nevertheless precisely the opposite: to increase the
levels of protection of users against hate speech and to gain more transparency on
how platforms handle unlawful content.108 In that sense, the law stands for a type of
regulation that ‘distributes’ responsibility for regulation of hate speech to non-state
actors (i.e. IT companies) while shifting it away from the speakers themselves.
But what does the requirement to increase the levels of transparency in online
hate speech moderation tell us about the achievements of such regulation? First,
from the German example with its reporting duty for Internet companies, empirical
data seems to support the claim that social media platforms appear to be prioritizing
their own community guidelines (understood here as the internal rules used by the
reviewer to decide whether to take content down) over national law when moderating
user content.109 Second, it remains the case that human content reviewers cannot be
fully replaced by machines as the state of development of AI does not allow a reli-
able shift to algorithms, especially if one wishes to avoid excesses (‘over-blocking’
and/or ‘under-blocking’ of content). This observation is particularly relevant for the
evaluation of content that requires an assessment of the legality of its content and not
103 Scott and Delcker (n 90).

104 The measures are in response to a 20 per cent rise in politically motivated crime. A consider-
able number of crimes with anti-Semitic and xenophobic motivation were committed by right-
wing extremists. See ‘Germany’s Government Approves Hate Speech Bill’ DW (Bonn, 19
February 2020) <https://www.dw.com/en/germanys-government-approves-hate-speech-bill/a-524
33689> accessed 1 May 2020.
105 ibid. Punishable hate speech posts include far-right propaganda, graphic portrayals of violence,
murder or rape threats, posts indicating the preparation of a terrorist attack of the distribution of
child sex abuse images.
106 See Karsten Muller and Carlo Schwarz ‘Fanning the Flames of Hate: Social Media and Hate
Crime’ (2017) <https://ssrn.com/abstract=3082972> accessed 01 May 2020.

107 The example of YouTube’s auto-play function is cited here as an instrument of potential radi-
calization. In 2019, YouTube reported changes in its recommendation algorithm for videos of
‘borderline content’ cutting their number and by extension the spread of misinformation.
108 Amelie Heldt, ‘Reading Between the Lines and the Numbers: An Analysis of the First NetzDG
Reports’ (2019) 8(2) Internet Policy Review2.

109 ibid 14.
276 K. Topidi
merely its compliance with the platform’s community standards.110 From a stricter
legal point, because the German law does not define key terms such as ‘incite’ and
‘hatred’ and as such its compatibility with international human rights law can also
be questioned.111
The concern over the efficiency of criminalization of hate speech can be also
raised: the current legislative framework does not target speakers but rather moder-
ators. As much as the aim of the law was to ‘maintain a political debate culture’,112
especially in light of the rise of right-wing populist movements, it is worthy of further
examination how this law can indeed justify the limitation of freedom of expression
in its present form.
Moving towards more regulation, Germany is developing its legal framework
in a different direction opposite to the one that favoured voluntary self-regulation.
Despite this interventionist approach, empirical findings suggest that Facebook and
Twitter were failing to remove illegal material within 24 h, even after the enactment of
NetzDG.113 The assassination of pro-refugee political Walter Luebcke, the attacks
in Halle and Hanau, all had ‘reflections’ of prior extreme/hate speech use on the
internet.
If Germany represents an example where the trend in favour of legal instruments
regulating hate speech is beginning to be preferred, the social and political pressure
created by recent hate crimes is as intense elsewhere: France and the UK are putting
together online hate speech rules that place legal duties on social media companies.
But is this regulatory approach shift necessary? The answer is often located in the
socio-political context of hate speech: for Germany, the growth of the AfD has
triggered a lot of public debate, coupled with recent violent xenophobic incidents. In
the rest of the world, populist leaders such as Trump, Orban, Duterte or Bolsonaro to
name a few, have an impact in the production and circulation of online hate speech.
But the picture of the state of freedom of expression is infinitely more complex: we
are living in times where the internet together with global migratory movements, are
offering more opportunities than ever for one’s voice to be heard. At the same time, in
a society such as the German one with its Nazi past and extreme right-wing terrorist
present, the society has apparently failed to address societal fears about Muslim
immigration.114 The pressure stemming from the ‘publicly unspoken’ seems today
firmly connected to online xenophobic expressions.
110 ibid 9.
111 Special Rapporteur 2019 Report (n 8) para32.
112 Schulz (n 94) 9.
113 Scott and Delcker (n 90). Facebook was additionally fined with 2 million euros in 2019 for
failing to provide transparent procedures for complaints from users.

114 ‘Germany Struggles to Define Limits of What Can be Said’Der Spiegel (Hamburg, 8 November
2019.
12.7 Concluding Remarks: Towards More Regulatory

Imagination in the Digital Ecosystem
The significant increase in the use of social media platforms along with the rate
of user-generated online content have created the intensely felt need to regulate
the internet ecosystem. IT intermediaries have found themselves at the centre of
this landscape in Europe, as much as elsewhere. The provisions regulating online
platforms for digital speakers, however, are not disconnected from social, cultural,
economic and political processes.115
Recent European political election campaigns in 2019 have illustrated how
ultra-nationalistic, xenophobic and racist hate speech is spreading its presence in
social media networks.116 Members of minority groups (including migrants) are
increasingly the targets of hate speech.
The role of AI in connection with the fight against online hate speech is being
justifiably problematized: while often intent to discriminate is missing, AI tools to
combat hate speech end up perpetuating patterns of discrimination. This is because
such systems lack in transparency and evaluative qualities of context in language
use.
The way forward in terms of regulation requires what at present seems impossible:
speed and efficiency in hate speech removal, enforcement by private entities of legal
standards in a transparent way, comprehensive human rights coverage and public
accountability. Such a governance scenario confirms a polycentric regulatory process
in the making, combined with a more sophisticated use of AI tools.117
In light of the systematic barriers of law to address hate speech, alternative gover-
nance options are being currently considered. The return to strict state-sanctioned
coercive regulatory frameworks is a reaction to the spread of online hate speech
but is far from a novel approach. In simpler terms, it is anticipated that deterrence
will not suffice. A complementary effort should aim for the creation of socio-legal
ecosystems118 that rely on behavioural as much as normative compliance. Showing
resilience to the use of online hate speech is not a simple process as it requires deeper
bonds among users against racism and discrimination. A more innovative approach
to combat hate speech, therefore, calls for a combination of coercive measures with a
more relational approach to law.119 Such an approach may consider more soberly the
role of data on the web. Identification and acceptance of a number of common values
115 European Commission, Hosting Intermediary Services and Illegal Content Online: An Analysis
of the Scope of Article 14 ECD in Light of Developments in the Online Service Landscape’COM
(2018) 0033, 11.
116 European Commission Against Racism and Intolerance (ECRI), Annual Report on ECRI’s
Activities, 2019, at 8.
117 Finck mentions one example in such a direction: the German Landesanstaltfuer Medien
Nordrhein Westfalen’s use of human–machine filters, that include a two-stage processing of content
first by machines and then humans. Finck (n 47) 11.
118 Term borrowed from Gitari et al. (n 24)129.
119 Gitari et al. (n 24) 129.
278 K. Topidi
can facilitate online interactions and regulation, accepting that online environments
reflect quite accurately the features of our societies. As
hate speech regulation has permeated other elite institutions like the media and has trickled
down to influence mass opinion and common understandings of institutional norms (…),
extra-judicial law and the power of legal meaning-making, (…) informal law or mass
constitutionalism, provid[e] vehicles of change (…).120
So both the hate discourse in itself and the context in which it exists remain crucial,
especially when hate discourse becomes the product of political manipulation with
clear implications beyond the strict national contexts (e.g. anti-refugee discourses,
anti-Muslim discourses).
And yet, one of the main purposes of content moderation within hate speech has
precisely been to break the link between extremist hateful speech and violence. Still,
little is known, however, on this link between words and action. What is clearer
though is that for hateful online expression, the use of internet acts as a ‘facilitator’
towards hate crimes, rather than as ‘generator’.121 But living in an era where people are
increasingly likely to accept an argument on the basis of emotions and beliefs rather
than facts renders the regulation of hate speech online a serious challenge that defies
the limits of the law and legal regulation, as well as our traditional perceptions of the
role of the state. When the essential duty of monitoring free expression, however,
shifts to private business-oriented entities, the balance of protection of both people
and their words becomes sensitive.
120 Bjorn Ross, et al., ‘Measuring the Reliability of Hate Speech Annotations: The Case of
the European Refugee Crisis’, arXiv Proceedings of NLP4CMC III: 3rd Workshop on Natural
Language Processing for Computer-Mediated Communication (Bochum), Bochumer Linguistische
Arbeitsberichte, (2016) 17, 6–9, available at <https://arxiv.org/abs/1701.08118> accessed 01 May
2020.
121 Keller (n 6) 22. In the words of a German government report, ‘the internet does not replace the
real-world influences but reinforces them.’ (in particular her footnote 168).
Chapter 13
Essential Religious Practices Test
and the First Amendment:
A Comparative Analysis of the Free
Exercise of Religion in India
and the United States
Arvind Kurian Abraham
Abstract The Supreme Court of India formulated the essential religious practices
test to hold that only practices which are essential or integral to a religion are protected
by the freedom of religion provisions in the Constitution of India. The test is based
on the assumption that judges can interpret religious scriptures and documents to
determine if a practice is essential for a religion. The test is also seen as a necessity
to prevent vested interests from seeking benefits through the disguise of free exercise
claims. Courts in the United States also briefly experimented with a similar test to
protect only tenants which are central to a religion from state action, and formulated
the test of sincerity to weed out pretentious free exercise claims. However, the free
exercise jurisprudence in the US discarded the centrality test in recognition of the
problems associated with it. This paper critically analyses the essential religious
practices test, compares it with the approach of the US courts while dealing with free
exercise claims and provides recommendations for the free exercise jurisprudence
in India. The paper also interrogates the premise that judges can interpret scriptures
to determine what forms an essential part of a religion by looking at complexities
involved in the field of hermeneutics and theology.
Arvind Kurian Abraham—LLM, Harvard Law School (2020), B.A LL.B (Hons), West Bengal
National University of Juridical Sciences (2017). I am grateful to Professor Laurence Tribe,
Professor Noah Feldman, Professor Faizan Mustafa for their comments on this topic, and to Ms.
Jane Bestor for her comments and encouragement. I am especially indebted to Professor Mark
Tushnet for his detailed and valuable comments on the previous draft of this paper.
A. K. Abraham (B)
Harvard Law School, Cambridge, MA, USA
e-mail: aabraham@llm20.law.harvard.edu
West Bengal National University of Juridical Sciences, Kolkata, India
280 A. K. Abraham
13.1 Introduction
Religion has played an important role in the development of legal orders around the
world and provided a foundation for the earliest notions of natural rights1 and even
human rights.2 At the same time, there have been moments when law has come in
conflict with religious values, and there is an increasing tendency towards conflict
between law and religion with the fast pace in the transformation of social values. This
essay examines this intersection of law and religion through the essential practices
test devised by the Indian Supreme Court. In doing so, the essay compares Indian
court rulings with the jurisprudence of the US courts on the free exercise of religion
to make recommendations on alternatives to the essential practices test, as also to
examine the objections to and the limitations of the essential practices test.
The essay is organized in the following parts—Part 2 of the paper briefly touches
upon the background of the freedom of religion under the Constitution of India,
summarizes the growth of the essential religious practices test, and lists the main
objections to the test. Part 3 provides a brief summary of the freedom of religion
under the First Amendment to the US Constitution, analyzes the centrality test in the
US, and looks at the First Amendment approach to religious sincerity. Part 4 explores
the complexity involved in analyzing religious canons and scripture in determining
what forms the essential features of a religion and Part 5 provides suggestions for
the future of Indian free exercise jurisprudence.
13.2 Essential Religious Practices Test
Articles 25 and 26 of the Constitution of India constitute the free exercise of religion
provisions in the Constitution. Article 25 provides for religious freedom as an indi-
vidual right, whereas Article 26 is couched in terms of a group right, for religious
denominations.
At the stage of the drafting of the Constitution, the Constituent Assembly members
expressed their concern about the perpetuation of social evils through an unqualified
free exercise of religion clause in the Constitution.3 To address these concerns, the
final text of Article 25 of the Constitution states that the ‘freedom of conscience
and the right freely to profess, practice and propagate religion’4 is subject to public
order, morality and other fundamental rights enshrined in Part III of the Constitution.5
Similarly, denominational rights under Article 26 is also is subject to public order,
1 Nicholas P Wolterstorff, ‘Christianity and Human Rights’ in John Witte Jr & M. Christian Green
(eds) Religion and Human Rights: An Introduction (OUP 2011) 4.
2 Robert John Araujo, ‘Our Debt to de Vitoria: A Catholic Foundation of Human Rights’ (2012) 10
Ave Maria L Rev, 313, 314.

3 Granville Austin, The Indian Constitution: Cornerstone of a Nation (OUP 1972) 80.
4 Constitution of India, January 1950, Art 25.
5 ibid.
13 Essential Religious Practices Test and the First Amendment … 281
morality, and health, so as not to provide ‘absolute rights’ in matters relating to

religion, as explained by Dr. B.R Ambedkar.6
Article 25(2)(a) states that the freedom of religion does not prevent the state from
making any law to regulate or restrict ‘any economic, financial, political or other
secular activity which may be associated with religious practice.’7 Article 25(2)(b)
empowers the state to make laws for social welfare and reform and to open up Hindu
religious institutions of public character, to all classes and sections of Hindu society.8
The first set of free exercise of religion claims under Article 25 and 26, arose in
connection with the state regulation of temples and religious institutions. The State
regulation of Hindu religious institutions in the former State of Madras was chal-
lenged in The Commissioner, Hindu Religious Endowments, Madras v Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt 9 (‘Shirur Mutt’), for restricting religious liberty
under Article 25 and Article 26.
Justice Mukherjea, writing for the bench, held that Article 25(2)(a) does not
empower the state to regulate religious practices per se, rather it only allows the
regulation of activities which are economic, commercial or political in their character,
even it is associated with a religious practice.10 In other words, this clause is not
applicable for the regulation of matters of religion or those practices which are
essentially religious. He reasoned that whether a practice is essential to a religion
can be determined by referring to the doctrines of such religion.11
Justice Mukherjea also observed that religious denominations under Article 26(b)
have complete autonomy to determine which practices are essential to their religion
and that this could not be determined by an outside authority.12 However, the central
question which Justice Mukherjea identified, that is how to distinguish matters of
religion from matters not dealing with religion,13 is an issue that the Supreme Court
continued to grapple with later cases.
Justice Mukherjea revisited this question in Ratilal Panachand Gandhi v State of
Bombay14 (‘Ratilal’), in which he reasoned that the Courts ‘should take a common-
sense view and be actuated by considerations of practical necessity’,15 in distin-
guishing matters of religion from those which are secular in nature, thereby giving
the judges a certain level of discretion in determining what a religious matter is.
6 Lok Sabha, Constituent Assembly Debates (Proceedings)—Volume VII, 7 December 1948 http://
164.100.47.194/Loksabha/Debates/cadebatefiles/C07121948.html (accessed 16 June 2020).
7 Constitution of India, January 1950, Art 25.
8 ibid.
9 The Commissioner, Hindu Religious Endowments, Madras v Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt AIR 1954 SC 282.

10 ibid at 291.
11 ibid.
12 ibid at 293.
13 ibid at 290.
14 Ratilal Panachand Gandhi v State of Bombay AIR 1954 SC 388.
15 ibid at 393.
282 A. K. Abraham
In later cases, the Supreme Court insisted that only essential religious practices
which are obligatory in nature and mandated by scriptures are protected under Article
25. In Mohd Hanif Quareshi and Others v State of Bihar 16 (‘Hanif Quareshi’), a law
banning cow slaughter was held not to be in violation of Article 25, even though it
restricted the ability of Muslims to sacrifice cows on Bakr-id, because the petitioners
were unable to cite a express mandate rooted in Islamic scripture which stated that the
sacrifice of cows is compulsory in nature.17 The Supreme Court was also concerned
that nonreligious interests may seek the protection of Article 25 and Article 26,
by pretending to be religious claims. Therefore, in Durgah Committee, Ajmer v
Syed Hussain Ali18 (‘Durgah Committee’), the Court mandated scrutinizing claims
to ensure that only practices which are essential to religion are protected, so as to
prevent practices which may have arisen out of superstitious beliefs and those which
are extraneous or nonessential accretions practices from claiming protection under
the Constitution.19 The personal views of judges can also play an important factor in
determining whether a religious practice is essential in nature. This was evident in
Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya,20 (‘Sastri’) in which Justice
Gajendragadkar characterized the position of the petitioners in desiring the exclusion
of Dalits from the temples as a complete misunderstanding of Hinduism and that of
the teachings of the community’s spiritual leader Swaminarayan.21
Religious practices of recent origin and not expressly mandated by scriptures are
denied the status of essentiality by the Supreme Court. In Acharya Jagdishwaranand
Avadhuta v. Commissioner of Police, Calcutta22 (‘Anand Margis I’), which involved
a challenge by Anand Margis against a public order restriction on their ability to hold
a public dance with human skulls, symbolic knives, tridents, and other items, known
as the Tandava dance. The Court held that even if it is assumed that the Tandava dance
is a religious practice, there was no scriptural evidence for the need to perform this
dance in public.23 The Court doubted the essentiality of the Tandava dance because
of the recent origins of the Ananda Marga order and the even more recent origin of
the Tandava dance.24
Subsequently, the Ananda Marga edited their scriptures to include the Tandava
dance as an essential religious practice. The same issue was revisited by the Supreme
Courtin Commissioner of Police v. Acharya Jagdishwarananda Avadhuta25 (‘Anand
Margis II’).
16 Mohd Hanif Quareshi and Others v State of Bihar AIR 1958 SC 731.
17 ibid at 739.
18 Durgah Committee, Ajmer v Syed Hussain Ali (1962) 1 SCR 383.
19 ibid at 395–396.
20 Sastri Yagnapurushadji v Muldas Bhudardas Vaishya AIR 1966 SC 1119.
21 ibid at 1137.
22 Acharya Jagdishwaranand Avadhuta v Commissioner of Police, Calcutta (1983) 4 SCC 522.
23 ibid at 532.
24 ibid.
25 Commissioner of Police v Acharya Jagdishwarananda Avadhuta (2004) 12 SCC 770.
The Supreme Court held that only if the removal of the practice or part could
result in ‘a fundamental change in the character of that religion or in its beliefs, then
such part could be treated as an essential or integral part.’26 The Court went on to
hold that an essential part of a religion cannot change from over a period of time due
to any intervening events.27 Therefore, the Court once again denied constitutional
protection to the Tandava dance, even though it had scriptural sanction.
The essential religious practices doctrine as the precedents demonstrate is fairly
chaotic. In Anand Margis I,28 the Court held that the recent origins of a religious
practice could not be essential, whereas in the Triple Talaq case,29 the fact that
a religious practice had been followed for 1,400 years did not affect the judicial
outcome. In Durgah Committee,30 the Court mentioned superstition as being separate
from religion, and therefore, not worthy of protection under Article 25, but failed to
explain how one can objectively distinguish the two.
In Shirur Mutt,31 the Court said that one must look at what the community
considers to be integral to their faith. However, in Sabarimala,32 it was held that the
judiciary will be the final arbiter in determining this question, not the community.
The fact that in some instances, the Court has determined the importance of religious
practices, without taking into account the testimonies of the parties impacted by such
rulings, underscores the problematic nature of this doctrine.33
The doctrine emerged from an attempt to determine what is essentially religious,
to separate it from secular practices which can be regulated by the state. However,
this eventually became a test in finding out what is essential to a religion.34
One may argue that given the fears of religious majoritarianism in India, essential
religious practices must be immune from state interference so as to protect minority
rights. However, the essential religious practice test has been applied in a manner
detrimental to minorities in some cases. When a Muslim police officer insisted that
he had a right to sport a beard as a religious right,35 the Kerala High Court did not
even refer to Islamic texts, as the courts had done in other instances, but rather relied
on the fact that many Muslim dignitaries did not have a beard, to say that it is not
essential.36
26 ibid at 782.
27 ibid at 783.
28 Acharya Jagdishwaranand Avadhuta v Commissioner of Police, Calcutta (1983) 4 SCC 522.
29 Shayara Bano v Union of India (2017) 9 SCC 1.
30 Durgah Committee, Ajmer v Syed Hussain Ali (1962) 1 SCR 383.
31 The Commissioner, Hindu Religious Endowments, Madras v Lakshmindra Thirtha Swamiar of
Sri Shirur Mutt (n 9).

32 Indian Young Lawyer’s Association v State of Kerala (2019) 11 SCC 1.
33 Gautam Bhatia, ‘Freedom from community: Individual rights, group life, state authority and
religious freedom under the Indian Constitution’, (2016) 5 Global Constitutionalism, 351, 365.
34 Framing of India’s Constitution: Select Documents, Volume II (B. Shiva Rao et al. (eds)) (NM
Tripathi 1967) 264–270.

35 Mohammed Fasi v Superintendent of Police (1985)ILLJ Ker 463.
36 Faizan Mustafa and Jagteshwar Singh Sohi, ‘Freedom of Religion in India: Current Issues and
Supreme Court Acting as Clergy’ (2018) 2017 BYU L Rev 915, 934.
284 A. K. Abraham
Similarly, in the Ismail Faruqui case37 which arose due to the destruction of
the Babri Masjid,38 the Supreme Court went to the extent to say that praying in a
mosque is not an essential religious practice because prayers ‘by Muslims can be
offered anywhere, even in open’,39 thereby implying that Governments across the
country have the power to acquire Mosque land without violating Article 25.
The essential religious practices doctrine can also be seen as an attempt of the
Supreme Court to reform Hinduism, by saying certain Hindu belief systems are not
really Hindu in nature but products of superstition or misreading of Hinduism, as
seen in Sastri. The Court has cherry-picked certain Hindu scriptures to denounce
the caste system as it did in Devaru, whereas ignoring Hindu traditions which say
the opposite.40 Therefore, the doctrine has been used as an instrument to legitimize
certain interpretations of Hinduism, while delegitimizing other interpretations.41 This
begs the question as to whether the Court is the appropriate body to engage in religious
reform.
By stating that essential religious practices are immune from state regulation, the
Court has put itself in a position where it has to hold that practices which perpetuate
regressive values, are not essential to a religion, so as not to impede social reform
laws, even though the Court’s reasoning may not align with the views of the believers.
The doctrine also rests on the premise that it is possible to determine the integral
belief systems and practices of a religion by studying its scriptures, like any other form
of evidence. This premise is interrogated in Part III of this paper, which highlights
the difficulties involved in undertaking scriptural inquiries to evaluate centrality.
13.3 Free Exercise of Religion in the US
13.3.1 The First Amendment
The religion clauses of the First Amendment to the US Constitution states, ‘Congress
shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof.’42 These two clauses have been referred to as the ‘establishment
37 Dr M Ismail Faruqui v Union of India (1994) 6 SCC 360.

38 On 6 December 1992, Hindu fundamentalists destroyed the Babri Masjid, leading to violence
across India. The fundamentalist organizations insisted that the mosque was sitting on the site of an
ancient Hindu temple. In response to this crisis, the Parliament of India enacted the Acquisition of
Certain Area at Ayodhya Act, 1993 to authorize the Government to acquire the disputed property.
The Act was challenged by the petitioners on the ground that it violated the freedom of religion of
Muslims.
39 See Dr M. Ismail Faruqui (n 37) at 418.
40 Ronojoy Sen, ‘The Indian Supreme Court and the quest for a ‘rational’ Hinduism’ (2010) 1 South
Asian History and Culture 86, 93.

41 ibid at 86.
42 US Constitution, Amendment I.
clause’ and the ‘free exercise clause’, which govern the nature of religious freedom
in the United States.
An important aspect of religion clauses jurisprudence is the doctrine against exces-
sive entanglement with religion, which prohibits judicial resolution of questions
about religion due to absence of the institutional competence of courts to consider
such matters, as well as the absence of constitutional power to involve itself in matters
of religious interpretations.43 Professor Tribe has argued that the most prohibited
form of entanglement is the use of the legal process to ‘to discover religious error
or to promulgate religious truth.’44 The state is barred from examining religious
affirmations,45 and therefore, an exercise in determining the essential features of a
religion through a scriptural study would also fall afoul of this doctrine.
From the nineteenth century, the religion clauses jurisprudence followed a cate-
gorical approach in the interpretation of free exercise claims, whereby the court
would draw a line specifying what comes under the protection of the free exercise
clause and what does not.46 However, post 1963, the US Supreme Court substituted
the categorical approach, with the balancing approach whereby the emphasis is given
on the scope of the free exercise right and the impact of the state action on the right.47
The major departure in the Court’s approach was seen in Sherbert v Verner 48
(‘Sherbet’). The case concerned a Seventh Day Adventist, who was fired by her
employer for refusing to work on Saturdays because she believed that to be her
day of Sabbath. She was subsequently denied unemployment compensation by the
state on the ground that she did not have a good cause to have refused to work.
Justice Brennan, writing for the Court, held that the denial was a violation of her free
exercise right, because it was forcing her to choose between following her religion
or forfeiting her religion in order to obtain benefits. Justice Brennan characterized it
as akin to a fine imposed on the appellant for her Saturday worship.49
Sherbert applied strict scrutiny for the first time in a free exercise case, whereby
if the right to freely exercise religion is substantially infringed or burdened, then the
government must demonstrate that there is a compelling state interest to justify the
infringement and that the state action is narrowly tailored to achieve that interest,
in the least restrictive way possible.50 It also implied that the government could no
longer adopt a position of ‘religion blindness’, because if a free exercise right is
burdened and the government fails to accommodate the religion, when it could have
43 Jared A Goldstein, ‘Is There a "Religious Question" Doctrine? Judicial Authority to Examine
Religious Practices and Beliefs’ (2005) 54 Cath. U L Rev 497, 540.
44 Laurence Tribe, American Constitutional Law (Foundation Press 2nd ed, 1988) at 1232.
45 Jonathan Weiss, ‘Privilege, Posture and Protection Religion in the Law’ (1964) 73 Yale LJ 593,
623.
46 Eugene Gressman and Angela C Carmella, ‘The RFRA Revision of the Free Exercise Clause’
(1996) 57 Ohio St LJ 65, 75.

47 ibid at 77.
48 Sherbert v Verner 374 US 398 (1963).
49 ibid at 404.
50 John Witte, Jr and Joel A Nichols, Religion and the American Constitutional Experiment (OUP
4th ed, 2016) at 123.

286 A. K. Abraham
done so in order to satisfy its compelling interest, then that would be seen as hostility
towards the religion.51
The requirement of a substantial burden can act as a ‘gatekeeper doctrine’, which
can prevent the courts from being flooded with free exercise claims in relation to
every law or executive decision.52 Generally one may say that if the exercise of
religion is prevented, penalized, coerced or been a basis to deny entitlements, then
it would constitute a substantial burden on the free exercise of religion.53
The Sherbet test was reaffirmed by the Supreme Court in Wisconsin v Yoder 54
(‘Yoder’), in which the Court held that only an interest of the ‘highest order’55 and
of ‘sufficient magnitude’56 can override legitimate claim of free exercise of religion
, and can be considered as a compelling interest of the state.57
In Employment Div., Dept. of Human Resources of Oregon v Smith,58 (‘Smith’), the
Supreme Court dealt with the case of a member of the Native American Church, who
had been dismissed from his job at a private drug rehabilitation clinic for consuming
a drug known as peyote, and was later denied unemployment benefits because of his
consumption of the proscribed drug. The petitioner argued that the denial violated
his free exercise right, because the consumption of peyote is part of the ritual practice
of the Native American Church.
Instead of applying the Sherbet test, Justice Scalia writing for the majority, over-
turned three decades of precedents to hold that the free exercise clause does not
exempt a person from complying with a general and neutral law, which prohibits
conduct that the state is entitled to prohibit.59 Justice Scalia preferred leaving the
issue of religious accommodations to the legislature and the political process, while
acknowledging that doing so may disadvantage minority religions.60
Smith was heavily criticized for failing to understand that even neutral and gener-
ally applicable law can substantially burden religious exercise.61 In response to the
outrage against Smith, the Congress enacted the Religious Freedom Restoration Act
(RFRA).62
51 Tribe (n 45) at 1257.

52 Ira C Lupu, ‘Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion’
(1989) 102 Harv L Rev 933, 935.
53 Douglas Laycock, Religious Liberty (Eerdmans 2018) 354.
54 Wisconsin v Yoder 406 US 205 (1972).
55 ibid at 215.
56 ibid at 214.
57 ibid.
58 Employment Div, Dept. of Human Resources of Oregon v Smith 494 US 872 (1990).
59 ibid at 879.
60 ibid at 890.
61 Michael W. McConnell, ‘Free Exercise Revisionism and the Smith Decision’ (1990) 57 U Chi L
Rev 1109, 1153.

62 Laycock (n 55) at 3.
RFRA expressly states that the purpose of the statute is to restore the compelling
interest test63 as provided in Sherbert and Yoder, to be applicable in cases where
the free exercise of religion is substantially burdened.64 RFRA provides only one
exception to substantially burdening a person’s free exercise of religion, namely
if the government can demonstrate a compelling state interest and that the least
restrictive means of furthering that interest have been adopted.65 Therefore, RFRA
was Congress’ way of restoring the pre-Smith jurisprudence of the free exercise
clause.66
13.3.2 The Centrality Test
Due to the complexities involved in determining free exercise claims, some judges
experimented with the ‘centrality test’ whereby the protection under the First Amend-
ment would only be applicable to practices and tenants which are central to a reli-
gion.67 The centrality test is based on the premise that any burden on the core values
of a faith, poses a grave danger to a religion, and therefore, the ‘spiritual core’ must
be insulated from state regulation.68
In Sequoyah v Tennessee Valley Authority,69 members of the Cherokee community
argued that the construction of Tellico Dam would submerge the Little Tennessee
Valley, which would destroy their sacred burial grounds, and therefore, violate their
right to freely exercise their religion under the First Amendment.
The Sixth Circuit court held that in order to claim the First Amendment protection,
it is necessary to prove that the religious practice is inseparable from the way of life
or that it plays a central role in religious rites and ceremonies.70 As the petitioners
had failed to show that the particular geographic location was necessary to exercise
their religion, the court dismissed the claim, characterizing their practice as merely
cultural in nature and not an indispensable feature of their religion.71
In Badoni v Higginson,72 leaders of the Navajo nation sought to stop the govern-
ment from operating the Glen Canyon Dam at a level which would flood a park
63 The term of ‘compelling interest test’ is used interchangeably with the ‘strict scrutiny’ test.
64 Religious Freedom Restoration Act, 42 USC § 2000bb(b) (1993).
65 ibid.
66 Gressman (n 47) at 97.
67 Bette Novit Evans, ‘Constitutional Language and Judicial Interpretations of the Free Exercise
Clause’ in Derek H Davis ed, The Oxford Handbook of Church and State in the United States (OUP
2010) 154.
68 Bruce N Bagni, ‘Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination
by Religious Organizations’ (1979) 79 Colum L Rev 1514, 1549.

69 Sequoyah v Tennessee Valley Authority 620 F.2d 1159 (1980).
70 ibid at 1164–1165.
71 ibid at 1162.
72 Badoni v Higginson 638 F.2d 172 (1980).
288 A. K. Abraham
containing sacred sites. The district court denied the claim on the ground that sites
did not have a deep religious significance for any organized group.73 The court also
mentioned that there was no history of consistency in the use of the sacred sites by
Navajo community, and thus ruled out any centrality in the free exercise claim.74
When a Jehovah’s Witness refused to undertake work involving the production of
arms on the grounds that it violated his religious beliefs, and was denied unemploy-
ment benefits, he claimed that the denial was a violation of his free exercise right. The
Supreme Court of Indiana took into account the fact that other Jehovah’s witnesses
had no problems in undertaking the type of work the petitioner had objected to. It
also cited the petitioner’s inability to articulate his religious objection clearly and
noted that he was ‘struggling with his belief ’, to conclude that his objections were
not grounded in religion.75
The US Supreme Court reversed the judgment of the Supreme Court of Indiana on
appeal in In Eddie C Thomas v Review Board of the Indiana Employment Security
Division.76 While asserting that ‘only beliefs rooted in religion’ are protected by the
free exercise clause,77 Chief Justice Burger writing for the majority, stated that the
question as to whether a certain practice is religious or not, should not be determined
by the court’s perception of the particular belief. He reasoned a religious belief need
not be logical, acceptable, comprehensive or consistent, in order to be protected by the
First Amendment.78 He also recognized that there can be a plurality of interpretations
within a faith.79
The narrow mandate for the court, according to the Chief Justice Burger, is merely
to determine whether there is an appropriate basis to conclude that the petitioner
had to leave his job due to an honest conviction that such work was proscribed by
his religion. At the same time, he does concede that a claim which is ‘so bizarre,
so clearly nonreligious in motivation’, would not be protected by the free exercise
clause.80 However, he did not place any threshold to distinguish such claims from
genuine ones.
In Lyng v Northwest Indian Cemetery Protective Association,81 while determining
whether the construction of a road through forest areas, which are considered to be
sacred by the native American community, violated their free exercise rights, Justice
73 Laurie Ensworth, ‘Native American Free Exercise Rights to the Use of Public Lands’ (1983) 63
BU L Rev 141, 146.
74 ibid at 152.
75 Thomas v Review Bd of Indiana Employment Sec Div 271 Ind 233, 243 (1979).
76 Eddie C Thomas v Review Board of the Indiana Employment Security Division 450 US 707
(1981).
77 ibid at 713.
78 ibid at 715.
79 ibid.
80 ibid.
81 Lyng v Northwest Indian Cemetery Protective Association485 US 439 (1988).
O’Connor writing for the majority, reasoned that the right to free exercise cannot be
used to dictate the internal procedures and conduct of the government.82
In his dissent, Justice Brennan advocated for a centrality test in free exercise
cases, whereby the petitioners must show some level of centrality or indispensability
of the practice to their faith, before the burden is shifted on the government to show
compelling interest to override the free exercise claim.83 However, his conception
of the centrality test does not require the parties to show that the practice is needed
for the survival of the religion.84 Justice O’Connor strongly opposed the centrality
test as it would require the judges to tell petitioners whether or not their reading of
their own religion is accurate. She reasoned that such a task would be improper for
the judiciary to undertake.85
The centrality test came under heavy criticism in Smith, with Justice Scalia
equating it with the evaluation the merits of different religious claims, which is
constitutionally prohibited.86 Scalia also questioned the justification behind such
a doctrine by stating ‘What principle of law or logic can be brought to bear to
contradict a believer’s assertion that a particular act is “central” to his personal
faith?’87 Therefore, Smith formally buried the centrality test in First Amendment
jurisprudence.
RFRA was enacted by the Congress to codify the pre-Smith First Amendment
jurisprudence, however, at the time of enactment, the Act did not address whether
or not the centrality test is a permissible form of inquiry for the courts to undertake.
This issue was later clarified with the enactment of The Religious Land Use and
Institutionalized Persons Act, 2000 (RLUIPA), which defined the term ‘religious
exercise’ as ‘any exercise of religion, whether or not compelled by, or central to, a
system of religious belief,’88 thereby discarding the centrality test.
Prior to RLUIPA, in relation to cases involving inmates, the courts did look at
the importance of a practice in a religion to determine if there was a substantial
burden on the free exercise right.89 For instance, the Ninth Circuit denied prisoners
from having a ‘full Pentecostal service’ with speaking in tongues or laying hands
on others, because the claimants could not show that such service was mandated by
their faith.90 However, it is well known that Pentecostal services are traditionally
very different from other Christian services, even though it may not be biblically
specified. However, post RLUIPA, courts have not imposed a centrality condition.91
82 ibid at 448.
83 ibid at 474.
84 ibid.
85 ibid at 458.
86 Employment Div Dept of Human Resources of Oregon v Smith 494 US 872, 887 (1990).
87 ibid.
88 ibid § 2000 cc-5(7)(A) (2000).
89 Kent Greenawalt, Exemptions: Necessary, Justified or Misguided? (Harvard University Press
2016) 143.
90 Bryant v Gomez 46 F.d3 948, 949 (9th Cir 1995).
91 Greenawalt (n 91) at 143.
290 A. K. Abraham
In Holt v Hobbs,92 a Muslim prisoner made a free exercise claim under RLUIPA,
to exempt him from the prison’s grooming policy in order to allow him to grow a
beard. The US Supreme Court held that even though Islam had supposedly mandated
a beard which was longer than the one preferred by the claimant, that was not a basis
to infer that his claim was not genuine in light of the irrelevance of centrality due to
RLUIPA.93 The Court also held that the fact that not all Muslims grow such beards
was irrelevant in determining the free exercise claim.94
In Sequoyah95 and Badoni,96 the courts glossed over the fact that Native American
religions, unlike conventional religions, do not congregate for worship on specified
time or date, rather communities like the Navajo nation conduct ceremonies when
a need arises and only those who solicit divine intervention in their personal lives
engage in the ceremonies.97 These cases illustrate the arbitrariness in applying the
centrality test, especially when the perception of judges are colored by their lack of
understanding of unconventional religious practices.
It is also problematic to accept Justice Brennan’s formulation of a centrality test,
because if it is accepted that the centrality of religion is a determining factor in
free exercise claims, then when the court undertakes an inquiry into whether or not
there is substantial and realistic threat to the religious practice and whether there is
a compelling state interest to override it, it will be almost inevitable for the court to
scrutinize as to whether or not the practice is actually central to the faith, as it allots
weightage to the various competing interests.
In recognition of these difficulties, the free exercise of religion jurisprudence in
the US, based on the First Amendment and informed by the RFRA-RLUIPA regime
has discarded the reliance on centrality or essentiality of religion, thereby ending the
process of courts getting excessively entangled with religious questions.
13.3.3 Sincerity
The fear of vested interests or secular claims, pretending to be motivated by religious

belief, in order to obtain protection or benefits under the concept of freedom of
religion, was one of the concerns which motivated the courts in India to design the
essential religious practices doctrine.98 The free exercise jurisprudence in the United
states also recognizes this problem, and allows courts and governments to test the
92 Gregory Houston Holt v Ray Hobbs 574 US 352 (2015).

93 ibid at 360.
94 ibid at 362.
95 Sequoyah v Tennessee Valley Authority 620 F.2d 1159 (1980).
96 Badoni v Higginson 638 F.2d 172 (1980).
97 Ensworth (n 75) at 158.
98 Durgah Committee, Ajmer v Syed Hussain Ali(1962) 1 SCR 383, 396.
sincerity of a free exercise claim, as a device to filter out insincere attempts to gain
some form of benefit, accommodation or exemption.99
Courts have recognized that as long as the inquiry is restricted to the sincerity
of the claim, and not the veracity of the beliefs cited in the claim, then religious
liberty will not be endangered.100 Nevertheless, any inquiry into sincerity or honesty
of a person’s claim, does involve a risk of arbitrariness and bias, especially when the
evaluator may be more familiar with certain forms of religious beliefs, compared to
others.101
The US Supreme Court’s judgment in United States v Ballard,102 provides the
main basis for the assessment of sincerity. Guy Ballard founded the ‘I Am’ movement
and believed that he had divine revelations from God and St. Germaine.103 The
indictment stated that the Ballards had claimed to communicate with St. Germaine,
even though they knew that it was false, and they falsely claimed to have healed
people.104
Justice Douglas, writing for the majority, reasoned that people may believe things
that they cannot prove, and therefore, to subject them to a trial to prove the basis of
their beliefs would be the same as a heresy trial. If people are prosecuted for religious
beliefs, in the face of a hostile jury, then he warned that there would no longer be
any religious freedom.105
Justice Stone in his dissent, joined by Justice Roberts and Justice Frankfurter,
argued that the falsity of a person’s claims of religious experiences can be ascertained
in certain circumstances. For instance, if the defendant claims that he had shaken
hands with St. Germain in San Francisco, but it turns out that he never went to San
Francisco, or if the defendant claims that he cured hundreds of people, but it turns
out that none of them were actually cured, then it is possible to conclude that the
claims were false.106
It is reasonable to argue that insincerity can be derived from certain actions of the
claimants, such as statements of their own, or statements to their friends and other
third parties, mentioning the real motive behind their action, or details of some form
of fraudulent activity or cover-up.107
If some claims can be shown to be patently false, without looking into religious
beliefs, such as the example cited by Justice Stone, where a person claimed to have
been in one city, but records show otherwise, then it is possible to attribute insincerity
to the claimants. At the same time, courts must be careful to avoid engaging in
99 Michael W McConnell, ‘Accommodation of Religion’ 1985 Sup Ct Rev 1, 37.

100 ibid.
101 Kent Greenawalt, Religion and the Constitution, vol 1 (Princeton University Press 2009) 110.
102 United States v Ballard 322 US 78 (1944).
103 John T Jr Noonan, ‘How Sincere Do You Have to Be to Be Religious’ (1988) U Ill L Rev 713,
715.
104 ibid at 716.
105 See Ballard (n 104) at 87.
106 ibid at 89.
107 Greenawalt (n 103) at 117.
292 A. K. Abraham
inquiries which may have an inseparable mix of spiritual elements. For instance,
if a person has claimed to heal hundreds of people, and those people he claimed
to have healed, dispute it and can disprove his claims through medical evidence,
then insincerity can be attributed to the claimant. However, if the people he claimed
to have healed believe that they have been healed or people believe that they have
witnessed miracles, there should not be any scientific inquiry to doubt their beliefs,
as it falls within the ambit of their spiritual belief.108
It has been suggested that actions inconsistent with the beliefs of the faith can
be a ground to infer insincerity.109 It is argued that if the actions of the claimant are
substantially inconsistent with the requirements of the religion, then the courts can
make this inference, thereby giving leeway to minor deviations.110
However, in some cases, it will be difficult for courts to determine thresholds to
conclude that a certain action is a substantial deviation, without inquiring into the
substance of the religious doctrines and scriptures, which they are not competent to
do so. Furthermore, followers of religion may struggle in abiding with requirements
sanctioned by the religion, even though they may strongly consider themselves to
be part of the religious order. For instance, a person may consider himself to be a
Christian, but may not consistently go to Church to engage in mass. If a law restricts
his ability to go to his Church and he challenges it as a free exercise restraint, his
inconsistency in going to Church should not be a ground to dismiss his claim as an
insincere one.
Courts have also looked at the history and the size of a religion to test the sincerity
of a claimant.111 In ISKON v Barber,112 the Second Circuit held that a believer’s
sincerity may be evaluated in light of a religion’s size and history, although it may not
be determinative.113 In Yoder, the Supreme Court did note that the Amish community,
aided by three centuries of their history, demonstrated sincerity in their beliefs.114
While history can buttress the sincerity of a free exercise claim, the absence of it
cannot be a basis to infer insincerity, as that would be discriminatory towards recently
formed religions, and it would be inconsistent with the US Constitution’s approach
in treating all religions equally.
If there are objective reasons to doubt a person’s sincerity, which does not involve
an inquiry into spiritual beliefs or person’s consistency in following the religion, such
as evidence to suggest that a person and his organization are secretly using money
raised for religious purposes for personal benefits115 or actions to take advantage of
108 ibid.
109 Stephen Senn, ‘The Prosecution of Religious Fraud’ (1990) 17 Fla St U L Rev 325, 342–334.
110 ibid.
111 Senn (n 111) at 345.
112 International Society for Krishna Consciousness, Inc v J Roger Barber 650 F.2d 430 (2nd Cir,
1981).
113 ibid at 441.
114 Wisconsin v Yoder 406 U.S 205, 235 (1972).
115 Senn (n 111) at 345.
tax exemptions or financial gains, without any basis to show any alternative religious
motivation, then it is reasonable to attribute insincerity to the claimant.
In United States v Quaintance,116 the defendants claimed exemption from the laws
penalizing the use of drugs, on the ground that they were members of the Church of
Cognizance, which believed in marijuana as a deity. However, the records showed
that members of the Church of Cognizance saw their marijuana purchase and sale
as being part of a business.117 This was sufficient evidence for the Court to dismiss
their arguments as being insincere.
Courts have also relied upon objective reasons to determine the sincerity of those
who claimed to be conscientious objectors to avoid being drafted into the military.118
For instance, the inconsistency in relation to the grounds cited for seeking exemption
from military service can be a ground to attribute insincerity, as was done in a case
in which a person first sought exemption as a farmer, then as a priest and later as a
conscientious objector.119
Sincerity can be evaluated on objective and extrinsic evidence in relation to a
petitioner’s behavior, actions and statements.120 It is similar to the concepts of ‘good
faith’ and ‘honesty’.121 While sincerity is always linked to a state of mind, an inquiry
of sincerity should avoid going into questions of religiosity, especially due to the lack
of consensus among legal, theological, and sociological scholars on the definition of
religion or religiosity.122
There is an overriding interest in preventing courts from evaluating the sincerity
of religious claims, because decisions approving certain religious claims while
discounting others, risk violating the establishment clause.123 Therefore, courts must
presume that free exercise claims are genuinely sincere, unless there is sufficient
objective evidence to rebut the presumption.
13.4 Interpreting Scriptures
The institutional competence of the judiciary to determine whether a free exercise

claim is actually rooted in religion, is the central debate in the discussions on the
centrality test and essential religious practices doctrine.
There is a perspective that secular courts are competent to determine the essence
of a religion and that they can consciously avoid conflating their personal beliefs,
116 United States v Quaintance, 608 F.3d 717 (10th Cir, 2010).
117 ibid at 722.
118 Kevin L Brady, ‘Religious Sincerity and Imperfection: Can Lapsing Prisoners Recover Under
RFRA and RLUIPA?’ (2011) 78 The University of Chicago Law Review. 1431, 1452.
119 ibid.
120 Lupu (n 54) at 954.
121 ibid at 957.
122 ibid.
123 Burwell v Hobby Lobby 573 US 682, 771 (2014).
294 A. K. Abraham
with their judicial analysis.124 Professor Magarian has argued that forbidding the
courts from determining the religious substance necessary for scrutiny under the
First Amendment, due to the fear of judicial encroachment into religion, would ‘kill’
the free exercise clause, because courts need to know whether a practice is truly
religious in nature in order to protect it.125 Professor Goldstein believes that the
judicial inquiry and determination of the content of a religious belief, is similar to a
court determining the contents of foreign law, he argues ‘courts are just as capable
determining what Judaism or Hinduism have to say as they are determining what the
laws of Israel or India are.’126
According to Goldstein, if there is a breach of contract claim by a nonreligious
service provider like a palm reader on the ground that the customer had refused to
pay for her services because the customer believes that the palm reading was not
conducted in the appropriate manner, the Court can decide whether the rules of palm
reading were followed by consulting treatises and expert witnesses, although it need
not pass a judgment on whether palm reading is true or not.127
Similarly, while a court cannot engage in theological questions as to whether a
certain religious belief is true or false, it has the institutional competence to deter-
mine the content of religious doctrines.128 This perspective forms the underlying
assumption behind the essential religious practices’ doctrine, in believing that the
essential features of a religion, or the canons of a religious belief, can be determined
through an analysis of scriptures.
The interpretation of religious scripture is, however, much more complex than
determining the technique of a service or understanding the working of a foreign legal
system. The study of religious scripture, forms an important aspect of hermeneutics,
which is principally understood as the study of principles of interpretation, rooted in
the Greek verb ‘hermeneuin’, which means ‘to interpret’.129 The complexity involved
in interpreting scripture can be deduced from Troeltsch’s explanation of the aspects in
determining the essence of a religion.130 First is the critical aspect in segregating the
essential from the non-essential.131 The second aspect is a developmental one, since
the religious belief would have taken different forms or interpretations throughout
various phases in history.132 An illustration of this phenomenon can be seen with
Mormonism, when in 1978, the Mormon Church discarded its 130 year old doctrine
124 Khagesh Gautam, ‘Protecting Free Exercise of Religion under the Indian and the United States
Constitutions: The Doctrine of Essential Practices and the Centrality Test’ (2014) 8 Vienna J on
Int’l Const L 305, 333.
125 Gregory P Magarian, ‘How to Apply the Religious Freedom Restoration Act to Federal Law
without Violating the Constitution’ (2001) 99 Mich L Rev 1903, 1960.

126 Goldstein (n 44) at 538.
127 ibid at 539.
128 ibid at 540.
129 Gregory Leyh, Dworkin’s Hermeneutics, 39 Mercer L. Rev. 851, 854 (1988).
130 ibid.
131 ibid.
132 ibid at 27.
of denying priesthood to those with black African ancestry, after the President of
the Church revealed that he had a revelation, allowing people of all races to become
Priests.133 Finally, there is the ‘ideal’ aspect looking at value bearing concepts, which
correspond to the present and the future.134 This would involve identifying the ethical
principles and moral beliefs prescribed by religion at a certain point of time and seeing
how it relates to present conditions and how it may be applicable in the future.
At the same time, there is no one size fits all approach for the employment of
scriptural interpretation for different religions. The authority of a text cannot be
divorced from a community. A text is only sacred or scripture, if a community or
group of people perceive it to be. What may be scripture for one group, may be
meaningless for another.135 Therefore, there can be different communities within a
religious tradition with varying interpretations on which texts or commands may be
considered canon or scripture.
One of the assumptions associated with the word ‘scripture’ is that it deals with
primarily a written phenomenon, often influenced by our understanding of the scrip-
tures of Abrahamic faiths.136 In theocentric traditions, scripture is primarily through
which God speaks to people, and there is a historical tendency for this communication
or speech to encompassed in one holy book. However, in nontheistic and semi theistic
traditions, scriptures are seen as record of teachings of sages and holy men, and in
such traditions the oral transmission of scripture takes on a greater significance.137
The emphasis on written words can gloss over the various features of ‘holy words’
which may have been transmitted orally. In fact, it is argued that individualized
readings were rare, before the advent of the printing press.138 This is exemplified by
various religious traditions in India, where there has been no consistent harmonious
construction of written words and orally transmitted ones, especially since many
scribes in India were considered to be people of lower social status, unlike scribes
in China.139
It may be possible for scriptures to form through a process of ‘crystallization’ of
texts and traditions, and there are certain scriptures in religions such as in Hinduism,
which have been ‘crystallized’ and are comparable with Abrahamic scriptures.
133 Armand L Mauss, ‘The Fading of the Pharaohs’ Curse: The Decline and Fall of the Priesthood
Ban Against Blacks in the Mormon Church’ (1981)14 Dialogue: A Journal of Mormon Thought
10,10.
134 Michael Pye, ‘Comparative Hermeneutics: A Brief Statement’ (1980) 7 Japanese Journal of
Religious Studies 25, 27.

135 Frank J Hoffman, ‘Evam Me Sutam: Oral Tradition in Nikaya Buddhism’ in Jeffrey R Timm
(ed), Texts in Context: Traditional Hermeneutics in South Asia (State University of New York Press
1992) 207.
136 Thomas B Coburn, ‘"Scripture" in India: Towards a Typology of the Word in Hindu Life’ (1984)
52 Journal of the American Academy of Religion 435, 436.

137 William A Graham, Beyond The Written Word: Oral Aspects Of Scripture In The History Of
Religion (CUP 1987) 68.

138 Coburn (n 138) at 437.
139 ibid.
296 A. K. Abraham
However, there are also sacred words, which are fairly open-ended.140 Thus, one
cannot approach religions such as Hinduism with a focus on the ‘writtenness’ of
words which are considered to be sacred.141
The complexity in interpreting scripture can be illustrated with various religious
beliefs in South Asia. The Hindu faith has multiple schools of philosophy, with
differing interpretations of sacred texts and traditions.142 While there is no single
Hindu holy book, there are multiple texts which are held to be sacred.
Bhartrhari, a celebrated Indian philosopher and grammarian of the fifth century
A.D,143 in his treatise on sentences and words, presents the Vedas as the resemblance
of the Brahman or absolute reality.144 It is the manifestation of the ‘sabda’ or the
‘ultimate word’, however, the ‘sabda’ refers to sound unlike the Greek notion of
the ‘logos.’ The Vedas contains speech, which is sacred in nature, as it is seen as
the sonic manifestation of reality, and this sacred speech is invoked through ritual
injunctions, mantras, and other rites. The one invoking Vedic speech is employing it
to bring about transformation in his status.145
For philosophers like Bhartrhari, the Vedas were not seen as texts for referential
purposes, like one may do with the Bible, rather it is seen in the context of its power.
Therefore, the focus is not just on what the Vedas say, but what it does. At the same
time, there are different approaches to the Vedas, for instance, as per the Mimasa
philosophy, one does not interpret the Vedas to understanding its meaning, it is viewed
as a collection of rituals and injunctions.146 At the same time, the Advaita-Vedanta
philosophy, interprets the Vedic texts, as providing a clear doctrine of what is the
ultimate reality.147
The understanding of the Vedas, as a body of injunctions and ritual chants, and
not as a referential text, like other scriptures like the Bible or the Quran, also raises
the issue of understanding ritual language. The concept of ‘ritual language’ has been
defined as the set of utterances, which has a nexus with the action of a ritual, it is
an inseparable combination of speech and conduct.148 Ritual language can be used
to convey ideas and messages; however, a semantic analysis of ritual language will
not be sufficient to understand its meaning. It is necessary to see it in the context of
actions, participants, objectives, and other symbols.149 The difficulty in determining
a collection of essential features or canons, can also be seen with the interpretation
140 ibid at 438.

141 ibid.
142 Theos Bernard, Hindu Philosophy (Motilal Banarsidass Publishers 1996) 7.
143 David Carpenter, ‘Bhartrhari and the Veda’ in Jeffrey R. Timm (ed), Texts in Context: Traditional
Hermeneutics in South Asia(State University of New York Press 1992)17.

144 ibid at 19.
145 ibid.
146 ibid at 20.
147 ibid.
148 Wade T Wheelock, ‘The Problem of Ritual Language: From Information to Situation’ (1982)
50 Journal of the American Academy of Religion, at 49, 50.

149 ibid at 51.
of the sacred texts of Jainism. Svetambar Murtipujak Jains believe in a ‘canon’,

consisting of forty-five texts known as the Agamas.150 The consolidation of the
forty-five agamas only came up in Jain literature around the thirteenth century, and it
has existed along with other important texts referred to as angabahyas.151 However,
there is a disagreement on which all texts constitute the angabahyas.152 Therefore,
it will be difficult for an adjudicating body to determine which all texts it must refer
to, in order to determine the authoritative beliefs and practices of Jainism.
Interestingly, it is said that most Jains are unaware of the various intellectual
positions on the different Jain texts. Even among, monks, there are only a few who
maintain the intellectual tradition, especially since many monks do not wish to pursue
further studies and prefer to live an austere life, and being involved in monastic
work.153 This raises a question, are the essential features of a religion to be derived
through a scholarly inquiry based on an objective analysis of the scriptures, or by
only looking at the common pool of knowledge shared by most believers?
Some religious traditions employ icons or signs, as functional equivalents to a
canon.154 One such example is the use of designs by the Walbiri people in Central
Australia. Through a set of two hundred and fifty designs, they convey ancestral
traditions.155 There are some even more complex systems, such as in the case of the
Senufo in West Africa, whereby they employ a set of fifty-eight figurines of humans
and animals, which are read through an oral interpretation during the rites.156
For some traditions, the canon is conveyed through divination. The Ndembu
people shake a basket with twenty-four objects and they are read by a diviner, to
determine the divine message.157 In such communities, what the divine commu-
nicates to the people through divination rites, instead of written scripture, may be
paramount to their belief and influences their conduct. It is possible to view these
divine revelations as forming the canon of their belief. However, it would be difficult
for an adjudicating body to determine the essential practices of a religion based on
ideas conveyed through divination.
It may be argued that the centrality of a religious belief can be determined through
the opinions of expert witnesses in a trial. Professor Goldstein, in his analogy in
comparing judicial determination of religious doctrine to the judicial determination
150 John E Cort, ‘Svetambar Murtipujak: Jain Scripture in A Performative Context’ in Jeffrey R
Timm (ed), Texts in Context: Traditional Hermeneutics in South Asia (State University of New York
Press 1992) 172.
151 ibid at 173.
152 ibid.
153 John E Cort, ‘The Intellectual Formation of a Jain Monk: A Śvetāmbara Monastic Curriculum’
(2001) 29 Journal of Indian Philosophy 327, 340.

154 Jonathan Z Smith, Imagining Religion: From Babylon To Jonestown (University of Chicago
Press 1982) 49.

155 ibid.
156 ibid.
157 ibid at 50.
298 A. K. Abraham
of foreign law, has argued that courts have determined the laws of theocratic countries,
which are influenced by religion through the assistance of experts on religious law.158
However, questions concerning religious interpretations are highly subjective and
ambiguous compared to questions concerning forensic science or accounting. It is
possible for parties to present opinions of religious scholars who have different
conclusions regarding an issue of religious interpretation, providing little guidance
for a judge to undertake her own analysis.
In 2006, the Florida District Court of Appeal, had to determine whether Islam
mandated women to wear a veil, in the context of whether a rule requiring a photo-
graph without any religious garb or veil for a driver’s license application, violated
the petitioner’s free exercise of religion.159 Professor Saif-Ul-Islam, an Imam and
an expert in Islam, presented his opinion to the court as expert witness for the peti-
tioner, citing passages from the Quran, mandating women to wear a veil, whereas the
state presented the Dr. Khaled Fadl, an expert in Islamic law, as their expert witness,
who argued that many Islamic countries allow exceptions to women using a veil, for
purposes of identification.160
The trial court adopted the explanation of the expert witness of the state, and this
was reconfirmed by the Fifth District Court of Appeal of Florida, which held that
requirement of removing the veil, was only an inconvenience and not a substantial
burden to the petitioner’s religious beliefs.161 However, the appellate court did not
provide any explanation as to why it adopted the expert opinion of Dr. Fadl, over the
opinion of Professor Ul-Islam.162 Therefore, even with the benefit of having expert
opinions, the subjectivity in interpreting religious scripture, increases the likelihood
of arbitrariness in judicial determination.
Religious traditions act as ethical guideposts in the daily lives of many adherents.
The interpretations of these traditions, including rituals and beliefs, are influenced by
ongoing political and economic practices, and are influenced by social discourse on
religious authority and legitimacy.163 While believers may incorporate the teachings
of religious authorities, precedents, and scriptures in their moral reasoning, they
may also interpret these sources to fill in the gaps in their own circumstances.164 A
judicial inquiry to identify the essentiality of a religion may not capture the intensely
held beliefs of adherents, which are products of their own moral reasoning. Such an
158 Goldstein (n 44) at 538.

159 Freeman v Department of Highway Safety & Motor Vehicles 924 So. 2d 48 (Fla Dist Ct App
2006).
160 Peter W Beauchamp, ‘Misinterpreted Justice: Problems with the Use of Islamic Legal Experts
in U.S. Trial Courts’ (2010) 55 NY L Sch L Rev 1098, 1111.

161 ibid at 1112.
162 ibid.
163 Cecelia Lynch, ‘A Neo-Weberian Approach to Religion in International Politics’ (2009) 1
International Theory, at 381, 400.

164 ibid.
inquiry fails to understand that not all forms of religious doctrines are given, they
are also lived, experienced, and seen in different ways.165
Given the complexity and ambiguity involved in the interpretation of religious
scripture, the pluralistic traditions within religious communities with a cornucopia
of differing interpretations, a myriad of contrasting understanding of the very concept
of scripture, and the lack of familiarity with hermeneutics, semiotics, and semantics
among judges, one can conclude that the judiciary is not institutionally competent to
interpret scriptures or to interrogate different religious expert opinions to determine
the substance or the essence of a religious belief.
13.5 Recommendations for Free Exercise Jurisprudence

in India
The free exercise jurisprudence in the United States has undergone different phases
and may be insufficient to address some of the modern cultural wars which are
increasing in American society. However, by discarding the centrality test and by
adopting a general level of deference to religious beliefs of individuals in determining
religious sincerity, the courts have been relatively successful in avoiding excessive
entanglement with religious questions in comparison with courts in India.
Through the Sherbet test and the RFRA-RLUIPA regime, the US courts have
focused on determining whether there is a compelling state interest to substantially
burden the free exercise of religion, and whether the state action is narrowly tailored
to the interest and if it is the least restrictive method available. The courts do not lay
much emphasis on ‘gateway’ doctrines such as sincerity or centrality to sieve out the
genuine and essential beliefs from pretentious claims or ancillary beliefs.
While the waters have been slightly muddied due to the extension of RFRA rights
and religious exemptions to corporations by the U.S Supreme Court’s judgment in
the Hobby Lobby case,166 the debate in the American jurisprudence on free exercise
will continue to revolve around whether the state action is a substantial burden on
free exercise and whether the state interest is compelling enough to override the free
exercise interest. Similarly, the courts in India also need to take the bull by the horns
in freedom of religion cases by looking at whether the state restrictions on religious
freedom is required to further constitutionally sanctioned interests.
The US constitution does not provide an exhaustive list of state interests which are
sufficient to override free exercise interests, and therefore, judges have had to carve
out compelling state interests based on different methodologies. However, the design
of the Indian Constitutions provides an advantage to courts in India, because Article
25 and Article 26 list the nature of state interests, which can override free exercise
interests. Article 25(1) and Article 26 state that the freedom of religion is subject to
public order, morality, health, and other fundamental rights listed in Part III of the
165 ibid.
166 Burwell v Hobby Lobby 573 U.S. 682 (2014).
300 A. K. Abraham
constitution. Article 25(2) (a) permits regulation of economic, financial, political,

and other forms of secular activity, even if it has a connection with free exercise
of religion. Any social justice measure to open Hindu institutions to all classes and
sections of Hindu society and for social welfare more generally, is a permissible
ground to restrict religious liberty.
Free exercise claims can be resolved by courts in India by analyzing whether
the state action burdening free exercise, fits within the exempted categories listed
in Article 25 and Article 26. For instance, the law challenged in Sastri for allowing
members of the Dalit community to enter the temple, against the religious beliefs of
the upper caste community, could have been upheld by relying on Article 25 (2)(b)167
which specifies social welfare and reform as interests which override the interest of
religious freedom, instead of determining whether or not the prohibition of entry of
Dalits into the temples, is an essential religious practice of the petitioners.
While this may lead to a situation where the courts may have to uphold state action
against a religious practice, which may be seen as essential to a community’s belief
system, it would involve less arbitrariness and entanglement with religion compared
to an essential religious practices analysis.
Nevertheless, there is a legitimate concern that this could lead to situation of a
majoritarian state trampling on the freedoms of religious minorities under the pre-
text of public order, morality, health or other fundamental rights. To address this
concern, courts can protect religious freedom by insisting on the narrow tailoring
of the state action to the aforesaid constitutionally specified exemptions to religious
freedom and by requiring that the state action is the least restrictive measure available
to the state to pursue the overriding interest.
The Indian jurisprudence on free exercise can also adopt the US standard of
sincerity in religious beliefs, which shows deference to a person’s claims about his
or her religious beliefs and practices, but at the same time enables the courts to
weave out false claims which can be determined through objective evidence before
the court.
While the essential religious practices test is a product of the good intentions
of the judiciary to prevent vested interests from making pretentious free exercise
claims for additional protection and with the desire to facilitate social reform within
religious communities, the manifest arbitrariness and inconsistency associated with
it, makes the test a threat to religious freedom in India. It disproportionately favors
organized and older religions and threatens minority rights and religious orders which
are relatively new and at a nascent stage of its development. A test which inevitably
leads to the excessive entanglement of secular courts with questions of religion is
incompatible with a constitutional democracy which views secularism and respect
for the freedom of religion as one of its main hallmarks.
167 Bhatia (n 33) at 366.

13.6 Conclusion
Free exercise jurisprudence in India and the United States are lacking in different
ways and remain chaotic. However, there is an important lesson Indian jurisprudence
can imbibe from the experience of the US free exercise regime, through the aban-
donment of the centrality of religion test and by laying emphasis on courts avoiding
excessive entanglement with religion.
Some scholars have tried to argue that courts are competent to determine questions
involving religion such as distinguishing a free exercise claim which is essential
to a religious belief, as opposed to those which are ancillary to religion and in
distinguishing between genuine and pretentious free exercise claims. However, due
to the complex nature of theological study and hermeneutics, it is clear that judges
are not competent to undertake such a task.
At the same time, when free exercise claims are made which may obstruct state
action which is necessitated by a compelling interest compatible with constitution in
letter and spirit, the courts are not powerless. The experience of the United States in
dealing with such claims can inform Indian jurisprudence in its future growth, while
at the same time molding doctrines in response to circumstances unique to India.
While Indian courts must produce a coherent and effective free exercise jurispru-
dence to deal with future claims which are likely to arise with the increasing cultural
wars and with the increasing regulation of society by the state, it is necessary to
have a stable foundation for free exercise jurisprudence, which is compatible with
secularism, as enshrined in the Constitution of India. In this regard, I submit that the
essential religious practices test must be abandoned by the courts as soon as possible.
Chapter 14
Public Interest Litigation and Grievance
Redressal: Combining
‘Macromanagement’
and ‘Micromanagement’ for Effective
Socio-Economic Rights Adjudication
Florian Matthey-Prakash
Abstract During its tenure from 2004 to 2014, the UPA government introduced
several pieces of legislation promising a multitude of services to Indian citizens as
‘rights’. While the wording of ‘rights’ has a very positive ring to it, merely formu-
lating such rights or entitlements does not lead to tangible results in practice. As these
rights are based on fundamental rights, either explicitly or implicitly (through exten-
sive reading of the right to life) guaranteed by the Indian Constitution, they must
also be enforceable in India’s courts in practice. Otherwise, they remain ‘rights’
only on paper. Unfortunately, the Indian higher judiciary is virtually inaccessible
for those parts of the society that these rights are actually aimed at. However, the
rights legislations of the first two decades of the 2000s do provide alternative means
of enforcement, called grievance redressal mechanisms. This article examines these
mechanisms and argues that decisive structural changes need to be made to make
them effective, and that the judiciary could help in making these changes through
Public Interest Litigation. Having functioning grievance redressal mechanisms ‘at
the bottom’ and the high courts and the Supreme Court ‘at the top’ could then allow
a system of ‘micromanagement’ and ‘macromanagement’ at the two levels that has
decisive benefits for socio-economic rights adjudication, both in India and elsewhere.
14.1 Introduction
In the first couple of decades of the current millennium, the Indian government
has employed a strategy of a ‘rights-based approach’, creating several pieces of
legislation formulating services to be provided by the state as rights, or entitlements,
The arguments made in general terms in this article were first made more specifically for the right
to education in the author’s book The Right to Education in India: The Importance of Enforceability
of a Fundamental Right (OUP 2019).
F. Matthey-Prakash (B)
Bad Vilbel, State of Hessen, Germany
304 F. Matthey-Prakash
to its citizens. This approach built upon several decades of the Indian Supreme
Court reading a multitude of socio-economic rights into the fundamental right to life
(Article 21 of the Indian Constitution).
Socio-economic rights adjudication in India is also inextricably linked with Public
Interest Litigation (PIL). That is not a surprise, considering that socio-economic
rights are primarily aimed at those for whom India’s Supreme Court and the high
courts are inaccessible. The courts’ inaccessibility was, in fact, the reason why the
judiciary ‘invented’ Public Interest Litigation in the first place.
While Public Interest Litigation may be effective for socio-economic rights adju-
dication in some contexts, it does have one shortcoming that is both decisive as
well as inherent: It does not provide the poor with means to effectively claim their
socio-economic rights from the State. Instead, they are dependent on Human Rights
Advocates, Non-Governmental Organisations (NGOs) or other empowered groups
taking up rights causes in their place.
However, giving right-bearers tools to enforce their rights themselves may put
them in a position where they can force the State to provide services on the ground
swiftly and effectively. For instance, in the context of the right to education, parents
could ensure that education is provided effectively to their children in their own
neighbourhood, with teachers fulfilling their duties regularly, and the State providing
the infrastructure that is required for that neighbourhood’s children.
Public Interest Litigation, on the other hand, tends to focus on the ‘bigger picture’,
by calling for more state investment in education or reforms of educational policies
or laws designing the education system. The neighbourhood school may eventually
profit from such reforms as well, but much more indirectly and slowly than if direct
orders were given at the local level.
This chapter argues that a combined approach of employing Public Interest Litiga-
tion for larger policy issues ‘at the top’, i.e. for ‘macromanagement’, as well as adju-
dication for on-the-ground issues, i.e. ‘micromanagement’, may be most promising
for effective socio-economic rights enforcement.
In fact, at the lower level, some means for ‘micromanagement’ adjudication
do exist, but they remain under-developed and understudied. These means include
the grievance redressal mechanisms that the State provides for concerning service
delivery under several central and state legal regimes. Strengthening them may truly
empower right-bearers, but also help the State in effectively providing the services
that it has been promising for several years through a ‘rights-based approach’. PIL
may play an important role in this process, as the civil society could bring forward
PIL petitions calling for reforms of grievance redressal mechanisms.
This chapter shall first highlight why Public Interest Litigation is not a sufficient
tool to adequately compensate for lack of access to justice, as it does not provide
real legal empowerment to all of India’s population. While there are no courts below
the higher judiciary that are empowered to adjudicate fundamental rights matters,
grievance redressal mechanisms may constitute non-judicial bodies that may provide
some compensation for lack of access to justice. The second part of this article will
therefore look at these mechanisms more closely—and also identify their shortcom-
ings. The article will then proceed to show how PIL can be used to remedy these
14 Public Interest Litigation and Grievance Redressal … 305
shortcomings, and how grievance redressal mechanisms and PIL may then work
hand-in-hand for a system of socio-economic rights adjudication that could even be
more powerful than a more accessible higher judiciary could be.
14.2 Why Public Interest Litigation Is not Sufficient: The

Importance of True Legal Empowerment
The Indian Constitution guarantees Fundamental Rights by making them justiciable.

The provisions that ensure their enforceability in court, articles 32 and 226, are, in
fact, considered to be Fundamental Rights in themselves.1 But, as it is often the case,
the promise made by the constitutional text is quite distant from reality, at least for
the majority of the Indian society.
When studying Fundamental Rights adjudication in India, one quickly realises
that India’s higher judiciary is anything but easily accessible for most of the Indian
society.2 Hardly any cases are brought to the Supreme Court or the high courts by
India’s poor. In the vast majority of cases, petitioners are either relatively affluent or
they approach the courts with PIL petitions.3
Lack of access to justice was, after all, the motivation behind the ‘invention’ of
PIL in the first place.4 However, relying entirely on PIL is not the right solution in
1 Mahabir Prashad Jain, Ruma Pal, and Samaraditya Pal, Indian Constitutional Law, 6th edition
(LexisNexis Butterworths Wadhwa Nagpur 2010), 1430; H.M. Seervai, Constitutional Law of India:
A Critical Commentary (4th edn, N.M. Tripathi; F.H. Seervai; Distributors, Universal Law Pub Co
1991–1996) 1449.
2 The reasons for lack of access to justice to the higher judiciary are actually, surprisingly, under-
studied; there appear to be no thorough empirical studies on why exactly poorer citizens do not, and
probably cannot, litigate in India’s Supreme Court and high courts. There is, however, a thorough
study on India’s lower judiciary, see Jayanth K. Krishnan et al., ‘Grappling at the Grassroots: Access
to Justice in India’s Lower Tier’ (2014) 27 Harvard Human Rights Journal 1. On the question to
what extent this study’s findings may be transferable to the higher judiciary, see Florian Matthey-
Prakash, The Right to Education in India: The Importance of Enforceability of a Fundamental Right
(OUP 2019) 217 et. seq.
3 See Florian Matthey-Prakash (n 2), 205 et. seq. for a study on cases concerning the right to educa-
tion (such cases that mention Article 21A of the Indian Constitution, which, since its introduction
in 2002, has elevated free and compulsory education to the status of a fundamental right). The
findings are that no cases raised in the Supreme Court were raised by affected children or their
parents themselves. Even in the somewhat accessible Delhi High Court, the vast majority of cases
were raised by educational institutions, teachers, or persons acting in public interest.
4 The reasons given in famous PIL cases clearly shows that its primary goal was to compensate for
lack of access to justice for the poor. See, for instance, the Asiad case, in which Justice Bhagwati
declared that ‘a new dimension’ had been given to the concept of locus standi, and that this dimension
had ‘revolutionised the whole concept of access to justice in a way not known before to Western
Systems of jurisprudence’. Because of widespread ‘poverty, illiteracy, and ignorance obstructing
and impeding accessibility to the judicial process’, it was necessary to ‘evolve a new strategy’ so that
‘justice may become easily available to the lowly and the lost’, see People’s Union for Democratic
Rights v Union of India 1982 AIR 1473.
order to solve the access to justice problem. In spite of the institutionalisation of PIL
to provide justice to the poor, the choice of PIL petitions entertained by the Supreme
Court has led to some scholars observing an ‘anti-poor bias’ in the past few decades,
noting that there are signs that judges, when selecting which cases shall be heard
and decided upon, choose those that they believe to be of the highest importance
themselves, rather than those that may be most pressing for the most vulnerable
sections of society for whom the PIL mechanism was supposedly created.5
Even more importantly, PIL does not directly provide the poor with means to use a
legal system for solving their own most pressing issues.6 Instead, PIL is a mechanism
through which more affluent parts of the civil society—like NGOs or human rights
advocates—may raise issues affecting the society as a whole, especially the poor, in
court. For this to be successful, the poor are dependent on the affluent parts of the
society recognising their issues and must hope that the issues that they themselves
consider most pressing may also be prioritised by those who may take up their cause.
As a rights-based approach to development is meant to empower the rights-
bearers,7 one may raise the question whether those who have rights but are dependent
on others taking up their cause through PIL or other means, rather than being able to
exercise their rights themselves, are truly ‘empowered’. One may argue that people
will only really experience rights as personal, individualised entitlements if one also
has a realistic chance of claiming those rights from the State, which is obliged to
protect and provide the rights to its citizens.8
5 Balakrishnan Rajagopal, ‘Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian
Supreme Court from a Social Movement Perspective’ (2007) 8 Human Rights Review 3, 157–186.
Similarly, Shukla observes that ‘from the beginnings of PIL as pro-poor and trying to effectuate
rights for the exploited, it is increasingly taking a diametrically opposite direction’ (see Rakesh
Shukla, ‘Rights of the Poor: An Overview of Supreme Court’ (2006) XLI Economic & Political
Weekly 35). Thiruvengadam agrees insofar as that ‘the Indian Supreme Court has, in a process that
began in the 1990 s and has continued across the 2000 s, transformed the nature of PIL, turning
away, in several cases, from concerns it embraced in its original phase’ (see Arun Thiruvengadam,
‘Revisiting the Role of the Judiciary in Plural Societies (1987): A Quarter-Century Retrospective
on Public Interest Litigation and the Global South’, in Sunil Khilnani et al. (eds), Comparative
Constitutionalism in South Asia (OUP 2013) 356.
6 Ineke van de Meene and Benjamin van Rooij, Access to Justice and Legal Empowerment: Making
the Poor Central in Legal Development Co-Operation (Leiden University Press 2008) 14.
7 See, for instance, UNDP, ‘Programming for Justice: Access for All—A Practitioner’s Guide to a
Human Rights-Based Approach to Access to Justice’ (2005) https://www.un.org/ruleoflaw/files/

Justice_Guides_ProgrammingForJustice-AccessForAll.pdf accessed 29 December 2020. Legal
empowerment of the poor means that there needs to be a ‘focus on the lack of power, opportu-
nities and capabilities that impede poor and marginalised people’s use of law and (para) legal tools
to take control of their lives and improve their livelihoods’, see Ineke van de Meene and Benjamin
van Rooij (n 6) 6–7.
8 Consequently, even though the right to free and compulsory education has been a fundamental
right explicitly added to the constitutional text, it appears that to most Indian parents, education
is still not seen as a service that the State must provide at acceptable quality. Rather, education is
seen as a service that one must pay for if one expects a certain amount of quality, with even some
poorer parents sometimes stating that government schools are ‘meant for the poor’ (i.e. those who
are even poorer than themselves, who can at least afford some sort of low-cost private school), see
Florian Matthey-Prakash (n 2), 259 et seq., quoting Anuradha De, Probe Revisited: A Report on
It is obvious that the issues considered most pressing for a poor person in rural
India or living in a poorer neighbourhood in an Indian city may not appear equally
pressing at the state or national level. To use an example in the field of education,
parents may wish that more teachers get employed in their children’s school, or that
the performance of the teachers who are already there are checked. In fact, a village
that has one school that has very few teachers may be greatly affected if only one
teacher is frequently absent—which is still a pressing issue in India’s elementary
schools today.9 An NGO taking up the cause of teacher absence as a PIL petition
would most likely not petition seeking an order against that particular teacher for
lack of performance, or that an additional teacher shall be appointed in that particular
village’s school. Rather, it would call for a change in policy to more generally address
the issue of teacher absence. If that PIL is successful, many schools and villages
would of course profit from that success. But it is a much more complicated and
time-consuming process, the result of which would most likely come too late for
the children for whom every day without proper education is highly problematic.
Appointing another teacher in one village’s school for the following school year or
taking disciplinary action against a teacher who is not performing their duty, on the
other hand, may lead to an on-the-ground effect in that particular village much faster.
But even when considering the state or the national level, truly empowering rights-
bearers with means to claim their rights may be highly beneficial. If, for instance,
district courts were empowered to adjudicate fundamental rights matters,10 and if
they were sufficiently accessible for the poor, then the State could, by analysing
adjudication statistics, observe to what extent its services are delivered to its citi-
zens properly, and which issues are most pressing on the ground. It has been argued
that courts may thus be seen as an ‘alarm bell’ highlighting implementation short-
comings,11 and that citizens—not just in India—may be ‘mobilised’ to ensure rights
implementation down to the lowest possible level through adjudication.12 However,
for this ‘mobilisation’ and ‘alarm bells’ to really function properly, access to justice
truly needs to be provided down to the lowest levels.
In spite of the issue of access to justice in India, such ‘alarm bells’ do already exist.
They are also more accessible than the higher judiciary—but they are not sufficiently
Elementary Education in India (OUP 2011) 51: ‘The discourse commonly heard during the village
studies was that government schools are ‘bad’ and meant for low-caste and poor children only’. A
similar effect may be observed concerning other services as well, particularly in the field of health
care.
9 On the issue of teacher (and also student) absence and its detrimental effect on the Indian education
system, see Florian Matthey-Prakash (n 2), 29 et seq.

10 Article 32(2) says that they may be empowered to do so, but they have not been as of now, which
will be discussed in more detail below.

11 Nick Robinson, ‘Closing the Implementation Gap: Grievance Redress and India’s Social Welfare
Programs’ (2015)53 Columbia Journal of Transnational Law 2, 360. For the process of ‘fire
alarm monitoring’ through grievance redress, also see Varun Gauri, ‘Redressing Grievances and
Complaints Regarding Basic Service Delivery’ (2011) http://elibrary.worldbank.org/doi/pdf/10.
1596/1813-9450-5699 (accessed 28 June 2020) 5.
12 Johannes Masing, Die Mobilisierung des Bürgers für die Durchsetzung des Rechts: Europäische
Impulse für eine Revision der Lehre vom subjektiv-öffentlichen Recht (Duncker & Humblot 1997).
loud for aggrieved persons to make themselves be heard. The ‘alarm bells’ are not
actual courts, but a system that may provide some compensation for lack of access
to justice: grievance redressal under India’s service delivery acts.
14.3 Grievance Redressal Mechanisms: A Potential

Compensation for Lack of Access to Justice?
To an extent, the grievance redressal mechanisms emulate a ‘judicial’ system, with

original and appellate ‘jurisdiction’. For instance, under the Right to Education Act,
any person having ‘any grievance relating to the right of a child under this Act may
make a written complaint to the local authority having jurisdiction’ (Section 32(1)).
The ‘local authority’, which serves as the body having original ‘jurisdiction’, shall
then decide within three months ‘after affording a reasonable opportunity of being
heard to the parties concerned’ (Section 32(2)). Any person aggrieved by the decision
of the local authority may then appeal to the State Commission for Protection of Child
Rights (Section 32(3)). In addition to that, the State and National Commissions for the
Protection of Child Rights also have original jurisdiction to inquire into complaints
and take suo motu notice of child rights violations (Section 13(1)(j)). When exercising
inquiry powers, the commissions have ‘all the power of a civil court trying a suit
under the Code of Civil Procedure’ (Section 14(1)).13
However, when comparing the system under the Right to Education Act against
an actual judicial system, one quickly realises that it is lacking in two important
respects: At the ‘local authority level’, it does not provide for sufficient impartiality
and independence of the decision-makers, as the ‘local authorities’ are part of the
administration that is responsible for implementation (or lack thereof) of the Right to
Education in the first place.14 At the ‘commissions level’, on the other hand, a larger
degree of impartiality and independence may be expected, as the commissioners
are selected for fixed terms, receive a fixed salary, and are chosen for the task of
monitoring implementation of child rights in the first place. But the members of the
13 A similar system has been created by the National Food Security Act, 2013 (with the ‘local
authority’ being a designated District Grievance Redressal Officer, and the appellate body being
the State Food Commission), for instance.
14 The degree varies in different states, as some states have followed a central government advisory
suggesting that ‘grievance redress local authorities’ should be kept separate from ‘implementing
local authorities’, see Florian Matthey-Prakash (n 2), 296 et seq., where an overview of the solutions
employed by the states is given. This issue could have been avoided by clearly defining responsi-
bilities in the Right to Education Act, rather than merely using the term ‘local authority’ for both
implementation as well as grievance redressal authorities.
commissions are not equipped with sufficient powers as far as the actual decision-
making is concerned, as their decisions are mere recommendations.15 They have no
means of actually enforcing them, at least not themselves.16
Under the Right to Education Act, it appears that the lack of decision-makers who
are both sufficiently independent and sufficiently empowered to pass binding orders
also translates into a lack of effective grievance redressal in practice. While the work-
ings of the right to education grievance redressal mechanisms remain understudied,
one thorough study in the state of Karnataka has found that in spite of the Karnataka
State Commission’s lack of powers for enforcing its decisions, parents still regularly
approach the Commission directly, without first trying to navigate through the non-
transparent ‘local authority grievance redressal system’.17 The Commission, aware
of its lack of legal authority, then chooses to employ ‘popular’ mechanisms like
public hearings to raise awareness. However, such hearings have the disappointing
outcome that the cases brought before the Commissions are ultimately not effectively
resolved.18
The experience with other service delivery acts, like several Indian states’ Public
Services Acts, has also been mixed. These acts appear to have improved the state
governments’ performance in providing services to its citizens, but the grievance
redressal mechanisms were not the decisive aspect in this, but rather the step of
formalising service delivery in the first place.19 Also, one may point out that India’s
Human Rights Commissions share the lack of legal authority with the Child Rights
Commissions, meaning that those Commissions that are empowered to inquire into
human rights violations more generally can also not issue any binding orders.20
However, grievance redressal can be designed more effectively, and also work
more effectively in practice. The example of the Right to Information shows that
having somewhat independent and somewhat legally empowered decision-makers
can make a big difference in a system that is still accessible.
The Right to Information Act imposes upon every public authority the obligation
to designate Public Information Officers in all administrative units or offices under
it (Section 5(1, 2)). Any person may then request information from these Public
15 See Sections 13, 14, and 24 of The Commissions for Protection of Child Rights Act, 2005.
16 The only enforcement mechanism they have is initiating litigation themselves by referring a case
to the higher judiciary. This, however, generally does not happen in practice, perhaps in part of a
lack of financial means of the commissions to follow through with litigation, as a former member
of the National Commission of Child Rights has pointed out in an interview with the author. For
more on this, see Florian Matthey-Prakash (n 2), 314 et seq.
17 Malini Bhattacharjee and Dolashree Mysoor, “Unredressed’ Grievances under RTE: Navigating
the State Labyrinth’, (2016) 29 Governance: An International Journal of Policy, Administration,

and Institutions 1, 44.
18 ibid at 40 et seq. for several examples of how seemingly ‘resolved’ cases ultimately led to
disappointment.
19 Robinson (n 11) at 10.
20 See Sect. 18 of the Protection of Human Rights Act, 1993. Similarly, the State Food Commissions
may also only ‘give advice’ to the State Government when dealing with grievance appeals, see
Sect. 16 of the National Food Security Act, 2013.
Information Officers (Section 6(1)). If the officers do not provide the requested piece
of information within a maximum of thirty days of the receipt of the request, they
are ‘deemed to have refused the request’ (Section 7(2)).
Similar to the grievance redressal system created by the Right to Education Act,
the Right to Information Act also provides the possibility of appeal if information is
not provided. The appellate bodies are the State and Centre Information Commissions
(Section 18).
However, the decisive difference in comparison with other such commissions,
such as the Child Rights Commissions, the Human Rights Commissions or the State
Food Commissions, is that the Information Commissions are able to impose penalties
(currently of up to 250 Rupees per day on Public Information Officers that have
refused a request, see Section 20).
This power given to the Information Commissions has proved to be so effective
that the Right to Information system, which has been designed to ‘only’ provide
citizens with information available to the administration, has been used frequently to
ensure that the government provide many different kinds of services to its citizens:
Inquiries into why certain services have not been provided has, in many cases, resulted
in the government actually providing these services.21 A study in Delhi has found
that filing a Right to Information request was almost as successful as paying a bribe
in acquiring services from the government.22
One may predict that giving such ‘teeth’ to grievance redressal systems like the
one created by the Right to Education Act may be even more effective, as citizens
would not have to use the ‘detour’ of asking for information about why a service has
not been provided (for instance, why funds that had already been allocated were not
used to create a new school building or whether or not there had been disciplinary
measures against an absent teacher). Instead, they could petition for the service to
be provided directly, with the possibility of bureaucrats (or, in the case of education,
teachers) being fined or otherwise punished if they do not fulfil their duties.
Unfortunately, while the powers of the Information Commissions have remained
in place, the Right to Information system has recently been weakened by the Right to
Information (Amendment) Act of 2019. The amendment limits the independence of
the commissioners by providing that their terms shall henceforth not be fixed to five
years but may be as long ‘as may be prescribed by the Central Government’. A former
Chief Information Commissioner believes that these changes weaken democratic
institutions as ‘the RTI Act thus far has proved to be the strongest and most effective
21 Robinson cites Shrinivasan, who reports that ‘for common people, especially slum dwellers,
RTI applications have become a means to access basic government services’ (see Rumini Shrini-
vasan, “Paper Power’, Times of India’ The Crest (India 2013) https://web.archive.org/web/201604
17132947, http://www.timescrest.com/society/paper-power-10113 accessed 28 June 2020, cited in
Robinson (n 11) at 344.
22 ‘While bribery still appears to be the fastest way to obtain the desired public good, the RTIA
is nevertheless impressively effective. […] [R]ecourse to the RTIA is considerably more effective
than standard application procedures and is almost as effective as bribery’ (see Leonid Peisakhin
and Paul Pinto, ‘Is Transparency an Effective Anti-Corruption Strategy? Evidence from a Field
Experiment in India’ (2010) 4 Regulation & Governance 3.
tool ordinary citizens possess to hold accountable the powers that be’ (emphasis
added)23 —a strong statement that underlines how important it is to have decision-
makers in grievance redressal systems who are both independent and powerful in
order to achieve a necessary degree of accountability.
14.4 Grievance Redressal and Public Interest Litigation

for Micromanagement and Macromanagement: The
Way Forward
Considering that the single most powerful tool for holding the government account-
able for lack of service delivery has been curtailed by the current government, the
hope that service delivery acts will be altered by the legislature to make grievance
redressal mechanisms more powerful may be quite limited.
However, there is another institution that may step into make grievance redressal
more effective, and thus further the legal empowerment of the poor and provide
effective access to justice to them: the higher judiciary. While the higher judiciary
itself remains inaccessible, it could be approached through the PIL route to examine
the provisions creating grievance redressal mechanisms and measure them against
the constitutional promise of access to justice for each and every Indian citizen, as
provided by articles 32 and 226.
In other words, while PIL itself may not provide access to justice for the poor, it
can—and, as I argue, should—be used as a tool to improve the existing systems that
do have the potential to provide such access to justice ‘on the ground’. Therefore,
institutions that have been using PIL to call for changes ‘at the top’ should continue
using this tool, as it is adequate to raise larger national or state-level policy issues
for such ‘macromanagement’. In addition to that, however, they should also use it to
call for policy changes that may allow ‘micromanagement’ at the ‘bottom’ so that
everyday grievances of citizens may be addressed more quickly.
Even though the Supreme Court may, when deciding such a petition, not give
such specific orders that the Human Rights Commission, the State Child Rights
Commission or the State Food Commission must be empowered to impose fines
on underperforming officials, there is a compelling legal argument for the judiciary
passing orders by which grievance redressal mechanisms shall be improved and made
more effective, without the Supreme Court transgressing its position in the division
of powers system.
As mentioned above, articles 32 and 226 of the Indian Constitution, which guar-
antee enforceability of fundamental rights in the high courts and the Supreme Court,
are considered to be fundamental rights in themselves. In fact, Ambedkar, who was
23 Shoumojit Banerjee, ‘Centre’s decision to bring amendments to RTI Act draws criticism
from activists’, The Hindu (India 2019) https://www.thehindu.com/news/states/centres-decision-to-
bring-amendments-to-rti-act-draws-criticism-from-activists/article28629973.ece accessed 28 June
2020.
at the time the Chairman of the Constitution Drafting Committee and who is by many
considered to be the ‘father of the Constitution’, stated that Article 32 was the most
important article of the entire Constitution.24 Consequently, the Supreme Court has
also elevated judicial review as guaranteed by articles 32 and 226 as being part of
the ‘basic structure’ of the Constitution, meaning that these provisions cannot be
removed by means of constitutional amendment.25
But the promise that articles 32 and 226 make to Indian citizens is not fulfilled
by providing writ adjudication merely in theory, with only a very small number of
more privileged persons being able to use that system in practice.
In fact, articles 32 and 226 are considered to be fundamental rights in them-
selves, and that fundamental rights impose a duty on the State to actively fulfil these
rights, the Indian State is obliged by its Constitution to facilitate access to justice in
practice.26 And while access to justice is particularly important for socio-economic
rights, which require that the State become active to provide benefits to its citizens, it
is ultimately a necessity for the enjoyment and protection of all rights, as the State is
obliged to ‘establish a system of courts, […] and to establish a system of safeguards
against potential abuses of rights by state officials themselves’.27
Generally, if the State has an obligation to provide services (whether it is education,
health, food, or access to justice as a means to claim education, health, or food), it is up
to the State to decide how to provide these services. What measures and mechanisms
it chooses are generally policy decisions that are best made by the executive and the
legislature.
In order to facilitate access to justice, the State has many options to choose from.
Perhaps the most obvious one would be providing free legal aid to those who cannot
afford to travel to the city of their High Court or to the Supreme Court in Delhi for
hearings and following up on petitions themselves, and who cannot afford to have
advocates do such work for them.
In fact, free legal aid does exist in India—but, again, merely on paper. Article 39A
of the Constitution, a Directive Principle, calls for the State to ‘provide free legal aid,
by suitable legislation or schemes or in any other way, to ensure that opportunities
for securing justice are not denied to any citizen by reason of economic or other
disabilities’, and the Legal Services Authorities Act of 1987 does in fact state that
24 Without it, he said in the Constitutional Assembly, the Constitution ‘would be a nullity’, see
Constituent Assembly Debates, Vol VII, https://web.archive.org/web/20180205040135/https://par
liamentofindia.nic.in/ls/debates/vol7p23.htm accessed 28 June 2020.
25 L. Chandra Kumar v Union of India 1995 AIR 1151.
26 On the doctrines of ‘respect, protect, fulfil’ see Asbjørn Eide, ‘Economic, Social and Cultural
Rights as Human Rights’, in Asbjørn Eide, Catarina Krause, and Allan Rosas (eds) Economic,
Social and Cultural Rights. A Textbook (2nd edn, Martinus Nijhoff 2001) 23–4. The obligation to
fulfil does not only concern socio-economic rights, but, at least by a more modern understanding,
all rights, because ultimately, it is not possible to strictly distinguish in between several categories
of rights. For more on this, see Florian Matthey-Prakash (n 2), 125 et seq.
27 Philip Alston, International Commission of Jurists, ‘Development and the Rule of Law:
Prevention Versus Cure as a Human Strategy’ (1981) 31 Human Rights and the Rule of Law
51.
persons from economically weaker sections of the society (as well as all women
and children, irrespective of their economic capacity) are entitled to free legal aid.
However, the legal aid system is virtually non-existent in practice, so much that there
are no studies on its practical performance, as there is no actual system that could be
studied.28
There are, of course, other solutions as well. PIL is one of them, but, as described
above, it does not fully compensate for lack of access to justice because it does not
provide access to rights-bearers themselves. Another one would be empowering the
lower judiciary (the district courts) with fundamental rights adjudication—which, as
mentioned above, is named by the Constitution itself as a possibility (Article 32(3)
states that Parliament may empower ‘any other court’ to exercise the powers given
to the Supreme Court within that court’s jurisdiction) but has not been chosen as a
way forward to date.
Other options could be creating specialised fundamental rights tribunals or
empowering alternative forums such as Lok Adalats, but these are also options that
the government and legislature have not (yet?) chosen as measures to facilitate access
to justice.29
What the State has done is creating grievance redressal mechanisms and Commis-
sions that have some court-like powers, albeit without the power to enforce their deci-
sions (apart from the Right to Information system, as mentioned above). It appears
that, as of now, this is the legislature’s primary choice to provide enforcement mech-
anisms to rights-bearers as an alternative to directly approach the Supreme Court and
the high courts, which, to them, is an option in theory more than in practice. There-
fore, there are good reasons to argue that the Supreme Court would not transgress
too much into the sphere of the legislature if it examined the performance of these
grievance redressal mechanisms against the ideal of facilitating true access to justice.
As explained above, it would then find serious institutional shortcomings that need
to be addressed through concrete changes in the institutional setup.
If NGOs, human rights advocates and other civil society groups succeeded in
petitioning for the required changes in the grievance redressal systems (making sure
that the decision-makers are both independent and empowered to enforce their deci-
sions), the result could be a system that may be quite powerful for fundamental rights
enforcement. Even though the result would be a system that would have been born
out of necessity, because the system created by the Constitution is not working as it
should, it may actually ultimately function better than that original system would if
that original system had performed well from the beginning.
28 Maurali Karnam of Tata Institute of Social Sciences explained in an e-mail exchange with the
author (10 June 2016) that ‘[m]ost of the legal aid at present is only at advisory level and at litigation
it is very poorly organized even for prisoners’. He had done ‘a preliminary study on how much of
legal aid is provided to victims of domestic violence but it was almost nothing […] Only semblance
of legal representation is provided in case of prisoners’. With the situation being this precarious,
‘[n]obody tried to study a system that does not exist in practice’, see Florian Matthey-Prakash (n
2), 233.
29 For an overview of these options and how they have not been chosen as an option by the
government, see Florian Matthey-Prakash (n 2), 270 et seq.

If the society were provided with both functional grievance redressal mechanisms
and the mechanism of Public Interest Litigation (which, as mentioned above, is also
an invention born out of necessity), then both mechanisms could be used strategically
for what they can do best—‘micromanagement’ at the bottom and ‘macromanage-
ment’ at the top, as mentioned above. If such a system worked as desired, it could
even be a role model for other jurisdictions, and not just in the ‘Global South’.
Grievance redressal mechanisms could be used primarily for everyday grievances
that require swift and relatively simple remedies—a teacher not performing their
duties, a child not being allowed to attend school or to receive Mid-Day Meals in
the school, a labourer not receiving benefits promised by the MG National Rural
Employment Guarantee Act, a family not receiving adequate quality or quantity
of food according to the National Food Security Act, or simply a public official
discriminating against a person or a family on ethnic or religious or other grounds
when providing (or not providing) any public service. If such grievances are not
redressed at the first instance level (perhaps also because of a lack of impartiality
and/or independence of the decision-maker), the aggrieved person could then appeal
to the higher ‘Commissions level’. The prescription of a time limit, like the thirty
days to provide information in the Right to Information regime, could ensure that
cases do not remain pending for too long at the level of first instance.
With ‘quasi-litigation’ happening through the grievance redressal systems, some-
thing like ‘case law’ could also develop at the ‘Commissions level’.30 As the Commis-
sions are bodies in each state, their decisions could constitute meaningful precedents
that public officials could follow whenever grievances would be filed again in the
future. It would also help in defining the contents of service delivery legislation—
though, of course, actual legally binding precedent and actual case law would have
to remain a domain of the courts.
As mentioned above, rights commissions are also empowered to approach courts
themselves in order to litigate on a rights-bearer’s behalf—albeit this does not usually
happen in practice, possibly because of a lack of funding and personnel that is
required to litigate effectively. However, even if the Commissions were empowered
to enforce their own decisions by imposing fines or other disciplinary measures
against government officials, being able to litigate could still be important, because
the cases that the commissions have to decide might ultimately concern issues that
require ‘macromanagement’.
For instance, if a school in a village does not have the prescribed number of
teachers, this might be due to budgetary restraints, and not necessarily unwilling-
ness of some public official to appoint another teacher for that school. The root of
this problem cannot be resolved locally, as it requires more far-reaching budgetary
decisions at the state or even the national level
However, if the state or central government refuse to allocate more funds to
elementary education even though higher funding is clearly required to achieve an
adequate pupil/teacher ratio, and even though such funding would be available, this
may still constitute a violation of constitutional and/or international human rights
30 For more on this argument, see Florian Matthey-Prakash (n 2), 351 et seq.
obligations.31 Therefore, a high court or the Supreme Court could require the state
or central government to re-allocate funds according to constitutional or interna-
tional obligations, and the issue may be raised by a rights commission that has cases
pending that highlight the effect of lack of funding ‘on the ground’ in that respective
state.
Such grievance redressal ‘cases’ that involve policy or budgetary issues could
then also, as mentioned above, function as an ‘alarm bell’ highlighting that there
are on-the-ground issues that should be raised in the higher judiciary. One important
function of rights commissions could also be to collect and publish data on (lack of)
implementation, as highlighted by the grievances that they have received, which may
then be used either by the government or also by the higher judiciary when assessing
which steps the government needs to take next.
However, if one can already predict in advance that there is a significant number
of grievances ‘on the ground’ that can only be remedied by policy changes ‘at the
top’, having to channel grievances ‘upwards’ until they reach the High Court or even
the Supreme Court is, in a way, an unnecessary waste of time and resources. Time
and effort have to be invested to reach a level that one could also reach directly—
by filing PIL petitions. Therefore, for certain issues that necessarily require more
far-reaching orders and injunctions by the judiciary (such as, as of now, improving
the grievance redressal systems), PIL is a more desirable solution than a functioning
system of courts (or other bodies) adjudicating fundamental rights at several levels
would be—not just in India, but also elsewhere.
To illustrate this, one may have a look at ‘strategic litigation’ even in jurisdictions
where access to justice is less of an issue than it is in India. In countries without
PIL, where a litigant needed to show that they are affected by the issue that they
raise themselves (in common law, this requirement is the rule of locus standi, which
was applicable in India before the invention of PIL as well32 ), even if an NGO or a
human rights advocate wishes to take up a cause affecting a disadvantaged part of
the society, they will first have to find persons who are willing to become litigants in
31 Providing free and compulsory primary education is not only mandated by Article 21A of the
Indian Constitution, but is also considered to be itself part of the ‘minimum core’ obligation of a state
in international human rights law, see Committee on Economic, Social and Cultural Rights, General
Comment 13 (Twenty-first session, 1999), pp 51 et seq. India is bound by the relevant international
human rights treaties in this regard, and it has translated these obligations in national law, for instance
by prescribing pupil/teacher ratios in the Right to Education Act of 2009. Even if it had not done so,
these international obligations would still be considered in national fundamental rights adjudication
in India, considering that the Indian Supreme Court effectively (though not explicitly) follows a
philosophy of ‘monism’, meaning that international treaties are directly applicable without being
transferred into national law, see Aparna Chandra, ‘India and International Law: Formal Dualism,
Functional Monism’ (2017) 57 Indian Journal of International Law 1–2.
32 See Bokaro And Ramgur Ltd v The State of Bihar and Another MANU/SC/0404/1962 (Supreme
Court of India, 14 March 1962), in which the Court stated that ‘[b]efore a party can complain of
an infringement of his fundamental right to hold property he must establish that he has title to that
property and if his title itself is in dispute and is the subject of adjudication in proceedings legally
constituted, he cannot obviously put forward any claim based on his title’, cited in Mahendra Pal
Singh, V.N. Shukla’s Constitution of India (12th edn, Eastern Book Co 2013) 354.
court cases that may then, through strategic litigation (perhaps also as a class-action
lawsuit, like in the USA), be channelled upwards through several instances.
As argued above, if it is already clear that the case at hand involves issues that
can only be resolved by the top-most courts, and if there are groups behind strategic
litigation that have the ultimate aim of reaching those courts, having litigants navigate
through several instances is, ultimately, a waste of time and resources. And for those
litigants, in addition to the time and resources that need to be invested, frustration
may even follow if they win at the ‘top level’, because the injunctions made by the
top courts may be important jigsaw pieces to improve implementation of government
policies, or improve the government policies themselves, but may not lead to actually
tangible immediate results for the litigants themselves.
A good example is the German Federal Constitutional Court’s 2010 decision
concerning Germany’s welfare programme, commonly known as ‘Hartz IV’. In that
case, families who believed that the welfare payments calculated by the German
legislature for children were too low, also arguing that the method of calculation
employed (merely stating that children of a certain age should receive a certain
percentage of the money paid for adults) was arbitrary. The courts of first instance
agreed, and therefore referred the case to the Federal Constitutional Court.
The Constitutional Court also ruled that the method of calculation was arbitrary
but did not state that the result of non-arbitrary calculations would ultimately be a
higher amount of money that the families would have to receive. It even left open the
possibility that the sum could be less.33 The legislature reacted by creating a new law
based on a non-arbitrary method of calculation but did not raise the sum to be paid to
families for their children by a single Euro—instead, it only prescribed that certain
goods and services be provided to children in addition to monetary payments.34
While it was important that the methods of calculation underlying the welfare,
system become more transparent and are not arbitrary, and take the needs of children
living in families that have to rely on welfare into account, this ‘victory’ must have
been hard to accept for those litigants who had taken it upon themselves to raise this
issue in Germany’s Constitutional Court.
If one has a functioning system of grievance redressal locally available to citizens
(whether it consists of administrative or social courts that are actual courts, like in
Germany, or some sort of mechanism within the administration, as it exists in India),
combining it with something like PIL may thus be the optimal solution, as the courts
at the ‘top’ would have to deal with fewer on-the-ground issues without larger policy
questions immediately attached to them, and the courts at the ‘bottom’ (or other local
bodies that function similarly to courts) would be able to concentrate on such cases,
without also receiving and having to deal with petitions that call for broader policy
changes that ultimately need to be decided at the ‘top’ anyway. Even if the Indian
33 See BVerfGE 125 (Bundesverfassungsgericht, 9 February 2010—Hartz IV ), pp 175–260, http://

www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2010/02/ls20100209_1bvl
000109.html (last accessed on 28 June 2020).
34 See Anne Lenze, Sind die neuen Hartz-IV-Sätze verfassungskonform?, Neue Zeitschrift für
Verwaltungsrecht (NVwZ2011) 1104.

Supreme Court were accessible to all Indian citizens in practice, it would still not
be sensible for the Court to decide every single case of corruption in every district
of India, or of every teacher not fulfilling their teaching duties. Having such cases
resolved locally makes much more sense.
14.5 Conclusion and Outlook
One may thus summarise that NGOs, human rights advocates and other civil society
organisations should employ PIL to call for improvements of grievance redressal
mechanisms, in order to further legal empowerment and access to justice for the
poor, enabling the poor themselves to take their issues into their own hands and
resolve them.
However, such empowerment cannot happen overnight, and even if the grievance
redressal mechanisms were soon improved sufficiently, filing complaints, following
up, and perhaps even appealing to a higher body will remain somewhat complicated,
though it should be made as simple as possible for the goal of access to justice to
be fulfilled. Therefore, the civil society should lobby for grievance redressal mech-
anisms to be improved, also calling for improvements through PIL, but at the same
time also provide aid to those who want to use these mechanisms to get swift relief of
their grievances, especially in a transition period where their system may have been
improved, but still lacking to a degree. The experience with the Right to Information
shows that a well-designed grievance redressal system may be quite effective, but
so far, even information requests are still primarily filed by relatively affluent and
educated parts of the society.35 Empowering rights commissions to enforce their deci-
sions and drafting clearer rules to create more independent decision-making bodies
at the local authority level will be a decisive step, but even if that step is taken, truly
democratising the system and making it a mechanism for access to justice for liter-
ally everyone will be a continuous process. However, the effort is well worth it, both
from the perspective of rights-bearers themselves as well as from the perspective
of the State, which may find a functioning system that combines both the judiciary
and non-judicial grievance redressal bodies an important tool for implementing its
policies.
35 Robinson cites the RTI Assessment & Analysis Group & National Campaign for People’s Right to
Information, who have found that only 30 per cent of rural and only 15 per cent of the urban applicants
belonged to the economically weaker class of society: see RTI Assessment & Analysis Group &
National Campaign for People’s Right to Information, Safeguarding the Right to Information. Report
of the People’s RTI Assessment 2008. Executive Summary, 2018, http://freedominfo.org/docume
nts/india-safeguarding-executivesummary.pdf accessed 28 June 2020 8–9, cited in Robinson (n 11)
at 344.
Chapter 15
Another Perspective to Read the Picture
of Lawyering for Change in China
Wenjuan Zhang
Abstract Plenty of academic deliberation especially in the West has transpired on

the journey and challenges as confronted by the Chinese legal profession and the
exceptional struggles of Chinese public interest lawyers. This article aims to draw
a general picture of the collective knowledge as developed through a data-driven
and case-study analysis. Specifically, the article explores three key areas which are
absent in the current literature: (a) applying Amartya Sen’s Idea of Justice to explain
the political radicalization of lawyering for change in China; (b) an analysis of the
challenges of rule of law building and its impact on the state–legal profession rela-
tionship in China; and (c) an exploration of alternatives through a case-study analysis
on the possibilities to promote a sustainable role of the Chinese legal profession in
legal reform and in serving the disadvantaged.
15.1 Introduction
Plenty of western scholarly interest has been noted on the issues relating to the
development of the Chinese legal profession, especially as relating to the public
interest lawyers. This article aims to sketch the relatively updated picture of such
scholarly discussions, and specifically, it aims to outline three areas of importance
which have not been properly discussed in the existing scholarship on the subject:
(a) applying Amartya Sen’s Idea of Justice to explain the political radicalization
of lawyering for change in China; (b) an analysis of challenges of the rule of law
building and its impact on the state and legal profession relationship in China; and
(c) an exploration of alternatives through a case-study analysis on the possibilities
to promote a sustainable role of the Chinese legal profession in legal reform and in
serving the disadvantaged.
The role of the legal profession is crucial for the development of rule of law and
related reforms. The assessment of the legal profession is placed in the midst of both
commercial and political interests which aims to balance the outcomes for clients,
W. Zhang (B)
Jindal Global Law School, Jindal Global University, Sonipat, Haryana, India
e-mail: wzhang@jgu.edu.in
320 W. Zhang
markets, and the state, at the same time engaging with divergent values to ensure
access to justice for all, especially the disadvantaged. The debate has become more
complex with the different facets of legal and economic globalization given the diver-
gent political systems. The paper will outline major scholarly developments to sketch
a picture of the complex nature of the Chinese legal profession, especially, public
interest lawyering. It will highlight that despite the rich scholarship on the same,
there are three issues as outlined above which remain absent or under-emphasized
in the current scholarship.
15.2 Lawyering for Change in the Chinese Context
The literature review tracks the trend whereby the legal profession in China has
gradually shifted from state dominance into a structural complex of state, market,
and society.
In the early development stages of the Chinese legal profession, roughly from
1980s to 1990s, scholarly work by Alford and others have shown that the state domi-
nated Chinese legal profession, e.g., by placing all of them as state-legal workers in
the Temporary Regulation of lawyers 1980, full-control of lawyer–client relation-
ship,1 setting a clear target number of lawyers with time-specific goals,2 licensing
individual or organizational entrance to the profession at the will of the state,3 etc.
The Chinese scholars, specifically Li Xueyao and Cheng Jinhua, have used qualita-
tive and quantitative analysis to argue that the legal profession at a later stage has been
shifted away from state dominance to the key interaction between the stakeholder
interaction wherein they proposed the new research model as structural constraints.4
The research provided that the privatization of the legal profession is not a linear
transition from state distribution to market competition but is ‘the isomorphic change
of the Chinese state and market economy that it has created’.5 The legal profession
functions in a particularly different manner than a general business which means that
the impact of structural dynamics of the market, state, and society on the transitional
developments will be complex. In 1995, Alford called on theory development to the
specific case of the legal profession in China by taking into account the original
1 Wu Hongqi, ‘Observing the Relationship between Professional Autonomy and Role Seeking of
Lawyers in China from Three Angles’ (2008) 4 Western China Law Review《西部法律评论》
( ) 37.
2 William P. Alford, ‘Tasselled Loafers for Barefoot Lawyers: Transformation and Tension in the
World of Chinese Legal Workers’(March 1995) 141 The China Quarterly, Special Issue: China’s
Legal Reforms30–31.
3 ibid, 31–32.
4 Li Xueyao and Cheng Jinhua, ‘Structural Constraints on legal Change: Chinese Lawyers in the
Interaction between State, the Market and Society’ (2013) 34(1) Social Science in China 58–77.
5 Sida Liu, Lawyers, State Officials and Significant Others: Symbiotic Exchange in the Chinese
Legal Service Market, the China Quarterly, No. 26 (June 2011), 293.
15 Another Perspective to Read the Picture of Lawyering … 321
theories of the legal profession, the Chinese political context, and ‘the allure of
foreign rhetoric regarding lawyer’s role’.6
The literature review of the Chinese legal profession can be summarized into two
main efforts: first, to track the trend of state impact on the legal profession in general,
and second, to observe the political constraints on lawyering for change in particular.
15.2.1 Tracking the Trend of State Impact on the Legal

Profession in General
The trajectory of the Chinese legal profession is very different from that of western
countries. In the latter, the lawyers transitioned from disjointed private practices to
establish nationwide standards, norms, and legal precedent while in the former, the
role ofthe state in the Chinese legal profession has been given a strong attention.
The understanding of the state’s role in the scholarship has become gradually more
nuanced and sophisticated. Privatization has been an important medium to create an
autonomous and independent legal profession in China. A lot of scholarly work has
discussed the role of privatization and its influence on lawyers and legal reasoning,
e.g., Li Xueyao and Ethan Michelson.
Li Xueyao published an article in 2005 with the data to examine how the intrinsic
tension between state and market forces determines the status of the legal profession
in the Chinese context after privatization.7 In a 2004 survey conducted by Li Xueyao
among lawyers in China, specifically in Hangzhou, it was revealed that over 75%
of lawyers believe that they should operate as a business and only 11% believed
they have the responsibility to enable access to justice.8 In another survey, it was
deciphered that out of 2/3rd of lawyers surveyed, 65% expressed their willingness to
become Chinese politicians in the future through the election.9 Li Xueyao expressed
his disappointment with Chinese lawyers’ ambitions to take advantage of the legal
profession’s privatization as well as to promote professional monopolies by social and
political protection of the Chinese state.10 He was critical of the majority of Chinese
lawyers’ aim to pursue both political and commercial advantages without perusal
of the essential public interest. However, he also observed that the state regulations
too often focused on resolving and exploring the commercial issues related to the
Chinese legal profession rather than socio-political issues.11
Unlike Li Xueyao, Ethan Michelson, another prominent scholar in the Chinese
legal profession, showed a sympathetic understanding of Chinese lawyers’ neglect
of public interest. In an article published in 2006, he developed a contextualized
6 William Alford (n 2) 38.

7 Li Xueyao, ‘Legal Professionalization’ (2005) 6 Chinese Journal of Law 13.
8 ibid, 14.
9 ibid 17.
10 ibid, 14.
11 ibid, 15–17.
322 W. Zhang
understanding of the impact of the rapid pace of the Chinese legal profession’s priva-
tization on enabling access to justice through the lens of lawyers’ case screening prac-
tice.12 Through interviews of lawyers and observing lawyer–client conversation, he
found that the case screening reasons used in the western legal practice that included
concerns such as economic incentive, the merit of the case, and avoiding trouble-
makers were also utilized by Chinese lawyers.13 Further, he found that the lawyers
faced an existential crisis due to commission-based than salary-based income, and
absence of fee-shifting as well as the absence of court involvement in the execution
of fee agreements along with the novelty and rarity of liability insurance severely
undermined their ability to serve public access to justice in China.14
Since the mid-2000s, the Western scholarship led by Ethan Michelson and Liu
Sida has shifted the focus to understand the challenges confronted by the Chinese
legal profession from state dominance toward the idea of a symbiotic exchange
between Chinese market and state, and its impact on the legal profession. In 2007,
Ethan Michelson published a paper titled ‘Lawyers, Political Embeddedness, and
Institutional Continuity in China’s Transition from Socialism’15 where he proposed
an important model termed ‘political embeddedness’ to describe how the state inter-
acts with the market to influence the legal profession in the post-state dominance
era. He initiates the discussion with the assumption that market transition would
help diminish the importance of Guanxi (political capital and social connection) as a
means of getting things done in the state bureaucracy.16 He aimed to understand how
the politics of the legal profession will survive in the political marginalization within
the formal political structure17 caused by the market-oriented transition and also in
the judicial marginalization due to many reasons including legal history, culture, and
the socialist legal architect, etc.18 He disaggregated the Guanxi into ongoing struc-
tural arrangements such as special appointed lawyers, part-time lawyers, state-owned
law firms, and court-assigned cases in the late 1990s and early 2000s, which used
data to test how power dependence has influenced the private practice.19 Through the
data analysis, he found that ‘whereas politically disembodied lawyers are far more
negative than they were positive toward the system, politically embedded lawyers
were roughly equally positive and negative’20 which proves his hypothesis that polit-
ical embeddedness is treated as an important source of professional protection. In
the end, he raised his concern about the conflict between the formal change of state
12 Ethan Michelson, ‘The Practice of Law as An Obstacle to Justice: Chinese Lawyers at Work’
(2006) 40(1) Law and Society Review 1–38.
13 ibid, 12–13.
14 ibid, 13–14.
15 Ethan Michelson, ‘Lawyers, Political Embeddedness, and Institutional Continuity in China’s
Transition from Socialism’ (2007) 113(2) American Journal of Sociology 352–414.

16 ibid, 354.
17 ibid, 357–359.
18 ibid, 359–364.
19 ibid, 364–397.
20 ibid 397.
role in the legal profession and the informal continuity of power dependence for
professional practice. He further raised the question of Chinese lawyers’ role in
promoting political change21 since he found that ‘the lawyers with fewest troubles
and the greatest capacity to navigate their hostile institutional terrain are precisely
the lawyers most folded into the state and the party’.22
Sida Liu further tested how political embeddedness influences market function
in the scenario of lawyers’ competition with other legal service providers in the
market.23 He used the in-depth interview conducted in 2003–2007 to understand how
lawyers’ have both politically and commercially competed with other emulators, such
as grass-root legal service providers, legal advisory agencies, and ‘black lawyers’24
and concluded that it is just part of ‘the formation and institutionalization of the
symbiotic exchange relationship between market and state in China’s transitional
economy’.25
The research shows that the privatization released the legal profession from the
formal dominance of the state; however, the realization of professional autonomy
and independence is much more complicated on the ground. Due to professional
vulnerability resulting from the ‘marginal status of outside interloper’ and the hunger
for commercial interest for survival, Chinese lawyers in general have been struggling
to balance the relationship with government and market. The majority of them have
been deeply involved in the symbiotic exchange for pursuing commercial interest
and also for self-protection. This influences their willingness and capacity to serve
the public interest.
15.2.2 Separate Attention to the Fight Against Political

Constraints for Change
Lawyers are not just practitioners. Privatization also gives lawyers the autonomy of
pursuing public interest in their own way. Early Western scholars have sensitively
predicted the emergence of the conflict between the state and lawyers if lawyers are
active in pursuing public interest which is not in line with the state priority.26 But
this is mainly based on a hypothesis and in an abstract way.
21 ibid 401.
22 ibid 401.
23 Sida Liu (n 5) 276–293.
24 ibid 281–292.
25 ibid 293.
26 For example, Prof. Alford raised this concern in 1995: ‘If, as Parsons and other suggest, the
function of legal professionals is to reconcile public and private interests, the absence of clear,
broadly shared understandings of what these interests are at a time when the contents of the Party’s
core ideology and of morality itself are increasingly open to contestation and manipulation leaves
lawyers without more a highly personalized basis for framing such reconciliations.’ William Alford,
1995, 36.
324 W. Zhang
Public interest lawyering practice had not received wide domestic attention until
2001, when the first lawyer-initiated public interest litigation QiaoZhanxiang (a
lawyer) v Ministry of Railways (2001, Beijing High Court, Adm. No. 39) was
launched.27 However, the discussion was mainly limited to domestic media and
scholars. It is the politicization of Gao Zhisheng with wide international media
exposure in 2005 and 2006 that attracted the attention of scholars in the West to
Chinese lawyers’ efforts in pursuing public interest and legal reform. The impact of
the Gao Zhisheng case on the research shift in the West can be interpreted into two
aspects. First, scholarship on the impact of state–market symbiotic exchange on the
legal profession in general starts taking the factor of society into analysis. Second,
it fosters a separate research interest on the political constraints on lawyering for
change in particular.
In 2010, Sida Liu and Ethan Michelson worked together to further test Chinese
lawyers’ political reform inclination and the source for promoting political reform
by using the data collected from China Legal Environment Survey in 2009 and World
Values Survey in 2005–2007.28 They found that Chinese lawyers are strongly inclined
to political liberalism compared to Chinese citizens, other actors in the Chinese legal
system, and citizens in other 40 countries; however, their incentive is mainly from
their practical economic and institutional vulnerability rather than from ideological
commitment.29 Compared to the surveys conducted by Ethan Michelson in the early
2000s, nearly ten years later, they found that lawyers’ professional vulnerability for
fee collection problems against clients, for lack of organizational protection from
law firms, and the institutional vulnerability from other inside judicial actors such as
public security, procuracy, court, bureau of justice, or other government agency are
still very prevalent which became the main grievance of discontent.30 Both authors
predicted that ‘Chinese lawyers’ commitment to radical political reform is prob-
ably unstable and unlikely to be politically consequential insofar as their overriding
priority is to protect and enhance their livelihood’.31
In 2011, Sida Liu and Terence Halliday started to explore how political embedded-
ness and political liberalism have functioned in promoting legal change by placing
the observation in a concrete scenario of criminal defense lawyers, a group facing
more professional difficulties due to the nature of their practice is to challenge
27 Titi Liu, ‘Transmission of Public Interest Law: A Chinese Case Study’, (2008) 13 UCLA J. Int’
l L. & For. Aff. 263, at 284 <https://www.indiana.edu/~emsoc/Publications/Michelson_and_Liu.
pdf> accessed on 30 June 2020.
28 Ethan Michelson and Sida Liu, ‘What Do Chinese Lawyers’ Want? Political Values and Legal
Practice in China’ in Cheng Li (ed), China’s Emerging Middle Class: Beyond Economic Transfor-
mation (Washington DC: Brookings Institution Press, 2010), 310–333 <https://www.indiana.edu/
~emsoc/Publications/Chapter14_Michelson_Liu.pdf> accessed 29 June 2020.
29 Ibid 311.
30 ibid 319–323.
31 ibid311.
the judicial actors on behalf of the state.32 Based on the data collected in 2005,
2007, 2009, and 2010, they classified the lawyers into five types: progressive elites,
pragmatic brokers, notable activists, grassroots activists, and routine practitioners.
Their research provided micro-level evidence to endorse the conclusions in previous
research.33 Their research confirms the conclusion in the 2007 research by Ethan
Michelson that political embeddedness is negatively related to professional difficul-
ties,34 and also provides a concrete example for the conclusion in the 2010 research
by Ethan Michelson and Sida Liu that “Chinese lawyer” professional difficulties are
negatively associated with political embeddedness and positively associated with
political liberalism’.35 Furthermore, this research also provides a dynamic picture
of the widespread difficulties and dangers in the legal practice and a more nuanced
understanding of the relationship between political embeddedness and political liber-
alism.36 Among their findings, political embeddedness can be used for political liber-
alism by progressive elites or just for commercial interests by pragmatic brokers.37
It also shows that political liberalism can be promoted by political embeddedness
as progressive elites, or through other civil society options by notable activists or
grass-root activists,38 or just through setting professional responsibility for enabling
justice in individual cases such as routine practitioners.39
After the politicization of Gao Zhisheng, a separate scholarship on frontline
boundary-pushing lawyers has been developed led by Eva Pils, Fu Hualing, Richard
Gullen, and Rachel Stein. There have been different labels in the West to describe
the engagement of lawyering for change such as ‘public interest lawyering’, ‘cause
lawyering’, ‘rights activism’, or ‘weiquan lawyering’ or ‘human rights lawyering’.
This school of scholarship tries to develop a subtle understanding of the varieties of
strategies in promoting change such as the case studies of politicization such as Eva
Pils and also Fu Hualing and Richard Gullen, and the state–society communication
for pushing the boundary, such as Richard Stern and Kevin O’Brien.
Eva Pils published a paper in 2007 providing a good documentation of the detailed
process and debates of probably the first politicized lawyer case after the privatiza-
tion of the legal profession as being part of the ‘Reform and Open-up’ efforts.40
Through interviews and paper reviews, Eva Pils provided a detailed picture of how
32 Sida Liu and Terence Halliday, ‘Political Liberalism and Political Embeddedness: Understanding
Politics in the Work of Chinese Criminal Defense Lawyers’, (2011) 45(4) Law and Society
Review831-865.
33 ibid 837.
34 ibid.
35 Ethan Michelson and Sida Liu (n 28) 354.
36 Sida Liu and Terence Halliday (n 32) 839–844.
37 ibid 861.
38 ibid 850–854.
39 ibid 861–862.
40 Eva Pils, ‘Asking the Tiger for His Skin: Rights Activism in China’, (2006–2007), 30 Fordham
International Law Journal 1209–1287.

326 W. Zhang
Gao Zhisheng became politicized from calling on better enforcement of rules in prac-
tice, to petition for constitutional review of certain rules, to turn to political mobi-
lization such as open letters and hunger strike, and to propose institutional change
beyond the Constitution.41 She also used the framework of consequential and deon-
tological argument to present the wide debates among lawyers and rights activists
around Gao’s politicization: including whether the radical approach is reasonable in
promoting the legal reform in China, and whether it be duty-cantered consequence
independent or be responsible to consequences toward family, colleagues, commu-
nity, and even the future of Chinese legal reform?42 Eva Pils gives equal weight to
the debate among consequentialists and deontological ideas. However, she does raise
the issue while radical right defenders ‘stop appealing to the existing system’s legal
institutions’, they don’t describe a method of how to create a new one.43 After more
interaction with the ‘radical rights defenders’, Eva Pils, like her research objects,
lost confidence in incremental reform in China. In an interview with the Diplomat
about her recent book titled China’s Human Rights Lawyers: Advocacy and Resis-
tance (2014), she said, ‘The hope of incremental liberalization through top-down
legal reforms was extremely important in the post-Mao era but today, in my view, it
is very nearly dead.’44
Unlike Eva Pils focusing on the fate of more ‘radical’ rights defenders, Fu Hualing
and Richard Cullen have tried to provide an assessment framework of lawyering for
change in China through establishing a pyramid of lawyers including moderate, crit-
ical, and radical Weiquan lawyers based on their approach and goals.45 Moderate
lawyers usually focus on cases with ‘low political objectives’ through ‘legal rather
than political approach’.46 Critical lawyering selects cases politically sensitive but
not prohibitive, and ‘sharply criticizes the system’ but ‘sensitive in language use and
expression manner’.47 Radical lawyering believes ‘the authoritarian system is the
cause of the problem’48 and turns to ‘organizing and leading clients in extra-legal
political confrontations’.49 In their research, they also positively picture the polit-
ical change for enabling ‘Weiquan lawyering’ including the government’s efforts to
strengthen legal formality for problem-solving, the development of civil society, the
emergence of the public sphere, and the public’s rising rights awareness.50 Based on
41 ibid 1223–1257.
42 ibid 1257–1285.
43 ibid1212.
44 Bochen Han, ‘China’s Human Rights Lawyers: Political Resistance and the Law’ (The Diplomat,
11 February 2016) <https://thediplomat.com/2016/02/chinas-human-rights-lawyers-political-resist

ance-and-the-law/> accessed 29 June 2020.
45 Hualing Fu and Richard Cullen, ‘Weiquan (Rights Protection) Lawyering in an Authoritarian
State: Building a Culture of Public Interest Lawyering’, (2008) 59 China Law Journal 111–127.
46 ibid 116–118.
47 ibid 118–120.
48 ibid 122.
49 ibid 121.
50 ibid 123–125.
both scenarios, they conclude that critical lawyering is ‘the most successful Weiquan
lawyers today’.51 Three years later, they published another article to describe the
motive and process of Weiquan lawyers’ radicalization process or climbing the
Weiquan ladder.52 They found that the motive of radicalization of most lawyers53 is
from the client radicalism or from their struggling individual experience to address
injustice on behalf of clients54 that is in line with Ethan Michelson and Sida Liu.
Only a few are from religion or early political experience.55 In terms of the radical-
ization process, they also explained how international attention has contributed to the
process.56 Meanwhile, they have also explained how fame and political embedded-
ness could contribute to the self-protection of Weiquan lawyering as partially echoed
what Sida Liu and Terrace Halliday found in the case of criminal defense lawyers.57
In 2012, Rachel Stern and Kevin O’Brien published an article to understand the
difficulties of capturing the signals about political boundary through the commu-
nication experience of active civil society stakeholders such as journalists, NGOs,
and lawyers with the state.58 The research found that ‘beyond some well-patrolled
forbidden zones, the state speaks with many, contradictory voices’.59 Through giving
examples from NGOs, journalists, and lawyers, they found that ‘on different days
and on different issues, the politically engaged encounter a multi-faced state that
may endorse, tolerate, or suppress their activities’.60 In her newly published paper,
Rachel Stern calls China ‘an unusual member of authoritarian club’61 which aims to
‘harness the power of law without ceding political control’.62
The scholarship on the Chinese legal profession is much broader than being
presented here. These representative scholars’ points have been focused mostly
because they have a long-term commitment and are more empirical. By generalizing
their research, we can see the privatization of the legal profession gives lawyers the
autonomy to compete in the legal service market and to pursue public interest in
their own way. However, the autonomy and independence in the name have trou-
bled lawyers in reality. On one hand, privatization means self-reliance which creates
survival uncertainty at the individual level which causes the confusion of pursuing
51 ibid 127.
52 Hualing Fu and Richard Cullen, ‘Climbing the’Weiquan’ Ladder: A Radicalizing Process for
Rights-Protection Lawyers’, (2011) 205 The China Quarterly 40–59.
53 ibid 43.
54 ibid 47–50.
55 ibid 42–43.
56 ibid 50.
57 ibid 53–54.
58 Rachel E. Stern and Kevin J. O’Brien, ‘Politics at the Boundary: Mixed Signals and the Chinese
State’, (2008) 38 Modern China 2, 174–198.

59 ibid 177.
60 ibid 177–178.
61 Rachel Stern, ‘Activist Lawyers in Post-Tiananmen China, Law & Social Inquiry’ (2017) 42 Law
& Social Inquiry 1 247.

62 ibid 236.
328 W. Zhang
commercial interests or public interests. On the other hand, privatization creates the
status of the whole legal profession as an outsider in the socialist legal system and thus
results in their professional uncertainty and political uncertainty. It is even more prob-
lematic and challenging that the social context is uncertain due to the fast economic,
social, and political transformation. The political radicalization of Gao Zhisheng
has inspired separate research attention to lawyers focusing on promoting the public
interest. The recent trend is further narrowed down to the motive and process of the
political radicalization of some ‘vanguards’ lawyers in order to discover or judge
how the legal profession has been ‘abused’ by the state.
However, we need further creative or nuanced efforts to understand how the macro-
uncertainty has interacted with the micro-uncertainty. For example, why do lawyers
easily turn away from addressing professional difficulty to political radicalization?
Why does the state leave the political boundary uncertain or even fragmented?
Will more political space for lawyering for change mean more cases of political
radicalization or in reverse if the party-state system is not changed?
These questions have been neglected or not fully addressed in the current literature.
This paper will try to provide some new perspectives to answer these questions by
applying the alternative idea of justice developed by Amartya Sen, the theory of
experimentalism, or programmatic democracy led by Christopher Ansell and Charles
Sabel. First, it tries to understand the idea of justice that influences lawyers’ reasoning
of political radicalization and further explore its alternatives worthy of more attention.
Second, it is necessary to explore the uncertainty of the rule of law building in
China for understanding the uncertainty of political boundaries. Finally, it provides
a positive study of the structural state–legal profession relationship.
15.3 Understanding Chinese Lawyers’ Political

Radicalization: Reflection on the Diverged Foreign
Influence
As literature shows that Chinese lawyers focusing on the public interest are climbing
ladders of politicization but the incentive is hardly from ideological commitment but
more for self-protection against professional difficulties. Why would professional
difficulties push more and more Chinese lawyers to become politically radicalized?
The answer could be explored from the diverged impact of two theories of justice on
different Chinese key stakeholders in building the rule of law.
15.3.1 Two Approaches to the Reasoning of Justice:

Transcendental Institutionalism V. Realization-Based
Comparison
In 2009, an Indian-born economist and philosopher, Nobel prize winner Amartya

Sen published his thought-provoking book The Idea of Justice which leads us to
understand that the approach to justice has not and should not be one version. Sen
divides ‘the two basic and divergent lines of reasoning about justice among leading
philosophers’63 into ‘transcendental institutionalism’64 and ‘realization-focused
comparison’.65
Transcendental institutionalism ‘concentrated on identifying just institutional
arrangements for a society’ which is led by the work of Thomas Hobbes in the
seventeenth century and developed in different ways by other outstanding Enlight-
enment thinkers such as John Locke, Jean-Jacques Rousseau, and Immanuel Kant.66
It has two distinct features. First, it aims to identify the nature being ‘the just’, rather
than ‘finding some criteria for an alternative being ‘less unjust’ than another’.67
Second, ‘in searching for perfections, transcendental institutionalism concentrates
primarily on getting institutions right’, ‘not directly focused on the actual societies
that would ultimately emerge’.68 Through the ‘contractarian’ mode of thinking, ‘the
overall result was to develop the theory of justice that focused on transcendental
identification of the ideal institutions’.69 John Rawl’s A Theory of Justice in 1972
became ‘the most powerful and momentous exposition of this approach to justice’.70
A realization-focused comparison was developed by other Enlightenment thinkers
such as ‘Adam Smith, the Marquis De Condorcet, Jeremy Bentham, Mary Woll-
stonecraft, Karl Marx, and John Stuart Mill’ 71 who ‘took a variety of comparative
approaches that were concerned with social realizations (resulting from actual insti-
tutions, actual behaviors, and other influences)’.72 They share two simple character-
istics. One is to engage in ‘comparisons of societies that already existed or could
feasibly emerge, rather than confining their analysis to transcendental searches for
a perfectly just society’. The other is that ‘[they] were often interested primarily
in the removal of manifest injustice from the world they saw’.73 He believes the
thinking model of social choice that is to investigate ‘the discipline of aggregation
63 Amartya Sen, The Idea of Justice (Published Penguin Group, 2009), at 5.

64 ibid 5.
65 ibid 7.
66 ibid 6.
67 ibid 5–6.
68 ibid 6.
69 ibid 6.
70 ibid 7–8.
71 ibid 7.
72 ibid 7.
73 ibid 7.
330 W. Zhang
over individual judgments of a group of different persons’ 74 would help explore the
development of institutions, rules, and behaviors for justice approach.75
Whereas Sen admits that transcendental institutionalism is today’s mainstream
political philosophy, he believes that it is more meaningful to ask ‘how would justice
be advanced’ rather than to ask ‘what would be perfectly just institutions’.76 He made
two arguments for this departure from the mainstream theory of justice. First, ‘there
may be no reasoned agreement at all, even under strict conditions of impartiality and
open-minded scrutiny on the nature of the just society’.77 Second, ‘an exercise of
practical reason that involves an actual choice demands a framework for comparison
of justice for choosing among the feasible alternatives and not an identification
possibly unavailable perfect situation that could not be transcended’.78
We can see that China as a state led by the Communist Party has mainly taken
the approach of realization-based comparison for pursuing justice. However, the
civil society stakeholders including lawyers are more influenced by the mainstream
approach of transcendental institutionalism that is the liberal democracy. As there
is no role model to follow after the collapse of the Soviet Union, the state has been
very cautious in forging ahead through very pragmatic experimentalism. However,
civil society stakeholders with liberal ideas are much more straightforward since
they believe just institutions and rules are available and that they have role models in
the West to follow. This scenario helps understand the political radicalization trend
among Chinese lawyers.
15.3.2 Pursuing Justice: The Realization-Focused

Comparison Approach by the State
As a different character of civilization, China started shifting its efforts to address

its social problems from morality, custom, kinship, or politics to formal legality by
foreign studies commencing in Qing Dynasty.79 Among the many trials and conflicts,
the Communist Party guided by Karl Max and Leninist finally got the power of ruling
China in 1949. The legal formality efforts have been further strengthened after the
Reform and Open up in 1978. However, as scholars have observed, legal reform after
1978 promoted by the state has not been away from the basic structure of the socialist
system.80
74 ibid 91.
75 ibid 91–96, 106–111.
76 ibid 9.
77 ibid 9.
78 ibid 9.
80 William Partlett and Eric C. Ip, ‘Is Socialist Law Really Dead?’, (2016) 48 New York University
Journal of International Law and Politics 464.

In terms of institutional arrangement, the Communist Party’s reasoning is more

from the perspective of comparison and realization to argue that the current choice
is fit even if it is not perfect. This point can be substantiated by the long preamble
of the Chinese Constitution both in 195481 and 1982 versions82 which have a long
historical review of political struggles and experiments China has experienced from
the Opium War to the Revolution of 1911 and to the birth of PRC in 1949. It discusses
what proved to work such as the patriotic united front, the political consultative
conference, the unitary multinational system, and the independent foreign policy. It
doesn’t provide principles for being an ideal society but does argue why this is fit
when compared to other alternatives which have been tried.
As to institutional arrangement, some Chinese scholars argue that the current
Chinese system of three integrations that is: culturally Confucianism, politically
socialism, and economically liberalism is the new consensus of reform sustained by
the public reasoning.83 It is observed that the selectively borrowed socialist system
from the Soviet Union is still very dominant in the legal and political life in China
in which the Communist Party plays the vanguard role in leading the economic and
social transformation through democratic centralism.84 For example, the preamble
of the Constitution clearly points out that ‘the system of multi-party cooperation
and political consultation led by the Communist Party of China (CPC) will exist
and develop in China for a long time to come’.85 In order to achieve democratic
centralism, the constitutional interpretation and supervision are not through the judi-
ciary but through the People’s Congress and its standing committee.86 The legal
supervision is through the Procuracy which combines the function of public prose-
cutors and law enforcement supervisors toward other state judicial actors including
court, issue building judicial interpretations for general application, etc.87 While the
court has no role to enforce the Constitution directly, it has wide power to create
binding rules through judicial interpretation of the basic laws which makes them
different from the role of the judiciary in transcendental institutionalism but not as
weak as being pictured.88
In terms of strategy of enhancing justice or reducing injustice, the Chinese govern-
ment identifies improving material living conditions including the right to a decent
81 China’s Constitution of 1954.

82 China’s Constitution of 1982 <https://www.npc.gov.cn/englishnpc/Constitution/node_2825.
htm> accessed 20 June 2020.
83 Zhou Lian, ‘The Debate in Contemporary Chinese Political Thought’ in Fred Dallmayr and Zhao
Tingyang(eds), Contemporary Chinese Political Thought: Debates and Perspectives (New Delhi:
Knowledge World 2013), 34–36. Originally from Gan Yang, ‘The Road to China: Thirty Years and
Sixty Years’ (2004) 6 Dushu 5.
84 William Partlett and Eric C Ip (n 80) 469–471.
85 Preamble of the Chinese Constitution (1982) last sentence of the eleventh paragraph.
86 Cai Dingjian, ‘Constitutional Supervision and Interpretation in the People’s Republic of China’
(1995) 9 Journal of Chinese Law 219–245.

87 William Partlett and Eric C Ip (n 80) 498–502.
88 ibid 502–510.
332 W. Zhang
standard of living, health, education, housing, and so on as a priority.89 As Mr. Bert

Hofman, World Bank’s Country Director for China, provided that China has lifted
700 million people out of poverty in the last three decades which contributed to 70%
of poverty reduction in that period.90
In terms of social choice, some scholars have researched from the perspec-
tive of the Communist Party’s responsive institutional adaptation, such as Kevin
O’Brien’s research on grass-root democracy development in China91 and Prof. Sabas-
tian Heilman’s research on the capacity of China’s party-state to generate institutional
and policy innovations.92 Data and survey also show that the general public is satis-
fied with the current institutional arrangement despite their critical comments on
specific rules and official decisions.93 The data analysis of Ethan Michelson and
Sida Liu also shows that ‘relative to most people elsewhere in the world, Chinese
people tend to be content with the current level of democracy in their country’.94
If we have a horizontal comparison, India might be a good reference in terms of
population scale, development stage, and the different choice of justice approach.
India got independence in 1947 and drafted the constitution by following the philos-
ophy of transcendental institutionalism. The preamble of the Indian Constitution is
very short but lists four specific principles as the foundation for building the ideal
society that is justice, liberty, equality, and fraternity.95 Indian constitution borrowed
the best system of liberal democracy in line with the theory of transcendental insti-
tutionalism, such as the parliamentary government from the UK, the judicial review
and fundamental right from the U.S., and the federal structure from the Canadian
Constitution.96 Indian Constitution values civil and political rights more than those
of economic and social rights evidenced by placing the former as fundamental rights
available for judicial review in Chap. 3 and the later into the directive principles of
state policy in Chap. 4.97
89 Henri Feron, ‘The Chinese Model of Human Rights’ (2015) 3 China Legal Science 95.
90 World Bank Country Director for China Mr. Bert Hofman’s Speech at the 2016 China Poverty
Reduction International Forum, 10 May 2016, ≤ <https://www.worldbank.org/en/news/spe
ech/2016/05/10/bert-hofman-speech-at-the-2016-china-poverty-reduction-international-forum>
91 Kevin J. O’brien, ‘Accommodating Democracy in One-Party State: Introducing Village Elections
in China’ (2000) China Quarterly 470–472.

92 Sabastian Heilmann, ‘From Local Experiments to National Policy, The Origins of China’s
Distinctive Policy Process’ (2008) 59 China Journal 17.

93 Yun-han Chu, ‘Sources of Regime Legitimacy and the Debate over the Chinese Model’, (2013)
13(1) The China Review, Abstract, 5–23. He used data such as the 2008 Asian Barometer China
which showed a 74% positive support of the CPC, see ibid 5.
94 Ethan Michelson and Sida Liu (n 28) 317.
95 India’s Constitution (1950).
96 Krishan Keshav, Constitution Law-I (Delhi: Singhal Law Publications, 2016)10.
97 Gautam Bhatia, ‘Directive Principles of State Policy’ in Sujit Choudhry, Madhav Khosla and
Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (New York: Oxford
Because of the sharp difference in pursuing development or justice, there are lots of
comparisons between the two countries. In terms of freedom of expression, according
to the Reporters without Borders, India ranked 142 which is a little better than China
which is ranked 177 almost at the bottom in 2017.98 According to Transparency
International, in the Corruption Perception Index ranking, China is ranked 78 while
India is ranked 86 in 2020.99 In terms of GDP, China is four times more than than that
of India. In the ease of doing business report 2020 by the world bank, China ranked
31 and India ranked 63.100 In the report, the best-performed indicator for India is
“protecting minority investors” (ranked 13) and for china is “enforcing contracts”
(ranked No. 5).101 In World Justice Rule of Law Index 2020, China is ranked low
in Constraints on Government Powers (No. 123) and Fundamental Rights (No. 126)
but in Constraints on Order and Security (No. 40) Regulation Enforcement (No. 67)
is better.102 India is strong in Constraints on Government Powers (No. 41) and Open
Government (No. 32) while in Constraints on Order and Security (No. 114) and Civil
Justice (No. 98) is weak.103 This data comparison can demonstrate the divergence of
reasoning of justice on the rule of law function in practice.
Amartya Sen criticizes the mechanical procedures of political choice such as
voting and elections or economic assessment such as evaluation of national income
for offering little information in terms of assessing the justice realization.104 ‘A voting
result only shows one candidate gets more votes than another and national income
merely shows what was bought and sold at what prices.’ 105 Human Development
Index (HDI) promoted by the UNDP is more in line with Sen’s comprehensive assess-
ment of justice which integrates three basic dimensions of human development: life
expectancy, mean years of schooling and expected years of schooling, and gross
national income per capita.106 The Human Development Report also presents four
other composite indices including inequality-adjusted HDI, the Gender Develop-
ment, the Gender Inequality Index, and the Multi-dimensional Poverty Index which
makes the assessment even more comprehensive. In the HDI ranking in 2020, China
98 Reporters Without Borders, 2020 Freedom of Expression Ranking <https://rsf.org/en/ranking_t

able> accessed 2 August 2020.
99 Corruption Perceptions Index, < https://www.transparency.org/en/cpi/2020/index/nzl> accessed
21 May 2021.
100 World Bank, Ease of Doing Business Report 2020, <https://www.doingbusiness.org/en/ran
kings>, accessed 2 August 2020.

101 Ibid.
102 2020 WJP Rule of Law Index, China: https://worldjusticeproject.org/sites/default/files/docume
nts/China%20-%202020%20WJP%20Rule%20of%20Law%20Index%20Country%20Press%
20Release.pdf. Accessed on 2 August 2020.
103 2020 WJP Rule of Law Index, India: https://worldjusticeproject.org/sites/default/files/docume
nts/India%20-%202020%20WJP%20Rule%20of%20Law%20Index%20Country%20Press%20R
elease.pdf. Accessed on 2 August 2020.
104 Amartya Sen (n 63) 93.
105 ibid 93–94.
106 United Nations Development Program, The 2016 Human Development Report, New York, 2016,
3.
334 W. Zhang
ranked 85 and India ranked 131.107 That means China is better in achieving Sen’s
comprehensive justice than that of India so far.
The comparison provides some evidence to Sen’s argument for an alternative
approach of assessing and promoting justice. Discussing perfect institutions doesn’t
help understand how to improve justice or reduce injustice in specific contexts. The
main drafter of the Indian Constitution Dr. B. R. Ambedkar also asserted, ‘Democracy
is not merely a form of government. It is primarily a mode of associated living, of
conjoint communicated experience.’ 108 The example of untouchability might be a
good example to echo Dr. Ambedhkar’s assertion. Even if the Constitution in 1950
abolished untouchability with aggressive affirmative action for addressing the caste-
based discrimination, till now it is still very stubborn in the daily practice.109 Pratap
Bhanu Metha also argues in his book The Burden of Democracy that ‘the more
unequal the background institutions and practices of society the more likely it is that
politics will be a struggle to displace the holders of power rather than an ambition to
bring about social transformation’.110
The comparison doesn’t mean it is not a proper choice for India to turn to liberal
democracy as their institutional arrangement for achieving justice. In fact, the Consti-
tutional governance based on liberal democracy helps India to sustain her diver-
sity and plurality,111 which is essential for the “Unity in Diversity” in India. But
the comparison does provide good evidence to prove that the alternative approach
of justice could and should exist which allows China to explore the institutional
arrangement according to her history, culture, and values.
15.3.3 Approach to Pursue Justice: Identify Perfect

Institutions by Some Civil Society Key Stakeholders
As it has been observed by philosophers, the main exercise of modern theories of

justice is from the philosophy of transcendental institutionalism led by Hobbes and
developed by Locke.112 The concept of the rule of law and the ideology of the legal
profession has been heavily influenced by it. Scholars on the rule of law noted that ‘the
modern conception of rule of law is integrally related to the rise of liberal democracy
107 UNDP, Human Development Index 2020, <http://hdr.undp.org/en/content/latest-human-develo

pment-index-ranking> accessed 21 May 2021.
108 Arun P. Mukherjee, ‘B. R. Ambedkar, John Dewey and the Meaning of Democracy’, (2009)
40(2) New Legal History 351.

109 Seema Chishti, ‘Biggest caste survey: One in four Indians admit to practicing untouchability’
(The Indian Express, 29 November 2014) <https://indianexpress.com/article/india/india-others/one-

in-four-indians-admit-to-practising-untouchability-biggest-caste-survey/?SocialMedia> accessed
29 June 2020.
110 Pratap Bhanu Metha, The Burden of Democracy (Penguin Books 2003) 46.
111 Granville Austin, The Indian Constitution: Cornerstone of A Nation (Oxford University Press
2009) 308–311.
112 Amartya Sen (n 63) 8.
in the west’.113 Scholars on the legal profession also admit that the profession’s
ideology is ‘crafted principally on the basis of the experiences of democratic and
capitalist societies’.114
In fact, after the collapse of the Soviet Union, Chinese legal reform has no role
model to follow. China’s market-oriented reform efforts built a platform for her to
interact with the industrialized democracies which makes Chinese learning happen
both in voluntary ways such as for attracting FDI or in mandatory ways such as
for joining WTO. Meanwhile, the privatization of market-building efforts released
stakeholders from the formal dominance of the state such as lawyers which enables
foreign learning to happen in plural but also in diverged or conflicted way frequently.
As the state has no role model to follow for the socialist reform, for Chinese
lawyers, there is no availability of models to find a ‘path out of the most pressing
occupational dilemma they confront’ 115 either. Some scholar sent reminders to the
Chinese professionals from the initial stage of privatization that ‘the process of
learning from foreign models of legal practice drawn from the industrialized world
should perhaps focus less upon the imitation of particular practices and more on an
appreciation of the challenges confronting such models and reasons for them’.116
However, the rule of law exportation under transcendental institutionalism has been
so sweeping that it provides little space for the young Chinese legal professionals to
reflect on other alternative approaches to justice.
As Titi Liu, former legal officer of Ford Foundation in Beijing, observed, despite
the cautious attitude of the Chinese government, ‘international legal cooperation
project continues to flourish, fuelled by a combination of Chinese desire for knowl-
edge and funding as well as the western donor’s need to appease both business
interests and human rights advocates in their own countries’.117 In addition, ‘oppor-
tunities for international exchanges and funding for cooperation projects are virtually
monopolized by these liberal reformers, whose views on China’s development trajec-
tory mesh most closely with those held by bilateral and multilateral donors, and thus
their views are heavily shaped and influenced by foreign interaction’.118
In terms of the content, the rule of law project most favored by western funding
is ‘a transplant of a simplified and idealized model of western, especially Anglo-
American, judicial systems’ 119 which target their resource and training mainly on
113 Randall Peerenboom, ‘Varieties of Rule of Law: An Introduction and Provisional Conclusion’
in Randall Peerenboom (ed), Asian Discourses of Rule of Law: Theories and Implementation of
Rule of Law in twelve Asian Countries, France and the U.S. (Routledge, London and New York
2004) 4.
115 ibid 36.
116 ibid 237.
117 Titi M. Liu, ‘Transmission of Public Interest Law: A Chinese Case Study’, (2008) UCLA Journal
of International Law and Foreign Affairs 273.

118 ibid 269.
119 Robert W. Gordon, ‘The Role of Lawyers in Producing the Rule of Law: Some Critical Reflec-
tions’, Faculty Scholarship Series, Paper 1397, 444 <https://digitalcommons.law.yale.edu/fss_pap

ers/1397> accessed on 29 June 2020.
336 W. Zhang
judges and lawyers with the aim of ‘establishing constitutional arrangements that
define the scope of restraint over the exercise of governmental powers and protect
individual rights’.120
In addition to the influence through projects, the approach to the justice of tran-
scendental institutionalism has also been strengthened by western media outlets’
consistent and persistent attention to the seasonal issues of human rights lawyers.
When one searches for the term ‘China Lawyer’ on the New York Times website, the
articles that appear are cantered around the few ‘human rights lawyers’ with political
radicalization, like Gao Zhisheng, Chen Guangcheng (not a lawyer in China, but
referred to as lawyer or barefoot lawyer by the New York Times), Xu Zhiyong, Teng
Biao, Pu Zhiqiang, Wang Yu, etc. ‘Foreign Media, NGOs, and foreign governments
have become principal supporters of the cause of Weiquan lawyers in China.’ 121 In
fact, some rights activism also use the international connection for the ‘boomerang
effect’ that is to publicize local violations and to use international pressure to influ-
ence domestic policy-makers especially in the fields of human rights.122 But it might
be less and less effective while China has more bargaining power in the global arena.
Through the analysis, we can see that the state pursues the approach of realization-
based comparative approach for justice. That is to discuss how to increase justice or
reduce injustice in a concrete way. From the perspective of realization and compar-
ison, we can see that Chinese performance in achieving justice is competitive.
The data and analysis show the majority of the public is content with the institu-
tional arrangement but critical of specific policies or decisions. The principle of the
realization-based theory is always in need of further efforts to enhance justice or
reduce injustice since they don’t accept the perfect institutional arrangement. The
Communist Party knows they are still facing many challenges and uncertainties in its
reform. As Xi Jinping talked about the difficulties in his speech on 7 February 2014:
‘Having been pushed ahead for more than 30 years, China’s reform has entered a
deep-water zone. It can be said that the easy part of the job has been done to the
satisfaction of all. What is left are tough bones that are hard to chew.’123
However, as Eva Pils, Fu Hualing, and Richard Cullen analyzed, some lawyers
treat the system as the cause of the injustice and turn to identify the right insti-
tutional arrangement for achieving perfect justice. The case study by Eva Pils, Fu
Hualing, and Richard Cullen and data analysis by Ethan Michelson, Sida Liu, and
Terence Halliday showed these lawyers’ political radicalization is not from ideolog-
ical commitment but from professional difficulties. We can sort their problems into
four categories: better the law enforcement, improve the quality of rules, improve the
institutional function under the Constitution, and improve constitutional governance.
120 ibid 443.

121 Hualing Fu and Richard Cullen (n 45) 55.
122 L. David Brown and Vanessa Timmer, ‘Civil Society Actors as Catalyst for Transnational Social
Learning’, (2006) 17 Voluntas: International Journal of Voluntary and Nonprofit Organizations 1,

9.
123 Xi Jingping, ‘Pushing Ahead With Reform Despite More Difficulties’, in Xi Jinping,The
Governance of China, (Foreign Language Press, 2014) 113.

Based on the previously mentioned research by Rachel Stern and Kevin O’Brien,
there are only a few areas that are politically prohibitive. For the absolute majority of
the problems they faced, there is legal and political space to be solved. Why do these
lawyers easily give up their efforts to enhance justice or reduce injustice in specific
contexts rather than turn to political radicalization? The interpretation of their polit-
ical radicalization is based on an assumption that there would be a perfect institutional
arrangement for China. Through their proposal, we could see that their ideal insti-
tution is the institutions in line with liberal democracy. Some even have no political
reasoning before being politically radicalized.124 So, they have to turn to religion
such as Christianity to sustain their political radicalization.125 The current literature
contributes the political suppression to their political radicalization. I would argue
that their reasoning of justice heavily influenced by transcendental institutionalism
could also be a very important incentive for political radicalization.
15.4 Uncertainty of the Rule of Law—Building in Theory

and in Chinese Reality
Not only can the reasoning of justice have different approaches, the exact meaning
or definition of the rule of law is also very capacious and even widely contested.
There are some efforts to develop conceptual frameworks for comparative purposes
such as the thin and thick rule of law models or for prescriptive purposes such as
rule of law as a principle of law and as a principle of governance. However, in terms
of context-based realization, these conceptualization efforts offer little help. In the
Chinese context, the unprecedented economic and social transformation offers more
uncertainties for the rule of law building even from the thin version.
15.4.1 The Conceptualization of the Rule of Law and Their

Limits
The conceptualization efforts help in understanding not only the difficulty of defining
the rule of law but also for comparative understanding, such as the Peerenboom ‘thin’
and ‘thick’ model.126 Some other scholars are more ambitious to establish normative
and prescriptive framework particular for the rule of law as a principle, such as Peter
124 Michelson and Liu (n 28) 311–312, 327. For example, they find that there is a big variation for
pursuing political reform between low-vulnerability and high-vulnerability lawyers.
126 Randall Peerenboom(n 113) 1–55.
338 W. Zhang
Tijpkema.127 Reflected in the international program designing, it can be classified into

minimalist version, market-oriented version, and human rights-oriented version.128
Peerenboom’s conceptualization is more in line with Sen’s idea of justice which
focuses on comparative purpose instead of pursuing perfect institutional arrange-
ment. Based on the scholarship of the rule of law such as Joseph Raz and Robert
Summers, Peerenboom’s thin conception stresses on:
formal or instrumental aspects of rule of law—those features that any legal system allegedly
must possess to function effectively as a system of laws, regardless of whether the legal
system is part of democratic or non-democratic society, capitalist, liberal or theocratic.129
His thick or substantive rule of law is to add elements of political morality to the
above-mentioned thin version which includes:
particular economic arrangements (free-market capitalism, central planning, ‘Asian devel-
opmental state’, or other varieties of capitalism), forms of government (democratic, socialist,
soft authoritarian) or conceptions of human rights (libertarian, classical liberal, social welfare
liberal, communitarian, ‘Asian values’ etc).130
For the choice between the two directions of defining the rule of law, Peerenboom
has not tried to develop relationships or causation between them.131 He argues that the
choice of thin or thick theories may depend on one’s purpose. The thin version could
be useful for feasible assessment and manageable reform while the thick version can
help link the legal with broad political, social, and economic reform and also good
for offering a platform for debating political issues in non-liberal society.132
However, there are also transcendental efforts of defining the rule of law. The
recent efforts such as Peter Tijpkema’s model of rule of law as a principle of law and
as a principle of governance:
As a principle of governance, the rule of law is a normative, prescriptive principle claiming
that all power relations within a society should be regulated in accordance with certain
fundamental principles. As such it must be distinguished from the Rule of Law as a principle
of law. As a principle of law, the Rule of Law is an analytical, descriptive principle claiming
that in order to qualify as a legal system an authoritative system should be in accordance
with certain fundamental principles.133
In 2004, the United Nations has also tried to propose a definition for the rule of
law:
a principle of governance in which all persons, institutions and entities, public and private,
including the State itself, are accountable to laws that are publicly promulgated, equally
127 Peter Tijpkema, ‘The Rule of Law Beyond Thick and Thin’ (2013) 32 Law and Philosophy 6,
793–816.
128 Gordon (n 119) 441–443.
129 Randal Peeronboom (n 113) 2.
130 ibid 4.
131 ibid 10.
132 ibid10.
133 Peter Tijpkema (n 127) 795.
enforced and independently adjudicated, and which are consistent with international human
rights norms and standards. It requires, as well, measures to ensure adherence to the princi-
ples of supremacy of law, equality before the law, accountability to the law, fairness in the
application of the law, separation of powers, participation in decision-making, legal certainty,
avoidance of arbitrariness and procedural and legal transparency.134
Peter Tijpkema treats the UN definition as a principle of governance. Through

interpreting the UN definition, he tries to describe that ‘rule of law as a principle of
law and as a principle of governance is inextricably intertwined’.135 He explained
that ‘public promulgation, equal enforcemen,t and independent adjudication’ are the
descriptions for being qualified as law which can also be interpreted as the normative
requirement of governance claiming that ‘government should regulate the power
relations within a society by rules that are publicly promulgated, equally enforced,
and independently adjudicated’.136
Both models have some overlapping basic elements for defining the thin version
of the rule of law or as a principle of law, such as being prospective, relatively
stable, generally applied, coherent, and enforceable by institutions and procedures.137
However, their different framing also shows the divergence even on the minimalist
definition. Peerenboom’s framing is more function focused in which he used the
terms ‘ensuring stability’, ‘enhancing predictability’, ‘providing a fair mechanism’,
etc. Tijpkema’s is more quality descriptive, such as ‘all law should be prospective’,
‘law should be relatively stable’, etc. There are also other minimalist definitions, such
as the rule of law ‘a regime of rules, announced in advance, which are predictably and
effectively applied to all they address, including the rulers who promulgate them….’
138
which combines the requirement of both basic quality description and function.
Among these minimalist definitions, we will find that their degree of being minimal
also varies to a large degree. For example, the requirement of law ‘being stable’ will
be substantially different from ‘ensuring stability’.
For the thick part or for the principle of governance, the debate is not just in
technique but in principle. Peerenboom has not even tried to give a prescriptive
framework. Peerenboom admits clearly that ‘no legal system to date has produced a
perfectly just society, and none ever will’.139 He also argues that ‘institutional choices
are often highly path-dependent: the initial choice of institutions and the way they
operate and evolve over time are influenced to a large extent by a host of contingent,
context-specific factors’.140 Through comparative studies of the rule of law building
134 United Nations Security Council, Report of the Secretary-General on The rule of law and
transitional justice in conflict and post-conflict societies (S/2004/616, 23 August 2004) 4 < https://
www.un.org/en/ga/search/view_doc.asp?symbol=S/2004/616> accessed 29 June 2020.
135 Peter Tijpkema (n 127) 796.
136 ibid.
137 Peerenboom (n 113) 2–3; Peter Tijpkema (n 127) 800–802.
138 Gordon (n 119) 441.
139 Randall Peeronboom (n 113) 9.
140 ibid 11.
340 W. Zhang
in Asian countries, he is open to accept that ‘the minimal requirements of rule of law
are compatible with considerable diversity in institutions, rules, and practices’.141
Peter Tijpkema has tried to offer a normative and descriptive definition, but ends
with a general description of ‘in accordance with certain fundamental principles’
which provide little descriptions. Comparatively, the UN definition is more prescrip-
tive in terms of the goal but not that helpful on how to achieve the goal in a specific
context.
It is fair to say these conceptualization efforts help understand the bottom and
principles of the rule of law. However, it offers a little reference for the rule of law
promoters or for the receivers in non-western societies on how to plant the rule of
law in their contexts, especially from the thick perspective. One reason is that ‘the
modern conception of rule of law is integrally related to the rise of liberal democracy
in the west’,142 but there is little work on clarifying the alternative conceptions of
the rule of law beyond the liberal democracy context.143
As to the world-wide rule of law advancement, while some criticism focuses on
its failure for promoting ‘political reform and democratization’ 144 mainly from the
transcendental perspective, some others focus on its donor-driven fragmentation and
knowledge gap.
As Robert W. Gordon observed, the rule of law reflected in the international
programs has been highly influenced by the donor’s perspective. Multilateral lending
institutions tend to interpret the rule of law in terms of its function: ‘well-functioning
markets require the support of a framework of clearly defined and effectively and
predictably enforced legal rules and rights’.145 Human rights activists view the rule
of law ‘as legal constraints on a state’s authority to search, arrest, imprisonment,
torture, or kill persons in its jurisdiction’.146
The Carnegie working paper on the rule of law has critical comments on the rule
of law promoting program:
There is a surprising amount of uncertainty, for example, about the twin rationales of rule-
of-law promotion—that promoting the rule of law will contribute to economic development
and democratization. There is also uncertainty about what the essence of the rule of law
actually is—whether it primarily resides in certain institutional configurations or in more
diffuse normative structures. Rule-of-law promoters are also short of knowledge about how
the rule of law develops in societies and how such development can be stimulated beyond
simplistic efforts to copy institutional forms.147
141 ibid.
142 ibid 4.
143 ibid 5.
144 ibid 37.
145 Gordon (n 119) 442.
146 ibid.
147 Thomas Carothers, ‘Promoting The Rule Of Law Abroad: The Problem Of Knowl-
edge’ (Carnegie Endowment Papers: Rule of Law Series No. 34, January 2003, Exec-
utive summary, <https://carnegieendowment.org/2003/01/28/promoting-rule-of-law-abroad-pro
blem-of-knowledge/95u> accessed 29 June 2020.
15.4.2 The Uncertainty of the Rule of Law Building in China
The fate of rule of law building in China highly depends on the economic, social, and
political reform in China. As introduced in part II, after the collapse of the Soviet
Union, China has neither a role model nor precedent to follow for the unprece-
dented experimentation of combining political socialism with economic liberalism.
In order to avoid big lessons such as the Great Leap or Cultural Revolution, or
Tiananmen Square Incident, the Chinese government turned to be very cautious in the
reform mainly through decentralized experiments in both economic transformation
and social transformation.
While scholars found that this experiment-based policy-making model provides
a more powerful explanation than static factors for Chinese economic transforma-
tion,148 the literature on the Chinese legal profession intends to contribute to the
uncertainty of the political boundary as one of the causes for lawyers’ political
radicalization. However, research shows that the interaction between central–local
governments is also full of uncertainties.149 It is observed that Chinese reform is full
of puzzles that accepts unauthorized local reforms on one hand and keeps sending
conservative ideological signals.150 The sound explanation is that ‘both the central
and the local governments are instrumental in China’s reform, with local governments
carrying out many actual reforms and the center selecting its signals to manage the
pace of reform, as if they are engaged in a tacit collusion in making a gradualist
reform’.151 Haifeng Huang even set a framework to explain the ‘long, perplexing,
and sometimes contradictory process’ with factors including the Center’s attitudes
such as being dominated by reformists or conservatives, the momentous focus such
as pro-status quo or pro-reform, and the risk levels such as low, middle and high
ones.152
Take the example of experimenting with a separate juvenile adjudication system.
At the initial stage of reform and opening-up, the government launched Hard Strike
in 1983 to deal with the increase in crime. Many judges including Mr. Li Chengren as
the Court Head of Chang Ning District People’s Court, Shanghai, found many youths
were unnecessarily or wrongly imprisoned.153 In order to respond to the situation,
he could say no to the whole policy as a dissent or to find a way for experimenting
with problem-solving. He decided to experiment with a separate system to deal with
juveniles. Even if it is problem-solving oriented, it is still a high-risk experiment for
being contrary to the criminal policy goal of the Hard Strike. He was ready to get
148 Sabastian Heilmann, ‘From Local Experiments to National Policy, The Origins of China’s
Distinctive Policy Process’ (2008) 59 China Journal 29.
149 Haifeng Huang, ‘Signal Left, Turn Right: Central Rhetoric and Local Reform in China’ (2012)
66(2) Political Research Quarterly 292–305.

150 ibid 292–293.
151 ibid 293.
152 ibid 295–297.
153 Wenjuan Zhang, Comparative Studies on US-China Juvenile Justice Reform Initiatives (Law
Press 2010) 124–126.

342 W. Zhang
removed and even to get imprisoned.154 Fortunately, the center was dominated by
reformists. More than thirty years later, juvenile justice became a well-established
system in which almost every court has established juvenile tribunals. With their
persistent efforts, the separate adjudication system has been partially institutionalized
by the Criminal Procedure Law Amendment (2012) as a separate procedure that is
Part V Section I from Article 266 to 276.155 This case is strong evidence for the
availability of legal and political space for problem-solving-oriented reform push.
However, in the arena of legal reform, the state–lawyer’s contextual and structural
interaction for enhancing justice or reducing injustices has not been well established.
Rule of law development in China is facing great challenges about how to adapt
legal rules to a rapidly changing society.156 Chinese unprecedented social transforma-
tion can be evaluated from many parameters, particularly from the economic growth
and the urbanization rate.
China’s economic development has occurred at breakneck speed. The average
GDP growth in the 1990s and 2000s is over 10%. From the economic perspective,
China ‘can be viewed as the most impressive, lasting, and complex in terms of
institutional changes and constraint conditions in the human history of economic
growth, which is generally praised by both prestigious international organizations
and economists’.157 That is, China must also develop its legal system at a faster
pace than the rest of the world.158 This makes the realization of even the minimalist
version of the rule of law very challengeable.
Based on the prediction of the World Bank, in 1978, China had less than 20% of
people living in cities; whereas in 2014, over half of the population lived in cities;
and by 2030, up to 70% of the Chinese population about one billion will be living in
cities.159 Karen C. Seto, a China expert and professor of geography and urbanization
at the Yale School of Forestry and Environmental Studies, clearly pointed that ‘the
scale of urbanization in China is without precedent in human history’.160 Fast urban-
ization means lots of changes in terms of land management, the Hukou system, labor
154 ibid, 126–127.

155 Ma Dong, Criminal Procedure Law Amendment and The Adjudication of Juvenile Delinquent
Cases, Dec. 28th 2012, On Supreme People’s Court, https://www.court.gov.cn/shenpan-xiangqing-
4927.html. Accessed 2 August 2020. For the English version of the law, see <https://www.cecc.gov/
resources/legal-provisions/criminal-procedure-law-of-the-peoples-republic-of-china> accessed 29
June 2020.
156 Benjamin J. Liebman, ‘Assessing Chinese Legal Reform for The 60th Anniversary of the PRC:
A Retrospective on the Chinese Legal Reform’ (2009) Colum. J. Asian L. 17, 106.
157 Li Yang, China’s Growth Miracle: Past, Present, and Future, United Nations Research Institute
for Social Development, 3 accessed 17 August 2020.

158 Liebman (n 156) 17.
159 World Bank and Development Research Center of the State Council, the People’s Republic
of China, Urban China: Toward Efficient, Inclusive, and Sustainable Urbanization (Wash-
ington, DC: World Bank, 2014) Introduction <https://openknowledge.worldbank.org/handle/10986/
18865> accessed 29 June 2020.
160 Karen C. Seto, ‘What Should We Understand about Urbanization in China?’ (Yale Insights, 1
November 2013) <https://insights.som.yale.edu/insights/what-should-we-understand-about-urbani

zation-in-china> accessed 29 June 2020.
market, social services access, environment protection, and energy-saving, etc.161

More importantly, the status quo of rights and welfare access based on the urban–
rural division could be upside down in the fast urbanization process. One of the
purposes of the rule of law is to make people plan their life, accordingly. The fast
urbanization raised potential challenges for many stakeholders especially migrant
workers and farmers to plan their life. We will take their experience as examples.
Fast urbanization and industrialization need cheap labor which creates the migra-
tion of farmers to move to cities for jobs, mainly in the informal form of employment.
In 2004, migrant workers reached 120 million which has been more than doubled in
the following ten years.162 Due to the backward regulation and weak rights protec-
tion mechanism, migrant workers’ labor rights were pervasively violated. As data
released by the Ministry of Construction in January 2004, there were more than 16
billion RMB (about 2.5 billion US dollars) of payment that migrant workers didn’t
get in time just in the year 2003.163 Especially before the Chinese traditional Spring
Festival, migrant workers without payment were stuck in a hard and indecent situ-
ation. Due to lack of legal knowledge and resources for seeking remedies, some of
them may use extreme ways, which even make their life worse. In 2003, Premier
Wen Jiabao personally helped a Chongqing migrant worker’s family (Ms. Xiong
Deming’s family) to collect 2300 RMB (about $380)164 which showed the strong
political will to safeguard migrant workers’ labor rights. However, it is also a great
example to show the helplessness of the central government in figuring out a better
way for problem-solving.
Under Hu–Wen Administration, which was the period of fast economic devel-
opment in China, it seems much more challenging to adhere to the law. Officials
often doubt whether ‘law is the best tool for managing a society undergoing rapid
and unprecedented social transformation’.165 Research also shows that ‘regardless
of the availability of the law and other permitted modes of action, a comparison of
citizen’s intention and their actual actions shows that many more people choose one
161 World Bank and Development Research Center of the State Council (n 159) Introduction.
162 In 2004, the number of migrant workers was 120 million according to the research of the Ministry
of Labor and Social Security, which is the predecessor of the current Ministry of Human Resources
and Social Security. Guo Yue (on behalf of the Ministry of Labor and Social Security), ‘Migrant
Employment and Labor Market Construction’, China News on Labor and Social Security, 30 July
2005. By the end of 2013, the number of migrant workers would reach 252.78268.94 million. There
are several sources for the number of migrant workers: 268.94 million was released by the Ministry
of Human Resources and Social Security in 2013 <https://sd.ifeng.com/zbc/detail_2014_05/29/234
7541_0.shtml> accessed 29 June 2020.
163 Qi Zhongxi, ‘90% of Migrant Workers’ Wages paid’, Sina News, <https://news.sina.com.cn/c/
2004-01-20/08201629525s.shtml>, Jan. 20, 2004, accessed 2 August 2020.

164 Based on the statistics shown in the National Economic and Social Development Statistics
(2003), published by the National Bureau of Statistics, net income per farmer is 2622 RMB
(about $400). That also means even though it’s a small amount of money. For more informa-
tion about Chinese farmers annual net income, see ‘Per capita net income of farmers since
2000’ <https://www.chinareform.org.cn/society/income/practice/201101/t20110123_59329.htm>
165 Liebman, 103–104.
344 W. Zhang
of two non-institutionalized extremes—silence or escalation of illegal action when

faced with conflicts, especially with state authorities’.166
The unprecedented challenge of building the rule of law even in the minimal
version produced widespread social unrest due to old rules behind the reality and
the dilemma of formal disputes system to get involved in. In these circumstances,
courts either refused to accept the case or tried to avoid the formal adjudication.
Scholars who closely monitored the Chinese legal reform expressed their concerns
‘legal reform with law-stability paradox’ 167 and sent warnings such as ‘China’s turn
against law’.168 But there was a lack of nuanced and contextualized understanding of
the unprecedented challenge of the rule of law building caused by the fast economic
and social development.
Here is an example169 to demonstrate the exact challenge even in the thin version
of the rule of law. In 1995, the Beijing Green Belt project started. The Government
needed to take the housing land from farmers of a village in Fengtai. During that time,
if a house for three family members was taken away, the government promised to
give them a two-bedroom apartment with urban citizenship if they could pay 50,000
RMB. About one-third of the farmers of the village accepted that offer. During that
time, many farmers wanted to have urban citizenship since it created more benefits
to find a job or to get access to city welfare. The government continued efforts
to convince farmers to move out. At the beginning of 2000, the government offered
another offer, which gave a two-bedroom apartment and one hundred thousand RMB
as extra compensation. Another one-third of the farmers accepted it. During that time,
housing price increases compared to 1995 but not substantially. In addition, there
was no comparative benefit for having urban citizenship. In 2012, the government
decided to move all the left by offering them a more attractive offer than they can get:
two sets of two-bedroom apartments, two million RMB as extra compensation, and
still be able to keep their farmers’ status. During this time, the farmers’ children also
have children. This is why they can get two apartments. The housing price has been
ten times that of early 2000. The compensation definitely needed to be higher. In
addition, the status of being farmers enabled them to get access to the village income
from collective resources, particularly commercial interests from the land in cities
due to urbanization. Compared to the farmers taking the offer in 2012, the villagers
who accepted the offer in 1995 and early 2000s felt very unfairly treated. In addition,
usually, the negotiation process between farmers and government was not equal and
formalized due to lack of law, which usually makes farmers feel ‘bullied’. Most of
them petitioned to the court for fair compensation. It was hard for courts to settle the
case through formal adjudication. Furthermore, the court didn’t want the farmers to
166 Yongshun Cai, ‘Social Conflicts and Modes of Action in China’ (2008) 59 The China Journal
92.
167 Liebman (n 156) 96–109.
168 Carl F. Minzner, ‘China’s Turn Against Law’ (2011) 59 Am. J. Comp. L. 935, 935–983.
169 The case was provided by a local office working on Xinfang during the legislative research
on regulating the former’s rights to housing land in Beijing which was entrusted by the Standing
Committee of Beijing Congress. The author’s access to the case was through her former experience
working on this research project.
shift their anger from the government to them. This is why they refused to accept
the case or encouraged them to settle it through mediation. In the 2000s, China had
many social conflicts which were caused by these kinds of cases.
This unprecedented legal reform challenge needs constructive interaction between
the state and the legal profession. Unfortunately, it has not been very successful
in many circumstances. There was evidence that the state had tried to work with
lawyers to address the legal challenges. In the case study of Gao Zhisheng, Eva Pils
mentioned the fact that Gao was awarded as top ten outstanding lawyer for serving the
public interest in 2001.170 Fu Hualing and Richard Cullen also found that ‘many of
the lawyers received government awards for their toughness and “waywardness” in
pursuing the protection of rights of the poor and powerless’.171 However, we could
find some CPC’s attitude changes toward lawyers between 2005 and 2008 which
might be caused by the political radicalization of some lawyers at that time. There
are some clues which show the declining political trust toward lawyers by taking the
three speech of Zhou Yongkang as the head of the Central Political Party and Legal
Affairs Committee at the Lawyers’ Conference. In 2005, he clearly called on lawyers
to ‘actively participate in the legislative process, to engage in political participation,
to conduct research on the new issues that emerged in the reform, and to promote the
improvement of socialist democracy and building the rule of law.’172 However, in
2008, among his five hopes for the role of Chinese lawyers to play in developing the
country, he listed socialist legal worker as the first and thus the most important hope,
and also stated that the CPC’s interest should be the highest priority a socialist legal
worker pursues.173 In 2011, Mr. Zhou articulated four hopes for lawyers’ identity in
China. He explicitly raised the first one as ‘have correct political stance’ which is to
‘embrace the leadership of the CPC’.174
The theoretical definition of the rule of law even the minimalist version can be
capacious. The thick version of the rule of law building is more path-dependent. The
international rule of law promotion projects, which are heavily driven by western
donors and persistently focused on the thick version dominated by the theory of liberal
democracy, creates some confusion for non-western countries to explore their version
of the rule of law. In the Chinese context, the unprecedented economic and social
transformation caused further uncertainties for the rule of law building. However,
uncertainty also means opportunities for being part of the solution. The pilot of
juvenile justice is a good example. Unfortunately, the majority of Chinese lawyers,
especially those who have been heavily influenced by the liberal democracy, have not
170 Eva Pils (n 40) 1224.

172 Zhou Yongkang, ‘Speech at the Sixth Lawyers Congress’ (14 June 2005) <https://news.xinhua
net.com/legal/2005-06/15/content_308es6577.htm > accessed 29 June 2020.

173 Zhou Yongkang, ‘Speech at the Seventh Lawyers Congress’ (25 October 2008) <https://news.
xinhuanet.com/legal/2008-10/26/content_10257859.htm> accessed 29 June 2020.

174 Excerpts of ‘Zhou’s Speech at the Eighth Lawyers Congress in 2011’ (27 November 2011)
<https://www.sdlawyer.org.cn/003/003/2012216906875.htm> accessed 29 June 2020.

346 W. Zhang
built the collective wisdom of seeking their role as co-creators of problem-solving,

and instead treat themselves as a victim of the uncertainty.
15.5 Case Study: Experiment on an Ecological Approach

to Problem-Solving
Philosophers, such as Amartya Sen, have built a theoretical framework to explore

the alternative approach to justice with a reasoning based on a question: ‘how justice
would be advanced instead of asking what would be perfectly just institutions’. The
outcome-based evaluation and survey-based reflection of public reasoning discussed
in Part II and III show strong support to the path of socialism with Chinese char-
acteristics led by the CPC. However, the path is full of uncertainties, in need of
collaborative partnership for experiment-based problem-solving and policy-making.
Then the question is whether Chinese lawyers could establish their strategic partner
role in the rule of law building in China. The answer is yes if lawyers could
shift their reasoning from identifying ideal institutional arrangement to ‘realization-
based comparison’ and would like to develop their leadership competency through
pragmatic problem-solving actions.
Sen has proposed a framework of using social choice for reasoning in pursuing
his idea of justice which includes six clearly framed recommendations: (1) focus
on ‘practical reason behind what is to be chosen and which decision should be
taken’ not just the transcendental; (2) recognition of the inescapable plurality of
competing principles; (3) allowing and facilitating re-examination; (4) permissibility
of partial solutions; (5) exploration of functional connection and open for diversified
interpretation and inputs; and (6) emphasis on precise articulation and reasoning.175
Ansell’s six pragmatist problem-solving recommendations are the concrete appli-
cation of Sen’s realization-based reasoning of justice: (1) situationally focused and
experimental; (2) holistic for probing the deeper causes by paying attention to the
problem ecologies; (3) proactive in stance rather than response based; (4) conduct
knowledge and skill intensive problem inquiry and build capacity for future; (5)
multi-stakeholder collaboration and mutual adaptation for problem-solving; and (6)
cultivate purpose and principle and communicate through public reasoning.176 In
addition, he also discusses the complex role of public reasoning in social choice.177
The key elements of this pragmatist theory are to develop a highly focused
problem-solving strategy with practical reasoning and constructive interaction with
key stakeholders, to reflect and adapt the experimental solutions in a holistic and
proactive way for refinement and expansion, and to focus on capacity building of
175 Amartya Sen (n 63) 106–110.

176 Chirstopher. K. Ansell, Pragmatis Democracy: Evolutionary Learning As Public Philosophy
(Oxford 2011) 84–101.
177 Amartya Sen (n 63) 110–111.
knowledge and skills. These are becoming essential for civil society stakeholders to
play a meaningful role in domestic and global governance.
The adversarial mindset and the more and more focus on technical training in
legal education are good at producing wise litigators rather than problem-solving
leaders. That means, both the realization-based, justice reasoning and the pragmatist
problem-solving strategy set a new standard for lawyers to play the role in social
change in terms of mindset, knowledge, and skills. Ben Heineman has made a call to
lawyers for leadership building in his speech ‘Lawyers as Leaders’.178 He believes
that lawyers need to play a leader’s role: (1) to define problems comprehensively;
(2) to integrate different perspectives into solutions; and (3) to forge agreement on a
solution and then implement it in a way that makes a difference.179
Conscious efforts have been taken by some NGOs. Peter Padbury’s of the Cana-
dian Council for International Cooperation observed that, ‘Many NGOs working on
the sustainability agenda have shifted from seeing themselves as critics to seeing
themselves as “co-creators†who bring analysis, expertise, and solutions to the policy
dialog’.180 Even in the human rights field, Ambassador Luis Alfonso de Alba of
Mexico, First President of the Human Rights Council (2006–2007), also pointed
that ‘the complementary work of NGOs in the field of human rights is perceived
to be increasingly moving from traditional “namingg and shaming†policies toward
a more cooperative engagement with Governments and other stakeholders. Such
responsible engagement should be aimed at improving the human rights situation on
the ground.’181
Based on the pragmatist theory and the global trend of the rights movement, we
conduct a case study on the Zhicheng Justice Pilot on Migrant Workers’ Protection
initiated by Zhicheng Public Interest Lawyers.
15.5.1 Articulated and Practical Reasoning for Reform

Proposals
We mentioned in Part III about the problems faced by migrant workers in the early
2000s and the interesting efforts made by Premier Wen Jiabao to personally collect
unpaid wages for the Chongqing migrant workers in 2003. As a lawyer, on the one
hand, you witnessed a pervasive violation of migrant workers’ labor rights and the
178 Ben W. Heineman, Jr., ‘Lawyers as Leaders’, (2007) 116 Yale L.J. Pocket Part 266 <https://the
pocketpart.org/2007/2/16/heineman.html> accessed 29 June 2020.
179 ibid at 268.
180 Tom Bigg quotes Peter Padbury, the Canadian Council for International Co-operation, see,
‘NGOs and the UN System Since the Rio Summit, Global Policy Forum, <https://www.globalpol
icy.org/component/content/article/177/31815.html> accessed 2 August 2020.
181 Office of the High Commissioner on Human Rights (OHCHR), ‘Working with the United
Nations Human Rights Programme—A Handbook for Civil Society’(New York and Geneva, 2008)
90, <https://www.ohchr.org/EN/AboutUs/CivilSociety/Documents/Handbook_en.pdf> accessed
29 June 2020.
348 W. Zhang
widespread illegal or even extreme ways for claiming remedy; on the other hand,
you found that the central government wanted to solve the problem but in a way
undermining the rule of law building. If you think as a pragmatist problem-solving
leader, you would ask: what’s wrong with the current legal mechanism and how
lawyers can be part of the solution? In order to answer the question, you will further
ask a more concrete question: why migrant workers are reluctant to turn to the legal
system for remedy? This is exactly where lawyer Tong Lihua, founder of Zhicheng
Public Interest Lawyers (Zhicheng), started his reasoning.
From January 2004 to August 2005, Zhicheng tried to understand the challenges
faced by migrant workers for legal protection. In order to answer the question, Tong
Lihua and his team of lawyers designed a survey project. They used 18 months to
finish their report named Survey Report on the Cost of Migrant Workers for Legal
Remedy in China by conducting 8,000 questionnaires in 8 provinces, tracking 17
nationally known typical cases, and conducting in-depth interviews with experienced
lawyers focusing on migrant workers including Zhou Litai.182 Through data analysis
and calculation, they found on average migrant workers needed to pay three times of
judicial cost for their claims.183 They also further addressed the causes of the high
cost: (1) the current judicial system is too time-consuming and expensive for migrant
workers to resort to; (2) that there is a lack of high-quality and free legal service for
migrant workers to rely on.
Then they further assessed relevant options such as government legal aid centers
or private law firms working on migrant workers. It is true that there is a government-
based legal aid system in China, which takes the major responsibility of providing
legal aid to poor people. Unpaid salary claims and workplace injury claims of migrant
workers fall within the scope of cases handled by government legal aid offices if
migrant workers can prove their income qualifying for legal assistance. However,
based on Zhicheng’s research, due to inadequate funding, there is a gap between
supply and demand in the government legal aid system in which they usually used
income criteria to narrow down the qualified numbers for legal aid. In addition, the
legal aid delivery is mainly through private lawyers randomly appointed by govern-
ment legal aid centers. The service of these private lawyers is questionable both
due to the lack of monetary incentive184 and lack of specialized skills.185 They also
examined the odd situation faced by the Zhou Litai model which relies on contingent
fees but ended with a sour relationship with their clients of migrant workers due to
fee collection failure.186
182 ‘Judicial Cost is Three Times of Claimed Amount’ (Beijing Times, 21 June 2004) <https://fin
ance.qq.com/a/20050622/000130.htm> accessed 29 June 2020.
183 ibid.
184 The subsidy to lawyers who are appointed is very low. So lawyers are reluctant to do this.
185 Law firms usually assign inexperienced young lawyers to take legal aid cases. But most migrant
workers’ cases require proficient skills for winning cases. For example, one reason is that the other
party usually can afford high-profile lawyers. Even more importantly, in migrant workers’ cases,
lack of evidence is typical.
186 Ethan Michelson (n 12) 18–19.
Upon the evidence-based assessment and the practical reasoning, they decided to
experiment with a civil society-based, free but high-quality legal aid model (here-
after referred to as Zhicheng Justice Pilot) to serve the migrant workers.187 They
shared their articulated and practical reasoning with the public through the media. In
June 2005, Zhicheng publicized its report in a high-profile way. Chinese top media
outlets including Legal Daily, Beijing News, China Radio International, and Xinhua
News joined their press conference and publicized their key findings. It created a
public discourse for discussing the legal remedy limits for migrant workers. Other
media outlets further interviewed officials and scholars on the issue to fuel the public
discussion. This situation-focused partial solution drew wide attention to the legal
protection of migrant workers’ labor rights.
For Zhicheng, this started the institutional efforts to engage in the Chinese legal
reform through the lens of serving migrant workers on their labor rights. Through
the wide scope of serving migrant workers with 800–1000 cases on average a year
in Beijing and more from the affiliated offices, Zhicheng is able to propose many
evidence-based reform proposals varying from legal aid delivery mechanism to labor
law and to the role of civil society in improving legislative quality in an institutional-
ized way. In order to make this articulated and practical reasoning institutionalized,
they develop a comprehensive advocacy model which is from direct legal service to
evidence-based research and to policy advocacy.188 They found that many migrant
workers couldn’t get government legal aid because of the poverty proof requirement.
Based on their advocacy, the poverty proof requirement was quickly abolished in the
Fengtai District of Beijing189 where the Zhicheng office is located. Later, Zhicheng
lawyers were able to push its adoption into Article 11190 of the Beijing Legal Aid
Act in 2008.191 Now more and more provinces have abolished it. The change of the
policy enforcement looks small but substantially increases the chance for migrant
workers to get legal aid. They used data analysis192 to advocate the overhaul of the
labor arbitration system and were invited to participate in the legislative debate of
PRC Law on Labor Disputes Settlement through Mediation and Arbitration, with a
187 Tong Lihua and Wenjuan Zhang, ‘Promoting Professionalized, Specialized and Civil Society-
Based Public Interest Lawyering Practice’ (2010) 3 Chinese Lawyers 57–58.
188 Tong Lihua and Wenjuan Zhang, Civil Society in China: A New Force for Equitable Develop-
ment—Experience and Thoughts of Legal CSO, Report Series from the Governance for Equitable
Development Project (Sponsored by the European Community and the United Nations Development
Programme, 2007) 45–46.
189 ‘No Poverty Proof Needed in Applying Legal Aid’, Beijing Youth Daily, <https://news.qq.com/
a/20060411/000490.htm> accessed 29 June 2020.

190 Article 11 of Beijing Legal Aid Act 2008: ‘For migrant workers who apply for legal aid in cases
of unpaid salary and workplace injury, they are not bound by the poverty criteria’ <https://baike.
baidu.com/item/%E5%8C%97%E4%BA%AC%E5%B8%82%E6%B3%95%E5%BE%8B%E6%
8F%B4%E5%8A%A9%E6%9D%A1%E4%BE%8B> accessed 29 June 2020.
191 The first version of the Bill was drafted by the Zhicheng lawyers entrusted by the Beijing Bureau
of Justice in 2007.
192 ‘Problems in Migrant Workers’ Legal Protection’ (11 September 2011) <https://news.qq.com/
a/20060411/000490.htm> accessed 29 June 2020.

350 W. Zhang
direct contribution to the adoption of Article 47.193 In addition, they have persistently
advocated for the ‘State pay first’ system due to facts that the low rate of insurance
registration for migrant workers and the challenges to collect compensation after
workplace injury happened in such circumstances based on their data-based reports
and case studies.194 Their efforts helped to create attention among academia and the
public. Finally, they were able to get invited to the legislative debate195 of revising the
Regulation on Workplace Injury Insurance and the drafting process of Social Insur-
ance Law and finally made this system get adopted.196 More importantly, they closely
monitor its implementation after its adoption in the law.197 After building their repu-
tation as practical and articulated reform promoters, they have more chances to join
debates, seminars, and conferences inside the system. They could raise proposals on
more sensitive matters. For example, Tong Lihua, founder of Zhicheng, has proposed
to the 18th Communist Party’s Congress on how to strengthen the rule of law building
with 27 legal and political reform suggestions in 2013198 in which ten suggestions
are about the relationship between the party and the legal reform, a very sensitive
matter in Chinese context.199
193 Based on an annual report to monitor law enforcement, Zhicheng advocated for the revocation of
the labour arbitration system because it burdens migrant workers with further procedures without any
real settlement. Zhicheng’ lawyer was invited to the legislative process by the National People’s
Congress. Article 47 which mainly limits the employers’ right to manipulate the procedure was
finally approved as a compromise was adopted into the law.
194 See, ‘Workplace Injury Cases for Migrant Workers’, <https://www.zgnmg.org/a/08yjbg/01yjcg/
246.html> accessed 29 June 2020; ‘Annual Report of the Beijing Zhicheng Migrant Workers Legal
Aid and Research Center’, <https://www.zgnmg.org/a/08yjbg/01sdltmdql/662.html> accessed 29
June 2020; ‘How Social Insurance Protects Migrant Workers’, <https://www.zgnmg.org/a/08yjbg/
02sdltmdql/725.html> accessed 29 June 2020.
195 Hong Liu, ‘Exploring the Legislative Efforts for Getting the State Pay First System Behind
the Screen’ (Legal Daily, 9 January 2009) <https://news.sohu.com/20090110/n261675868.shtml>

accessed 29 June 2020. See also Zheng Zuwei, ‘Public Interest Lawyer Proposes Amendment of
Regulations On Work-Related Injury Insurance’ (Public Interest Times, 6 June 2007) <https://www.
law-star.com/cac/40009283.htm> accessed 29 June 2020.
196 Article 41 of Social Insurance Law 2010: ‘When a work injury accident occurs while the
employer does not make work injury contributions as required by law, work injury benefits shall be
paid by the employer. If the employer refuses to pay, interim payment shall be arranged from the
work injury insurance fund. Interim payment for work injury benefits paid from the work injury
fund shall be paid off by the employer. When the employer refuses to pay off, the social insurance
agency may demand repayment in accordance with Article 63 of this law.’.
197 Implementation Rules In Need for Arbitration as the Final Decision, <https://www.zgnmg.org/
2011/10/21/yicaizhongjuxinzhiduhaixuyaoxiguiding/> accessed 2 August 2020.

198 Tong Lihua, Legal Reform after the 18 th Congress of CPC, (People’s Press 2015).
199 Wenjuan Zhang, ‘China’s Legal Reform under the New Leadership: Observations from a Public
Interest Lawyer on the Front Lines’ (CORN, 15 October 2015) <https://corn.groups.politics.uto

ronto.ca/?p=561> accessed 29 June 2020.
15.5.2 Develop Long-Term Goal and Organize Resources

Around the Problem-Solving
As introduced at the beginning of this part, Heineman also emphasized that problem-
solving leadership requires lawyers to ‘create and build’, to ‘define problems compre-
hensively’, and to ‘integrate different perspectives into solutions’.200 Ansell also
emphasized in his research on problem-solving that the basic lesson is to ‘organize
the resources around the problem and avoid the temptation to force the problem into
machinery created for another purpose’.201 Zhicheng has been consciously working
with different stakeholders to sustain its institutional building and also for expanding
its space in promoting reform.
Zhicheng has been consciously developing a diversified partnership with all
critical stakeholders, including different government agencies at different levels,
lawyers’ associations, private law firms, bureau of justice, academia, other NGOs, and
international NGOs.202 The diversified partnership enables its institutional indepen-
dence and also the convenience to organize resources to promote justice in individual
cases or to promote legal reform in a large sense.
In the Zhicheng Justice Pilot, from the very beginning, they have made conscious
efforts to work with different levels of government and other key stakeholders such
as bar associations, including local government such as Fengtai District Government,
the functional agency at the city level such as the Beijing Bureau of Justice, and the
national bar association named All China Lawyers’ Association for the scaling up
of the Pilot. They identified that the Fengtai Government would be the right one to
endorse the value of the model in reducing illegal or extreme ways of rights claim by
guiding migrant workers to the legal remedy since their office is based in the Fengtai
District. They also realize that it is very necessary to convince the Beijing Bureau of
Justice for recognizing the innovation to the current legal system which is necessary
for solving the NGO’s formal registration at a later stage.203 The collaboration with
the All China Lawyers’ Association is crucial for mobilizing more lawyers to join the
public interest law service for migrant workers and also for the later stage of scaling
200 Heineman (n182),268.

201 Ansell (n 176) 92. See also Malcolm K. Sparrow, The Regulatory Craft: Controlling Risks,
Solving Problems, and Managing Compliance (Brookings Institution Press 2000) 218.
202 Wenjuan Zhang, ‘A Comparison Between the Brennan Center for Justice and Zhicheng Public
Interest Lawyers’ (Brennan Center for Justice, 21 August 2015) <https://www.brennancenter.org/

blog/comparison-between-brennan-center-justice-and-zhicheng-public-interest-lawyers> accessed
29 June 2020.
203 In 2009, they got former registration as Beijing Zhicheng Migrant Workers’ Legal Aid and
Research Center (BZMW). From 2005–2009, they functioned as a legal aid office which lacked
independent legal status but was approved to function by the Beijing Bureau of Justice. In 2011, the
BZMW and its sister organization, the Beijing Children’s Legal Aid and Research Center, became
the first two legal NGOs with special consultative status granted by the UN ECOSOC. China
Development Brief has some introduction to Chinese NGOs’ consultative status accreditation, see
‘China Development Brief’ <https://www.chinadevelopmentbrief.org.cn/org0/active-7068-1.html>
352 W. Zhang
up across the country since, in China, NGOs cannot establish branches beyond their
jurisdiction of registration.
After one year of experimentation, they released their report to show the progress
of their experimentation.204 In the press conference, Fengtai District Government
confirmed that they witnessed a clear decline of migrant workers petitioning or
surrounding the government in Spring Festival 2006 which is a big selling point of
the project since this is the problem faced by all levels of government. The Fengtai
Government endorsement gave evidence and confidence to the Beijing Bureau of
Justice to discover the model in a more serious way. Meanwhile, Zhicheng also
advocated that lawyers should take more social responsibility to serve the migrant
workers. In early 2006, Zhicheng successfully convinced the All China Lawyers’
Association (ACLA) to issue an Opinion on Enhancing Legal Aid Delivery to Migrant
Workers which encourages to set up public interest law organizations to serve migrant
workers.205
Through the media, they have always been keeping dynamic communications
with the society including potential international donors. Soon, the United Nations
Development Programme (‘UNDP’) program officers in Beijing got to know about
the Zhicheng Justice Pilot. They realized the special value of the pilot in addressing
the plight of migrant workers in China and wanted to contribute to the national
scaling-up process that is to establish more similar NGOs in other provinces. The
UNDP’s role was to raise funding. Zhicheng’s role was to mobilize matching funds
for meeting the UNDP supporting policy, to seek government agency support, and
to explore a partnership with All China Lawyers’ Association for the institutional
legitimacy of establishing more public interest organizations in other provinces.206
In early 2007, UNDP secured funding at an amount of $500,000 from the Belgium
Government. Zhicheng found a matching fund from the China Legal Aid Founda-
tion. They were finally able to establish 15 specialized migrant workers’ legal aid
offices supported by the UNDP207 and 5 other offices supported by the China Legal
Aid Foundation. The Opinion released in early 2006 became a guiding document to
encourage local lawyers’ association and local law firms to join the scaling-up process
204 Many media outlets publicized its main achievement, even advocating this new kind of
specialized legal aid model. The report was also on the UNIAP China’s website.
205 The full content in Chinese is available at <https://www.xmlsv.com/news/5.htm> (accessed on
31 July 2017).
206 According to the regulation, Beijing NGO cannot set branches in other provinces. It is very
challenging to establish an association of NGOs in different provinces. If there is no legitimate name

for the NGOs to get networked, it would be politically risky for their daily frequent interactions.
The All China Lawyers’ Association could be a good umbrella to network the newly fostered public
interest law NGOs.
207 For more information about the project, see, ‘China’ (UNDP) <https://www.undp.org.cn/pro
jects/44355.pdf> accessed 29 June 2020. Also see, BZMW Justice Pilot (UNDP). https://ch.undp.
org.cn/modules.php?op=modload&name=News&file=article&catid=14&topic=17&sid=321&
mode=thread&order=0&thold=0 . On 28 November 2008, the UNDP Administrator Helen Clark
visited the BZMW office in Beijing: <https://english.people.com.cn/90001/90776/90883/6826905.
html> accessed 29 June 2020.
and also enabled the scaling up through the institutional network of ACLA. Further-
more, Zhicheng convinced the ACLA to establish the Legal Aid and Public Interest
Committee which provides an institutional platform for follow-up communication,
capacity building, and networking among the public interest law organizations.
One of the key successes for the institutional sustainability of the Zhicheng Justice
Pilot is local leadership and local ownership. For many even most international aid
programs internationally financed projects, the key challenge they are facing is the
failure to marry with local partners who have a long-term commitment. ‘A key
constraint that needs to be overcome is that development interventions—projects,
programs, and policies—are all too often like small pebbles thrown into a big pond:
they are limited in scale, short-lived, and therefore without lasting impact.’208
When Zhicheng agreed to take the leadership role for scaling up the project,
they knew the risk of financial uncertainty. The responsibility is no less than the
decision taken by some lawyers to take some politically sensitive cases. The finan-
cial challenge did come. Even though the Belgium Government initially planned
to renew its funding, in that year earthquake in Sichuan Province happened. Then
the Belgium Government diverted its funds to the Sichuan earthquake victims. The
UNDP couldn’t find other funding sources and ended up with the funding suddenly.
From 2008 to 2010, Zhicheng took the leadership for the survival and thriving
of the Zhicheng Justice Pilot through: (a) promoting local ownership for exploring
local funding such as from local government legal aid centers and trade unions; (b)
conducting risk management in a proactive way which helps save some back-up
funding for the urgent survival; (c) setting benchmarks and developing evaluation
mechanism to enable the concentration of its funding on the most effective organi-
zations; and (d) developing a small amount of fund raising strategy from multiple
donors in USA, Denmark, Australia and France.
Opportunity dances with those who are ready on the dance floor. Institutional
survival is essential for the future development. In 2010, the Ministry of Finance
decided to provide 50 million RMB (about 8 million US dollars) to support govern-
ment legal aid centers that were under-financed and law firms that do pro bono work
for five types of disadvantaged people, including migrant workers. The Zhicheng
successfully convinced the China Legal Aid Foundation with who are designated to
run the funding program by the MoF as the program executive body, to recognize
non-government legal aid CSOs as eligible to receive these funds. The Zhicheng, its
affiliated offices, and some other legal aid CSOs have all benefited from this break-
through financial opportunity. Especially after the Guiding Opinion on Contracting
with Civil Society for Service issued by the General Office of the State Council
(Central Government) issued in September 2016,209 there has been more financial
support from the government for civil society development. Meanwhile, Zhicheng
208 Linn Johananes F. et al., ‘Scaling Up the Fight Against Rural Poverty: An Institutional Review
of IFAD’s Approach’ (2010) Working Paper 43, Global Economy & Development at Brookings,
at 2. <https://www.brookings.edu/wp-content/uploads/2016/06/10_ifad_linn_kharas.pdf> accessed
29 June 2020.
209 For the full text of the Guiding Opinion, see <https://www.gov.cn/zwgk/2013-09/30/content_2
498186.htm> accessed 29 June 2020.

354 W. Zhang
has also been able to mobilze private law firms such as the King and Wood Law Firm
and the Beijing Zhonglun Law Firm to contribute resources to this civil society-based
specialized legal aid model to disadvantaged groups.
Zhicheng has strived for more than ten years for this institutionalized commitment.
By August 2019, Zhicheng has helped establish 40 public interest law organizations
on migrant workers and other disadvantaged groups by cultivating 180 full-time
lawyers with commitment and specialization in migrant workers’ rights.[210] They
have helped migrant workers collect around $100 million of unpaid salaries and
compensations which saved more than 600,000 migrant workers’ families from slip-
ping into poverty.210 They represented migrant workers through mediation, arbitra-
tion, and court trial in over 35,000 cases each of which has a long story of fighting
injustice for the vulnerable migrant workers.211 They have also handled some sensi-
tive cases such as bringing the first case of suing the local government for labor law
enforcement malfeasance.212 Through monitoring case type change, they found the
percentage of unpaid salary and workplace injury cases has dropped from 93% to
about 40% which shows the improvement of migrant workers’ rights protection in
general.213 In the 14 years, more than 30 legal reform proposals have been accepted
by legislatures and policy-makers which even benefit more stakeholders in the long
run. If evaluated by Sen’s realization-based comparison approach to justice, it is hard
to find any other NGO or any human rights lawyer in China who has achieved such
comprehensive justice with measurable indicators for the disadvantaged groups in
China so far.
Their success is worthy of the case study. The theory of political embeddedness
is not enough to explain their model. I would argue that it is the ‘realization-based
approach’ to justice that helps them not easily give up or become radicalized. Further-
more, it is their practical reasoning and the dynamic communication with the public,
their proactive strategy for organizing resources around the problem, and their holistic
and institutionalized commitment to enhance justice with a verifiable measurement
that has enabled Zhicheng’s sustainable capacity to become the biggest public interest
network in China, to serve a large number of migrant workers for reducing injustice,
and to promote various reforms in effective way for more than ten years.
[210] Mingyang Liu, TongLihua: Collecting Unpaid Salary and Other Compensations at Amount
of 600 Million, Beijing News, (1 August 2019) <https://www.bjnews.com.cn/news/2019/08/01/610

169.html> accessed 1 August 2020.
210 ibid.
211 Beijing Zhicheng Migrant Workers’ Legal Aid and Research Center, Tenth Anniversary Report
(11 September 2015) <https://news.youth.cn/jsxw/201509/t20150911_7105337.shtml> accessed

29 June 2020.
212 Deliang Xie, Migrant Workers Suing Labor Bureau of Daxing District Beijing, Beijing Star
Daily, 20 April 2004, reposted by Sina Finance, https://finance.sina.com.cn/g/20040420/084872

7222.shtml assessed 8 August 2020.
213 Ying Sun, ‘Collecting Compensation for Migrant Workers at Amount of 145 million RMB
in Ten Years’ (CNTV, 11 September 2015) <https://news.cntv.cn/2015/09/11/ARTI14419717659

50766.shtml> accessed 29 June 2020.
15.6 Conclusion
The scholarship, especially in the West, has made great efforts to help understand
how the Chinese legal profession can survive its experiment with economic liber-
alism within political socialism. The models of political embeddedness and political
radicalization provide a good framework to understand the special journey of the
Chinese legal profession. However, the current literature is heavily influenced by the
reasoning of transcendental institutionalism which makes it hard to find innovative
ways to reflect on the difficulties of lawyering for change in China.
Amartya Sen’s framework of two approaches to justice provides a new angle to
understand why Weiquan lawyers easily turn from professional difficulties to political
radicalization. For these lawyers, the belief in the availability of ‘just society’ makes
them easily give up concrete efforts to enhance justice or reduce injustices in the
context. Sen’s theory also reminds us of the necessity to understand the uncertainty
of the rule of law building and the demand of ecological relationship between state
and legal profession for problem-solving and policy generation. The Zhicheng case
shows us that the problem-solving strategy described in theory might work in the
Chinese context. It demonstrates that articulated and practical reasoning, proactive
organization of resources around problem-solving, and institutionalized commitment
with a holistic perspective and realization-based goals and measurable indicators
could and also should work in the Chinese context or even not limited to the Chinese
context.
Chapter 16
‘A Call for Order’: Intra-Disciplinary
Challenges and ‘Comparative
Environmental Law’
Akhilendra Pratap Singh
Abstract This chapter identifies and discusses some intra-disciplinary challenges

that inform ‘comparative environmental law’ scholarship. The primary argument
herein is that major responsibility for the challenges that permeate the field of
‘comparative environmental law’ is upon its parent disciplines of environmental
and comparative law. To meet that goal in an orderly fashion, the chapter begins
by discussing the ‘intra-disciplinary’ challenges that infuse the two fairly distinct
fields of environmental and comparative law. In that light then, the chapter discusses
some works associated with ‘comparative environmental law’ to highlight how those
intra-disciplinary challenges have made their way into the field of ‘comparative envi-
ronmental law’. It also briefly highlights the significance of a recent study for the
future of CEL scholarship. The chapter ends by noting some general observations
concerning the field of CEL and its scholarship.
16.1 The Issue
The primary title of this chapter expresses the need for order. Therefore, it is only fair
that the discussion is furthered in an orderly fashion. Doing so demands mentioning
the central issue of the chapter, in some detail, before delving deeper. The issue-at-
hand can somewhat be explained through the proverb ‘the apple does not fall far
from the tree’, which is a rough sense means that traits of an offspring are relatable
to his or her parents. To put it in more direct words, the chapter narrates the story of
three legal sub-disciplines—two of which are fairly distinct from each other in terms
of their subject matter and purposes, while the third combines the knowledge base
of the other two but goes beyond that—which can be clubbed together under one
A. P. Singh (B)
Ph.D., Department of Political Science “Jean Monnet”, University of Campania “Luigi
Vanvitelli”, Caserta, Italy
LL.M, NLU Delhi, Delhi, India
LL.B, Banaras Hindu University, Varanasi, India
B.Com, University of Allahabad, Prayagraj, India
358 A. P. Singh
category for the intra-disciplinary challenges informing them. The first two of those
sub-disciplines are environmental and comparative law, while the third sub-discipline
is that of ‘comparative environmental law’(hereinafter CEL).
In one sense, CEL can be viewed as an area of inquiry emanating from the cross-
fertilization of environmental and comparative law disciplines. In spite of being a
promising field of comparative legal inquiry, particularly when considered in the
context of the increasing frequency of environmental problems around the globe,
CEL has not been much explored by comparative law scholars. Several reasons may
be accorded to such neglect, but the three most prominent ones are: first, environ-
mental law is in itself a complex area of legal research and study as its boundaries
are extremely porous. That is to say, environmental problems are so complexly inter-
twined with social and economic issues that it becomes hard to draw a clear line of
distinction. That disciplinary identity of environmental law is captured by Professor
JB Ruhl in the following way: ‘environmental law interact[s] with other fields of law
and policy that have little or nothing to do directly with the environment, such as
in national security, immigration, public health, human rights, finance, housing, and
trade policies.’1
Second, high degree of variations in environmental laws across jurisdictions has
demotivated comparative law scholars from engaging with CEL. The following recent
observation highlights and strengthens that accusation: ‘most of the existing work
on [CEL] has been done by environmental lawyers, rather than by comparative law
experts.’2 In this context, one may certainly accuse comparative lawyers of their
ignorance towards environmental law as one of the purposes of comparative law is
to study and make sense of the ‘difference’.3 However, such accusation may also
be viewed upon as overly harsh or far-fetched as environmental law is particularly
‘dynamic’ field of law, wherein making generalized conclusions is neither easy nor
safe. That is because of the significant uncertainties that surround environmental
science,4 which is also the third, and arguably, most significant impediments in
doing CEL.
1 JB Ruhl, ‘Climate Change Adaptation and the Structural Transformation of Environmental Law’
(2010) 40 Environmental Law 363, 377.
2 Jorge E Viñuales, ‘Comparative Environmental Law: Structuring a Field’, in Emma Lees and Jorge
E Viñuales (eds), The Oxford Handbook of Comparative Environmental Law (Oxford University
Press 2019) 5.
3 Max Weber remarked: ‘[A] comparative study [should] not aim at finding ‘analogies’ and ‘paral-
lels’, as is done by those engrossed in the currently fashionable enterprise of constructing general
schemes of development. The aim should, rather, be precisely the opposite: to identify and define
the individuality of each development, the characteristics which made the one conclude in a manner
so different from that of the other. This done, one can then determine the causes which led to these
differences’ Cf Pierre Legrand, ‘The Impossibility of “Legal Transplants”’ (1997) 4 Maastricht
Journal of European and Comparative law 111.
4 See, generally, Adam Babich, ‘Too Much Science in Environmental Law’ (2003) 28 Columbia
Journal of Environmental Law 119.Crawford S Holling, ‘Two Cultures of Ecology’ (1998) 2 Conser-
vation Ecology, available online at < https://www.ecologyandsociety.org/vol2/iss2/art4/> accessed
10 June 2020. Eric Biber, ‘Which Science? Whose Science? How Scientific Disciplines Can Shape
Environmental Law’ [2012] The University of Chicago Law Review 471.
16 ‘A Call for Order’: Intra-Disciplinary Challenges … 359
Despite those barriers, considerable academic literature, obviously with varying

nature and scope, is available dealing with a comparative study of environmental
law systems of different countries.5 However, those studies have seldom had an
inward focus and have, in most cases, not bothered to either explore the conceptual
contours of the field of CEL or attempted to develop a coherent framework of the
same to facilitate further research. Instead, they have been mostly concerned with
adding to the corpus of the literature, which may be referred to as ‘environmental law
from a comparative perspective’ or employing the comparative method in studying
environmental law. More importantly, in doing so, they have overlooked the fact
that CEL relies significantly upon the knowledge base of its parent sub-disciplines,
and, thus, inherits some of the intra-disciplinary challenges, which inform the latter.
Treating that as an understudied aspect of the overall CEL literature, this chapter takes
a step back to identify the reasons that come together to make CEL an incoherent and
disordered legal sub-discipline. In order to do that in an orderly fashion, the first task
would be to identify and discuss the ‘intra-disciplinary’ challenges within the parent
disciplines of CEL, i.e. environmental and comparative law (Sect. 16.2). It is followed
by a discussion that aims at exposing how those challenges have made their way into
CEL by the way of ‘transfer’ (Sect. 16.3.1). Thereafter, the chapter introduces a
recent work while highlighting its significance for CEL scholarship (Sect. 16.3.2).
The chapter concludes by offering some general observations in regard to the field
of CEL (Sect. 16.4).
16.2 ‘Intra-disciplinary’ Challenges of the Parent

Disciplines
In this part, some challenges that infuse the disciplines of environmental and compar-
ative law are highlighted and briefly discussed. However, before proceeding, it must
be clarified that the challenges identified and discussed here are neither exclusive
nor are they incapable of division or rearrangement. The other clarification is that
the challenges identified herein are common to both the parent disciplines, so they
are discussed parallel and not separately. That said, the most fundamental of chal-
lenges that are found infusing the two legal sub-disciplines can be categorized under
three different heads, viz. the structural challenge, the intellectual challenge, and
the methodological challenge. Before discussing them separately, it makes sense to
clarify what is referred to by the ‘structural’ and ‘intellectual’ challenge. By ‘struc-
tural’ challenge, the reference here is to the internal structures of the disciplines of
environmental and comparative law, whereas the ‘intellectual’ challenge purports to
the way those legal scholarships have been and are carried on. Needless to mention
that the ‘methodological’ challenge is self-explanatory. It now seems apt to shift to
more detailed discussions.
5For an extensive bibliography of literature concerning ‘environmental law in a comparative

perspective’, See Viñuales (n 2) 5–6.
360 A. P. Singh
16.2.1 The Structural Challenge
A structure or organization is necessary for any legal field to provide a frame of

reference for understanding the set of situations that falls within the field and to
some extent for distinguishing situations within the field from those outside of the
field.6 The disciplines of environmental and comparative law, however, are accused
of lacking solid and distinctive structural or organizational bases.7
At a first level, the structural challenge within the two sub-fields of law is posed by
the ambiguous and elusive definitions of the terms ‘environmental law’ and ‘compar-
ative law’. In other words, one can hardly affix any definite meaning to those terms. To
begin with, consider the literal meaning of the term ‘environment’ appearing within
‘environmental law’. For one individual, a reference to the environment would mean
anything that occurs naturally. For another, it might be a reference to the ‘non-
human’ world of flora and fauna. Yet another individual might take it to signify the
relationship between humans and nature.8 Besides, the other impediment in defining
‘environment’ arises from the omnipotent character of environment. Put differently,
how do we separate ‘environment’ from the ‘political’, ‘economic’, or ‘social’, and
vice-versa? Consequently, therefore, it becomes hard to define the boundaries and
contours of environmental law. Similarly, the term ‘comparative law’ is equally, if
not more, misleading. The following remark from Campbell concisely captures that
ambiguity. ‘The term “comparative law” can mean so much or so little that it is
only by examining particular methods, aims, approaches and the consequent utiliza-
tion that we can glean from ‘comparative law’ substance and purpose.’9 That said,
however, this challenge is not uncommon in other sub-disciplines of law.
At a second level, the structural challenge of the two parent disciplines is caused
by the internal incoherence, particularly in their scholarships. That is to say, both
environmental and comparative law scholarship do not possess a single guiding logic
or an overarching doctrinal framework. In this regard, consider the following remark
6 Todd S Aagaard, ‘Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy’ (2009)
95 Cornell Law Review 221, 228.
7 In the context of environmental law, See, Ole W Pedersen, ‘Modest Pragmatic Lessons for a
Diverse and Incoherent Environmental Law’ (2013) 33 Oxford Journal of Legal Studies 103, 104
(‘[E]nvironmental law represents an incoherent and makeshift body of law’). David A Westbrook,
‘Liberal Environmental Jurisprudence’ (1993) 27 University of California Davis Law Review 619,
625–6 (‘Scholars speak of environmental law as a tangled field, of its bewildering variety and
numbing complexity and detail’).Daniel A Farber, Eco-Pragmatism: Making Sensible Environ-
mental Decisions in an Uncertain World (University of Chicago Press 1999) 387 (‘[W]ithout having
any overall vision of the field, it is unclear how either agencies or courts can produce a halfway
coherent approach to environmental law.’). In the context of comparative law, See, William Ewald,
‘Comparative Jurisprudence (I): What Was It like to Try a Rat?’ (1995) 143 University of Pennsyl-
vania Law Review 1889 (‘Comparative law… is said by its leading scholars to be superficial and
unsystematic, dull, and prone to errors.’).
8 David Harvey, Justice, Nature, and the Geography of Difference (Blackwell Publishers 1996)
117–118.
9 Cf. Esin Örücü, The Enigma of Comparative Law: Variations on a Theme for the Twenty-First
Century (Springer 2013) 16.

from David Westbrook in the context of environmental law: ‘environmental law is

not a discipline, because it lacks… consensus on a coherent internal organization
of materials a discipline requires.’10 Other scholars have expressed the plight of
environmental law scholarship in different ways.11 Similar observations have been
made in context of comparative law scholarship. For instance, one scholar writes
that ‘comparative law is in a sense a subject without a constituency’,12 while two
other scholars note that it is a subject that is ‘fraught with internal contradictions,
uncertainty, and a sense of mid-life crisis.’13 Observing in a similar vein, Örücü
remarks: ‘[C]omparative law is “a big tent, encompassing lots of different types of
scholarship” or something which “there seems little point in trying to specify” and
which reveals the inadequacy of the discipline’s traditional “tools, classifications
and teaching techniques” for “the analysis of modern legal problems”.’14 Kamba too
notes that gap in the following way: ‘in spite of th[e] greatly increased and increasing
interest, comparative law still lacks a clearly formulated and widely accepted theo-
retical framework within which specific comparative legal studies and research may
be undertaken in a meaningful and effective manner.’15
The reasons for the incoherency in environmental and comparative law schol-
arship are diverse and multiple. For instance, in the context of environmental law
scholarship, Fisher et al. highlight that the lack of coherence may be owing to the
narrow focus of practitioners, or failure of environmental law scholars to identify the
conceptual basis of the subject, or because of environmental law’s operation in an
‘unsustainable society’ that is at odds with green legal theory, or simply because it is
part of the historical reality of the subject.16 Similarly, in the context of comparative
law, the incoherency has been linked to the lack of an integrative overall structure,
theoretical foundations, and, most importantly, ‘a moderately sophisticated method
of comparison’.17
10 Westbrook (n 7) 621.
11 See, Elizabeth Fisher and others, ‘Maturity and Methodology: Starting a Debate about
Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213, 219.
12 Roderick Munday, ‘Accounting for an encounter’, in Pierre Legrand and Roderick Munday,
Comparative Legal Studies: Traditions and Transitions (Cambridge University Press 2003) 10.
13 Andrew Harding and Esin Örücü, ‘Preface’, in Comparative Law in the 21st Century ((London,
Kluwer Law International 2002) xi.

14 Örücü (n 9) 1–2.
15 Walter Joseph Kamba, ‘Comparative Law: A Theoretical Framework’ [1974] International and
Comparative Law Quarterly 485.

16 Fisher and others (n 11) 219–20.
17 Mathias Reimann, ‘The Progress and Failure of Comparative Law in the Second Half of the
Twentieth Century’ (2002) 50 The American Journal of Comparative Law 671, 686–90.
362 A. P. Singh
16.2.2 The Intellectual Challenge
A second challenge that is common to the two-parent disciplines of CEL is intellec-

tual. At the risk of being extremely blunt, one can easily find innumerable studies
dealing with environmental and comparative law which instead of doing good (or
doing ‘no good’) have done more harm to those sub-fields of law. Surely, and rightly,
those studies are generally not taken seriously and occupy only a minority status
within the corpus of their academic literature. Nonetheless, their presence is a defi-
nite pointer that such gloomy works are tolerated, and sadly, in few cases, actively
promoted. Scholars of both the sub-fields acknowledge that challenge.18 In that
regard, the observation from Bussani and Mattei in the particular context of compar-
ative law is worth reproducing. They write: ‘[Lack of standard from comparative law
scholarly community] has produced a sense that an academically acceptable compar-
ison can be performed by anybody…just because… “it is better than nothing”. [That]
attitude betrays… the cognitive vocation of [comparative law] discipline. [Besides,
that] orientation is scientifically noxious and culturally naïve, if not dangerous…’.19
That said, however, the more significant cause of the intellectual challenge springs
from the fact that both the subjects are enormously challenging in their methodology,
subject matter, and approaches. Put differently, they cannot be accused of being
simplistic sub-fields of law. To begin with, and alike the general field of law,20 both
the sub-fields ‘necessitate’ interdisciplinary examination and knowledge. Although
in the case of environmental and comparative law, the issue of interdisciplinarity
assumes greater significance. Rather, one may not be at fault in arguing that there is
an overarching consensus that these two sub-fields require constant appreciation of
a number of legal and non-legal disciplines as those other disciplines shape the form
and content of environmental and comparative law.21 Besides, both environmental
and comparative law are fields developed upon varied and diverse sets of values
that are often unstable and contestable. That diversity arises because these fields
are closely intertwined with cultural worldviews, which are aided and reinforced by
cultural biases and heuristics, which exert significant influence on the understanding
18 This claim is specifically pointed out in environmental law context by Fisher and others (n 11),
223–5.
19 Mauro Bussani and Ugo Mattei, ‘Diapositives versus movies - the inner dynamics of the law and
its comparative account’, in Mauro Bussani and Ugo Mattei (eds.), The Cambridge Companion to
Comparative Law (Cambridge University Press 2012) 5–6.
20 See, Edward L Rubin, ‘Law and and the Methodology of Law’ [1997] Wisconsin Law Review
521.
21 For detailed examination of this claim in the context of environmental law, See, Dave Owen
and Caroline Noblet, ‘Interdisciplinary Research and Environmental Law’ (2014) 41 Ecology Law
Quarterly 887.Ole W Pedersen, ‘The Limits of Interdisciplinarity and the Practice of Environmental
Law Scholarship’ (2014) 26 Journal of Environmental Law 423. In the context of comparative
law, See, generally, Esin Örücü and David Nelken, Comparative Law: A Handbook (Bloomsbury
Publishing 2007).Geoffrey Samuel, ‘Comparative Law and Its Methodology’, in Dawn Watkins
and Mandy Burton (eds), Research Methods in Law (Routledge 2013).
and operation of environmental and comparative law in different contexts.22 Another

sort of intellectual challenge, though quickly disappearing in present times, which
these sub-disciplines face, arises from the perceived marginality about them in the
legal academia.23
16.2.3 The Methodological Challenge
The third intra-disciplinary challenge that permeates the sub-disciplines of environ-

mental and comparative law is methodological. However, before discussing that in
some detail, it is necessary to briefly highlight the difference between method and
methodology as well as importance of methodology for any academic discipline.
Method and methodology, in context of academic research, are terms prescribing
different understanding. That is to say:
…‘methods’[are] as ‘techniques’ or specific sets of research practices, such as surveys,
interviews, ethnography and the like. [Whereas]‘methodology’, however, is a ‘perspective’
or very broad theoretically informed framework, such as symbolic interactionism or func-
tionalism within sociology, and which may or may not specify its own particular ‘appropriate’
research method/s or technique/s.24
So far as the question of importance of methodology is concerned, Max Weber

has highlighted the same in the following words:
[Methodology] claims for itself only the right to state that certain problems are logically
different from certain other problems and that their confusion in a discussion results in the
mutual misunderstanding of the discussants. It claims furthermore that the treatment of one
of these types of problems with the means afforded by empirical science or by logic is
meaningful, but that the same procedure is impossible in the case of the other.25
Roughly, the above views concerning methodology suggest that it not only deter-
mines the distinctiveness of any academic discipline but also provides additional
legitimacy and clarity to it.
In the context of comparative law, the methodological challenge arises primarily
due to the inability of many comparative law scholars to distinguish between ‘method’
22 See, Pedersen (n 7) & the contributions of James Gordley, Upendra Baxi, H Patrick Glenn, and
Michele Graziadei in Legrand and Munday (n 12).
23 See, Fisher and others (n 11), 221–23 & Örücü (n 9) 71.
24 Liz Stanley and Sue Wise, ‘Method, Methodology and Epistemology in Feminist Research
Processes’, in Liz Stanley (ed), Feminist Praxis: Research, Theory and Epistemology in Feminist
Sociology (Routledge 1990) 26. See also, Jaakko Husa, ‘Methodology of Comparative Law Today:
From Paradoxes to Flexibility?’ (2006) 58 Revue Internationale de droit Comparé 1095 (‘Method is
an orderly and systematic manner in which research is done and, in accord, methodology is the field
that deals with questions concerning methods…’) <https://www.persee.fr/doc/ridc_0035-3337_2
006_num_58_4_19483> accessed 3 July 2020.
25 Max Weber, The Methodology of the Social Sciences, (tr & ed) Edward Shils and Henry Finch
(The Free Press, Glencoe, Illinois 1949) 32–33.

364 A. P. Singh
and ‘methodology’. Although undesired, but their failure to notice that difference
is understandable as the discipline of comparative law ‘incorporates the idea of
comparison into its name’26 suggesting that its predominant method or ‘the’ method,
and thus methodology, is comparison. It is for this very reason that there has been an
extensive discourse about comparative law being only a method and not a substantive
body of knowledge.27 Although, comparative law, as it stands today, is certainly
viewed not only as more than just a method but also as an academic discipline in
itself having a body of knowledge.28 In addition to that fundamental challenge, there
are several other important methodological challenges in doing comparative law. For
instance and as one scholar has rightly identified:
[The issues of] typology of legal families versus legal culture/social culture; the limits of
functional equivalence; language and translation; the extent of knowledge needed to appre-
ciate legal, political, social and cultural contexts; transplants and the use and misuse of
foreign models; appreciation of cross-cultural concepts; the traditional narrow approach
to legal matters; concept construction and level of abstraction; cross-cultural terminology;
appreciating differences; assurance of access and observer effect [continue to raise multiple
and newer problem for comparatists].29
Methodological challenges in environmental law predominantly arise from the

diversity of methodologies. Put differently, environmental law scholars differ on
the means for exploring their object of study. For example, they differ on whether
they should examine environmental law using social sciences empirical research
methods, the various types of conceptual analyses used by analytical philosophy, or
the interpretative methods proposed by the cultural studies of law.30 However, a set
of different factors give rise to other sorts of methodological challenges in environ-
mental law. To begin with, the speed and scope of legal development subject many
areas of environmental law to a series of dramatic reforms, accompanied by regu-
latory experiments, which overhaul earlier reforms. Consequently, environmental
law scholars have to deal with regimes, institutions, laws, and judgments with little
history by which to assess or understand them. Second, and arguably a consequence
of the former, legislative and policy reform is often excruciatingly detailed and is
not straightforward to understand. Thus, for a scholar to make sense of a regime,
26 Vernon Valentine Palmer, ‘From Lerotholi to Lando: Some Examples of Comparative Law
Methodology’ (2005) 53 The American Journal of Comparative Law 261, 262.
27 Majority of the early twentieth century comparatists considered comparative law as merely as
method, See, for eg, HC Gutteridge, Comparative Law: An Introduction to the Comparative Method
of Legal Study & Research (Cambridge University Press 1949) ix. (Observing that: ‘Comparative
Law is an unfortunate but generally accepted label for comparative method of legal study and
research…’).
28 See, generally, Reimann (n 17) 683–4 & Lawrence Rosen, ‘Beyond Compare’, in Legrand and
Munday (n 12).
29 Esin Örücü, ‘Methodology of Comparative Law’, in Jan M. Smits (ed), Elgar Encyclopaedia of
Comparative Law, (Edward Elgar Publishing, Second Edition 2012) 452.

30 Daniel Bonilla, ‘Environmental Law Scholarship: Systematization, Reform, Explanation and
Understanding’, in Oliver Pederson (ed), Perspectives on Environmental Law Scholarship: Essays

on Purpose, Shape and Direction (Cambridge University Press 2018) 41.
there is a need to master a large amount of material that is often in novel forms
and derived from diverse sources. And, third, a majority of environmental laws are
‘reactionary’, and, thus, rarely enjoy the privilege of establishing predictable rules
by which society lives or should live. As a result, it entails an inherent danger of
studying and analyzing environmental law in purely instrumental terms and without
appreciation of wider sociopolitical context.31
16.3 Comparative Environmental Law
In the previous section, the focus was upon identifying and discussing intra-
disciplinary challenges that permeate the sub-disciplines of environmental and
comparative law. This section, in its first part, extends the discussion in the specific
context of CEL. The attempt is to portray that the intra-disciplinary challenges of the
parent disciplines have found their way into CEL scholarship. To do that, I review
some of the works concerning CEL. In contrast, the other part of this section is
aimed at shifting the tone of the chapter towards appreciating a recent work and
briefly discussing its importance for the future of CEL.
16.3.1 ‘Disorder from Transfer’: CEL and Intra-Disciplinary

Challenges
Transfer of ideas, ideologies, designs, tools, practices, norms, etc. is not a novel
phenomenon in the domain of law and certainly not rare. In that regard, and writing
in the particular context of comparative constitutional law, Günter Frankenberg
observes: ‘[F]or more than two centuries, not counting the crucial influence of
previous basic laws or leges fundamentales, [constitutional information] has crossed
national boundaries, social-cultural contexts, and the limits of epistemic communi-
ties.’32 The same has been the case with CEL. That is to say, and as stated at the outset,
since CEL is situated at the crossroads of environmental and comparative law, the
knowledge base of both the parent disciplines has been employed to constitute and
develop the field of CEL. In that process, CEL scholars have also, either consciously
or unconsciously, transferred the intra-disciplinary challenges that are present in the
parent disciplines to their new field of inquiry. In the following paragraphs, I attempt
to make a case on the aforesaid lines by the way of a short literature review.
It was pointed out at the beginning of the chapter that there exists a substan-
tial body of literature that deals with environmental law systems in a comparative
31See, Fisher and others (n 11) 226–243.

32Günter Frankenberg, ‘Constitutions as commodities: notes on a theory of transfer’, in Günter
Frankenberg (ed), Order from Transfer: Comparative Constitutional Design and Legal Culture
(Edward Elgar Publishing 2013) 1.
366 A. P. Singh
perspective. In order to further the aims sought herein, it is necessary to review

some selected works from that larger group. The first work that serves our purpose
is Peter W. Schroth’s article.33 His article is important for two specific reasons, first,
it provides a report, as suggested by the secondary title, of the state of CEL scholar-
ship till the year of publication of the study, i.e. 1976. And second, it provides some
important suggestions. Schroth begins his paper by highlighting the significance of
comparative study of environmental law and, thereafter, moves to note the scholarly
progress in that regard. He categorizes the use of comparative law in environmental
law context in five different categories, viz. collections and translations of source
materials, descriptions of the writer’s own system for a foreign audience, descrip-
tions of foreign systems, comparisons of the presumed audience’s system with some
other, and comparisons of several systems.34 The categorization itself suggests that
the attempts made within the field were at best elementary and tentative in nature.
So far as the suggestions are concerned, he makes two specific proposals. First, to
define families of environmental legal systems as a focus for debate and a measure
of the progress of our knowledge. And second, to ask some basic questions about
foreign legal systems as a foundation for subsequent presumptions as to the extent
of common ground.35
The second work that fits our intended purpose is authored by A. Dan Tarlock and
Pedro Tarak and is titled ‘An Overview of Comparative Environmental Law’.36 Their
overarching goal is to offer a west-centric comparative analysis of the different insti-
tutional responses to the various types of environmental degradation.37 To do that,
they first categorize environmental insults or problems into two parts, viz. episodic
and persistent.38 They also identify factors, such as the degree of industrialization,
political organization and ideology, and public pressure, which influence the levels
of environmental protection in different countries.39 Thereafter, they identify the
legal strategies, generally private and public actions, which may be used by different
countries in different ways to prevent environmental insults.40 Finally, they deal with
public regulation, such as policy making, institutional arrangements, and general
forms, of environmental harms in selected Western nations while discussing some
alternatives to regulation.41 For our purposes, their work is important as it follows a
sound and acceptable methodology, functional comparative method, and attempts to
present a structured overview of CEL.
33 Peter W Schroth, ‘Comparative Environmental Law: A Progress Report’ (1976) 1 Harvard

Environmental Law Review 603.
34 ibid 605.
35 ibid 627–631.
36 A Dan Tarlock and Pedro Tarak, ‘An Overview of Comparative Environmental Law’ (1983) 13
Denver Journal of International Law & Policy 85.

37 ibid 86–87.
38 ibid 87.
39 ibid 91–93.
40 ibid 93–95.
41 ibid 95–108.
Some works, which may be clubbed under the banner of CEL, are more focused
than the one discussed previously. Nicholas Robinson contributes to CEL in that
regard by attempting to identify international trends concerning environmental
impact assessment.42 In doing so, he makes some observations that offer some
important insights into CEL. Consider, for instance, his following comment: ‘While
its essential structure is substantially the same throughout the world, EIA is flex-
ible and has been adapted successfully to operate within the cultural, political, and
socioeconomic conditions in each jurisdiction that has enacted an EIA law’.43 In
saying so, he implies that CEL is aimed at discovering and proposing common solu-
tions to common problems, and that environmental legal transplants need to take
into consideration the differing cultural, political, and socioeconomic conditions of
different countries. Similarly, John C. Dernbach, in his paper titled ‘Reflections on
Comparative Law, Environmental Law, and Sustainability’,44 notes the importance
of comparative law in the particular context of sustainable development. In doing
so, he focuses upon the significance of Agenda 21 as a common denominator for all
countries to pursue sustainable developmental policies.
In comparison to the twentieth century, a greater number of CEL studies have
appeared in the two decades of the twenty-first century. However, the scope,
approaches, and methodologies of these newer studies are extremely diverse. For
instance, a 2002 study titled ‘Public Environmental Law in the European Union and
the United States: A Comparative Analysis’,45 as the title suggests, offers insights into
the regulation of environmental law through public law in the European Union coun-
tries and the United States. Another Eurocentric CEL work is the edited book from
Monika Hinteregger46 published under ‘The ‘Environmental liability and ecological
damage in European Law’ project which is one of the aspects of an important and
larger comparative law project named ‘The Common Core of European Private Law
Project’. In the same vein, Boer’s study traces the rise of environmental law in the
Asian region.47 While Jona Razzaque and Anker et al. highlight and analyze the role
42 Nicholas A Robinson, ‘International Trends in Environmental Impact Assessment’ (1991) 19 BC

Environmental Affairs Law Review 591.
43 ibid.
44 John C Dernbach, ‘Reflections on Comparative Law, Environmental Law, and Sustainability’
(1998) 3 Widener Law Symposium Journal 279.

45 René JGH Seerden, Michiel A Heldeweg and Kurt R Deketelaere, Public Environmental Law
in the European Union and the United States, A Comparative Analysis (Kluwer Law International
2002).
46 Monika Hinteregger, Environmental Liability and Ecological Damage in European Law
(Cambridge University Press 2008).

47 See, Ben Boer, ‘The Rise of Environmental Law in the Asian Region’ (1998) 32 University of
Richmond Law Review 1503.

368 A. P. Singh
of courts in environmental protection in the Indian subcontinent and Nordic coun-

tries, respectively.48 Another comparative work that has studied the role of courts, in
particular environmental courts and tribunals, in enhancing environmental justice and
needs mention for addressing an important theme in CEL is George and Catherine
Pring’s work titled ‘Greening Justice: Creating and Improving Environmental Courts
and Tribunals’.49
In addition to these, several other studies concerning CEL have appeared. For
instance, some studies have highlighted the commonality of the problems and the
relatively recent character of the legal responses.50 Others have discussed the role
of the 1972 Stockholm Conference in giving necessary impetus to CEL.51 Yet other
studies have emphasized the need to assess the effectiveness or performance of envi-
ronmental law in tackling certain problems.52 Another group of studies concerned
with CEL focuses on legal and institutional responses to problems that virtually all
states are believed to face.53 All in all, therefore, CEL literature, like environmental
law literature, is diverse in terms of approaches and scope of inquiries.
Undoubtedly, the foregoing review of literature is not extensive. Nonetheless, it
provides sufficient information and enables one to make some general observations
concerning the intra-disciplinary challenges in CEL and its scholarship. To begin
with, CEL faces similar challenges as that of its parent disciplines of environmental
and comparative law. A majority of the works identifiable with CEL have not been
able to devise an appropriate methodology for the field. They have certainly made
use of the comparative method, but their scope of analysis has rarely moved ‘beyond
comparison’. Second, and as mentioned before, the literature is extremely diverse, i.e.
some studies have tried to unearth common core of environmental law in a particular
region/s, while some have tried to offer insights into how one aspect of environ-
mental law has been dealt with different legal settings. Third, only a few attempts
have been made to construct a coherent theoretical framework for the discipline, and
even those which have done so fall short of their goal. And finally, most CEL studies,
like comparative studies, suffer from regional biases and focus upon Western jurisdic-
tions. These aforementioned observations invariably suggest the intra-disciplinary
challenges within the sub-discipline of environmental and comparative law have been
transferred to CEL.
48 See, Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan, and Bangladesh
(Kluwer Law International 2004).Helle Tegner Anker and others, ‘The Role of Courts in Envi-
ronmental Law–a Nordic Comparative Study’ (2009) 1 Nordic Environmental Law Journal
9.
49 See, George William Pring and Catherine Pring, Greening Justice: Creating and Improving
Environmental Courts and Tribunals (Access Initiative 2009).

50 See, Schroth (n 33).
51 See, Lars Emmelin, ‘The Stockholm Conferences’, [1972] Ambio 135.
52 See, Robert E Lutz, ‘The Laws of Environmental Management: A Comparative Study’ (1976) 24
Am J Comp L 447.Andrew C Gross and Nancy E Scott, ‘Comparative Environmental Legislation

and Action’ (1980) 29 International & Comparative Law Quarterly 619.
53 See, E Burleson, LH Lye, and N Robinson (ed), Comparative Environmental Law and Regulation
(West Law 2011–17) vols I–III.

In this backdrop, therefore, it would not be wrong to argue that CEL scholars
have much serious task before them if they are to establish their field as a distinctive
academic discipline within the broader domain of the discipline of law. To do that,
they will have to introspect, think, involve in dialogues, and share their insights
upon various issues, such as that of a theoretical framework, conceptual contours,
methodology and methodological tools, approaches, etc.
16.3.2 ‘The Oxford Handbook of Comparative

Environmental Law’: A Timely Effort
Substantial, rather entire, discussion up to this point in this section has been critical
of CEL scholarship. In that regard, the attempt has been to highlight the failure of
the scholarship to address the intra-disciplinary challenges of the field. In this sub-
section, however, I intend to change the tone of discussion from criticism to appre-
ciation. Towards that end, I discuss a recent work while highlighting its significance
for the present and future of CEL scholarship.
The work which I intend to discuss is ‘The Oxford Handbook of Comparative
Environmental Law’.54 It is an edited work containing individual chapters contributed
by noted scholars from around the globe. The study, as one of the editors himself
writes, is aimed at meeting two specific goals. First, ‘it aims at identifying, mapping,
organizing, and analyzing the building blocks of environmental law, as it has found
expression in and across different jurisdictions.’55 And second, it is ‘an attempt
to show that, as a response to the increasingly well-understood impact of human
activity on the natural and built environment, environmental law can be approached
as a single overall technology, the focus, features, and operation of which can be
analyzed as a whole.’56 In other words, the study aims to suggest that there is a
common core to different environmental law systems, which is cognizant of the
contextual differences.
The most significant aspect of the work is its methodology. To meet its above-
mentioned goals in an efficient manner, the work addresses four sorts of diversities
identified in environmental laws. Those are, diversity across jurisdictions, diversity in
the type of responses to common problems, diversity of building blocks, and diversity
of interactions.57 Addressing those diversities allows for ‘identifying, mapping, orga-
nizing, and analyzing’ the commonality prevalent in environmental laws of different
countries. That exercise, in turn, paves the path for meeting the second goal, i.e. to
approach environmental law as ‘a single overall technology’. In sum, their overall
methodology has significant advantages over other previously published CEL works.
54 Lees and Viñuales (eds), The Oxford Handbook of Comparative Environmental Law (n 2).
55 Viñuales (n 2) 7.
56 ibid.
57 ibid 24–28.
370 A. P. Singh
In this regard, however, it must be mentioned that the work-at-hand would not have
been possible in absence of the previous studies.
So far as the issue of methodological superiority of the work-at-hand is concerned,
that can be discerned from the four-pronged approach, which it adopts to navigate the
field of CEL. In the first prong, the work provides a detailed analysis of environmental
law regimes—allocation of power; structure and substance of the environmental laws;
implementational frameworks—in different countries. In the second prong, it offers
a comparative analysis of responses offered to common environmental problems like
air pollution, waste regulation, and management, climate change, etc. Moving forth,
in the third prong, it deals with specific components of environmental law and policy
from a comparative perspective. In the final prong, the work provides insights about
the interaction between environmental law and few other areas of law (public and
private law, public and private international law, and criminal law). Therefore, the
work, on one hand, looks into specificities of environmental law regimes of different
countries, and thus, adopts a contextual comparative method. On the other hand,
it presents an overall picture of CEL while identifying common themes (a mix of
functional and common-core comparative method).
In addition to the above, the work-at-hand offers important lessons for the future
of CEL scholarship. To begin with, it is deemed to act as a common reference point
for future scholarship. That is to say, the length and breadth in which specific and
common environmental themes have been dealt with in the work are certainly going
to benefit the future studies done on any of those lines. Second, the work offers
several methodological approaches to studying CEL thereby opening more lines of
inquiry. As more and more inquiries are done based on those methodologies, the
field of CEL will not only become richer with information and analysis but will also
undergo methodological refinement. Third, since one of the aims of the work is to
study environmental law as ‘a single overall technology’, thus future works on those
lines will help in doing away with the structural challenge which the field of CEL
faces. In this context, therefore, it is only fair to label ‘The Oxford Handbook of
Comparative Environmental Law’ as a timely effort.
16.4 Conclusion: Why ‘a Call for Order’?
The larger focus of this chapter has been on identifying and discussing the intra-
disciplinary challenges that permeate the field of CEL. In that regard, the primary
argument was that major responsibility for the incoherency and disorder that permeate
the scholarship of CEL is upon its parent disciplines of environmental and compar-
ative law. A smaller part of the chapter was also dedicated toward discussing the
contributions of a recent work to the CEL scholarship. Some general observations
concerning CEL and its scholarship that can be culled from the discussion are, first, as
a developing field, the contours of CEL are necessarily fluid and contingent. Second,
considering the present state of CEL scholarship, it is difficult to argue that CEL
is a well-established academic discipline in itself. But, at the same time, claiming
that the field is in complete disarray would amount to inflating the problem to the
level of absurdity. Third, and arguably the most important, the future of CEL appears
promising. That is the case because environmental problems are becoming increas-
ingly important and are shared by all states, and thus, in order to find solutions to
those problems, scholars will dedicate more and more of the time to CEL inquiries.
In that process, they will certainly benefit the field of CEL and aid in its theoretical,
structural, and methodological coherency.
Having said that, a fundamental question that needs to be answered in conclusion
is: what is the need for coherency and order in any academic disciplines, in the present
case, the field of CEL? A general answer to that question could be that bringing order
to social problems, realities, transactions, and relations is one of the primary goals
of law. Without order, chaos becomes the rule. It is for that very reason that the rule
of law has now attained a universal status. Going by that logic, therefore, there exist
no reasons why we must tolerate chaos in sub-disciplines of law. However, there
is a more specific and intellectual answer to that question which is authoritatively
captured by Ann Althouse. She writes, ‘Finding a scheme of coherence, a framework,
really is the process of understanding [an academic discipline].’58 Thus, put simply,
coherence or systematization or ordering brings added legitimacy to any field of
law or study. In the role of self-appointed guardians or caretakers of the fields of
environmental law, comparative law, and CEL, we hold the responsibility to ensure
that those sub-disciplines of law undergo that process. This chapter was only a small
attempt in that direction, but it is hoped that it would serve as a timely reminder.
58Ann Althouse, ‘Late Night Confessions in the Hart and Wechsler Hotel’ (1994) 47 Vanderbilt
Law Review 993, 1001.

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The Indian Yearbook of Comparative Law

Series Editor: Mahendra Pal Singh

Mathew John · Vishwas H. Devaiah ·

More information about this series at http://www.springer.com/series/16189

The Indian Yearbook

Pritam Baruah Moiz Tundawala

ISSN 2524-7042 ISSN 2524-7050 (electronic)

New Delhi, India Niraj Kumar

Part I Comparative Law: General Themes

Part II Private Law

Part III Public Law: Constitutional Law

9 Does Authoritarian Legality Work for China? . . . . . . . . . . . . . . . . . . . 169

Part IV Public Law: Human Rights

About the Editors

Dr. Niraj Kumar is currently working as Associate Professor at National Law

Arvind Kurian Abraham Harvard Law School, Cambridge, MA, USA;

Comparative Law appeared limitless to me when I gave my inaugural lecture at

4 Léontin Jean Constantinesco, Traite de Droit Compare, La Methode Comparative, Tome II

1.2 Two Categories of Limits

1.2.1 The First Category of Limits

of Comparative Law, 121.

6 J.Civ.L.Srud., 445–473, available at https://digitalcommons.law.lsu.edu/jcls/vol6/iss2/2/. Also

Review 401–411, at 403.

an insider, but the question is whether seeing is understanding. It is in some ways

Journal of Law Reform, 29–42.

1.2.2 The Second Category of Limits

A more subtle version of nationalism is the possession of a specific ‘national

1.3 Further Challenges

Experience’, in EH Hondius (ed), Netherlands Reports to the Fifteenth International Congress of

Our time is one of the imposed receptions—‘voluntary’ activities of import under

32 See contributions in JICL 2019, (n 26).

to be involved in the search for and an explanation of divergences, especially between

1.4 Concluding Remarks

long as communication and conversation are continued through the comparative

Comparative Law 499–510, at 508.

2.2 What Business Cards in Japan and David Hasselhoff

available at https://dl.ndl.go.jp/info:ndljp/pid/10263403 accessed 23 December 2020.

11 See David Hasselhoff songs, https://www.chartsurfer.de/artist/david-hasselhoff/songs-vher.html

accessed 23 December 2020.

news.bbc.co.uk/1/hi/3465301.stm accessed 23 December 2020.

(1995) 14(2) Popular Music, 203–225.

2.3 Legal Transplants: The Big Debate in a Nutshell

Comparative lawyers have developed taxonomies of different types of legal trans-

Legal Culture (Hart Publishing 2001), 57.

divergences’, (1998) 61 Modern Law Review, 11–32.

Nelken (eds) Comparative Law: A Handbook (Hart Publishing 2007) 273–274.

Institution Press 2000) 31.

American Journal of Comparative Law 50, 97–130, 98.

(2003) 51 American Journal of Comparative Law 163–203.

Macmillan and St Martin’s Press 2009) 133–139.

Law Quarterly 65–88, 81.

2.4 Overfitting Legal Transplants: The Idea

be an ‘overfit’ of the model.

(eds), Adapting Legal Culture (Hart Publishing 2001) 79.

2.5 Categories and Tentative Examples

Growth in a Dual Economy (Springer 2009) 87–88.

Inquiries in Law 723–743, 736–737.

than in the origin country.

Legal Problems 49–93; Davis 2003.

https://www.justice.gov.za/trc/legal/justice.htm accessed 24 December 2020.

219; Pistor (n 27).

perceptions’, (2006) 75 George Washington Law Review 54–104.