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Liberal constitutionalism is under attack from a new breed of autocrats broadly classified as populist. These populists understand the weaknesses of constitutional liberalism and attack their opponents with criticisms that take advantage of internal weaknesses of the theory. But a closer analysis of theoretical framework used by populists to substitute for constitutional liberalism reveals that they are not really committed to populism in any serious sense. Instead, they have abandoned liberalism in the quest for raw power. Focusing on Viktor Orbán of Hungary and his chief ideologist András Lánczi, this article shows how their public critique of liberalism has attempted to wrong-foot their critics and how their recipe for gaining and wielding political power is only populist to the extent that these leaders are determined to (and often succeed in) winning elections. By peeling back the cover of populist ideology to look at the theories of legitimation under which they rule, however, we can see that the new breed of autocrats aims at primarily constitutional deconstruction through the concentration of political power in one leader. This sort of challenge to liberal constitutionalism is easily countered.
What counts as evidence? What is accepted as true in court given the evidence admitted? How are subordinated peoples further oppressed in courts because they cannot demonstrate that their experience is fact? Drawing on the confirmation brings for Clarence Thomas as Associate Justice of the Supreme Court and the testimony of Anita Hill in those hearings, the author explores the ways in which representations of sexual violence against women can be seen as not “real.”
How should the European Union cope with Member States that no longer respect the basic values of the Union? This article reviews the responses of the major European Union institutions to Poland and Hungary as their governments removed checks on their power, eliminated the independence of judiciaries and failed to honour their European commitments. As the article demonstrates, the responses of EU institutions have so far been ineffective in bringing these Member States back into line with European values. We examine the various proposals that have been made to do better, concluding that there is promise in some legal strategies that are available now, but have yet to be tried.
In this transcribed exchange, translation scholar David Bellos and interdisciplinary legal scholar Kim Lane Scheppele shared with a group of undergraduate students the challenges involved in translating law across languages, cultures, and legal systems. Sometimes trying to create an “exact” translation actually backfires, creating only an illusion of equivalence that does not exist. Scheppele and Bellos discuss how to deal with seemingly untranslatable divisions among differing cultural, social, and legal expectations and understandings – along with the challenges of translating law across different languages.
Can everything be translated into the languages of law around the world, or are there some things that are just not translatable?
DAVID BELLOS [DB]:
The answer to this question is obviously: no, and yes. From one point of view legal language is the very model of the untranslatable. On the other hand, legal language gets translated all the time, because it has to be. How do you keep out of jail if someone pulls you off the road when you're in a foreign country? Obviously not by learning the language in double quick time, but through translation. How is international business possible? Only because legal contracts get translated. If you do end up in court when abroad, you're likely to find that you have a right to be represented in a language that you do understand, especially if you are the defendant in a criminal trial. Here, in New York for example, the court system employs a large staff of interpreters and translators who service 140 different languages so as to give all defendants the same right to be heard and to understand irrespective of the language they speak. Translation of the law happens, it happens all over the place, it happens all the time.
Despite all this real-world evidence to the contrary, the law is in essence not transferable from one language to another. Law is always located within an institutional, social, and cultural framework that uses words in a special way. Words of ordinary language acquire specific meanings when they are used as legal terms, and some of the terms of law don't mean anything at all outside their specific legal frame.
In this book, we collectively retire the idea of ‘constitutional borrowing’ and put in its place the idea of ‘constitutional migration’. Metaphors matter in shaping thought, and so it is crucial to get the metaphors right for highlighting key features of the matter under discussion. And ‘migration’ gives us tools to think with that ‘borrowing’ cannot. After all, constitutional ideas migrate back and forth across international boundaries, like other transnational flows. Borrowing implies something far more rigidly organized.
Nonetheless, the metaphor of borrowing is still the most commonly used image in the field of comparative constitutional law. The prevalence of the idea of ‘borrowing’ has brought with it a sense that there are national stocks of constitutional knowledge that are lent out in a neighbourly way like cups of sugar from house to house. But the borrowing metaphor seems patently misleading as a description of the way that constitutional ideas actually move in transnational legal space. First, ideas are not ‘borrowed’ with the implicit promise that they will be returned. Then, constitutional constructions are not owned in the way that ‘borrowing’ implies, with use of the object temporarily given to a non-owner while the real owner retains certain superior rights. Finally, the idea of ‘borrowing’ always signals that something positive is being transferred without alteration, which takes attention away from the cases in which one country draws negative implications from another country's experience or from the cases in which ideas are irredeemably altered as they move.
Why is it so hard for relevant social science findings to ake their way into courtrooms, either at the trial level or on appeal? From the perspective of the social scientist, Patricia Wald is the ideal judge—someone who takes empirical research seriously and wants to use it when she can. But the fact that even a sympathetic judge like Judge Wald finds this to be difficult should tell us something. Legal professionals and social scientists have different cultures of facts.