Judging One’s Own Case: Federal Powers and Divisive Rights

The foundational maxim “nemo judex in causa sua” or “no individual should judge their own case” has classically been used in constitutional theory to justify the need for a sovereign as an impartial umpire. The paper builds on Madison’s application of the maxim to legislative decision-making, whilst identifying certain gaps that affect contemporary federal structures. In particular, it explores the maxim’s role as a criterion to determine the type of rights that are better suited to be centralized in the EU and US. To this end, it contrasts minority rights and abortion as a divisive right in the two systems and demonstrates that the deplorable conditions of minorities in the EU and the ongoing polarization of abortion in the US are attributable to a structural flaw and a violation of the nemo judex maxim. It concludes by proposing ways in which the maxim could be better utilized to guide the division of powers over fundamental rights in certain federal settings.