Displacing Private Law: The Growing Dominance of Public Law in South Asia

This article examines how private law has been displaced across four South Asian: India, Pakistan, Bangladesh, and Sri Lanka. As courts in these jurisdictions have recognized a greater number of rights within the sphere of public constitutional law, there has been a corresponding displacement of private law. Indeed, some areas of private law, such as torts, have almost become defunct. And when courts adjudicate on matters of private law, they increasingly employ the language of fundamental rights, if not always invoking the constitutional text. As a result, straightforward private law cases have been made unnecessarily complex and have distorted constitutional law doctrine. I argue that the manner in which public law has enveloped private law raises serious concerns for the judicial process in these countries, including: (1) weakening procedural rules; (2) producing unenforceable judicial standards; and (3), diminishing lower court capacity and reputation.

Hart, Bentham, and Constitutionalism

Hart claims that Bentham’s theory of law is a command theory; and that Bentham’s theory cannot explain ‘legally limited supreme legislature’ [LLSL]. His claim assumes that judicial review is the archetype of LLSL. I attempt a threefold task. First, I will present Bentham’s explanation of judicial review, and argue that for Bentham, judicial review is not a case of LLSL, but only an example of conjunctive sovereignty. Second, I agree with Hart that Bentham’s command theory cannot explain the phenomenon of LLSL, but I disagree with Hart’s analysis. I will demonstrate that Bentham’s command theory can explain the power-conferring provisions, and that Bentham’s idea that legality determines validity is correct. Third, I will argue that Bentham realizes that his command theory cannot explain LLSL. He developed a theory of leges in principem to explain LLSL. I will offer an account of Bentham’s theory of leges in principem, and argue that this theory is better than Hart’s theory.

Constitutional Intent and Reflexive Identity

The paper attempts to show how constitutional intent and the reflexive character of constitutional identity are intertwined. The first section explains the notion of constituent power as the ultimate source of a legal order. The second section explores the triple singularity of constituent power. First, it has a reflexive identity which means that “it relates to itself as the one who acts and who is ultimately at stake in such acts”. Secondly, it expresses a set of existential commitments which carve out the constitutional identity. Thirdly, the reflexive identity cannot be determined once and for all in its foundational moment, so political unity has a dynamic structure. The third section employs social ontology to understand how the notion of constitutional intent comes up. Applying Tuomela and Gilbert’s approaches, it argues that the collective agent constitutes itself as a plural agent by means of We-intentions, which, in turn, are expressed through joint commitments.

Post-Legsilative Doctrine In Public Law

The legislation is dynamic action and phases, pre-legislative, legislative and post-legislative. I have studied post-legislative doctrine, legal norm control, typical to the European Union legal order. I have studied more closer the art. 263 TFEU and 267b TFEU of the Union and relevant case law (Digital Rights, Vodafone etc.). As conclusions the most important aspect is not the legal grounds, how Court annuls Union legislation, but the arguments and reasoning of the Court in the Union norm control case law. The Court is not taking its position only legally or legistic-linguistic way, but it is also tackling factual aspects of legislation, produced through ex-ante evaluations. The Court faces the empirical world, epistemic uncertainty as Robert Alexy and Matthias Klatt have written. My argument is that norm control of legislation is one important source of legislation – the doubts relating to democracy principle must be seen from the point of view of modern rule of law demands.

Public Law in the Time of Oxymora

“Private identity”, “flexicurity”, “representative democracy”, are but three concept that have recently been qualified as oxymora or paradoxes, ie “figures of speech in which apparently contradictory terms appear in conjunction”. The occurrence of legal oxymora is not new as there are hundreds of mentions by judges in case law across the United States alone. In more recent decades, their usage in law and other sciences has been constantly rising in number.
Thus the paper first assesses the rising trend of the use of oxymora in legal theory and practice. Second, it discusses the significance of oxymora for legal reasoning as their inherent contradiction appears to pose a serious challenge to dualistic thinking as it is expressed in Robert M. Cover’s description of the “normative universe” being constantly created by “a world of right and wrong, of lawful and unlawful, of valid and void”. Finally, the paper concludes by providing useful insights into the future of law and policymaking.