Presentations by LAW Reserchers Catriona Mullay and Carolin Lerch.
Abstract: Scottish Constitutional Identity
Brexit has caused profound instability within the British constitution. At the heart of this strife, Scottish and British actors approach the legal unsettlement from different constitutional frameworks. On one hand, British politicians and judges apply a traditional orthodoxy of parliamentary sovereignty, while on the other hand, Scottish actors, whether in court or in parliament, cite Scottish constitutional tradition. As stated in the submissions for the applicants in the Miller II case:
What is clear, however, is that, when this court has to speak of UK Constitutional law, it enters into perilous waters because the two constitutional narratives and traditions to which the UK is heir - the English historical myth emphasizing the sovereignty of the governing institutions of the State (the Crown, and the Crown in Parliament) and an unbroken continuity since Magna Carta in 1215; and the Scottish tradition, since at least the Declaration of Arbroath of 1320, of the sovereignty of the people limiting the powers and rights of the Crown – may pull in different directions, but yet have to be reconciled if this Union polity is to survive
What, precisely, are the implications of ‘constitutional narratives and traditions’? Is the Scottish narrative a matter of normative law, of politics, or of nationalism? Finally, why do these narratives have to be reconciled now, in the wake of Brexit? Bringing together work on Scottish identity and identity theory, doctrinal law, constitutional theory with a socio-legal lens, Catriona’s thesis sketches out the possibility of Scottish constitutional identity. She will present her progress so far in exploring this issue and draw implications for Scotland’s constitutional future and the matter of constructing constitutional identity.
Abstract: Germany as an open society of constitutional interpreters? The constitutional status of the embryo in recent political and scholarly discourses
Carolin’s thesis has the title Stuck in another era? German abortion law and the aim of liberalization and intends to answer why German abortion law has not been liberalized since 1995 and still criminalizes abortion despite growing demands for the promotion of reproductive autonomy, inter alia, in international human rights law. In order to do so it examines the emergence of the constitutional abortion jurisprudence of the Federal Constitutional Court (BVerfG, Order of the First Senate of 25 February 1975 and BVerfG, Order of the Second Senate of 28 May 1993) and its continuing effect on political discussions, judicial decisions and the national scholarly debate. Moreover, it aims at widening the national discourse by adding an international and European dimension. This work in progress presentation will focus on Carolin’s findings on the developments regarding the constitutional status of the embryo in recent years conducted through the analysis of parliamentary debates, interviews with German politicians and constitutional scholars and the examination of the scholarly literature. Moreover, it raises the question which conclusions can be drawn for the interpretation of national constitutional norms from comparative research among member states of the European Union.