From Empire to Union: Conceptions of German Constitutional Law
since 1871, OUP (2013)
This book examines the modern development of German constitutional
thought by tracing the key public law concepts of state,
constitution, sovereignty, and democracy from their modern emergence
in the 19th century through to the present day. It analyses the
constitutional relationship between Germany and the EU from a
sociological and historical perspective, looking at how German
constitutional law has conflicted and compromised with EU law, and
the difficulties this has raised.
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Public Law – Text, Cases and Materials, (with A. Le
Sueur and M. Sunkin), 2nd ed, Oxford University Press, 2013
The
authors, leading academics in the field, provide students with a
thought-provoking and detailed analysis of the core issues
relevant to students studying public law setting them in their
political context. Each chapter provides a clear textual account
of the topics covered. The text is supported by an excellent
range of extracts from a wide range of sources, such as academic
writing and reports of parliamentary committees, as well as
extracts from leading judgments.
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Scottish Independence: A Practical Guide (with P. Jones and
M. Keating), Edinburgh University Press, 2002
This
book provides the first comprehensive and dispassionate
stock-take of the effect of devolution during the first
term of the Scottish Parliament and National Assembly
for Wales. Part 1 covers the territories of the
UK—Scotland, Wales, Northern Ireland and the English
regions. Part 2 looks at its impact on the centre
Westminster, Whitehall and public opinion. Part 3 looks
at developments in two key areas of public policy. The
book as a whole assesses not just how parts of the UK
have been affected by devolution, but also its effect on
the UK as a whole.
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'The European Union Act 2011: A Failed Statute' LSE Law,
Society and Economy Working Paper Series (WPS 3/2013)
If there was one area in which the two coalition parties needed to produce a workable agreement as a matter of priority after the May 2010 election, it was the European Union. The European Union Act (EUA) 2011 builds on a political guarantee in the coalition agreement that there will be no transfers of sovereign powers until the next election (in 2015). That undertaking was intended to pacify the Europhobic wing of the Conservative party that had demanded but failed to get a national referendum on the hated Lisbon Treaty. As a result, the EUA contains all sorts of compromises: it delivers a referendum requirement, but not on the Lisbon Treaty; it affirms that the source of the validity of EU law is a domestic statute, but without mentioning the sovereignty of Parliament; it introduces constitutional safeguards, but without entrenching them against repeal by a future Parliament. Unfortunately, the EUA does not reflect the politics of compromise in a consensus democracy: it reflects dissent between the governing parties and within the Conservative party and, in most respects, is a compromised and failed statute.
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‘The European Union Act 2011: A Failed Statute’ (2012) 3(4) Tijdschrift voor
Constitutioneel Recht 396-408.
(with Roger Masterman), ‘Zwischen Vorrangstellung und Ergebenheit: Der
Verfassungsstatus des Supreme Court im Vereinigten Königreich’, (2012) 21(67)
Juristenzeitung 1029-1040.
'"We want our identity back" - the revival of national sovereignty in the German
Federal Constitutional Court's decision on the Lisbon Treaty.' Public Law,
2010 July pp.530-550
'Constitutionalism' in Encyclopedia of Political Theory (ed. Mark Bevir),
(SAGE Publications, 2010)
'Countering Anti-constitutional Argument: The Reasons for the European Court of
Justice’s Decision in Kadi and Al Barakaat' (2009) 11 Cambridge Yearbook of
European Legal Studies 15-52
This contribution examines the recent decision by the European Court of Justice in Kadi and Al Barakaat International Foundation. It is a response to criticism that the ECJ’s judgement, in providing for the review of EC measures implementing UN Security Council resolutions, undermines the authority of public international law. Instead of committing itself to international law and institutions at all cost, the ECJ concerns itself with the constitutional repercussions from national constitutional courts (in the case of failure to protect fundamental rights). Important as the relationship between EC law and international law is, there is a clear sense that the ECJ is responsible to, and will ultimately be held to account by, the courts and constitutions of the Member States of the European Union.
'Identity Trumps Integration: The Lisbon Treaty in the German Federal
Constitutional Court' (2009) 4 Der Staat 517-534.
'The Quest for Constitutionalism in Public Law Discourse,' (2009) 29 (3)
Oxford Journal of Legal Studies 1-29.
At first sight constitutionalism appears to be a key concept in
public law discourse in the United Kingdom. It appears in all the major academic
discussions from the rule of law and judicial review to the ‘new constitutional
settlement’ and in relation to constitutional culture. And yet attempts to
define the scope, meaning and role of constitutionalism remain vague. This
article discusses the different fields in which constitutionalism is discussed
and the different meanings that are attributed to the concept. It shows that
constitutionalism is routinely conflated by public law scholars with other
constitutional values and principles, like the rule of law or separation of
powers. This article argues that constitutionalism should either be conceived as
distinct from those concepts or, failing that, can safely be eliminated from
public law discourse. The article concludes by asking whether a nuanced and
normative discussion of constitutionalism could have any meaningful application
in the United Kingdom constitution.
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Jo
Eric Khushal Murkens