Governance & Law
Governance means the order of authority within a nation or within the community of nations. Authority consists in conferring power on persons and agencies to govern on terms and conditions. National law and international law are orders of authority, the one within a nation, the other among nations. Legal authority within a nation is defined by the constitution; international authority by agreements among nations.
The purpose of this cluster is to identify the conditions needed to establish and sustain each form of governance by law, to identify points of stress and strain and sometimes failure, and to provide analysis and advice on how to handle them.
Our projects deal with governance issues concerning both national law and international law. The issues of interests mainly include:
At the national level: the conditions needed to form a constitutional order; the design and structure of constitutions; ideas, relationships, and institutions; how to support and sustain the constitution; the rescue of failed states and restoration of effective government.
At the international level: the conditions on which the international legal order depends; reaching agreement among diverse nations; the selection of subjects for international regulation; the formulation of international laws and the powers of agencies; sustaining and making effective the international law.
The Putney Debates project has two parts. The first is an annual debate aimed at open scrutiny of a subject of constitutional importance. The subject for 2021 is the unity of a nation, how disparate parts are bound together to form a unified whole. Models of unity will be formed from the experience of several different nations and then used to analyse the situation in the United Kingdom. The aim of the second part is to identify and examine current issues critical to effective constitutional governance.
Governance through international law is increasing as more subjects are brought within the domain. Institutions and organizations are established to oversee the implementation of international law, while the cooperation and engagement of nation states is needed. This project will examine a series of issues including: rights of individual persons (or human rights), the implementation of international law, and the interaction between national and international law.
All constitutional orders suffer stress and strain. Some cope and continue to provide effective governance; some limp along; some fail altogether. Here the focus is on nationa building and restore fragil states to functioning constitutional systems. This involves analysis of the conditions contributing to failure and how they can be overcome and remedied. This project is particularly well-suited for the analysis of particular cases and the provision of advice.
Policy, consultancy & advice
Related subjects (or sub-projects) engaging the interests and expertise of our Fellows include:
• Governance by experts Governance by experts has become in recent years a major challenge to constitutional orders. Constitutions fail to reflect their influence, the restraints, and their accountability. How to frame the place of experts in a constitutional order is a subject of growing importance. (Coordinator: Frank Vibert)
• Populism and the constitution Populism is said to be on the rise and to threaten constitutional orders. The aim of this project is to understand the social movements branded as populist; to examine the causes and the reasons; and to assess the consequences for constitutional orders. (Coordinator: Daniel Smilov)
• Governance by courts
The place of the courts as agencies of governance has become a matter of major interest. Some see it as an improvement to constitutionalism, while to others it is heresy. The aim of this project is to consider the courts place in a constitutional order; their relations with other institutions of government and with citizens; why their position is precarious; and how they resist attack. (Coordinator: Katarina Sipulova)
• Corruption, abuse of power and the role of whistle-blowers
Whistle-blowing in the constitutional context is a way of exposing corruption and other abuses of power and the practice is growing. Yet the status of whistle-blowing in constitutional terms is undeveloped and those who do are left unprotected. The purpose here is to examine the practice, clarify its place, and develop a model for general application. (Coordinator: Daniel Bilak)
The traditional doctrine is that national laws have only domestic effect. Yet the United States and the European Union are extending their global reach by proclaiming that their laws may apply beyond their boundaries. Laws of privacy, laws to protect confidence in markets, and laws on the environment are notable cases. This project looks to the rationale and the instruments, and how to manage conflict between jurisdictions. (Coordinator: Frank Vibert)
• The European Union at the edge: the rule of law in place of a constitution
The idea of the EU as constitutional order is receding and the narrative shifted to rule of law. This project examines how this substitution has come about and the reasons for it; the meaning of rule of law in this context; and the consequences of this shift. (Coordinator: Bogdan Iancu)