The Jurisprudence of Constitutional Conflict: Some Supplementations to Mattias Kumm

Abstract:  Mattias Kumm has developed a jurisprudence of constitutionalism beyond the State (CBS) proposing principles, to be applied by courts of both the Community and the municipal levels, about how to deal with constitutional conflicts. This CBS is supposed to be part of neither the Community nor the municipal legal systems but to emerge from a legal practice comprising the whole of Community and municipal laws. Preliminarily Kumm claims, situating himself, for argument's sake, within the framework of analytical jurisprudence, that there is no legal reason for a court not to choose a different ultimate legal rule than the one it used to adhere to. These supplementations argue that Kumm's preliminary claim is erroneous. If accepted, this argument eliminates one of the reasons for the development of CBS. Concerning Kumm's main claim, these supplementations argue that the substantive content of CBS—its principles—may well be, and indeed largely already are, accommodated within the traditional structure of legal systems founded on ultimate legal rules, and that the structure proposed by Kumm would make impossible any distinction between general and legal discourses, thereby seriously undermining the determinacy of law. It also argues that Kumm's CBS can be reconstructed, within the analytical framework, only as outright supremacy of EC law.     

The Neo-Communist Regime of Present-Day China

The first goal of this article is to define the neo-communist regime as a specific type of undemocratic post-communist construct. Three case studies analyzing the regimes led by Zhan Videnov in Bulgaria, Ion Iliescu in Romania, and Alyaksandr Lukashenka in Belarus are used to identify its main characteristics. The second goal is to show that the present-day Chinese regime falls into this category. As such, it does not represent an intermediate or transitional phase. This ‘hard’ neo-communist regime is the final stage of the Chinese post-communist transition. In the foreseeable future, it will most likely preserve its present characteristics.     

The Arab Spring: last episode of the Cold War

Using the Regional Security Complex Theory and developing its regime-related dimension, this article analyses the involvement of external powers in Arab Spring conflicts. Libya, Syria and Bahrain are used as case studies showing that Western support for the incumbent regime or for its adversaries was not based on a choice between democracy and authoritarianism. Rather, it was motivated by a pattern of amity and enmity inherited from the Cold War period. The surprising survival of this pattern was due to the three authoritarian regimes’ inability to reform; to the ensuing preservation of their Cold War era perception in the West; and to Russia's new availability as an external patron. Consequently, the article argues that the Arab Spring can be perceived as the last, belated episode of the Cold War. However, its political consequences put an end to the last features inherited from the pre-1989 period and open a new Middle Eastern era.