HKU Legal Scholarship Blog: Alec Stone Sweet

Introduction: In East Asian legal systems, national constitutional law and civil codes are developing in increasingly inter-dependent ways, shaping how lawyers plead and judges resolve certain types of cases, and how doctrinal authorities understand the underlying structure of their respective legal systems. Viewed globally, the “constitutionalisation” of the private law in Asia expands comparative inquiry, inviting scholars to revisit old debates and to consider a new set of questions. In each of the countries under consideration here, the forces driving such processes are complex and multi-dimensional. It is no surprise that in Japan, South Korea and the Taiwan Area, change in how high courts exercise their powers of constitutional judicial review have been crucial to enhancing the salience of rights to the litigation of the civil code. In contrast, the Chinese legal system does not feature a constitutional or supreme court, and judicial review of statute is formally prohibited (but see the discussion of the Supreme People’s Court in Bu and Ding). Nonetheless, the new Chinese Civil Code has revived debates about review — and the juridical status of the Constitution — among Chinese legislators, judges, lawyers and scholars.

Wednesday, November 27, 2024

New book by Alec Stone Sweet and Wayne Sandholtz: The Law and Politics of International Human Rights Courts: The Dilemma of Effectiveness (Oxford University Press)

The Law and Politics of International Human Rights Courts: The Dilemma of Effectiveness
Alec Stone Sweet, Wayne Sandholtz
Oxford University Press
Published online: July 2024

Abstract: The Law and Politics of International Human Rights Courts addresses three key topics. First, the book provides an account of the origins and evolution of six regional human rights courts. In each, judges sought to overcome political forces and legal obstacles that threatened to neutralize the regime and render it irrelevant to the daily lives of the people. Second, it analyzes the emergence of a common “jurisprudence of effectiveness,” the express purpose of which has been to raise standards of rights protection within nascent, multi-level “transnational systems of justice.” A transnational system of justice is comprised of three components: a charter of rights, a court tasked with enforcing the charter, and the right of individuals to petition the court with a claim that their rights have been violated. The book analyzes the case law on diverse topics, covering both absolute rights (the right to life and prohibitions of torture and slavery) and selected qualified rights (self-determination, abortion and privacy, family law, and indigenous rights to property). Third, the book examines how state officials respond to the development of systems of transnational justice (STJs), in particular, the extent to which the prospect of more effective rights protection is embraced by state officials. In each of the cases, the activities of the STJ have generated significant political “backlash,” leading some states to seek to curb the court’s authority or to exit the regime. The book describes and evaluates these attempts, the results of which have been mixed, with most court-curbing exercises failing.

New book review available in March 2025 (Click here for details)

New book review available in November 2025 (Click here for details)

Thursday, May 2, 2024

Alec Stone Sweet Co-Authored article "Reversing delegation? Politicization, de-delegation, and non-majoritarian institutions" achieved the top 10 most-cited papers published in Governance

Congratulations to Alec Stone Sweet whose co-authored the article "Reversing delegation? Politicization, de-delegation, and non-majoritarian institutions", achieved the top 10 most-cited papers published in Governance during the period 1 January 2022 to 31 December 2023. Governance provides a forum for the theoretical and empirical study of executive politics, public policy, administration, and the organization of the state. Published in association with International Political Science Association's Research Committee on the Structure & Organization of Government (SOG), it emphasizes peer-reviewed articles that take an international or comparative approach to public policy and administration.

Tuesday, August 29, 2023

Alec Stone Sweet et al on Breaching the Taboo? Constitutional Dimensions of the New Chinese Civil Code (Asian Journal of Comparative Law)

"Breaching the Taboo? Constitutional Dimensions of the New Chinese Civil Code Asian Journal of Comparative Law"
Alec Stone Sweet, Chong Bu and Ding Zhuo
Asian Journal of Comparative Law

Published online: 25 May 2023

Abstract: Chinese elites have celebrated its new Civil Code (2021) as the most important statute in the nation's history, and the ‘cornerstone’ of its turn toward ‘rule of law’. The Code expressly binds all persons, as well as public officials, and is judicially enforceable. The statute enshrines rights to dignity, equality, personal liberty, property, and privacy, among others, and codifies duties to protect the environment and to evolve effective means to combat sexual harassment. Echoing the German Code, the statute also contains ‘general clauses’ that enable the courts to restrict enumerated rights and entitlements for reasons of ‘good morals’, ‘public order’, and the rights of others. While constituting an act of massive delegation to the courts, judges remain prohibited from directly enforcing the PRC's Constitution. The article explores the relationship between the Code and Constitution, through a comparative analysis of: (i) the process of ‘constitutionalising’ the private law around the globe; (ii) the scholarly discourse on the ‘horizontal effect’ of rights in China; (iii) the structure of the Code itself; and (iv) the development of ‘political’ control mechanisms, to be deployed by the Communist Party of China and organs of the state to constrain how judges use their interpretive powers.

Thursday, August 10, 2023

Alec Stone Sweet and Trevor Wan on Global Constitutionalism and the People’s Republic of China: Dignity as the “fundamental basis” of the Legal System? (International Journal of Constitutional Law)

"Global constitutionalism and the People’s Republic of China: Dignity as the “fundamental basis” of the legal system?"

Alec Stone Sweet, Trevor T W Wan

International Journal of Constitutional Law, Volume 21, Issue 2

Published:22 May 2023

Abstract: The People’s Republic of China has declared dignity to be a foundational norm of its legal system, as institutionalized through a suite of constitutional and legislative reforms. Indeed, the 2017–21 period saw the adoption of some of the most far-reaching statutes in the history of the PRC, the centerpiece of which is the new Civil Code (2021). In both structure and content, provisions of the Civil Code comprise a quasi-constitutional charter of rights. Indeed, many Chinese scholars do treat the Civil Code as such, developing sophisticated constitutional theory along the way. At the core of these claims is dignity, which occupies a prominent position within the Civil Code, and from which a host of additional rights, including unenumerated rights, can be derived. After situating these developments in light of global constitutional practice, we examine the emergence of dignity as an officially sanctioned commitment device, and analyze the pertinent scholarly discourse, structure, and content of the new Civil Code, and the various roles that the Communist Party of China, the National People’s Congress, and the Supreme People’s Court are expected to perform in supervising the work of the judiciary in operationalizing the Civil Code. We conclude that while the PRC has not fully embraced the dignity norm in the way other constitutional systems have, it has nonetheless permitted significant discursive debates that deserve to be analyzed comparatively.

Tuesday, January 17, 2023

Alec Stone Sweet et al on Reversing Delegation? Politicization, De-delegation, and Non-majoritarian Institutions (Governance)

"Reversing delegation? Politicization, de-delegation, and non-majoritarian institutions"
Mark Thatcher, Alec Stone Sweet, and Bernardo Rangoni
Governance

Volume 36, Issue 1,
p. 5-22

Published in October 2022
https://doi.org/10.1111/gove.12709

Abstract: Elected governments and states have delegated extensive powers to non-majoritarian institutions (NMIs) such as independent central banks and regulatory agencies, courts, and international trade and investment organizations, which have become central actors in governance. But, far from having resolved the balance between political control and governing competence or removed certain issues from political debate, NMIs have faced challenges to their legitimacy by elected officials and sometimes attempts to reverse delegation through “de-delegation”. Our special issue studies the politicization of NMIs, and then whether, why and how it leads to de-delegation through reducing the formal powers of NMIs or increasing controls over them. In this article, we examine how to analyze de-delegation, how politicization of NMIs has developed, and how it has affected de-delegation. We underline not only institutional rules that constrain elected officials but also the actions of NMIs themselves and their relationships with other NMIs as part of multi-level governance systems. We find that politicization has varied, but even when strong, elected officials have not introduced widespread and long-lasting de-delegation; on the contrary, they have frequently widened the powers of NMIs. Insofar as elected politicians have sought to curb NMIs, they have often preferred to use existing controls and non-compliance. Finally, we consider the wider implications of the combination of politicization and lack of de-delegation for broader issues of governance such as the division of powers between the elected and unelected and democratic accountability.

Wednesday, April 20, 2022

Alec Stone Sweet et al on Dissenting Opinions and Rights Protection in the European Court (EJIL)

"Dissenting Opinions and Rights Protection in the European Court: A Reply to Laurence Helfer and Erik Voeten"
Alec Stone Sweet, Wayne Sandholtz, and Mads Andenas

European Journal of International Law,

Volume 32, Issue 3, August 2021,

pp. 897–906, https://doi.org/10.1093/ejil/chab057
Published on 22 November 2021

Abstract: In their article ‘Walking Back Human Rights in Europe?’, Helfer and Voeten (hereinafter ‘H-V’) argue that a series of High Level Conferences (2012–2018), specifically Brighton (2012), dramatically altered the style of the European Court of Human Rights’ (ECtHR) decision-making. The Grand Chamber began to adopt judgments which, in turn, provoked an unprecedented wave of ‘Walking-Back Dissents’. Such dissents are separate opinions that, in effect, accuse the majority of a Grand Chamber of ‘tacitly overturn[ing] prior rulings or settled doctrine in favour of national governments’ (H-V, p. 823). In an expansive conclusion, H-V suggest that the ECtHR has also generated a rising number of ‘Walking-Back Judgments’, which lower standards of rights protection. We reject H-V’s major claims on the empirical evidence. The outcomes of Brighton and subsequent conferences did not pose a credible threat to the Court, and could not have induced it to ‘walk back’ rights protection. We also closely examined two sets of Walking-Back Dissents identified by H-V, focusing on judgments that would be ‘most likely to fit’ H-V’s ‘expectations’. We found that fewer than one in four judgments analysed actually contained a Walking-Back Dissent. And we identified only one plausible Walking-Back Judgment. We are confident that H-V’s results are inaccurate and cannot be reproduced by external analysts. We conclude by noting factors that H-V do not consider, but that are crucial to understanding the ECtHR’s decision-making. In appendices, posted online, we summarize and give reasons for our coding decisions.

Alec Stone Sweet on Intimations of Proportionality? The Singapore Constitution and Rights Protection. Wham Kwok Han Jolovan and Public Prosecutor (Singapore Journal of Legal Studies)

“Intimations of Proportionality? The Singapore Constitution and Rights Protection. Wham Kwok Han Jolovan and Public Prosecutor”

Alec Stone Sweet
Singapore Journal of Legal Studies
Published in 2021

Abstract: Wham Kwok Han Jolovan v Public Prosecutor is potentially the most important constitutional decision ever rendered by the Singapore Court of Appeal, insofar as it heralds a new and more intrusive approach to the judicial review of rights claims in Singapore. The ruling expressly overturned deference postures associated with the "presumption of constitutionality," at least with respect to Article 14 of the Constitution; it consolidated dicta announcing the reconfiguration of separation of powers doctrines; and it developed and deployed a rudimentary, if yet incomplete, form of proportionality review to assess the legality of legislation adopted under Article 14's limitation clause. The note analyses these changes from a comparative perspective, in light of the difficulties foreign apex courts have had in fully transitioning to a more balancing-friendly approach to rights adjudication.

Friday, January 28, 2022

Symposium Introduction: Conversations with Justices Aharon Barak, Sabino Cassese, and Dieter Grimm (German LJ)

"Introduction: Conversations with Justices Aharon Barak, Sabino Cassese, and Dieter Grimm"
Alec Stone Sweet and Giacinto della Cananea
German Law Journal (2021), 22, pp. 1511-

In the symposium that follows, we present interviews with three of the most important jurists of our time: Aharon Barak (born in 1936), President of the Israel Supreme Court (1995-2006); Sabino Cassese (born in 1935), Justice of the Italian Constitutional Court (2005-2014); and Dieter Grimm (born in 1937), Justice of the German Federal Constitutional Court (1987 to 1999). As a group, each is a contemporary, and they know each other well, not least, as long-time participants of the Global Constitutional Seminar that takes place annually at the Yale Law School. Readers of the German Law Journal will also know that each has been an influential law professor, and made important contributions to government and public commissions. The Justices have served academia in numerous capacities, as authors of books and articles of enormous importance, administrators of major research institutions, and as mentors of generations of law students and young professors. While the interviews make no attempt to cover all matters of importance, or to produce a set of congruent, “parallel” conversations, certain common themes emerge. These include reflections on changes in legal education and mentorship, the status of European and international law in domestic constitutional law, the significance of the constitution and general principles, and the role of dialogues with external courts. In addition, each has published highly personal books on judging, and on constitutional law and courts. Finally, today there are many prominent women who have served on national, European, and international courts, and we hope these interviews will spur further conversations on a wide range of careers and experiences.

Alec Stone Sweet & Giacinto della Cananea in Conversation with Aharon Barak, President of the Israel Supreme Court (1995-2006) (German LJ)

"A Conversation with Aharon Barak (born in 1936, President of the Israel Supreme Court (1995-2006))"
Alec Stone Sweet and Giacinto della Cananea
German Law Journal (2021), 22, pp. 1512–1525

'A. Before Joining the Supreme Court

A. Barak: I am not sure why I studied law; I doubt there was a good reason for it...

F. Challenges, Past, and Future

A. Barak: ... Judges should not think about backlash. Our job is to take the right decision in law, not to make the other branches happy. There must be friction among the branches—it’s a healthy thing. When the court comes under attacked, it is prohibited to retreat into a bunker. The court must continuously renew its commitments and seek to render judgements that correspond to its usual practices, and with the usual legal tools at its disposal. At the center of this tool-box are human rights, proportionality, and the general principles.

The role of the court is not to defend itself, but to defend democracy. Its goal should be to construct a kind of legal “iron dome,” that protects the state from the missiles deployed to destroy democracy. A judge must act in accordance with constitutional principles, otherwise it will be complicit in the death of the constitutional democracy it has pledged to uphold. Only if the judge is not sure about the proper course of action—only if he has an internal dilemma with himself about the solution to the problem—may he allow himself to let the missile reach its target.' Click here to read the full conversation.

Alec Stone Sweet & Giacinto della Cananea in Conversation with Sabino Cassese, Justice of the Italian Constitutional Court (2005-2014) (German LJ)

"A Conversation with Sabino Cassese (born in 1935, Justice of the Italian Constitutional Court (2005-2014))"
Alec Stone Sweet and Giacinto della Cananea
German Law Journal (2021), 22, pp. 1526–1540

'A. Training and Academia

S. Cassese: I knew the hard sciences were not for me. I preferred history or philosophy. But a degree in these fields would not open the road to a job. I chose law, then brought my interest in history and philosophy to my legal studies.

...

E. Challenges, Past and Future

S. Cassese: ... I share the view that we had an important period in which great progress was made, and now we are experiencing a certain regression. On the other side, one sees the development of a global public sphere, of the kind that Habermas theorized. If an African-American is killed by policemen in an American city, people see it on TV all over the world and the reaction is global. There now exists an ongoing process of “education,” so to speak, in favor of human rights. People are also much more mobile. The world now has more than seven and a half billion people, and they travel, live, and work abroad, migrate. The politics of rights protection can’t be kept strictly national and it never truly was.' Click here to read the full conversation.

Alec Stone Sweet & Giacinto della Cananea in Conversation with Dieter Grimm, Justice of the German Federal Constitutional Court (1987 to 1999) (German LJ)

"A Conversation with Dieter Grimm (born in 1937, Justice of the German Federal Constitutional Court (1987 to 1999))"
Alec Stone Sweet and Giacinto della Cananea
German Law Journal (2021), 22, pp. 1541–1554
'A. Training and Academia
D. Grimm: There were no academics in my family; I was the first to attend university. At age 18, I was determined to go into politics, and I thought law was the best preparation for a political career...

E. Challenges, Past and Future

Questions: The development of the European courts, too, pose challenges to constitutional law.

There is now a widespread sensitivity to what is sometimes called “national constitutional identity.” The notion is today a legal construct, that gives a structure to inter-court dialogue, both cooperative or conflictual. The BVerfG, of course, has been at the forefront of these developments, from the Solange cases,15 to Görgülü,16 to the recent decision on the European Central Bank. Earlier, you stated that the ultimate issue is whether and when the BVerfG actually uses its powers to declare an EU act ultra vires. The issue has now been engaged, in the BVerfG’s ruling on the ECB, of May 2020.

Dieter: I expected it to happen at some point. Whether the PSPP case17 on the Bank was the best occasion is a different question. The Danish Supreme Court and Czech Constitutional Court did it earlier, but only the German Court’s refusal to follow the CJEU drew wide attention. It is a mistake to judge the ultra vires jurisprudence only from the viewpoint of the efficacy and unity of EU law. By definition, every European ultra vires act withdraws a subject matter from the domestic political process without authorization, thus limiting the range of the national constitution. The CJEU does not understand itself as protector of national democracy. It is also obvious that the Commission and the Council, too, can be the source of ultra vires acts, not just the CJEU. But the CJEU is extremely reluctant to declare European legal acts as ultra vires. consequently, the only safeguards of national democracy are the constitutional or highest courts of the member states.

Question: Looking forward, in the EU, national constitutional courts are now using the preliminary reference procedure more often. And in the ECHR, Protocol no. 16 now permits advisory opinions. Might these procedures help to structure more constructive dialogue among courts.

D. Grimm: That is indeed my hope.' Click here to read the full conversation.

Friday, July 30, 2021

HKU Law Welcomes the Chair of Comparative and International Law, Professor Alec Stone Sweet

HKU Law Welcomes Professor Alec Stone Sweet who joins the Department of Law as the Chair of Comparative and International Law, working in the fields of comparative and international politics, comparative and international law, international arbitration and human rights.

Prior to moving to HKU, Alec was the Saw Swee Hock Centennial Professorship at NUS, and held chaired professorships at the Yale Law School and Nuffield College, Oxford. He has also held visiting appointments at the Columbia Law School, as well as in universities in Aix-en-Provence, Bologna, Florence, Hong Kong, Leiden, Madrid, Milan, Paris, Stockholm, Sydney, and Vienna.

Alec has published thirteen books, ten with Oxford University Press, including the most recent: Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach (2019); A Cosmopolitan Legal Order: Kant, Constitutional Justice, and the European Convention on Human Rights (2018); and The Evolution of International Arbitration: Judicialization, Governance, Legitimacy (2017). His current book project is a comparative analysis of regional human rights courts. A regular contributor to assorted American law reviews, he has also published articles in peer-reviewed journals, including the American Journal of Sociology, the American Political Science Review, Comparative Political Studies, the German Law Journal, the International Journal of Comparative Constitutional Law, the Journal of Common Market Studies, the Journal of Global Constitutionalism, the Journal of European Public Policy, the Journal of Law and Courts, and West European Politics.

Research Area

International Law and Politics
Comparative Law and Politics
International Arbitration
Human Rights