Senior Lecturer,

MacCormick Fellows & Academic Visitor Convenor; Director of Exams

Ph.D (EUI)
View my full research profile

Biography

I joined the law school in August 2008 having just completed my Ph.d in law at the European University Institute in Florence, Italy.  Prior to undertaking doctoral studies, I worked in government and legal research.  I first studied law as an undergraduate at Queen's University Belfast followed by an LLM in European Law at University College Dublin.  

Willingness to take Ph.D. students: Yes

Research Interests

My research interests lie in the conceptual and theoretical dimensions of law and legitimacy.   I am also interested in whether and how new forms of law and governance, particularly beyond the state, challenge paradigms of law and legitimacy and the potential role public law can play in this context.  I also write about contemporary issues in Scottish, British and European constitutional law including human rights law.

Websites

Dr Cormac Mac Amhlaigh's Homepage at Edinburgh Law School

Courses Taught

EU Constitutional Law (LLM)

Human Rights Law in Europe (LLM) (Course Organiser)

The Anatomy of Public Law (LLM) (Course Organiser)

Constitutional Law (Honours) (Course Organiser)

Law Legitimacy and Globalisation (Honours) (Course Organiser)

Public Law of the UK and Scotland (Ordinary)

PhD Supervisees

Miroslava Hulvanova  'Margin of appreciation in interpretation of human rights in internal market law'

Alexander Latham  'Democracy and Judicial Review: a theory of a practice'

Books and Reports

Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker, After Public Law, (Oxford University Press, 2013)
Abstract: Public law has been conceived in many different ways, sometimes overlapping, often conflicting. However in recent years a common theme running through the discussions of public law is one of loss. What function and future can public law have in this rapidly transforming landscape, where globalized states and supranational institutions have ever-increasing importance?The contributions to this volume take stock of the idea, concepts, and values of public law as it has developed alongside the growth of the modern state, and assess its continued usefulness as a distinct area of legal inquiry and normativity in light of various historical trends and contemporary pressures affecting the global configuration of law in general.Divided into three parts, the first provides a conceptual, philosophical, and historical understanding of the nature of public law, the nature of private law and the relationship between the public, the private, and the concept of law. The second part focuses on the domains, values, and functions of public law in contemporary (state) legal practice, as seen, in part, through its relationship with private domains, values, and functions. The final part engages with the new legal scholarship on global transformation, analysing the changes in public law at the national level, including the new forms of interpenetration of public and private in the market state, as well as exploring the ubiquitous use of public law values and concepts beyond the state.

Articles

Cormac Mac Amhlaigh, 'Harmonising Global Constitutionalism ', (2016), Global Constitutionalism, Vol 5, pp 173-206
Abstract: The explosion in the literature on global constitutionalism in recent times has come at the cost of ever more, and more diverse, definitions of the concept of constitutionalism. The state of the current debate can therefore be characterised, conceptually speaking, as a ‘constitutional cacophony’. This cacophony is arguably the inevitable result of the ‘problems of translation’ in importing the state-based concept of constitutionalism to the global level. This article attempts to counter suprastate constitutional scepticism borne of these problems of translation and resulting cacophony by revisiting the concept of constitutionalism itself through the lens of legitimacy. Arguing that legitimacy provides both a key element of the concept of constitutionalism as well as a common denominator for the application of constitutionalism both at the state and suprastate levels, it develops a conception of ‘constitutionalism as legitimacy’ as a way of vindicating the role of constitutionalism in the context of global governance. It presents constitutionalism as a discursive ‘mixed’ form of legitimacy entailing both factual and normative components involving a series of contestable reasons for the legitimacy of an authority based on a blend of liberalism and republicanism. These theories are then reworked into a framework of reasons for the legitimacy of an authority centring around its origins, its aims and its methods. Tracing the relationship between constitutionalism and legitimacy in this way brings harmony to the global constitutional cacophony and allows for a plausible ‘translation’ of the concept of constitutionalism between the state and suprastate levels allowing for an effective ‘mapping’ and ‘shaping’ of legitimacy in global governance which is illustrated by reference to the legitimacy crisis surrounding the United Nations Security Council’s ‘war on terror’.

Cormac Mac Amhlaigh, 'Putting Political Constitutionalism in its Place ', (2016), International Journal of Constitutional Law, Vol 14, pp 175-197
Abstract: The question of the legitimacy of judicial review of legislative and to a lesser extent, administrative, action is a perennial theme in constitutional studies. However recent years have seen particular attention to this question in political theory, notably in the work of Jeremy Waldron and Richard Bellamy, who have provided robust normative defences of legislative supremacy in questions of constitutional design. Both of their approaches, however, through their insistence on ‘disagreement all the way down’, have come up against the challenge that their positions are ultimately self-defeating. This paper attempts to take up this challenge to theories of political constitutionalism by adding an additional layer of moral arguments to defend legislative supremacy through a minimal theory of legitimacy. As it relies on providing moral reasons for resisting a move from political to legal constitutionalism only in those jurisdictions where it is actually currently practiced, as opposed to a more general argument as to why political constitutionalism is the most legitimate form of constitutional design in constitutional democracies, it is therefore only a partial defence of political constitutionalism. However, given that the defences of political constitutionalism are self-defeating on their own terms, the paper concludes that the conditions of this partial defence are a necessary prior to theoretical defenses of legislative supremacy.

Cormac Mac Amhlaigh, 'Clinging to my turtle - A rejoinder to Richard Bellamy and Adrienne Stone ', (2016), International Journal of Constitutional Law, Vol 14, pp 217-219
Abstract: This short Article is a rejoinder to the two responses from Richard Bellamy and Adrienne Stone to my article 'Putting Political Constitutionalism in its Place'.

Cormac Mac Amhlaigh, 'Book Review: The Twilight of Constitutionalism?', (2011), Public Law, pp 669-73

Cormac Mac Amhlaigh, 'Book Review: Panu Minkkinen, Sovereignty, Knowledge, Law', (2011), Social and Legal Studies, Vol 20, pp 263-65

Cormac Mac Amhlaigh, 'Current Legal Problems 2008, vol 61. Ed by Colm O'Cinneide and Jane Holder ', (2010), Edinburgh Law Review, Vol 14, pp 157-60
Abstract: Book review.

Cormac Mac Amhlaigh, 'Revisiting the Rule of Law under the ECHR: Gillan and Quinton v United Kingdom', (2010), Edinburgh Law Review, Vol 14, pp 477-82

Cormac Mac Amhlaigh, 'Revolt by Referendum?: In Search of a European Constitutional Narrative', (2009), European Law Journal, Vol 15, pp 552-63

Chapters

Cormac Mac Amhlaigh, '‘Even children lisp the rights of man’: International Human Rights Law and National Minority Jurisdictions ' in Stephen Tierney (ed.) Nationalism and Globalisation (Hart Publishing 2015) 233-251
Abstract: This Chapter was prompted by a political fallout between the Supreme Court of the United Kingdom (UKSC) and the Scottish Government shortly after the UKSC began first hearing cases in 2009. It involved an attack by the Scottish government on the London-based court for meddling in domestic Scottish affairs, notably Scottish criminal law, on the grounds that certain aspects of Scottish criminal procedure violated the provisions of the Human Rights Act 1998 (HRA) and were therefore beyond the competence of the Scottish government. Whereas there are many possible readings of the political motivation of the Scottish Government in this particular spat, the incident raises an interesting issue for international human rights law. Taking the Scottish government’s protestations in good faith, this chapter explores whether the position of the Scottish Government can be normatively justified and defended in the practice of human rights law. Emphasising the fact that all human rights norms require some form of ‘domestication’ in their application within national legal systems, it provides a sketch of a normative argument for autonomy in the ‘domestication’ of international human rights norms in national minority institutional structures by drawing upon liberal theories of minority rights and theories of constitutional patriotism. It then assesses whether the autonomy of national minorities in the implementation of international human rights norms can be accommodated in the extant doctrinal and structural resources of the practice of international human rights law.

Cormac Mac Amhlaigh, 'Defending the Domain of Public Law ' in Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker (ed.) After Public Law (Oxford University Press 2013) 103-29
Abstract: This chapter explores common understandings of the nature of the public and the private, and its relationship to law through the public/private divide. It departs from a commonplace that the public/private divide is a relative and flexible phenomenon, which does not reveal any ‘truth’ about the world, challenging three common assumptions about the public/private divide in the law. These assumptions are that there is or should be no cross-fertilization between the meaning of the public in the various instances of the divide scattered across legal systems; that its expression in the law is necessarily political or ideological; and that the divide can be dispensed with when it hinders the achievement of particular goals such as the effective protection of human rights. Focusing on one expression of the public/private divide in the law — s. 6 of the UK's Human Rights Act 1998 — it is argued that the practice of adjudication of the divide in the law reveals a deeper-rooted sense of the public and the private, which permeates the legal system which is more stable than the commonplace of its radical relativity suggests. In the light of this more structural understanding of the public, there is necessarily a measure of cross-fertilization between particular instances of the divide in a legal system, that it is less political or ideological than is claimed, and that its elimination can be extremely problematic, particularly for the achievement of effective human rights protection. The chapter concludes by characterizing this deeper structure of the public/private divide in terms of a ‘legal archetype’, and identifies the role of positive law in relation to this archetype as a parergon.

Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker, 'Introduction ' in Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker (ed.) After Public Law (Oxford University Press 2013) 1-10
Abstract: This chapter introduces the themes treated in this book, in particular that of continuity and change in public and private law. The title of the volume is open to a variety of interpretations. This introduction shows how those interpretations map on to the aims of the book. This is done through the exploration of the nature and essence of public law as it has existed in the state context, the relationship between public law and its ‘after’, namely private law, as well as the ways in which global changes challenge these understandings given changes in the nature and role of the state.

Cormac Mac Amhlaigh, 'Concepts of Law in Integration through Law ' in Daniel Augenstein (ed.) 'Integration through Law' Revisited (Ashgate Publishing 2012) 69-85

Cormac Mac Amhlaigh, 'Late Sovereignty Postintegration Europe Continuity and Change in a Constitutive Concept' in Rebecca Adler-Nissen, Ulrik Pram Gad (ed.) European Integration and Postcolonial Sovereignty Games (Routledge 2012) 39-52

Cormac Mac Amhlaigh, 'The European Union's Constitutional Mosaic Big 'C' or Small 'C', Is that the Question?' in Neil Walker, Jo Shaw, Stephen Tierney (ed.) Europe's Constitutional Mosaic (Hart Publishing 2011) 21-48

Working Papers

Cormac Mac Amhlaigh, ''Even Children Lisp the Rights of Man': International Human Rights Law and National Minority Jurisdictions' 2015
Abstract: This chapter was prompted by a political fallout between the Supreme Court of the United Kingdom (UKSC) and the Scottish Government shortly after the UKSC began first hearing cases in 2009. It involved an attack by the Scottish government on the London-based court for meddling in domestic Scottish affairs, notably Scottish criminal law, on the grounds that certain aspects of Scottish criminal procedure violated the provisions of the Human Rights Act 1998 (HRA) and were therefore beyond the competence of the Scottish government. Whereas there are many possible readings of the political motivation of the Scottish Government in this particular spat, the incident raises an interesting issue for international human rights law. Taking the Scottish governments’ protestations in good faith, this chapter explores whether the position of the Scottish Government can be normatively justified and defended in the practice of human rights law. Emphasising the fact that all human rights norms require some form of ‘domestication’ in their implementation in state legal systems, it provides a sketch of a normative argument for national minority autonomy in the ‘domestication’ international human rights norms in national minority institutional structures by drawing upon liberal theories of minority rights and theories of constitutional patriotism as well as briefly exploring the extant doctrinal, normative and structural resources of the practice of international human rights law which could potentially vindicate such autonomy.

Cormac Mac Amhlaigh, 'Putting Political Constitutionalism in its Place ' 2015
Abstract: The question of the legitimacy of judicial review of legislative and to a lesser extent, administrative, action is a perennial theme in constitutional studies. However recent years have seen particular attention to this question in political theory, notably in the work of Jeremy Waldron and Richard Bellamy, who have provided robust normative defences of legislative supremacy in questions of constitutional design. Both of their approaches, however, through their insistence on ‘disagreement all the way down’, have come up against the challenge that their positions are ultimately self-defeating. This paper attempts to take up this challenge to theories of political constitutionalism by adding an additional layer of moral arguments to defend legislative supremacy through a minimal theory of legitimacy. As it relies on providing moral reasons for resisting a move from political to legal constitutionalism only in those jurisdictions where it is actually currently practiced, as opposed to a more general argument as to why political constitutionalism is the most legitimate form of constitutional design in constitutional democracies, it is therefore only a partial defence of political constitutionalism. However, given that the defences of political constitutionalism are self-defeating on their own terms, the paper concludes that this partial defence is the only feasible defence of political constitutionalism in debates in constitutional theory. As such constitutional settlements which already exercise legislative supremacy are the appropriate and exclusive context for theoretical arguments defending legislative supremacy.

Cormac Mac Amhlaigh, 'Late Sovereignty in Post-integration Europe: Continuity and Change in a Constitutive Concept' 2011

Cormac Mac Amhlaigh, 'Questioning Constitutional Pluralism ' 2011
Abstract: The contemporary legal landscape is one of a plurality of normative orders which exist alongside the conventional legal systems of states and public international law. That these systems interact and frequently conflict both with state law and international law and with each other is an increasingly common fact of modern legal practice. The concept of constitutionalism is frequently employed as a way of understanding these post-state regimes as well as a method of managing the inevitable conflicts between legal orders in a pluralist legal universe. In Europe, in particular, constitutionalism has featured prominently legal pluralist discourse in two important respects. Firstly, it has been employed as a way of theorizing non-state legal systems such as that of the European Union and the European Convention of Human Rights. Secondly, constitutionalism has been proposed as a frame within which to understand and manage legal pluralism in Europe and in particular as a framework for the resolution of conflicts between such orders. The the received wisdom in this literature is that pluralism and conflicts between EU and national law are amenable to resolution according to a robustly constitutionalist framework whereas ECHR conflicts with national law are of a more radical pluralist form, and therefore less ‘constitutionalist’. This paper challenges this orthodox position. It traces the genealogy of pluralism in the EU and ECHR orders, concluding that a pluralist conception of EU law cannot be constitutional due to the fact that conflicts between the EU and national law are contests of sovereignty, whose resolution in a constitutional frame is question-begging. The interaction between the ECHR and national legal systems, on the other hand, the paper argues, are precisely the sort of conflict where the concept of constitutionalism can do real work at the post-state level. In presenting this taxonomy as a better way of understanding normative pluralism in Europe, it concludes by introducing an argument against pluralism in the relationship between EU law and national law, arguing that the attitude of national courts such as the German Constitutional Court should be viewed as a form of institutional civil disobedience which is a normal aspect of any constitutional order, rather than requiring the positing of an overarching constitutional frame binding EU and national courts.

Cormac Mac Amhlaigh, 'Concepts of Law in Integration Through Law (and the Price of Constitutional Pluralism) ' 2011
Abstract: This paper explores the concept of law in European integration studies with a particular emphasis on the conception adopted in the Integration Through Law project which was based in the European University Institute in the 1980s. It argues that notwithstanding claims to the contrary, the conception of law adopted in the project was a legal positivist one and that this is evidenced in its conception of law as the ‘object’ and ‘instrument’ of integration. The first part of the paper develops this thesis by arguing, firstly, that characterizing EU law as the ‘object’ of integration entails a Razian conception of the authority of law which results in the integration of national legal systems, and then, secondly, that law as the ‘instrument’ of integration entails a functionalist conception of law which is necessarily positivist.The second part of the paper goes on to highlight the tension between this positivist conception of EU law and the federal principle which was central to the ITL project, given that the former relies on the resolution of the question of ultimate authority (the sources thesis brand of positivism) whereas the latter tends towards its irresolution. It argues that the emerging literature on constitutional pluralism in the EU implicitly endorses the federal principle of the ITL project at the cost of the positivist conception of EU law and that this is evidenced by the shift in models of constitutional pluralism from legal positivist conceptions of law to a more Dworkinian ‘principled’ form as exemplified in the work of Mattias Kumm. However, the paper concludes that this shift comes at a price which is potentially problematic in a fragile political community such as the EU, where the stakes are much higher than that of the sovereign state.

Cormac Mac Amhlaigh, 'Book Review: P Dobner & M Loughlin The Twilight of Constitutionalism? (Oxford University Press 2010)' 2011
Abstract: This working paper is a review of P. Dobner & M. Loughlin The Twilight of Constitutionalism? (OUP 2010).

Cormac Mac Amhlaigh, 'The European Union's Constitutional Mosaic: Big 'C' or Small 'C', is that the Question?' 2010
Abstract: This paper examines Europe's Constitutional mosaic by focusing on the constitutional mosaic which makes up European Union constitutional discourse. It identifies the current state of EU constitutional discourse as a mosaic of different trends, the contours of which are briefly traced. It then argues that trends in EU constitutional discourse have ignored or suppressed the idea of sovereignty (hence the small 'c' adjective) and that this has resulted in difficulties both with relation to the conceptual coherence of constitutionalism and affects its usefulness as a way of understanding the polity. It argues that the constitutional idea is incorrigibly linked to the concept of sovereignty and that any constitutional discourse, even at the EU level, must entail sovereignty. It goes on to provide a sovereignty-inspired reading of EU constitutionalism through a particular reading of the European Court of Justice's constitutionalization of the Treaties and in its recent Kadi decision.

Cormac Mac Amhlaigh, 'Revisiting the Rule of Law Under the European Convention of Human Rights: Gillan and Quinton v. the United Kingdom' 2010
Abstract: This case note considers the rule of law implications of the European Court of Human Rights’ decision in Gillan and Quinton v. UK (App no 4158/05, 12 Jan 2010, nyr) involving the UK’s stop and search powers under the Terrorism Act 2000.

Cormac Mac Amhlaigh, 'Book Review: Panu Minkkinen Sovereignty, Knowledge, Law' 2010
Abstract: This Working Paper is a review of Panu Minkkinen's 'Sovereignty, Knowledge, Law' (Abingdon: Routledge, 2009).

Cormac Mac Amhlaigh, Andrew Glencross, 'Sovereignty in the EU Constitutional Order: Integrating Law and Political Science' 2009
Abstract: This paper examines how law and political science have studied the role played by sovereignty claims in the EU constitutional order. Typically, it is argued, the two disciplines have studied sovereignty in the EU from parallel perspectives, with the former emphasising the dimension of the internal sovereignty of the EU and the latter focusing on member states’ enduring external sovereignty in relation to the international system. This divergence is explained by virtue of contrasting institutional units of analysis (courts vs. representative institutions). The consequence is the absence of a shared understanding of where Kompetenz-Kompetenz, the power to decide who decides in the EU system, lies. In the light of this analysis, three models of sovereignty are then discussed as models for spanning the disciplinary boundary. These are the Westphalian, post-sovereign and confederal models of sovereignty. Amongst them, the paper concludes, it is the latter that seems to offer the greatest opportunities for reconciling insights from law and political science.

Conference Papers

Cormac Mac Amhlaigh, 'What is (Global) Constitutionalism? ' 2012
Abstract: Presented at Administrative Law Beyond the State, University of Uppsala, Sweden.

Cormac Mac Amhlaigh, 'Questioning Constitutional Pluralism in Europe ' 2012
Abstract: Presented at CIG Seminar Series, Centre for International Governance, School of Law, University of Leeds.

Cormac Mac Amhlaigh, 'The EU Sovereignty Experience: Continuity and Change in a Constitutive Concept' 2011