Professor of Constitutional Theory

Biography

Stephen Tierney is Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law http://www.law.ed.ac.uk/centreforconstitutionallaw/. He has held visiting professorships in International Law at Seton Hall Law School, New Jersey (2010 and 2011) and in Political Theory at Pompeu Fabra University in Barcelona (2010). 

Professor Tierney was a British Academy/Leverhulme Senior Research Fellow 2008-2009. This provided a year's research leave to pursue the project: 'Let the People Decide: Referendums in a Post-Sovereign Age'.This ongoing project focuses upon referendums as a case study in the relationship between democracy and constitutionalism. As part of this research he also initiated a project on Referendums and Deliberative Democracy. Details are available on http://www.law.ed.ac.uk/staff/stephentierney/constitutionalreferendums.aspx

A monograph 'Constitutional Referendums: The Theory and Practice of Republican Deliberation' will be published by Oxford University Press in 2012.

Professor Tierney teaches and researches at the interfaces between public law, international law and constitutional theory. Current research interests include: 1. The legal accommodation of national identity. 2. Comparative constitutional law and theory. 3. The use of referendums in the settlement of constitutional questions. He would welcome engagement with other scholars interested in these areas and enquiries from research students keen to pursue work in any of these fields.

Courses Taught

Constitutional Law (Honours)

Fundamental Issues in International Law (LLM)

Public Law of the UK and Scotland (Ordinary)

PhD Supervisees

Kajit Bagu  'Cognitive Justice, Plurinational Constitutionalism and Post-Colonial Peacebuilding: A Constitutional Philosophy on Identity; the Global South, Central Nigeria'

Kenneth Campbell  'The role of the Scottish 'settlement' in the emergence of constitutional laws and Britain's 'unwritten' constitution.'

Tom Gerald Daly  ''Courts & Democratisation: Interaction between Domestic and International Democratisation Jurisprudence''

Giedre Jokubauskaite  'Accountability towards individuals and communities affected by the World Bank loan agreements'

Majid Rizvi  'Scottish Devolution and Democracy-Based Objections to Judicial Review of Federalism'

Silvia Suteu  'Eternity and the Constitution: The Promise and Limits of Eternity Clauses'

Asanga Welikala  'Beyond the Liberal Paradigm: The Constitutional Accommodation of National Pluralism in Sri Lanka'

Books

Stephen Tierney Constitutional Referendums: The Theory and Practice of Republican Deliberation (Oxford University Press, 2012)
Abstract: The use of referendums around the world has grown remarkably in the past thirty years and, in particular, referendums are today deployed more than ever in the settlement of constitutional questions, even in countries with little or no tradition of direct democracy. This is the first book by a constitutional theorist to address the implications of this development for constitutional democracy in a globalizing age, when many of the older certainties surrounding sovereignty and constitutional authority are coming under scrutiny. - The first full-length analysis of constitutional referendums, examining their democratic legitimacy and growing role in modern constitutional politics. - Provides a full analysis of the issues involved in referendum design, aiding constitutional lawyers and theorists working on the creation and operation of referendums. - Presents a diverse range of case studies to provide a comprehensive, inter-disciplinary account of the issues in political theory and legal and political practice which surround the recent proliferation of referendum use. http://ukcatalogue.oup.com/product/9780199592791.do

Stephen Tierney Constitutional Law and National Pluralism (Oxford University Press, 2004)
Abstract: http://www.oup.co.uk/isbn/0-19-929861-0?view=lawview Over the past thirty years, sub-State national minorities in a number of developed liberal democracies have both reasserted their cultural distinctiveness and demanded recognition of it in legal and political terms. This phenomenon has been the subject of considerable study by sociologists, political scientists, and political theorists. This book differs by offering a study of the consequences of these rights claims for legal systems. It examines the role played by law, especially constitutional law, in the negotiation of the complex relationships and competing rights claims involving the State, national minorities, and other groups and individuals within the State. This book addresses the constitutional issues, both in theory and in practice, that accompany the existence of national diversity in pluralist democracies. Tierney contends that the democratic plurinational state, characterized by the presence of more than one national group within the State, is a discrete category of multi-level polity which defies the standard classifications of liberal constitutionalism. Building upon this theoretical basis, this book then focusses upon recent developments toward the institutional accommodation of Catalonia, Quebec, and Scotland. Tierney examines the legal issues which arise from the challenges posed by national minorites within multinational democracies, to the constitutional and institutional structures of particular States, and also to some of the fundamental precepts of democratic constitutional theory and practice.

Edited Books

Neil Walker, Jo Shaw, Stephen Tierney Europe's Constitutional Mosaic (Hart, 2011)

Stephen Tierney, Emilios Christodoulidis Public Law and Politics: The Scope and Limits of Constitutionalism (Ashgate, 2008)

Stephen Tierney Multiculturalism and the Canadian Constitution (University of British Columbia Press, 2007)
Abstract: Canada has often been cited internationally for its success as a multicultural society and for its ability to manage this diversity through a federal constitution. The strands of diversity include the constitutional relationship between English and French Canada, federalism more generally, the status of Aboriginal peoples, Canada's immigration and integration strategies, affirmative action, and a general guarantee of equal protection to men and women Together they tell a complex story of pluralism, consolidated through a long and incremental period of constitution-building. Multiculturalism and the Canadian Constitution brings together scholars of cultural diversity from backgrounds in law, political science, and history to address key components of the changing Canadian story: the evolution over time of multiculturalism within Canadian constitutional law and policy; the territorial dimension of Canadian federalism; and the role of constitutional interpretation by the courts in the development of Canada as a multicultural state. Wide-ranging and provocative, the essays illustrate how deeply multiculturalism is woven into the fabric of the Canadian constitution and the everyday lives of Canadians. Stephen Tierney is Reader in Law at the University of Edinburgh. Contributors: Daniel Bourgeois, Marc Chevrier, Robert J. Currie, Jameson W. Doig, Katherine Eddy, Hugh Donald Forbes, Andrew F. Johnson, Hugh Kindred, Will Kymlicka, Ian Peach, Joan Small, and Michael Temelini.

Stephen Tierney Accommodating Cultural Diversity (Ashgate, 2007)
Abstract: This book explores recent developments in the theory and practice of accommodating cultural diversity within democratic constitutional orders. It brings together philosophers and legal scholars to explore the inter-play between the normative precepts advanced by the former for the accommodation of cultural pluralism and the reality of that accommodation as it plays itself out in political and legal practice, as explained by the latter. The aim of the book is to provide a holistic picture of the constitutional management of cultural diversity through the prisms of different disciplines and experiences: theoretical and practical. Contributions come from Canada, Scotland and England and concentrate on two main case studies: a substantive study of the accommodation of indigenous peoples within different constitutional orders and, secondly, the role of the courts as their approach to cultural diversity evolves in complex pluralist democracies such as Australia, Canada and the UK.

Stephen Tierney, Colin Warbrick Towards an International Legal Community?: The Sovereignty of States and the Sovereignty of International Law (British Institute of International and Comparative Law, 2006)
Abstract: This collection of essays on the theory of international law addresses the question whether, in light of contemporary legal, economic and political challenges which the state faces, state sovereignty can continue to be viewed meaningfully as a legal principle, the legitimacy of which is generated merely by the factual condition of a state's existence; or whether in fact the international legal system is now better viewed as a self-generating and increasingly sovereign force, founded upon an incipient 'international legal community' which has in large measure redefined state sovereignty as a lower order principle both contingent upon and attenuated by the normative authority inherent in this nascent 'community'. Can we now speak of international law as an embryonic 'quasi-constitutional' system, generated by an international legal community? If so, has this community, although finding its historical origins in the aggregated will of states, assumed a new and immanently-generated legitimacy which is no longer dependent upon state consent for its validity and authority? Available for purchase at http://www.biicl.org/publications/view/-/id/82/

Stephen Tierney Accommodating National Identity: New Approaches in International and Domestic Law (Kluwer Law International, 2000)

Journal Articles

Stephen Tierney 'The People's Last Sigh? European referendums and the end of the State' (2013) European Public Law 683-700
Abstract: The proliferation in the use of referendums in processes of accession to and ratification of European Union treaties is part of a growing trend towards direct democracy in constitutional decision-making. This article addresses the challenge which this important and under-theorised feature of contemporary politics poses for constitutionalism, many of the empirical and indeed normative precepts of which are built upon the implicit presupposition of an exclusively representative model of government and law-making. An important question, made more pressing by this development, is whether constitutional referendums can be truly democratic as an instrument of republican government. The article seeks to explore how referendums on EU integration complicate the democratic issue. This occurs partly by the ways in which referendums cast light on the democratic defects of the EU constitution-making process itself and partly by how they raise the thorny issue of the demos by bringing back the people in direct and vernacular contributions to what is otherwise supposed to be a post-national constitution-building project.

Stephen Tierney 'Using Electoral Law to Construct a Deliberative Referendum: Moving Beyond the Democratic Paradox' (2013) Election Law Journal 1-17
Abstract: Referendums are paradoxical. For some, they represent an ideal model of democracy. For others, however, the referendum is a dangerous device precisely because it is considered to imperil democracy-envisaged by the referendum's critics in exclusively representative form-and as such is best excluded from processes of constitutional change. In this article I address the three main objections to the referendum: that they lend themselves by definition to elite control and manipulation; that there is an in-built tendency of the referendum process merely to aggregate pre-formed opinions rather than to foster meaningful deliberation; and that referendums consolidate and even reify simple majoritarian decision making at the expense of minority and individual interests. I argue first that these objections are problems of practice not principle, and secondly that the recent turn in deliberative theory offers solutions to each of these problems by suggesting ways to instantiate good practice in the design and regulation of the referendum based upon principles of popular participation, public reasoning, and pluralism in decision making. In particular, properly constructed electoral law and models of regulation can help construct a ''deliberative referendum.'' This can be done by legal controls in areas such as independent oversight of question-setting, citizen engagement in question formation, guidelines on referendum timing and campaign length, franchise rules, the provision of information to citizens, and laws regulation funding, expenditure, and advertising. I illustrate how the deliberative referendum can be built, drawing upon examples of good (and bad) practice in referendum use throughout the world, while also referring to the growing move towards international standardization in referendum process through institutions such as the Venice Commission of the Council of Europe. The United Kingdom law on referendums and the legislative regime for the forthcoming referendum on independence for Scotland in 2014 are used as principal case studies.

Stephen Tierney 'Legal Issues Surrounding the Referendum on Independence for Scotland' (2013) European Constitutional Law Review 359-390
Abstract: The 2014 referendum: Towards a consensual process - The Edinburgh Agreement: framing the referendum process - Process rules and key issues - After the referendum: Scotland's status under international law - Secession under international law - Membership of international organisations, especially the European Union

Stephen Tierney 'A new wave of constitutional reform for the UK?' (2009) European Public Law 289-299

Stephen Tierney 'Federalism in a Unitary State: A Paradox too Far?' (2009) Regional and Federal Studies 237-254

Stephen Tierney 'Constitutional Referendums: A Theoretical Enquiry' (2009) Modern Law Review 72(3) 360-383
Abstract: In recent decades the use of referendums to settle major constitutional questions has increased dramatically. Addressing this phenomenon as a case study in the relationship between democracy and constitutional sovereignty, this article has two aims.The ¢rst is to argue that these constitutional referendums are categorically di¡erent fromordinary, legislative referendums, and that this has important implications for theories of constitutional sovereignty. Secondly, the article suggests that the power of these constitutional referendums to re-order sovereign relations raises signi¢ cant normative questions surrounding the appropriateness of their use. The article engages with these normative questions, enquiringwhether the recent turn in republican political theory towards deliberative democracy may o¡er a model through which su⁄ciently democratic referendum processes can be constructed.

Stephen Tierney 'Beyond the Ontological Question: Liberal Nationalism and the Task of Constitution-Building' (2008) European Law Journal 128-137 [Download]
Abstract: One of the most interesting stories of the past 20 years has been the extent to which nationalism has been the focus of intense debate by liberal political philosophers. As Wayne Norman suggests in Negotiating Nationalism, it is now useful to take stock and assess where this flurry of activity has taken us, and in doing so we can set his book in the context of two waves of work. The first involved philosophers in challenging complacent misconceptions concerning the nature of the state and of national identity that had been allowed to embed themselves in liberal democratic theory. As Norman puts it: 'Philosophers in the "first wave" were faced with the burden of proving that it was not impossible to be a liberal and a nationalist at the same time'.1 In this respect the first part of Norman's book is largely a retrospective account setting his ideas in the context of those scholars of nationalism whose work has come to be known as 'Liberalism II'.2 This school emerged in response to developments in political practice, in particular the emergence of strong nationalist movements in what have come to be known as 'multinational' or 'plurinational' states such as Belgium, Spain, the UK and Canada.3 Indeed it is no surprise that many of the theorists of the new school of liberalism-including Norman himself-are Canadian, with their theoretical work developing in an environment of intense political dispute between Quebec and the rest of Canada.

Stephen Tierney 'Giving with one hand: Scottish devolution within a unitary state' (2007) International Journal of Constitutional Law 572-597
Abstract: This essay employs Scottish devolution as a prism through which to examine two public policies used to manage national diversity: "accommodation" and "integration." While an accommodationist discourse can certainly capture many of the substantive constitutional outcomes sought by substate national societies, it may not provide the symbolic recognition that will articulate fully a "plurinational" concept of the state. Following from this, the essay focuses on the tension at the heart of the Scotland Act 1998. In terms of its autonomy provisions and the recognition these imply, the act may be seen as a genuine attempt to redefine the United Kingdom's constitution in a plurinational direction. However, in other ways, the structure of the settlement embodies strong integrative tendencies that sustain the categorical distinction between host state national society, on the one hand, and substate national societies, on the other. Finally, it is observed that the expanding powers of the European Union may restrict efforts to reorient the state in a plurinational direction, since many devolved powers of substate nations and regions are subject to the normative supremacy of parallel levels of EU competence.

Stephen Tierney 'Reflections on the evolution of language rights' (2006) Supreme Court Law Review (2d) Vol 31 pp 1-25

Stephen Tierney 'Of Gubernaculum and Jurisdictio: Retrieving a Modernist Conception of Public Law' (2005) King's College Law Journal 209-215

Stephen Tierney 'Determining the State of Exception: What role for Parliament and the courts?' (2005) Modern Law Review 668-672

Stephen Tierney 'Reframing Sovereignty: Sub-state national societies and contemporary challenges to the nation-state' (2005) International and Comparative Law Quarterly 161-83

Stephen Tierney 'English Public Law and Constitutional Change' (2004) European Public Law 209-219

Stephen Tierney 'Beyond Cultural Relativism: Rethinking the Human Rights Debate' (2004) Juridical Review 75-95

Victor Tadros, Stephen Tierney 'The Presumption of Innocence and the Human Rights Act' (2004) Modern Law Review Vol67 pp402-434
Abstract: There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions.

Stephen Tierney 'The Search for a New Normativity: Thomas Franck, Post-Modern Neo-Tribalism and the Law of Self-Determination' (2002) European Journal of International Law 941-60

Stephen Tierney 'Constitutionalising the Role of the Judge: Scotland and the New Order' (2001) Edinburgh Law Review 49-72

Stephen Tierney 'Convention Rights and the Scotland Act: redefining Judicial Roles' (2001) Public Law 38-49

Stephen Tierney 'Constitutional Reform in the United Kingdom' (2000) King's College Law Journal 22-36

Stephen Tierney 'Human Rights and Temporary Sheriffs' (2000) Edinburgh Law Review Vol4 Issue 2pp223-28

Stephen Tierney 'Devolution Issues and s.2(1) of the Human Rights Act' (2000) European Human Rights Law Review Vol5 pp380-392

Stephen Tierney 'The Labour Government and Reform of the House of Lords' (2000) European Public Law pp506-516

Stephen Tierney 'In a state of flux: self-determination and the collapse of Yugoslavia' (1999) International Journal on Minority and Group Rights Vol6 pp 197-233

Stephen Tierney 'Special double edition of the International Journal on Minority and Group Rights' (1999) International Journal on Minority and Group Rights Volume 6 No12

Stephen Tierney 'The Extradition Case against Pinochet Ugarte' (1999) European Public Law Vol5 pp 500-513

Stephen Tierney 'Press Freedom and Public Interest: The Developing Jurisprudence of the European Court of Human Rights' (1998) European Human Rights Law Review Vol 4 pp 419-429

Stephen Tierney 'The Human Rights Bill: Incorporating the European Convention on Human Rights into UK Law' (1998) European Public Law pp 299-311

Stephen Tierney 'Constitutional Reform under the New Labour Government' (1997) European Public Law pp461-473

Stephen Tierney 'Collective Identities and the Limits of Liberalism: The Rights of Minority Cultures' (1996) Canadian Journal of Law and Society 11 273-78

Stephen Tierney 'European Citizenship in Practice?: The First Annual Report of the European Ombudsman' (1996) European Public Law pp 517-529

Stephen Tierney 'New Zealand's Request for an Examination of the Nuclear Tests Case' (1996) The International Journal of Marine and Coastal Law pp 87-94

Chapters

Stephen Tierney ''The Three Hundred and Seven Year Itch': Scotland and the 2014 Independence Referendum' in Matt Qvortrup (eds) British Constitution: Continuity and Change: A Festschrift for Vernon Bogdanor (Hart Publishing, 2013) 141-152

Stephen Tierney 'Le formalisme constitutionnel strict: la toxine britannique, l'antidote canadien?' in François Rocher and Benoît Pelletier (eds) Le nouvel ordre constitutionnel canadien: du rapatriement de 1982 à nos jours Sous la direction (Presses de l’Université du Québec, 2013)

Stephen Tierney 'Rights versus Democracy? The Bill of Rights in Plurinational States' in Colin Harvey (eds) Bills of Rights in Divided Societies (Hart Publishing, 2012) 11-32

Stephen Tierney 'The United Kingdom as a Plurinational State' in Ferran Requejo (eds) Federalism, Plurinationality and Democratic Constitutionalism (Routledge, 2012) 185-207

Stephen Tierney 'Quiet Devolution: a bottom-up path to federalism?' in Michael Burgess (eds) Federal and State Constitutions: Explaining Change and Development in the Evolution of Federations (McGill-Queens Press, 2012) 195-217

Stephen Tierney 'Reframing Sovereignty' in Ferran Requejo (eds) Political Liberalism and Plurinational Democracies (Routledge, 2011) 115-138

Stephen Tierney, Neil Walker 'A Constitutional Mosaic? Exploring the New Frontiers of Europe's Constitutionalism' in Neil Walker, Jo Shaw, Stephen Tierney Europe's Constitutional Mosaic (Hart, 2011) 1-20

Stephen Tierney 'The Long Intervention in Kosovo: a Self-Determination Imperative?' in James Summers (eds) Kosovo and International Law (Martinus Nijhoff, 2011) 249-278
Abstract: This paper argues that in order to understand the willingness of many states to recognise Kosovo as a new state, an act that flies in the face of the post-war consensus on the illegality of secession, we need to return to the 1998-99 Kosovo crisis and address the dynamics that informed foreign intervention at that time. We will argue that this intervention was motivated as much by a self-determination imperative - whereby foreign powers sought a detailed realignment of the Yugoslav constitution - as by humanitarian concerns.

Stephen Tierney 'El Regne Unit com a estat multinacional' in M Caminal and F Requejo (eds) Federalisme i plurinacionalitat: Teoria i anàlisi de casos (Institut d’Estudis Autonòmics, Barcelona, 2009) 383-422

Stephen Tierney, Emilios Christodoulidis 'Public Law and Politics: rethinking the debate' in Stephen Tierney, Emilios Christodoulidis (eds) Public Law and Politics: The Scope and Limits of Constitutionalism (Ashgate, 2008) 1-14

Stephen Tierney 'Crystallising dominance: majority nationalism, constitutionalism and the courts' in Gagnon, A., Lecours, A. and Nootens, G (eds) Dominant Nationalisms (Univerity of Montreal Press, 2008) 87-110

Stephen Tierney 'Sub-state nations and the constitutional state: embedding normative principles within a plurinational constitution' in F Letamendia (eds) Democracy, Citizenship and Territoriality (Oñati Institute, 2008)

Stephen Tierney 'Giving with one hand: Scottish devolution within a unitary state' in Sujit Choudhry and John McGarry (eds) Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford University Press, 2008) 438-460

Stephen Tierney 'Sovereignty and the idea of public law' in Stephen Tierney, Emilios Christodoulidis (eds) Public Law and Politics: The Scope and Limits of Constitutionalism (Ashgate, 2008)

Stephen Tierney 'We the Peoples: Balancing Constituent Power and Constitutionalism in Plurinational States' in Neil Walker, Martin Loughlin (eds) The Paradox of Constitutionalism (Oxford University Press, 2007) 229-246

Stephen Tierney 'Cultural Diversity: normative theory and constitutional practice' in (eds) Accommodating Cultural Diversity: Contemporary Issues in Theory and Practice (Ashgate, 2007) 1-14

Stephen Tierney 'Spectre at the Feast: Parliamentary Sovereignty and the Union Settlement of 1998' in Isabelle Bour and Antoine Mioche (eds) Bonds of Union: Practices and Representations of Political Union in the United Kingdom (18th-20th centuries) (Presses Universitaires Francois Rabelais, 2007) 191-206

Stephen Tierney 'Scotland and the Union State' in A McHarg and T Mullen (eds) Public Law in Scotland (Avizandum, 2006) 1-19

Stephen Tierney 'Sub-state national societies and participation in supranational integration' in (eds) Federalismi e Integrazioni Sopranazionali Nell'arena Della Globalizzazione: Unione Europea e Mercusor (Universitá degli Studi de Milano, 2006) 131-59

Stephen Tierney 'Reframing Sovereignty: Sub-state national societies and contemporary challenges to the nation-state' in Neil Walker Relocating Sovereignty (Ashgate, 2006)

Stephen Tierney 'Reflections on the Evolution of Language Rights' in A. Braën, P. Foucher and Y. Le Bouthillier (eds) Languages, Constitutionalism and Minorities (University of Ottawa Press, Canada, 2006) 3-27

Stephen Tierney 'Questioning Authority: The Normative Challenge in Forging an International Community' in Stephen Tierney, Colin Warbrick (eds) Towards an International Legal Community?: The Sovereignty of States and the Sovereignty of International Law (British Institute of International and Comparative Law, 2006) 1-16

Stephen Tierney 'Sub-state Nations in a Unitary state: Mobilising Law for a Devolved Scotland' in Noreau and Woehrling (eds) Appartenances, institutions et citoyenneté (Wilson and Lafleur, Quebec, 2005) pp. 161-174

Stephen Tierney 'Scotland, Devolution and Human Rights' in (eds) Good Governance: Scottish and Swedish Perspectives (University of Uppsala Press, Sweden, 2004) 6-16

Stephen Tierney 'The Constitutional Accommodation of National Minorities in the UK and Canada: Judicial Approaches to Diversity' in (eds) Conditions of Diversity in Multinational Democracies (Institute for Research on Public Policy, Canada, 2003) 169-206

Stephen Tierney 'Constituionalising the role of the judge: Scotland and the new order' in Alan Boyle, Chris Himsworth, Hector MacQueen, Andrea Loux (eds) Human Rights and Scots Law (Hart Publishing, 2002) 57-81

Stephen Tierney 'The Road Back to Hell: the International Response to the Crisis in Kosovo' in Stephen Tierney Accommodating National Identity: New Approaches in International and Domestic Law (Kluwer Law International, 2000) 89-130

Stephen Tierney 'The Changing Constitution: American Constitutional Amendment and the Limits of Article V' in (eds) The Creation and Amendment of Constitutional Norms, (British Institute of International and Comparative Law, 2000) 1-34