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.
(Honours) (Course Organiser)
Fundamental Issues in International Law
Public Law and Individual Rights
Public Law of the UK and Scotland
(Ordinary) (Course Organiser)
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.
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.
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.
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.
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?
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
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
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
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 Extradition Case against Pinochet Ugarte' (1999) European Public Law Vol.5, 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 pp.461-473
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
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 '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 '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 WalkerRelocating Sovereignty (Ashgate, 2006)
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 '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