New issue "German Law Journal"

12 German Law Journal No. 8 (2011)

 

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Articles

The Legal Theory of the Juridical Coup: Constituent Power Now - PDF - Luigi Corrias
Persuasive Authority Beyond the State: A Theoretical Analysis of Transnational Corporate Social Responsibility Norms as Legal Reasons Within Positive Legal Systems - PDF - Michael Torrance

Developments

Euratom, the European Court of Justice, and the Limits of Nuclear Integration in Europe - PDF - Sebastian Wolf
The Loss of Citizenship by Revocation of Naturalization or ex lege: Overview of German Case Law and Legislative Changes of 2009 - PDF - Andrea Kirsch
Towards a European Approach in the Cross-Border Infringement of Personality Rights - PDF - Jan-Jaap Kuipers

Vandamme on Subsidiarity

From Federated Federalism to Harmonized Federalism? The Case of EU Subsidiarity Scrutiny in Spain and Belgium

Thomas Alexander Vandamme

University of Amsterdam


July 20, 2011


Abstract:     
In political science literature, federal systems can be classified as ‘dual’ or ‘cooperative’ polities. Also for legal research, this classification has proven to be a good tool for analysis as evidenced by the recent work of Robert Schütze when he described the evolution of the EU from a dual to a cooperative system based on the development of its legislative activity. Under the influence of Europeanization EU Member States that are ‘classified’ as dual systems are said to develop more cooperative systems of government in order to meet the exigencies of participation in EU policy building and its implementation. This article ‘tests’ previous research in this matter by looking at the way the Lisbon Protocol on Subsidiarity (‘Protocol Nr. 2’) is implemented in two countries that can be said to be dual federal systems: Spain and Belgium. This article concludes that the previous research that revealed this ‘EU-induced’ cooperative trend in dual federal systems is not confirmed for Belgium and Spain when taking into regard the way these countries implement the Lisbon Protocol on Subsidiarity. 

Full text available at:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1890496

Benhabib on Democracy

Is There a Human Right to Democracy? Beyond Interventionism and Indifference

Seyla Benhabib

Yale University - Department of Political Science


2011

APSA 2011 Annual Meeting Paper

Abstract:     
There is wide-ranging disagreement in contemporary discourse about the justification as well as the content of human rights. On the one hand, the language of human rights has become the public vocabulary of a conflict-ridden world which is increasingly growing together. The spread of human rights, as well as their defense and institutionalization, are now seen as the uncontested language, though not the reality, of global politics. In this essay I wish to shift both the justification strategy and the derivation of the content of human rights away from minimalist concerns towards an understanding of human rights in terms of the “right to have rights” (Hannah Arendt). I will defend a discourse-theoretic justification strategy which seeks to synthesize the insights of discourse ethics with Hannah Arendt’s concept. I thereby hope to point the way toward a more robust defense of human rights within a global justice context. Whereas in Arendt’s work, “the right to have rights” is viewed principally as a political right and is narrowly defined as the “right to membership in a political community,” I will propose a non-state-centered conception of the “right to have rights,” understood as the claim of each human person to be recognized and to be protected as a legal personality by the world community. 

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1899956

 

Stone Sweet on constitutional pluralism

A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe

 

Abstract

The European Convention on Human Rights is rapidly evolving into a cosmopolitan legal order: a transnational legal system in which all public officials bear the obligation to fulfill the fundamental rights of every person within their jurisdiction. The emergence of the system depended on certain deep, structural transformations of law and politics in Europe, including the consolidation of a zone of peace and economic interdependence, of constitutional pluralism at the national level, and of rights cosmopolitanism at the transnational level. Framed by Kantian ideas, the paper develops a theoretical account of a cosmopolitan legal system, provides an overview of how the ECHR system operates, and establishes criteria for its normative assessment. 

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1913657

Kochenov on European citizenship

Abstract:

The reach of the law of the European Union (EU) is strictly limited. It only applies to the situations falling within its scope. Until very recently, in the case of EU citizens, in order to fall within this scope, a so-called “cross-border situation” was required – a demonstration that their situation had a Union dimension and was not confined to one of the Member States. This is no longer always the case. Under the new approach, it is the intensity of the Member States’ interference with the rights of EU citizens, and not the borders, which trigger the application of EU law. The consequences of the recent case law of the Court of Justice of the EU, including the Rottmann, Ruiz Zambrano, and McCarthy cases, which brought about this change, are truly groundbreaking. The new legal paradigm amounts to a tectonic shift in the border dividing the material scopes of the EU and the Member States’ legal orders, with clear implications for the status of EU citizenship and the sovereignty of the Member States. This article provides a first analysis of this fundamental development, discussing the reasons for, and the limits of the new approach as well as anticipating its consequences for a number of key elements of EU law, including citizenship, territory and the principle of equality. We are witnessing the creation of a real European citizenship by the Court. 

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1912925

Hübner Mendes on "Deliberative Separation of Powers" (three articles)

Is it All About the Last Word? Deliberative Separation of Powers 1

Abstract:     

The normative debate about the legitimacy of judicial review seems to be at a stage of argumentative exhaustion. Despite the sensation of fatigue and the continuous circular reproduction of the same old arguments, it is still at the forefront of constitutional theory. The bulk of this debate is invariably framed by the following question: can unelected and unaccountable judges have the last word upon the meaning of the constitution and overrule the acts of elected legislators? This article raises the question of whether this is all what democracy entails, as far as institutional design is concerned. To put it in a less rhetorical way, it investigates what else is at stake when we talk about democratic legitimacy of constitutional review and collective decision-making. By portraying a broader picture, I try to grasp how to measure the proper weight that the concern with last word should play in a theory of constitutional democracy and judicial review of legislation. 

Papadopoulos , "Criticizing the Horizontal Direct Effect of the EU General Principle of Equality"

Abstract:     
 

This article discusses recent case law of the Court of Justice of the European Union (CJEU) on the horizontal direct effect of the general principle of equality at EU level. The CJEU, in Mangold, held that the general principle of equality is capable of horizontal direct effect. It was argued that equality as a fundamental human rights principle enjoys the status of a general principle of EU law after Mangold. The horizontal direct effect of the general principle of equality infers that equality as a fundamental human rights principle is further developed. In Kücükdeveci, the CJEU confirmed the horizontal direct effect of the general principle of non-discrimination on grounds of age. However, the CJEU, in Kücükdeveci, did not use the EU Charter of Fundamental Rights in order to underpin its arguments on horizontal direct effect of the general principle of equality Following the criticisms of the Advocates General in other cases, this article argues that the CJEU's approach on the horizontal direct effect of the general principle of equality presents significant defects. Many issues on the horizontal direct effect of the general principles of EU law remain obscure; the CJEU should clarify these issues in its future rulings. 

Full text available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1912212

New Issue of "Law and Politics Book Review"

The new issue of the "Law and Politics Book Review" is now available at the following URL: 

http://www.lpbr.net/

Il nuovo libro di Alessandro Pizzorusso

Al.Pizzorusso, Art.1-9 Fonti del diritto. Disposizioni preliminari, Seconda edizione Commentario del Codice Civile, Zanichelli, Bologna, 2011, http://www.zanichelli.it/catalogo/prodotti/11B4311525D673A5C12575F200273CA4/alessandro-pizzorusso/art-1-9/

de Witte on "The European Treaty Amendment for the Creation of a Financial Stability Mechanism"

B.de Witte, "The European Treaty Amendment for the Creation of a Financial Stability Mechanism", Swedish Institute for European Policy Studies, European Policy Analysis, 2011:6 , http://www.eui.eu/Projects/EUDO-Institutions/Documents/SIEPS20116epa.pdf

Two Notes on McCarthy (C- 434-09)

S.Coutts, "Case C- 434-09: Shirley McCarthy v. Secretary of State for the Home Department", EUDO, http://eudo-citizenship.eu/citizenship-news/475-case-c-434-09-shirley-mccarthy-v-secretary-of-state-for-the-home-department

H.Wray, "Family Life and EU Citizenship: A commentary on McCarthy C-434/09 5 May 2011", EUDO, http://eudo-citizenship.eu/citizenship-news/479-family-life-and-eu-citizenship-a-commentary-on-mccarthy-c-43409-5-may-2011

A few readings about Zambrano

- Hailbronner, Kay-Thym, Daniel: Casenote, Common Market Law Review,  48, 1253-1270, 2011

- Azoulai, Loic: A comment on the Ruiz Zambrano judgment: a genuine European integration, EUDO http://eudo-citizenship.eu/citizenship-news/457-a-comment-on-the-ruiz-zambrano-judgment-a-genuine-european-integration

Japanese Animation: A List of Recommended Readings

'Lost in Translation': Anime, Moral Rights, and Market Failure

Joshua M. Daniels

Boston University Law Review; affiliation not provided to SSRN

Boston University Law Review, Vol. 88, No. 3, 2008

Abstract:     
This Note examines the process by which Japanese anime series are translated, dubbed, and distributed in the United States, with a particular focus on cases in which the dubbed version has been heavily edited from the original source material. These heavily-edited dubbed versions are often commercial failures because they are rejected by many U.S. fans who are familiar with the original Japanese version of the series through the consumption of illegal "fansubbed" versions. Even though these transactions seem wasteful and thus should be avoided, their occurrence on several different occasions over the years is difficult to explain.

Revista de derecho constitucional europeo, new issue (Vol. 8, n. 15)

La interacción constitucional entre Unión Europea y Estados miembros (II).

full text available at: http://www.ugr.es/~redce/REDCE15/ReDCEsumario15.htm

Caudill on Science in Law and Literature

Abstract:

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects - law and science, law and literature, and literature and science - in an effort to reimagine the use of science in the courtroom and in policy and regulatory settings.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1908271

Video: "The European Union Model of Postnational Democracy: Failure or Lessons for the World?", NYU, School of Law

On April 27, The Jean Monnet Center for International and Regional Economic Law & Justice hosted the lecture entitled, "The EU Model of Postnational Democracy - Failure or Lessons for the World?"

The event was presented by Professor Armin von Bogdandy, Senior Emile Noël Fellow, and director at the Max Planck Institute for Comparative Public Law and International Law, and Professor Franz Mayer, Senior Emile Noël Fellow, and chair in Public Law, European Law, Public International Law, Comparative Law and Law and Politics at the University of Bielefeld.

 

http://www.youtube.com/user/nyuschooloflaw?blend=5&ob=5#p/a/u/2/SRRPL0aoOXY 

Ackerman on Obama's Libyan Intervention

Abstract:

The lecture traces a series of political, bureaucratic, and military transformations that have, over the past forty years, transformed the American presidency into a potential platform for charismatic extremism and bureaucratic lawlessness. Watergate, Iran-Contra, and President Bush’s legitimation of torture may well be prelude to worse breakdowns in the future – unless the presidency can be fundamentally reformed.

Full text available at: http://cadmus.eui.eu/handle/1814/18276

Wilkinson on "Hanna Arendt"

Abstract

What are the juridical implications of Hannah Arendt’s conception of freedom as political rather than personal, based on action in the circumstances of plurality rather than an absence of interference in the context of isolated contemplation? This is not a question of mere philosophical speculation. According to Arendt, the experience of modern revolution, beginning in America and France at the end of the 18th century, marks the appearance of freedom as a worldly, political phenomenon with the potential to change our understanding of the constitutional foundations of authority. And yet this potential is betrayed due to the inability of our juridical imagination to escape two conceptual dead-ends: the image of law as command and the model of constitutionalism as a process of fabrication, both of which, in different ways, suppress our sense of political freedom by expressing constitutional foundations in terms of sovereign ‘absolutes’. In so doing the modern juridical imagination neglects the significance of two older conceptions of law, the Greek nomos and the Roman lex, neither of which depend upon such absolutist foundations. The Roman lex might suggest a way out of this conceptual impasse, by conceiving law as relational, dynamic, and intertwined with the political at its root, but in a manner captured by the metaphor of constitutionalism as ‘political grammar’ or ‘syntax’. 

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1874741

Trachtman on "The Crisis in International Law"

Abstract

This is the introductory chapter of a manuscript entitled "The Future of International Law: Global Government." Observers of international law have criticized the Westphalian paradigm for nearly a century. The Westphalian paradigm has become less useful, both as a general way to order the world, and as a general way to understand the world. Functional adaptation has already begun to re-order the world inconsistently with the Westphalian paradigm. The European Union is only the most obvious example. But this reordering has been impeded by the continued use of the Westphalian paradigm to understand the world. One of the goals of this book is to suggest a functionalist paradigm that understands the sovereignty of states in utilitarian, and contingent, terms. Indeed, the exceptions to the Westphalian paradigm have been multiplying for the past 100 years, and the movement toward an international law of cooperation that Wolfgang Friedmann documented in 1964 in The Changing Structure of International Law has accelerated and intensified the exceptions to the Westphalian paradigm so much that it no longer satisfies the test of Occam’s Razor. This is the central crisis in international law. A simpler paradigm, one admitting far fewer exceptions, is the functionalist paradigm, which accepts that the state is contingent, and that international law tends to constrain, indeed, to mold, the state based on functional efficiency. 

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1905946

Goderis and Versteeg on "The Transnational Origins of Constitutions: An Empirical Investigation"

Abstract

Constitutions are commonly described as inherently national products, shaped by domestic politics and reflecting the views and values of the nation. This paper develops and empirically tests a different hypothesis, which is that constitutions are also shaped by transnational influences, or “diffusion.” Constitutional provisions can diffuse through four possible mechanisms: Competition, coercion, learning and acculturation. Using a new panel dataset based on our coding of 108 constitutional rights in 188 countries over the period 1946-2006, we estimate a spatial lag model to explain the adoption of constitutional rights. We find that constitution-makers are affected by countries with whom they 1) share a common legal origin, 2) compete for foreign aid, 3) share a common religion, and 4) share colonial ties. Common language, common borders, trade relationships and shared export markets, amongst other things, do not generally explain the diffusion of constitutional rights. While constitutional rights of partner countries are important predictors of constitutional design, international treaty commitments do not affect the constitution. 

 

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1906707

Mac Amhlaigh on "Questioning Constitutional Pluralism"

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. 

 

Source: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1905053

Legal Theory Lexicon 033: Holism

From the Legal Theory Blog

Introduction

Our topic this week is “holism,” more particularly the idea that theories of the law are (or “should be” or “can be”) holistic. Legal holism can be captured in a famous slogan, “The law is a seamless web,” and the contemporary legal theorist who is most associated with legal holism is Ronald Dworkin.

Source: http://lsolum.typepad.com/legal_theory_lexicon/2004/04/legal_theory_le.html

Ginsburg on Constitutional Endurance

Abstract

This Handbook chapter summarizes the literature on constitutional endurance. Virtually every function ascribed to constitutions assumes that constitutions will endure over time, yet real-world constitutions do not last very long in many countries. This chapter first asks whether endurance is a good thing, and then examines positive theories of endurance, as well as observed patterns, summarizing earlier work by Elkins, Ginsburg and Melton (2009). It then has brief case study discussions of the U.S., India and Sweden.

Source: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1899636

Kurtz on "The Australian Trade Policy Statement on Investor-State Dispute Settlement"

From the introduction:
On April 12, 2011, the Australian Government released a Trade Policy Statement outlining a series of five
principles and six disciplines that will guide Australian trade policy in the future. Having laid out a comprehensive map, the Statement pointedly expresses opposition to investor-state dispute settlement provisions in future Australian trade agreements...

Source: http://www.asil.org/pdfs/insights/insight110802.pdf

Perspectives on Federalism, Volume 3 Issue 1/2011

Vol. 3, issue 1, 2011

Table of contents

Editorial

The Eurozone decisions: a step towards a European lender of last resort, but others must follow

Antonio Majocchi                  I-IV

http://www.on-federalism.eu/index.php/component/content/article/95-the-eurozone-decisions-a-step-towards-a-european-lender-of-last-resort-but-others-must-follow 

Mindus and Goldoni on "Between Democracy and Nationality: Citizenship Policies in the Lisbon Ruling"

Abstract

When the German constitutional court expressed itself in the Lisbon ruling, on the 30th of June 2009, the famous German newspaper Der Bild published the corrosive headline “the end of federalism”. The aim of this paper is to present and discuss the arguments of the Court concerning (1) the nature of the EU as a confederation (Staatenverbund), (2) the illegitimacy of further development towards a federal state (Staatsverband) and (3) the determination of the EU’s ‘core competences’, in order to shed light on why, within the EU, the relationship between federalism and democracy appears to be so tense. The point is that the claim that the EU cannot legitimately become a federation without calling for the constituent power of the German people (§228) is grounded in a circular logic that ultimately depends on the definition of citizenry adopted. Two connected issues will thus be deepened. On one hand, we look at the problem of jurisdictional competence attribution, the ‘ultra vires’ and ‘domaine réservé’ doctrines. In particular, the adoption of criteria for determining the state’s core competences on the basis of the principle of essentiality (Wesentlichkeitstheorie) will be assessed. On the other hand, the focus is on the theory of democracy that the German constitutional court embraces, according to which ‘the democratic legitimacy derives from the interconnection between the action of European governmental entities and the parliaments of the Member states’.

available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1855566

Workshop programme IVR Frankfurt August 18th, 2011

Legitimacy 2.0

E-democracy and Public Opinion in the Digital Age

Workshop programme IVR Frankfurt August 18^th, 2011

14:30-18:30 (Coffe break 16.30- 17.00)

General approaches

14:40-14:50 Patricia Mindus, Updating Democracy Studies: Outline of a Research Program (10 min)

14:50-15:10 Judith Simon, E-democracy and Values in Information Systems Design (20 min)

15:10-15:30 Marco Goldoni, Code as Undemocratic Law? An Assessment from a Legal Theory Perspective (20 min)

Discussion: 15:30-15:45