lunedì 31 ottobre 2011

Pauwelyn on international law and politics

Is it International Law or Not and Does it Even Matter?

Joost Pauwelyn

Graduate Institute of International and Development Studies (HEI)

October 27, 2011

Novel, hybrid and informal ways of international and transnational cooperation have emerged. Can the output of this informal cooperation, outside international organizations, involving state and non-state actors and leading to instruments other than formal treaties nonetheless amount to 'international law'? This paper examines whether 'informal international lawmaking' can still lead to international law. Is there a line or grey zone distinguishing law from non-law? What criterion does international law use to distinguish law from non-law? Who has the capacity to make international law? What is the difference between being law, having legal effects and being subject to law? And, perhaps most importantly, does it still matter whether an instrument is classified as inside or outside international law?
Number of Pages in PDF File: 44
Keywords: international law, soft law, informal law, normativity, social norms, rules of recognition, legal facts, legitimacy

De Burca on European and American Antidiscrimination Law

The Trajectories of European and American Antidiscrimination Law

Grainne De Burca

New York University (NYU) - Law School

American Journal of Comparative Law, Forthcoming

There is an apparently sharp contrast in the respective state of antidiscrimination law in Europe and the United States at present. In Europe, antidiscrimination norms are proliferating, within both the European Union and the Council of Europe systems, and elaborate networks and programs of implementation are being established and funded. The grounds of discrimination are widening, the norms are being strengthened and the new laws are being actively litigated. In the United States, by comparison, decades of social and political backlash have significantly weakened the corpus of antidiscrimination law that emerged from the civil rights movement, and the courts have become an arena for ideological battle. Yet, even if certain juridico-cultural differences in conceptions of equality and discrimination between the two jurisdictions are evident, none of the likely explanations for such a stark contrast between the state of antidiscrimination law and policy in each seems fully convincing. On a closer analysis, it seems that the future of antidiscrimination law and policy in Europe faces equally daunting challenges, even if the body of law in question is decades younger and less tested than its U.S. counterpart. One of the themes emerging from this collection of essays, however, is that there are similarities in the way problems of entrenched inequality are being addressed and in some of the solutions being tested both in the United States and in Europe. In particular, there has been a shift away from traditional judicial remedies and towards renewed administrative as well as other more innovative approaches in both jurisdictions. In the United States, this seems to be prompted in part by disillusionment with the current legal stalemate, while in Europe some of the novel approaches - including the spread of equality bodies, parity democracy, and proactive public duties - are being promoted by international and European institutions.
Number of Pages in PDF File: 28

Trachtman on International Human Rights Law

Who Cares About International Human Rights? The Supply and Demand of International Human Rights Law

Joel P. Trachtman

Tufts University - The Fletcher School of Law and Diplomacy

October 30, 2011

Especially in circumstances of great asymmetry, international law can usefully be understood in terms of supply and demand, which highlights the costs and benefits to both the demanding state and the responding state. Human rights protection will often have this asymmetric character as between liberal democratic states and authoritarian states. It is not immediately obvious why liberal democratic states care about human rights in authoritarian states, but this article provides a taxonomy of bases for concern. It is also not immediately obvious why authoritarian states would enter into human rights treaties that constrain their actions. While they may have domestic reasons to use international law to “lock-in” certain behaviors, assuming that international law serves this purpose, or to signal to either external audiences or internal audiences what type they are, these types of reasons seem less plausible and general than a simpler exchange-based model under which other states provide some valuable consideration or refrain from taking harmful action in exchange for human rights protection. International law can serve as a tool for exchange of consideration—for reciprocal and linked exchange—that disrupts existing political equilibria, allowing a superior political outcome for each state under asymmetry. International law may also address the collective action problem that may arise among liberal democratic states as they determine how to share the costs of inducing authoritarian states to protect human rights.
Number of Pages in PDF File: 23
Working Paper Series 

Arato on the ECtHR's use of VCLT

The Constitutional Transformation of International Organizations Through Treaty Interpretation: The ECtHR's Expansive Use of VCLT 31(3)(C)

Julian Arato

New York University School of Law

October 30, 2011

This paper is about the constitutional transformation of international organizations. More specifically, the focus is on how the constituted judicial organs of such organizations develop and transform their constitutions through interpretation. In other words this paper examines these bodies’ reliance upon the externally codified law of treaty interpretation in interpreting their own constituent instruments, and the transformative effects of their use of such techniques on their constitutions. The analysis is confined to the use of a single technique of interpretation (Article 31(3)(c) of the Vienna Convention on the Law of Treaties ), by one particular organization (the European Court of Human Rights), in a single major case – Demir & Baykara v. Turkey (2008). I argue that the case illustrates two distinct forms of constitutional transformation: (1) the Court relies on 31(3)(c) to interpret the substantive rights of the Convention as evolutive over time in light of sources external to the Convention; and (2) the Court gives 31(3)(c) itself an astonishingly broad construction, to justify considering an extraordinary array of external sources – thereby, more reflexively, transforming its own material competence to develop the Convention on the basis of developments outside of the Convention.

This working paper was prepared for presentation at the inaugural Research Forum of the American Society of International Law, ASIL Midyear Meeting, UCLA (Nov. 3-5, 2011).
Number of Pages in PDF File: 33
Keywords: International Organizations, Treaty Interpretation, Constitutional Theory

Caponi on Judicial Cooperation

Judicial Cooperation in the European Legal Culture: Terminology and Conceptual Framework

Remo Caponi

University of Florence - Dipartimento di Diritto Privato e Processuale

October 30, 2011

Paper presented to the workshop on Judicial Cooperation in the Area of Fundamental Rights (EUI, Florence 28-29 October 2011).
Number of Pages in PDF File: 8
Keywords: Judicial Cooperation, Dialogue between Judges
Full text available at the following URL:

venerdì 21 ottobre 2011

Jankins on Comparative Law and Terrorism

There and Back Again: The Strange Journey of Special Advocates and Comparative Law Methodology

University of Copenhagen

Columbia Human Rights Law Review, Vol. 42, No. 2, 2011

In the last ten years, many countries other than the United States have experimented with new, controversial forms of government powers to control, deport, or detain suspected terrorists. With this decade-long perspective, one can now better assess how other democracies have tried to balance their twin commitments to national security and the rule of law, how they have worked together to do so, and how judges and policymakers can best use comparative law in these transnational counter-terrorism efforts. Accordingly, this article considers questions of practical comparative methodology by focusing on one remarkable example of comparative anti-terrorism law gone wrong – the development of “special advocates” in the United Kingdom and Canada. In the 1996 decision of Chahal v. United Kingdom, the European Court of Human Rights found that British immigration procedures violated the European Convention on Human Rights because they denied deportees both legal representation and access to security-sensitive evidence in ex parte, in camera administrative hearings, from which the individual concerned and his legal counsel were excluded. In considering more proportional measures for balancing the State’s national security interests with due process, the Court referred in dicta to a Canadian practice of using special advocates – lawyers who could examine secret evidence withheld from a deportee on security grounds. The Court’s description of this Canadian practice, however, was seriously flawed and was the product of a poor comparative law methodology. As a result of Chahal’s dicta, the United Kingdom adopted a system of special advocates that greatly limited due process rights. Ironically, Canada itself would eventually get rid of its own special advocates system and adopt the procedurally-defective British model, based on Chahal’s erroneous description of the earlier Canadian one.
Number of Pages in PDF File: 77
Keywords: Special advocates, secret evidence, anti-terrorism, due process, comparative law, Chahal

Talk About Talking About Constitutional Law

Adam Samaha

University of Chicago - Law School

October 17, 2011

U of Chicago, Public Law Working Paper No. 368

Constitutional theory branches into decision theory and discourse theory. The former concentrates on how constitutional decisions are or should be made, the latter on how constitutional issues are or should be discussed. For its part, originalism began as a method for resolving constitutional disagreement but it has migrated into discourse theory, as well. Jack Balkin’s “living originalism” illustrates the move. This essay examines inclusive versions of originalism like Balkin’s that permit many different answers to constitutional questions. The essay then suggests pathologies associated with loose constitutional discourse in general. For instance, a large domain for constitutional discourse can crowd out nonconstitutional argument and raise the stakes of disputes in ways that discourage compromise, creativity, and trust. Under certain conditions, loose constitutional discourse is a distraction that cannot moderate societal divisions. At its worst, loose constitutional discourse retards progress toward goals that it is supposed to achieve. We still have much to learn about how constitutional discourse operates in fact and how it interacts with nonconstitutional argument. At the moment, those inquiries probably are more important than more talk about how we ought to talk about constitutional law.
Number of Pages in PDF File: 20
Keywords: constitutional discourse, constitutional interpretation, originalism

Goldoni on Montesquieu

Montesquieu and the ‘French’ Model of Separation of Powers

Marco Goldoni

University of Antwerp - Centre for Law and Cosmopolitan Values

October 17, 2011

Constitutional scholarship has put much emphasis on Montesquieu’s principle of separation of powers as developed in the chapter of ‘The Spirit of Laws’ on the English constitution (XI, 6). It has also been quite common to mix up this model of separation of powers with elements taken from other sections of Montesquieu’s masterpiece. The starting point of this paper is that there is an alternative second model of separation powers based on the French monarchy of intermediate powers, which is also an instantiation of limited government. From this premise, the paper’s aim is to carve out a second version of the principle of separation of powers by focusing on the different role and nature of judicial power in the English and French models. It turns out that the French version of the separation of powers is not based on a strict separation, since it bestows on the higher judicial intermediate bodies both judicial and legislative functions. This also leads to a kind of constitutionalism that is ‘in between’ ancient and modern, as it is exemplified by Montesquieu’s take on the functioning of the Parliaments. As it is typical of his political thought, he sees this intermediate power as representative of traditional and conservative social forces but, at the same time, in virtue of its social status, as an institution which strengthens, by opposing it, the monarch’s legislative rationality and legally constrains political action.
Number of Pages in PDF File: 20
Keywords: Montesquieu, Separation of Powers, Honour, Autonomy of the Judicial Power

Full text available at: 

German Law Journal, new issue: No. 10 (2011)

12 German Law Journal No. 10 (2011)

Full text available at:

Distefano and Mavroidis on Systemic Interpretation in International and WTO Law

L'interprétation systémique: le liant du droit international (Systemic Interpretation in International and WTO Law: The Glue of the International Legal Order)

Giovanni Distefano

University of Neuchatel - Faculty of Law; University of Geneva - Geneva Academy of International Humanitarian Law and Human Rights

Petros C. Mavroidis

Columbia University - Law School; Centre for Economic Policy Research (CEPR)

The authors endeavour to emphasis the paramount role of systemic interpretation, provided for and codified in Article 31 (3) c) of the 1969 Vienna Convention on the Law of Treaties, in the light of both general international and WTO Law. This short essay ultimately leads to the confirmation that this hermeneutics method accrues by all means to the cementation of the international legal order.
Note: Downloadable document is in French.
Keywords: interpretation, 1969 Vienna Convention on the Law of Treaties, WTO, International Legal Order
JEL Classifications: K33, K10

martedì 18 ottobre 2011

Guest Blogger: Ruiz-Rufino on Electoral Reforms in Spain

Sobre la reforma electoral en España 

En la agenda política hay debates como el de la reforma electoral que están latentes. El sistema electoral que usamos genera unos resultados tan buenos para los grandes partidos como nefastos para los partidos pequeños de ámbito nacional. Durante esta legislatura, el Congreso creó una subcomisión parlamentaria para estudiar este asunto y en 2009 el Consejo de Estado elaboró una recomendación muy concreta. El debate parecía calmado hasta que las manifestaciones del 15-M volvieron a sacar la discusión a la calle. Ahora, con las elecciones a la vuelta de la esquina, el sistema electoral vuelve a ser noticia. Y tiene sentido que así sea. Un ejemplo lo tenemos en Izquierda Unida. Desde 2004 es la tercera fuerza política más votada y, sin embargo, es la sexta fuerza parlamentaria.

Alemanno and Carreno on Fat Taxes in the European Union

Fat Taxes in the European Union between Fiscal Austerity and the Fight Against Obesity

Alberto Alemanno

HEC Paris - Law Department

Ignacio Carreno

affiliation not provided to SSRN

European Journal of Risk Regulation, 4/2011

To discourage unhealthy eating and limit the population’s intake of fatty foods, an increasing number of countries across the the European Union is considering levying taxes on unhealthy food. This essay provides a brief analysis of the genesis, rationale and legal implications of these national ‘fat tax’ schemes by focusing in particular on the measures recently implemented in Denmark and Hungary. It focuses in particular on the legality of these product-specific taxes under EU and WTO law and explores whether the EU might validly consider to adopt a EU-wide fat tax in the light of the considerable geographic variation of obesity prevalence in the EU and its limited competence in both the health and tax areas. Those issues are particularly sensitive in the aftermath of the Political Declaration on the Prevention and Control of Non-Communicable Diseases (NCDs) adopted by the UN General Assembly on September 18, 2011.
Number of Pages in PDF File: 10
Keywords: Fat Tax, Risk Regulation, Lifestyle Risk, Non Communicable diseases, EU Law, Paternalism, Theories of Justice, Nudge

Full text available at: 

lunedì 17 ottobre 2011

Bonadio and Bellezza on Stichting v Opus

Private Copying Levy in Cross-Border Transactions: CJEU’s Stance in Stichting v Opus


Enrico Bonadio

City University London; The City Law School of City University London

Marco Bellezza

(2011) European Intellectual Property Review, 33(11), pp. 732-734

On 16 June 2011 the Court of Justice of the European Court (CJEU) gave its decision in Stichting de Thuiskopie v Opus Supplies Deutschland GmbH, Mijndert van der Lee, Hananja van der Lee (Case C-462/09). The Court held that the Member States which have introduced the private copying exception are required to guarantee an adequate compensation to right holders by ensuring the collection of the levy even in case of transaction with cross-border elements.
Number of Pages in PDF File: 4
Keywords: Intellectual Property, Copyright, Private Copying Levy, Information Technology

domenica 16 ottobre 2011

Utrecht Law Review, Volume 7, Issue 3, October 2011

"Special on Changing Approaches to Authority and Power in Criminal Justice"

Articles available at the following URL:

Waldron on "Stare decisis and rule of law"

Stare Decisis and the Rule of Law: A Layered Approach

Jeremy Waldron

New York University (NYU) - School of Law

October 11, 2011

The relation between stare decisis and the rule of law was raised in the joint opinion in Planned Parenthood v. Casey. This paper explores, in a layered way, the various rule-of-law principles that affect the issue of precedent – particularly in the basic case that may be made for creating and following precedent. (This is not the only way we can think about stare decisis but it is an important way.) It looks at the rule-of-law constraints affecting the initial decision of the "precedent judge," the way in which a subsequent judge participates in upholding the generality of the precedent judge's decision, and the way in which subsequent judges are bound by rule-of-law principles of constancy once a precedent has emerged. The paper argues that it is very important to distinguish these various layers, so that the account of precedent is not question-begging. Above all, it is an implicit critique of those theories of precedent that emphasize particularistic case-to-case analogy. It argues for a more rule-oriented approach than that, on rule-of-law grounds.
Number of Pages in PDF File: 35
Keywords: adjudication, analogy, constitutional stare decisis, courts, expectations, generality, judge-made law, precedent, rule of law, rules, stare decisis

Chen on Soft Law and the Global Financial System

Book Review - Soft Law and the Global Financial System: Rule-Making in the Twenty-First Century

Jim Chen

University of Louisville - Louis D. Brandeis School of Law

Emory International Law Review, Forthcoming
University of Louisville School of Law Legal Studies Research Paper

In Soft Law and the Global Financial System: Rule-Making in the Twenty-First Century (2011), Christopher J. Brummer provides a detailed and informative analysis of the international regulatory response to the global financial crisis of 2008. This accomplishment alone warrants a close look at this book. But Professor Brummer goes further in this pivotal work on the law of international finance. He provides a persuasive theoretical account of international financial law. Soft Law and the Global Financial System not only describes the mechanisms of lawmaking and standard-setting for global financial markets, but also delivers a workable framework for prescribing and perhaps even perfecting the regulation of the world’s most vital and volatile economic institutions.
Number of Pages in PDF File: 7
Keywords: international law, financial law, regulatory law

domenica 9 ottobre 2011

García Pelayo seminar (dr. Nikolaos Lavranos), CEPC, Madrid, October 18 2011 (11.30-13.30)

Member States' BITs Lost in Transition?
Speaker: Nikolaos Lavranos (Dutch Ministry of Economic Affairs)
Discussant: José Alberto Plaza Tejera (Foreign Trade Department)

October 18 2011 (11:30-13:30)

Venue: Centro de estudios politicos y constitucionales, Plaza de la Marina española 9, 28071, Madrid

Paper available at the following URL:


Spiro on citizenship

A New International Law of Citizenship

Peter J. Spiro

Temple University - James E. Beasley School of Law

American Journal of International Law, Forthcoming

Will international law colonize the last bastion of sovereign discretion? As a matter of traditional doctrine, international law has had little to say about the citizenship practices of states and the terms on which states determine the boundaries of their memberships. Through much of the Westphalian era, states have been essentially unconstrained with respect to who gets citizenship and on what terms.

That is now changing. Recent developments point to the emergence of norms that require the extension of territorial birthright citizenship in some cases and that limit discretion concerning naturalization thresholds. International law may come to protect an individual’s right to maintain multiple nationality. These and other elements of a new regime relating to citizenship practice are emerging through multiple channels of decentralized international lawmaking. The shift is also reflected in recent work of prominent political theorists, who are increasingly articulating a right to citizenship.

The new international law of citizenship has broad implications for the nature of the state. To the extent that an international right to citizenship status helps decouple citizenship from organic forms of community, it could be subversive of the communal solidarities on which state capacities may depend. This magnifies the importance of building capacity at the international level. The article charts the history of and suggests a future for the international law of citizenship.
Number of Pages in PDF File: 94
Keywords: citizenship, nationality, international law, naturalization, birthright citizenship, dual citizenship, sovereignty
Full text available at:

The Transformation of Europe / 20 years ahead

The Transformation of Europe / 20 years ahead

Monday 10 October 2011 12:00 - 19:00

Tuesday 11 October 2011 09:00 - 15:00

Sala Europa, Villa Schifanoia

Department of Law, Robert Schuman Centre for Advanced Studies

Full programme available here:


IALS: EU Defence Rights - 21 October

The Institute of Advanced Legal Studies;  University of Birmingham; European Criminal Law Association (UK); Fair Trials International; and Justice, are pleased to announce the following afternoon seminar on:

EU Defence Rights

Date: Friday 21 October 2011, 2pm to 6pm

Venue: Institute of Advanced Legal Studies, 17 Russell Square, London WC1B 5DR

Chair: JONATHAN MITCHELL, 25 Bedford Way

·         DR SIMONE WHITE, OLAF: Introduction; 
·         DR MARIANNE WADE, Birmingham: on Challenges facing the Defence and the Legitimacy of Criminal Justice within the EU;
·         JODIE BLACKSTOCK, Justice: on The Roadmap on Procedural Safeguards: progress so far; 
·         DANIEL MANSELL, Fair Trials International: on  FTI case studies – The European Arrest Warrant and Defence Rights; 
·         PROFESSOR JOHN SPENCER, Cambridge: Concluding remarks

REGISTRATION:  this afternoon seminar is free but those wishing to attend must register in advance by emailing:            


Belinda Crothers
Academic Programmes Manager
Institute of Advanced Legal Studies
School of Advanced Study, University of London
17 Russell Square, London WC1B 5DR
Tel: 020 7862 5841.  Fax: 020 7862 5850.

venerdì 7 ottobre 2011

Bonadio on file sharing and freedom of expression

File Sharing, Copyright and Freedom of Expression


City University London; The City Law School of City University London

European Intellectual Property Review (2011) 33(10)

The article explores the relationship between copyright and freedom of speech in the Internet environment. After highlighting the constitutional dimension of these conflicting rights, the phenomenon of file sharing and the role of Internet Service Providers (ISPs), the author analyzes the debate surrounding a particular sanction used in certain jurisdictions to punish unauthorized on line sharing of copyrighted material, i.e. the disconnection of Internet access. The increasingly important role played by private agreements between copyright holders and ISPs is also highlighted.A set of proposals aiming at identifying possible areas of freedom for unauthorized file sharers are then analyzed. In particular, the author believes that file sharing technologies may boost the exchange of information, opinions and ideas amongst Internet users and foster a number of values underpinning the very protection of free speech. It is for this reason - the author argues - that copyright rules might be relaxed when it comes to file sharing technologies, e.g. by transforming copyright from a “proprietary” to a “compensation” right.
Number of Pages in PDF File: 20
Keywords: Intellectual property, copyright, file sharing, media law, freedom of expression

Full text available at: 

Post Doctoral Fellowship, Faculty of Law, University College Cork

Post Doctoral Fellowship, Faculty of Law, University College Cork 

Closing Date for Applications: 14 Oct 2011
Department: Faculty of Law
Contract Type: Fixed Term Whole-Time
Job Type: Research
Salary: € 39, 378 (inclusive of PRSI 10.75% & Fixed Term 20%)

A 12-month post-doctoral fellowship is available in the Faculty of Law, University College Cork, in the context of a Senior Fellowship project funded by the Irish Research Council for the Humanities and Social Sciences. The fellowship is available from 1 November 2011 or as soon as possible thereafter.
The successful candidate should have completed a PhD and have research interests and demonstrated expertise in a relevant field such as: Human Rights; Migration; EU Migration Law. She or he will be required to carry out comparative research on migration laws and policies relating to migrant domestic workers in selected EU Member States, with reference to evolving human rights standards.  In line with the project requirements, the fellow will write and present research papers, assist in the dissemination of project findings, publish and organise related academic events.  
Salary: € 39, 378 (inclusive of PRSI 10.75% & Fixed Term 20%)
For further information, please contact the project leader, Dr Siobhán Mullally ( )
To Apply: To apply, candidates should send an email, with subject heading:  ‘’IRCHSS post doc’’ to  and provide:
1)      Cover letter;
2)      CV with list of research activities and details of academic record to date;
3)      Contact details of two referees;
4)      A sample of academic writing;
5)      Proof of completion of PhD.
Deadline for applications:  Friday, October 14 2011

giovedì 6 ottobre 2011

Groussot, Pech and Petursson on fundamental rights


The Scope of Application of Fundamental Rights on Member States' Action: In Search of Certainty in EU Adjudication

Xavier Groussot

Lund University

Laurent Pech

National University of Ireland, Galway - Faculty of Law

Gunnar Thor Petursson

Reykjavik University

July 1, 2011
While one may understand that respect for EU fundamental rights is a condition of the legality of EU acts, the (legal) situation is not as straightforward regarding acts adopted by national authorities. Most EU lawyers would agree with the contention that it is not always clear when and whether national authorities are acting within the scope of application of EU law and many, probably, still wonder about the sense of this ambiguous concept elaborated by the Court of Justice of the European Union (CJEU).

The aim of this essay is to clarify the situations where EU fundamental rights bind national authorities following the entry into force of the Treaty of Lisbon and the legally binding status acquired by the Charter. The potential federal effect of the Charter will be assessed as it is sometimes alleged that the new legally binding status of the Charter may eventually convince the CJEU to enforce common standards applicable right across the EU regardless of whether national measures fall within or outside the scope of application of EU law.

Another important issue is the potential effect of the Charter on the application of EU fundamental rights in the context of legal proceedings between private parties. Accordingly, this article will also explore the potentiality for an increased “horizontal effect” of the EU fundamental rights set out in the Charter, that is, whether they may be more easily relied upon by a private party against another private party.

Finally, a classification or mapping of the various situations in which private parties may rely upon EU fundamental rights to challenge the legality of national measures will be offered. This framework for analysis of the CJEU case law is based on a broad reading of the ‘Wachauf’ and ‘ERT’ lines of cases. Such a novel classification appears in our view necessary in light of the latest judicial developments and the need to bring more certainty as to the scope of application of EU fundamental rights to Member States’ actions.

Number of Pages in PDF File: 32
Keywords: European Union, Treaty of Lisbon, Fundamental Rights, General Principles of Law, European Union Charter of Fundamental Rights, Scope (or field) of Application of European Union Law, Member State Action

Full text available at: 

Mancini on the Veil Controversy

Patriarchy as the Exclusive Domain of the Other: The Veil Controversy, False Projection and Cultural Racism

Susanna Mancini

University of Bologna; Johns Hopkins University - Bologna Center

International Journal of Constitutional Law (I•CON), 2012

This article critically analyzes the (mis)use of feminist language and rhetoric in measures restricting the right to wear traditional female Muslim clothing in various European jurisdictions. It posits that this mobilization of female symbols is, in the first place, part of a strategy of exclusion and of cultural homogenization which aims at anchoring European identity in secularized Christianity, while at the same time reinforcing the systemic nature of gender oppression. The use of feminist language in the struggle against the veil moreover, can be interpreted according to the pattern of false projection. In the Dialectic of Enlightenment Adorno and Horkheimer describe false projection as the phenomenon which enables majority cultures to project on minorities some features of their own which they seek to hide from themselves. In this light, Muslim women come to embody the projected visions of Islam as “the” patriarchal Other, which is a particularly useful device for purpose of hiding an unresolved conflict within Western civilization.
Number of Pages in PDF File: 20
Keywords: burqa, headscarf, hidjab, niqab, jibab, multiculturalism, gender equality, liberalism, populism, feminism, orientalism, colonialism, post-colonial studies, antisemitism, islamophobia, sexuality, religion, Islam, Judaism, Christianity, paternalism, projection, racism

Full text available at:

International symposium "Litigation in cultural property: judicial and alternative means of international dispute resolution"

Vendredi 11 novembre 2011
Friday, November 11, 2011
Université de Genève, Uni-Mail, auditoire R290

 Further info can be found at the following URL:

mercoledì 5 ottobre 2011

Instituto Universitario de Investigación - Derecho Europeo e Integración Regional (IDEIR) Working Papers

WP IDEIR nº 6 (2011) La Directiva “retorno” y el alcance de la armonización del procedimiento de expulsión de extranjeros (STJUE El Dridi)
Pablo González Saquero
WP IDEIR nº 7 (2011) Reserva de Administración y Derecho comunitario
José Mª Baño León
WP IDEIR nº 8 (2011) Sobre la cuestión prejudicial planteada por el Tribunal Constitucional. Bases, contenido y consecuencias
Luis Arroyo Jiménez

lunedì 3 ottobre 2011

British Academy Mid-Career Fellowship Scheme‏

British Academy Mid-Career Fellowship Scheme
Proposals are invited for a new round of British Academy Mid-Career Fellowships.
The Academy intends, through this scheme, both to support outstanding individual researchers with excellent research proposals, and to promote public understanding and engagement with humanities and social sciences. The scheme contributes to the Academy’s strategic commitments both to the support of ideas, individuals and intellectual resources and to public engagement and dovetails with the Academy’s new Languages and Quantitative Skills programme.

Aim of the award
The aim of the scheme is to allow successful applicants to obtain time freed from normal teaching and administrative commitments. The time bought by the scheme should be devoted to the completion of a major piece of research, and the Academy will also look for evidence of a clear commitment to a strategy of public engagement with and communication of the results of the research during the period of the Fellowship.

Scope of the award
The awards support outstanding individual researchers and outstanding communicators who will promote public engagement and understanding of the humanities and social sciences. Applicants will be asked in their proposal to set out specific plans for the dissemination of their research to a broad audience, in addition to publication in the usual academic press and journals. Awards will be judged both on the excellence of the research proposed and on the capacity of the applicant to communicate with a broad audience. Applicants are invited to indicate ways in which their proposed programme will contribute to advances in understanding, including public understanding, in their subject area and to the identification of appropriate strategic priorities in the social sciences and humanities.

These Fellowships are awards to individuals, and the Academy is looking particularly to support mid-career scholars. The Academy takes no account of an applicant’s physical age or current status in determining eligibility for these awards. , Rather, these awards are intended primarily to provide opportunities for scholars who have already published works of intellectual distinction or have established a significant track record as an excellent communicator and ‘champion’ in their field, and who would normally be within no more than 15 years from the award of their doctorate. In considering eligibility, the Academy will make due allowance for applicants who have had career breaks; and for established scholars who do not have doctorates, who should be within ten years of first academic appointment.

Level of Grant
These Fellowships are covered under the Full Economic Costing (FEC) regime, but the Academy’s contribution to the salary of the Mid-Career Fellow will be capped at an upper limit of £80,000. It is not expected that the total value of an award will exceed £160,000 (BA contribution to FEC). Awards can be held over a minimum of 6 months and a maximum of 12 months, beginning in the autumn of 2012.

Selection Process and Closing Date
The British Academy uses a two-stage application process. In this first outline stage, for which the deadline for applications is 2 November 2011, applicants are invited to supply information about their current academic commitments, publications, and research proposal. Decisions on the outline stage will be announced at the end of January and a small proportion of applicants invited to submit a second-stage application with full financial details. Applications must be submitted via , the Academy's electronic grant application system.
For further information please visit the Academy's website:

Pahuja on "Decolonising International Law"

from the website of the publisher (CUP:

The universal promise of contemporary international law has long inspired countries of the Global South to use it as an important field of contestation over global inequality. Taking three central examples, Sundhya Pahuja argues that this promise has been subsumed within a universal claim for a particular way of life by the idea of 'development'. As the horizon of the promised transformation and concomitant equality has receded ever further, international law has legitimised an ever-increasing sphere of intervention in the Third World. The post-war wave of decolonisation ended in the creation of the developmental nation-state, the claim to permanent sovereignty over natural resources in the 1950s and 1960s was transformed into the protection of foreign investors, and the promotion of the rule of international law in the early 1990s has brought about the rise of the rule of law as a development strategy in the present day.
Futher info available here:

International Journal of Constitutional Law (I.CON) Vol. 9, issue 1, 2011

The new issue of I.CON is out, you can find the table of contents here:

domenica 2 ottobre 2011

Reports to the XVIIIth International Congress of Comparative Law

Complexity of Transnational Sources: Reports to the XVIIIth International Congress of Comparative Law

Helge Dedek

McGill University - Faculty of Law

Alexandra Carbone

affiliation not provided to SSRN

ISAIDAT Law Review, Special Issue 3

In this report to the International Academy of Comparative Law, we describe the Canadian response to the transnational challenge while in particular focusing on the “complexity” of transnational law as one of its most challenging characteristics. Our inquiry is divided into two sections that address two different aspects of this complexity. First, we set out to find a trace of a specifically Canadian “legal culture” in response to the challenge that global legal pluralism poses to a legal discourse accustomed to thinking in terms of national positive law and national sovereignty; we will outline the reactions in academia, legal education, and the judiciary. Second, we turn to another, maybe less lofty aspect: the fact that the application of law is made technically more difficult by the proliferation of transnational legal sources. In this second section, we will outline the intricacies of the implementation of international instruments in Canadian law, and discuss the problematic repercussions of the technical complexification of law in core areas of private law, with a focus on the “plight” of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in Canada.
Number of Pages in PDF File: 53
Keywords: CISG, lex mercatoria, transnational law, international law, comparative law, legal traditions, fragmentation
JEL Classifications: K10, K12, K33, K40
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Priel on Hart

H.L.A. Hart and the Invention of Legal Philosophy

Dan Priel

York University - Osgoode Hall Law School

September 28, 2011

Osgoode CLPE Research Paper No. 17/2011

In this essay I argue that in some sense legal philosophy, at least as the term is now understood among analytic jurisprudence in the Anglophone world, is to a large extent a creation of H.L.A. Hart. It is with him that the search for the concept of nature of law has been established as an independent object of inquiry that consciously tried to avoid moral or political questions. In framing the province of jurisprudence in this way Hart not only depart from the work of Thomas Hobbes and Jeremy Bentham, whose political commitments are well-known, but also from the seemingly much closer enterprise of John Austin. After demonstrating the difference between Austin's work and Hart's I criticize the direction legal philosophy has taken following Hart's lead.
Number of Pages in PDF File: 19
Keywords: Jurisprudence, H.L.A. Hart, John Austin, Normativity
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Chalmers and Chaves on EU Judicial Politics

The Reference Points of EU Judicial Politics

Damian Chalmers

London School of Economics - Law Department

Mariana Chaves

London School of Economics & Political Science (LSE) - European Institute

Journal of European Public Policy, Vol. 19, March 2012
LEQS Paper No. 43/2011

Explanations of the dynamics of EU judicial politics must also account for its incidence, namely when and in which sectors litigation of EU law and ECJ judgments occur. This incidence, it is suggested relies on a relationship between three arenas, those for norm-setting, litigation and judgments, as events in each of these arena conditions possibilities for action in the others. This paper analyses the relationship between these arenas through a study of all 2007-9 preliminary rulings and finds EU judicial politics characterised by two predominant dynamics. ‘Patrol norms’ dedicated to securing common policies give rise to low salient judgments dominated by transnational enterprise and national administration litigation. ‘Thickly evaluative norms’ are concerned with articulating certain values. Dominated by litigation by domestic undertakings and non-commercial actors, these norms generate the Court’s salient judgments.
Number of Pages in PDF File: 38
Keywords: Court of Justice, judicial politics, preliminary rulings
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Mirjami Paso on the ECJ as a political actor

Court of Justice of the European Union as a Rhetorical Figure

Mirjami Paso

affiliation not provided to SSRN

September 30, 2011

M-EPLI Working Paper No. 2011/32

The aim of this article is to discuss the nature of power the Court of Justice of the European Union exercises. It has been argued that the Court of Justice of the European Union is a political actor. If it is, then it would make perfectly sense to assume that also the language used in the Court of Justice would resemble the language used on political forums. The aim of present article is to examine whether the rhetoric the Court of Justice uses includes elements of political rhetoric. The author’s first argument is that the rhetoric of the Court of Justice does have similar features as the rhetoric used in political speeches. The second argument is that a reasoning having a political flavour or a purely persuasive effect cannot be simply treated as bad and unacceptable. The legal decision is not merely legal but also a decision to solve a given problem of everyday life. Additionally, courts are social institutions having discretionary power. Legal decisions cannot therefore be void of emotional references.
Number of Pages in PDF File: 41
Keywords: rhetoric, Court of Justice of the European Union, legal argumentation, judgement, legal linguistics, Winner Wetten
Working Paper Series 
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