sabato 24 novembre 2012

Lamarque on consistent interpretation


Elisabetta Lamarque

1. Introduction. 2. Between the past and the present. The ‘prototypes’ of the current forms of conforming interpretation within the Italian legal system. 3. The first ‘prototype’. The interpretation in conformity with the Constitution in the first forty years of the Italian incidental constitutional review. 4. The second ‘prototype’. The presumption of conformity of law with the international treaties.  5. The present day. The ‘procedural’ nature of all obligations of conforming interpretation. 6. Who imposes the duty of conforming interpretation on the Italian courts? 7. The logical limit of conforming interpretation. 8. Breaches of the limit by the very courts imposing the duty of conforming interpretation on the other courts.  9. The Italian courts and interpretation in conformity with... 10. The crux of the matter. What is the ‘European law’ which the courts must comply with?

lunedì 19 novembre 2012

German Law Journal 13 No. 11 (2012) special issue on global law

German Law Journal No. 11 (2012) special issue on global law

edited by Elaine Fahey and Ester Herlin Karnell

Table of contents:

Full text available:

Plain Packaging of Tobacco Products Under EU Intellectual Property Law

Enrico Bonadio 

City University London - The City Law School; City University London

September 1, 2012

European Intellectual Property Review, pp. 599-608 (2012) 

Plain packaging is a new, yet unapplied, tobacco control policy tool. It would remove from cigarettes boxes all fancy and design elements displayed on packaging, such elements usually being registered by tobacco manufacturers as trademarks.

The article explores the compatibility of this new measure with EU intellectual property law (in particular with trademark and design law) as well as with the fundamental rights provisions enshrined in the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

Full text available at:

lunedì 12 novembre 2012

The European Financial Crisis. Constitutional aspects and implications

By Kaarlo Tuori


With its provisions on the EMU, the Maastricht Treaty introduced a new, ’macroeconomic’ layer into the European economic constitution. [...] The present constitutional crisis should not merely be conceived in economic terms. It extends to the political and social dimensions; it also affects democracy and transparency, as well as social values and rights 

Full text available at:

The Bible as Law Book: Thomas Aquinas on the Juridical Uses of Scripture

William S. Brewbaker 

University of Alabama - School of Law


Rutgers Journal of Law and Religion, Vol. 12, Page 76, 2010
U of Alabama Legal Studies Research Paper No. 2173388 

Thomas Aquinas’s Treatise on Law (hereinafter “Treatise”) is enjoying a resurgence of interest among legal scholars. It is excerpted in leading legal philosophy texts, assigned in jurisprudence courses and cited in law journal articles and legal monographs on a wide range of subjects. Although the Treatise consists of nineteen chapters (“questions”), the average student of legal philosophy is likely to have been exposed only to portions of the first eight and little, if any, of the last eleven.

The Treatise is not a short work, and most of the editorial decisions are both practically necessary and pedagogically understandable. Nevertheless, omitting the “rest” of the Treatise has had some unfortunate consequences. The omitted questions include the bulk of Thomas’s account of the relationship of theological revelation to human law, a subject of increasing importance in contemporary debates about religion and politics. The omissions also tend to reinforce the impression that Thomas’s natural law system can be hived off from his religious and cultural context. To be sure, Thomas does make the familiar natural law claim that there are moral truths that all human beings must know merely by virtue of being human. However, the deeper one goes into the Treatise, the clearer it becomes that Thomas’s treatment of natural law is part of a complex and theologically-informed understanding of nature, reason, revelation and the unfolding story of God’s action in the world.

This article expounds and analyzes the role of Scripture in Thomas’s account of legislation and judging, arguing that Thomas leaves only modest room for the Bible to influence human law directly. After explaining some key theological presuppositions that underpin Thomas’s account of law generally, the article shows how Thomas divides the laws found in Scripture into several overlapping categories, only one of which (the “moral law” found in the Old Testament) has any direct continuing relevance for the Thomistic jurist. Even here, Scripture serves mostly to confirm the moral truths that human beings (at least the “wise” ones) already know.

Nevertheless, it would be an overstatement to conclude that the Bible is completely irrelevant to the Thomistic jurist. The Scriptures bear witness to the grace of Christ, which, in Thomas’s account, is critical to the jurist’s proper exercise of his or her vocation. Moreover, the Thomistic jurist’s understanding of law is shaped by Scripture’s account of nature, the human person and ethics. While these theological starting points may not always make much difference in legal details, they do lead Thomas (and presumably his followers) to a vision of law that is famously at odds with many modern accounts.

Keywords: Thomas Aquinas, Treatise on Law, Scripture, Revelation, Natural Law, Divine Law, Christian Legal Thought

Full text available at:

martedì 6 novembre 2012

My NEW book: "The Tangled Complexity of the EU Constitutional Process The Frustrating Knot of Europe"


Despite the rejection of the EU Constitutional Treaty eventually leading to the adoption of the Lisbon Treaty, the debates concerning the European Union’s constitutional framework continue. This book builds on the discourse in European Union constitutionalism in order to offer a novel analysis of the EU’s constitutional developments.

Giuseppe Martinico sets out a unique account of EU constitutionalism which argues that the EU legal order is a complex entity which shares some features with natural systems. The book is soundly anchored in the theory and methodology of legal science and based on a deep knowledge of judicial practices. The author contends that Europe is still suffering from the failure of the Constitutional Treaty and is practicing the new institutional equilibrium afforded by the coming into force of the Reform Treaty. The book goes on to explore the methodological implications of such constitutional complexity for the study of EU law. The Tangled Complexity of the EU Constitutional Process will be of particular interest to academics and students in the disciplines of Law, International Relations and Political Science.


1. Only a Drop in the Ocean? An Attempt to Classify the Debate About the Notion and the Nature of the European Constitution 2. Dealing with Constitutional Theories Of European Integration 3. Constructivism and Evolutionism In The Last Twenty Years of (Mega) Constitutional Politics in the EU 4. Complexity in Action: From The Structure to the Actors 5. On The Future of Constitutional Conflicts

More info:

Fahey on the Final Report of the “Future of Europe Group”

here you can find the post originally published in the ACELG Blog:

sabato 3 novembre 2012

Maduro, A New Governance for the European Union and the Euro: Democracy and Justice


The report provides a democratic explanation for the crisis and the EU’s failure in successfully
addressing it so far. It argues that the solution to the crisis and the future of EU governance must
depart from a renewed justification of the project of European integration which must be founded on
its democratic and justice enhancing potential. It criticizes two mainstream models of governance for
the Euro area and explains the advantages and political viability of an alternative model based on a
new EU budget, new EU policies, more EU politics and a more effective political authority. The
financial solidarity necessary for any successful model of governance of the EU must be detached
from transfers between states and related, instead, to the wealth generated by the process of Economic
This report is produced for the European Parliament at the request of the Committee on
Constitutional Affairs - under contract ref. IP/C/AFCO-2012-063

Full text available at:


From the abstract:

Bringing together a variety of outlooks from comparative law, legal theory, organizational sociology,
socio-legal studies or political science, this Joint Working Papers explores the cognitive equipement
through which international judges perform their role. The  notion of ‘fabric’, borrowed  from the
Science and technology studies, and Bruno Latour in particular, is used here as a common entrypoint
enabling to consider altogether the (legal and non-legal, formal and unformal) tools and templates that
contribute to shape international  judicial decision-making:  ‘best practices’,  judicial compendia,
routinized legal repertoires, legal methodologies, standard operational modes, etc…

full text available at:

Maduro-de Witte- Kumm, The democratic governance of the Euro

from the Introduction:

This policy paper includes some of the contributions for a group set up at the EUI to address the crisis
of the Euro area with a focus on its democratic dimensions. The perspectives included in here are
diverse and not necessarily unanimous in the solutions they propose to address the crisis. They also go
from the more general issues (what is needed to save the common currency and how to legitimate it) to
more concrete questions regarding particular aspects of the new governance regime that the EU has
slowly been setting up for the Euro. Common to them, as mentioned, is the democratic question. What
democratic challenges does this crisis raises and how to address them?

Full text available at:

venerdì 2 novembre 2012

The Multiannual Financial Framework 2014-20- Best European Value for Less Money?

Mario Koelling 

October 23, 2012

Perspectives on Federalism, Vol. 4, Issue 3, 2012 

The eurozone crisis has made budgetary issues the focal point of political and public debates about the European Union. Besides the pessimistic context and conflictive nature of the ongoing negotiation of the Multiannual Financial Framework 2014-20, there seems to be a common ground to work towards an EU Budget that contributes to growth and employment in line with the Europe 2020 strategy. If this common understanding materialises, then this would not only be a major step to convert the budget into an instrument to overcome the crisis but also change the nature of the communitarian budget. In this article, I analyse the principal conflictive topics as well as the negotiation positions and proposals of the main actors in order to present the current state of the negotiation of the MFF 2014-20 . I will specifically analyse the preferences of the main actors.
Number of Pages in PDF File: 24
Keywords: Multiannual Financial Framework 2014-20, EU budget, Europe 2020 strategy, Common Agricultural Policy, Cohesion Policy

Full text available at:

Reasoning with Previous Decisions: Beyond the Doctrine of Precedence

Jan Komárek 

London School of Economics & Political Science (LSE) 

August 31, 2012

Forthcoming (in a revised version) in (2013) American Journal of Comparative Law
LSE Legal Studies Working Paper No. 8/2012 

‘[A] relative absence of skills in case analysis’ is said to be ‘the Achilles heel of civil-law methods’. This article takes issue with this view and shows that the continental European tradition has its own ways of dealing with cases. These techniques can appear different from the common law ‘case law method’, but are no less rational and intellectually sophisticated. The reason for the rather conceited attitude of some comparatists lies in the dominance of the common law paradigm of precedent and the accompanying ‘case law method’. If we want to understand how courts and lawyers in different jurisdictions use previous judicial decisions in their argument, we need to move beyond precedent to a wider notion, which would embrace practices and theories existing in legal systems outside the Common law tradition. This article presents the concept of ‘reasoning with previous decisions’ as such an alternative and develops its basic models. The article firstly points out several shortcomings of limiting the inquiry into reasoning with previous decisions by the common law paradigm. On the basis of numerous examples provided in section (1), I will present two basic models of reasoning with previous decisions: case-bound and legislative. The following section seeks to explain why the common law paradigm has for so long dominated most debates on reasoning with previous decisions. Finally, a normative defense of the legislative model, based on the experience of the continental European tradition will be offered .
Number of Pages in PDF File: 24
Keywords: common law tradition, civil law tradition, United States Supreme Court, European Court of Justice, precedent, reasoning with previous decisions, judicial lawmaking, judicial authority

Four Human Rights Myths

Susan Marks 

London School of Economics & Political Science (LSE)

September 4, 2012

LSE Legal Studies Working Paper No. 10/2012 

This paper examines work by three scholars who have recently subjected the intellectual framework of human rights to critical scrutiny. For one, the central problem is that the universality of human rights is too readily presumed. For another, it is that the relative novelty of human rights is not properly appreciated. For yet another, it is that human rights are treated as somehow beyond politics, as opposed to being a politics in themselves. What are we to make of these claims? Where do they lead us in policy terms? How does each stand with respect to the core practical objective of putting abuses of human rights to an end?
Number of Pages in PDF File: 18

Transparency in the Council of Ministers of the EU: An Institutional Approach

Maarten Zbigniew Hillebrandt 

Amsterdam Centre for European Law and Governance

Deirdre Curtin 

Amsterdam Centre for European Law and Governance

Albert Meijer 

University of Utrecht

October 25, 2012

Amsterdam Law School Research Paper No. 2012-97
Amsterdam Centre for European Law and Governance Research Paper No. 2012-04 

The development of access to documents and open meetings provisions by the Council of Ministers of the European Union shows an interesting pattern: before 1992 no formal transparency provisions existed, between 1992 and 2006 formal transparency provisions dramatically increased and since 2006 this increase has come to a halt. This paper aims to enhance our understanding of these shifts by conducting a historical institutional analysis of policy change. As explanatory factors, we consider the preferences and power resources of member states, as well as external catalysts and social structures. We conclude that the current revision deadlock is more stable than the situation before 1992, because now the pro-transparency coalition and transparency-sceptic Council majority have entrenched their positions. Nevertheless, and in spite of Council entrenchment, we expect that Council transparency will continue to develop in the longer term, under the pressure of increasingly influential outside actors, particularly the EP.
Number of Pages in PDF File: 30
Keywords: transparency, European integration, Council of Ministers, institutional analysis

Global Administrative Law as 'Enabling Law': How to Monitor and Evaluate Indicator-Based Performance of Global Actors

Georgios Dimitropoulos 

October 20, 2012

IRPA Research Paper No. 7/2012 

The piece explores the relationship between indicators and their framework and identifies the evolution of a “global regulatory system for indicators.” This is a plural system and is part of a broader change in contemporary global governance and administration, which is also signified by the use of indicators. Drawing on examples from the IMF/EU adjustment programmes, the NEPAD African Peer Review Mechanism of the African Union and the evaluation of the EU Common Agricultural Policy by the OECD, it shows that authority in the global legal order is exercised in a non-hierarchical way. Against this background, the final aim of this paper is to show that the best way to monitor performance of rule-implementation based on indicators is the peer review system and other forms of horizontal monitoring.
Number of Pages in PDF File: 31
Keywords: indicators, monitoring, evaluation, IMF, African Union, NEPAD, experimentalism, horizontal governance, peer review

The Methodology of Legal Philosophy

Brian Leiter 

University of Chicago

Alex Langlinais 

University of Chicago

October 26, 2012

H. Cappelen, T. Gendler, & J. Hawthorne (eds.), Oxford Handbook of Philosophical Methodology, Forthcoming
U of Chicago, Public Law Working Paper 

This essay (by Langlinais and Leiter, not Leiter and Langlinais as it appears above) surveys issues about philosophical methodology as they arise in general jurisprudence. Certainly in the Anglophone world and increasingly outside it, H.L.A. Hart’s 1961 book The Concept of Law has dominated the discussion. Unsurprisingly, then, methodological debates typically scrutinize either one of two (related) methodological claims in Hart’s classic work. The first is that his theory is both general and descriptive (Hart 1994: 239). The second is that his theory is an exercise in both linguistic analysis and descriptive sociology (Hart 1994: vi). We explicate both ideas, arguing, in particular, that (1) Hart aims to give an essentialist analysis of law and legal systems (a point clearest in those who follow him like J. Raz, J. Dickson and [though less of a follower] S. Shapiro), and (2) we can make sense of the linking of linguistic (and conceptual) analysis and descriptive sociology if we understand "law" as a constructed bit of "social reality" in something like John Searle's sense. The ensuing methodological debates in legal philosophy can then be understood as arguing against either linguistic or conceptual analysis (naturalists like B. Leiter), or against the idea of a purely descriptive jurisprudence (in different ways, J. Finnis, S. Perry, M. Murphy, L. Murphy, R. Dworkin).
Number of Pages in PDF File: 25
Keywords: H.L.A. Hart, methodology, descriptive jurisprudence, conceptual analysis, John Searle, legal philosophy, general jurisprudence

Union Citizenship and Immigration: Re-Thinking the Classics?

Nathan Cambien 

Katholieke Universiteit Leuven - Faculty of Law


European Journal of Legal Studies, Vol. 5, No. 1, 2012 

The free movement of Union citizens hinges on three ‘classic’ requirements, namely the possession of Member State nationality, the inter-State element and the condition of self-sufficiency. Recent case law of the ECJ seems to shake the traditional conceptions of these requirements and, as a consequence, to widen the scope of application of the free movement rules. This in turn will have significant consequences for the immigration laws of the Member States. On the one hand, Union law will increasingly influence the Member States’ rules on acquisition and loss of nationality. On the other hand, the Member States will have to accord residence rights to certain categories of Union citizens and their family members who would previously not have been entitled to invoke Union law. The resulting financial burdens for the Member States are potentially very significant, although it is not yet possible to ascertain the precise reach of the principles articulated by the ECJ.
Number of Pages in PDF File: 30
Keywords: EU citizenship, Migration, Residence requirements

EU Citizenship and the ECJ: Why Care about Primary Carers?

Nathan Cambien 

Katholieke Universiteit Leuven - Faculty of Law


In recent case law we witness the emergence of a special category of privileged family members of EU citizens, namely primary carers of young EU citizens. The ECJ has recognized that primary carers can, under certain circumstances, enjoy a right of residence in the host Member State, even if do not satisfy the traditional inter-State requirement or the requirements regarding self-sufficiency. This begs two obvious questions: 1) why do primary carers enjoy these extensive rights? and 2) who exactly can invoke these more extensive rights? These are the two fundamental questions addressed by my paper.

In the first place, the paper examine the underlying justifications for the ECJ’s holdings, focusing on effet utile and fundamental rights related arguments. I argue that the ECJ’s extensive case law should be welcomed because it enhances the status of EU citizenship and the protection of the right to respect for family life. In the second place, the paper tries to determine, on the basis of these justifications, the precise scope of the primary carer concept. In this connection, it is examined inter alia whether only family members qualify as primary carers and whether multiple primary cares may derive a right of residence from this status.

As such the paper tries to shed some light on a rather controversial line in ECJ case law, which is still in full development, and make it more insightful.
Number of Pages in PDF File: 21

The Implementation of EAW in the Member States Italian Report

Ciro Grandi 

Dipartimento di Giurisprudenza

Francesco Morelli 

affiliation not provided to SSRN

February 20, 2006

European Arrest Warrant Project (JAI/2004/AGIS/043) 

The Authors analyse the implementation in the Italian legal system of the EU Framework Decision of 13th June 2002 (2002/584/JHA), that repealed the extradition system between EU-Member States and introduced a new institution, the European Arrest Warrant, with the aim to facilitate and fasten the surrender of individuals accused of or convicted for a criminal offence. The paper, conceived in the framework of the European Arrest Warrant Project, an international research project coordinated by the T.M.C. ASSER INSTITUUT of the Hague and financed by EU Commission, first explores the impact of the new institution on the fundamental principles of Italian criminal law and procedure as they are laid down in the Constitution, with special reference to the fundamental rights of individuals. Moreover, the Authors focus on the different rules disciplining the procedure to be followed by Italian judicial authorities in order to issue an arrest warrant and in order to give execution to an arrest warrant issued by the judicial authorities of another EU Member State.
Number of Pages in PDF File: 69
Keywords: European Arrest Warrant, Extradition, Judicial Cooperation in Criminal Matters

Portrait of the EU as a Rational Man: Collective Reason and Democratic Deficit

Vesco Paskalev 

European University Institute, Florence

July 1, 2012

EUI Working Papers LAW No. 2012/19 

In the present paper I take a critical view on the well-known discursive dilemma which captures the difference between governance by collective reasoning or governance responsive to majoritarian will. Then I suggest the republican concept of collective reason as a new perspective for study of EU and analyse the European Union as an example of a system which collectivises reason. From such perspective the notorious democratic deficit is explainable as the contradiction between collective reason and popular will. This problem brings home the conclusion that neither collectivising reason nor responsiveness to majority will alone can fully satisfy our normative demands. Thus, I claim that it is necessary to find a way out of the dilemma by a decision-making process that can bring about the two solutions in the same time. I suggest that in polities where people (as individuals) identify with the people (as a group) the gap is closed by a stepwise process of deliberation in the public sphere. Paneuropean deliberation is possible solution for Europe but in practice is obstructed by the competition from the spontaneous deliberation in the existing national public spheres. The latter are more robust, so they close the rationality gaps faster at national level; national public opinions tend to polarise and defend a ‘national’ interest against further deliberative challenges. I argue that the notion of competition is useful to explain why despite the development of the common democratic institutions at EU level and the emergence of weak European public, the deficit is bound to persist.
Number of Pages in PDF File: 33
Keywords: European Union, civic republicanism, deliberative democracy, democratic deficit, depoliticization

Le Parole Della Modernizzazione Latinoamericana: Centro, Periferia, Individuo e Ordine (The Words of Latin-American Modernization: Center, Periphery, Individual, Order)

Alessandro Somma 

University of Ferrara - Law Department

October 31, 2012

Max Planck Institute for European Legal History No. 2012-05 

Latin-American legal systems are often classified as a periphery of the Western legal tradition, that part of the democratic and capitalist world whose center is represented by Europe and the US. Such a classification is ideologically oriented, since it aims at considering modernization from an evolutionist point of view, supported by a methodology enhancing ethnocentric approaches.

Assuming the idea of alternative or multiple modernities, one can consider the Latin-American development of capitalism and democracy as combined with indigenous identity, and conceive the Latin-American legal tradition as characterized by a mixture of western and chthonic elements. The result is a tradition based both on individual emancipation and communitarian tensions, involving a responsible relationship with the environment and the democratic embeddedness of economy. Such a tradition leads to a balanced relationship between individual and order, since it is able to oppose the functionalizing tensions produced by the proprietary order if capitalism prevails over democracy.
Note: Downloadable document is in Italian.
Number of Pages in PDF File: 27
Keywords: center, periphery, individual, order

Constitutionalism with Chinese Characteristics? - Constitutional Development and Civil Litigation in China

Thomas E. Kellogg 

affiliation not provided to SSRN

February 1, 2008

Indiana University Research Center for Chinese Politics & Business Working Paper No. 1 

What do constitutional rights provisions mean? More importantly, perhaps, which state organ is responsible for interpreting and applying those provisions? When a court cites a constitutional norm, is it not, at least implicitly, giving some legal meaning to that norm?

Consider the following case: In 2004, ethnic minority musician and prominent local artist Xuan Ke brought suit in Lijiang City Intermediate Court in Southwestern Yunnan province, claiming that his right of reputation had been infringed by an article in the Beijing-based Arts Criticism magazine. The author of the article, scholar Wu Xueyuan, argued that Xuan’s music was in fact not a product of the local ethnic minority culture, and that Xuan’s misrepresentation of his music amounted to fraud.
Number of Pages in PDF File: 40

Transnational Legal Communication: A Partial Legacy of Supreme Court President Aharon Barak

Markus Wagner 

University of Miami - School of Law

August 30, 2012

47 Tulsa Law Review 437 (2012)
University of Miami Legal Studies Research Paper No. 2012-24 

The concept of transnational judicial dialogue has been investigated as a general matter ever since the concept was first introduced by Anne-Marie Slaughter in the early 1990s. This paper uses Slaughter’s concept and expands it in order to assess in greater detail the impact of one particular participant in what this paper calls “transnational legal communication”: former President of the Supreme Court of Israel Aharon Barak. The purpose of the article is two-fold. It first analyzes the jurisprudential legacy of President Barak, but it also attempts to create a framework for analyzing the life work of important participants in transnational legal communication more generally.
Number of Pages in PDF File: 27
Keywords: transnational judicial dialogue, transnational legal communication, comparative law, Aharon Barak