lunedì 25 febbraio 2013

A public debate on my book "The Tangled Complexity of the EU Constitutional Process"

Oreste Pollicino (Bocconi Un.) kindly organized a public debate on my last book (The Tangled Complexity of the EU Constitutional Process)

you can find the program of the event here:

The Impact of the Cohesion Policies on the 'Form of Union'

Giuseppe Martinico 

Centro de Estudios Politicos y Constitucionales, Madrid; Centre for Studies on Federalism (CSF); Scuola Superiore Sant'Anna

August 14, 2009

Perspectives on Federalism, Vol. 1, Single Issue, 2009 

From a "formalistic" point of view the Regions are and have been neglected (especially in the past) in the EU law context.

To express such a situation the German constitutional lawyers used the formula "Landesblindheit" (legal blindness towards the territorial subnational entities). This is confirmed in the Treaties (specifically in Article 10, TEC), where it can be seen that the subjects of the Community legal order are the states, as holders of the duty to collaborate with each other, which is instrumental for guaranteeing the effectiveness of the supranational law. It could well be argued that this "regional carelessness" constitutes just one "element" of the democratic deficit of the EU.

Starting from a "broad" concept of the democratic gap (i.e. focused not only on the question of the EU Parliament's powers) we can in fact conceive the absence of a strong legal status for the Regions as one of the most important "constitutional wounds" of the EU.

Against this legal background the cohesion policies gave Regions a very important role in the economic dynamics of EC/EU, forcing the political actors to "deal" with the regional blindness.

On the other hand some political scientists have identified cases of negative effects of the cohesion policies on the form of the Union like, for example, the presumed improvement of the role of non-elected/bureaucratic actors at local level.
Number of Pages in PDF File: 25
Keywords: Landesblindheit, multilevel governance, cohesion policies, Form of Union, democratic deficit

Dialogue Theory, Judicial Review and Judicial Supremacy: A Comment on 'Charter Dialogue Revisited'

Carissima Mathen 

University of Ottawa - Faculty of Law (Common Law)


(2007) 45 Osgoode Hall Law Journal 125 

In 2007, the Osgoode Hall Law Journal invited Peter Hogg (and co-authors) to revisit his highly influential 1997 article in which he proposed that in its Charter jurisprudence the Supreme Court of Canada often engages in a "dialogue" with the legislature. The author was one of several commentators asked to respond to Hogg's assessment and defence of his original work. This article suggests that the dialogue metaphor, while intuitively appealing, is difficult to justify both in terms of the structure of the Canadian constitution, and the Supreme Court's own understanding of its role.
Number of Pages in PDF File: 22
Keywords: Charter of Rights, Constitution of Canada, judicial review, Supreme Court of Canada, rights, dialogue

The Psychological Foundations of Human Rights

Robin Bradley Kar 

University of Illinois College of Law

February 19, 2013

Oxford Handbook of Human Rights, (ed. Dinah Shelton) 2013, Forthcoming 

Respect for human rights requires engagement of a special capacity to identify and respond to rights, but current research on the psychological causes and conditions of human rights violations has proceeded without a clear enough understanding of the distinctive ways this psychological capacity functions. This article integrates contemporary insights from social and cognitive psychology with findings from a broader range of fields, including philosophy and evolutionary theory, to develop a contemporary account of this special capacity. The account suggests that processes of so-called “dehumanization” are not as fundamental to the generation of human rights violations as current research has suggested. Humans have an innate capacity to identify and respond to rights, but it needs support to produce stable perceptions of rights beyond one's in-group. Distinctive factors engage this capacity and can help orient it to support a more stable and universally shared form of respect for human rights in the modern world.
Number of Pages in PDF File: 50
Keywords: human rights, rights, psychology, moral psychology, universal moral grammar, in group, out group, dehumanization, international law, Mikhail, Chomsky, Rawls, social contract, cooperation, game theory, evolutionary psychology, justice, globalization, meta-ethics, internal point of view, Hart, Hohfeld

Constitutional Courts as Autopoietic Organisations

Ralf Rogowski 

University of Warwick - School of Law

February 19, 2013

Forthcoming Chapter 'Constitutional Courts as Autopoietic Organisations' in Boulanger, Christian / Wrase, Michael (Hg.) Die Politik des Verfassungsrechts - Interdisziplinäre und vergleichende Perspektiven auf die Rolle und Funktion von Verfassungsgerichten, Baden-Baden (Nomos). 2013
Warwick School of Law Research Paper No. 2013/04 

The chapter proposes to conceptualise constitutional courts as self-referentially operating, autopoietic systems. In a social systems theory perspective constitutional courts are autopoietic organisations which are capable of generating sufficient cognitive complexity in order to regulate themselves. This is demonstrated first in relation to three aspects of constitutional courts: autonomy in docket control, recursive decision-making and the development of consequentialist legal doctrine that makes reflexive use of information on its impact. In the final section the chapter assesses the role of autopoietic constitutional courts operating in the zone of structural coupling between the legal and the political system.
Number of Pages in PDF File: 16
Keywords: autopoietic systems constitutional courts reflexivity

Realism about Legal Integration: Outline of a Nuanced Legal Realist Approach

Arthur Dyevre 

Max Planck Institute for Comparative and International Law

February 22, 2013

I sketch out an approach to legal integration in Europe that can be characterised as “Nuanced Legal Realism”. Nuanced Legal Realism neither assumes the complete indeterminacy of legal rules, nor the existence of a single right answer in all and every case, but views law as one potential constraint among the many factors shaping judicial behaviour. While contrasting this approach with mainstream perspectives on legal integration, I show how it might help us get a better grasp of the incentives, constraints and causal relations at work in the legal integration process.
Number of Pages in PDF File: 24
Keywords: European Union, legal integration, legal realism, legal theory, courts, law and politics, judicial behaviour

Narratives of the European Crisis and the Future of (Social) Europe

Philomila Tsoukala 

Georgetown University Law Center


Texas International Law Journal, Forthcoming
Georgetown Public Law Research Paper No. 13-012
Georgetown Law and Economics Research Paper No. 13-004 

This article examines two distinct types of narratives prevalent in academic writing and popular press regarding the causes of the crisis in Europe. The first type, a morality tale, attributes the crisis to profligate southern states that refused to abide by the strictures of the Stability and Growth Pact. The second type is focused on the structural reasons for the crisis, emphasizing the nature of the European Union as a non-optimal currency area, and the euro as a factor in the creation of trade imbalances and competitiveness problems within the euro zone. Each type of narrative suggests a different type of solution. The morality tale tends to see austerity measures and stricter fiscal discipline as the solution, while the structural narratives suggest anything from banking, to fiscal, to full political union or, by contrast, breakup as the potential ways out. The article argues that European politicians have focused on the morality tale and this in turn makes the structural solutions required for the survival of the euro politically unworkable. The article further argues that the European Commission has used the crisis as evidence of the dire consequences following from lack of reforms. Instead of profligate citizens the Commission sees inefficient states that are potentially creating impediments to growth. Notably, the Commission’s vision of desirable reforms for the purposes of growth reach well into the basic structures of European welfare state, on social policy, pensions, and health care, but this time under the guise of a fiscally mandated adjustment that should be binding on Member State through the process of economic policy coordination.
Number of Pages in PDF File: 26
Keywords: Stability and Growth Pact, European crisis, European Commission, Second Economic Adjustment Programme

Domestic Judicial Non-Compliance in the European Union: A Political Economic Approach

Arthur Dyevre 

Max Planck Institute for Comparative and International Law

January 21, 2013

LSE Legal Studies Working Paper No. 2/2013 

In a multi-level, non-hierarchical court system, where courts at the upper echelon do not have the power to reverse the decisions of courts at the lower level, judicial cooperation appears crucial to the effectiveness of the higher-level law. For this reason, the recent judgment of the Czech Constitutional Court, which declared the decision of the Court of Justice in the Landtová case ultra vires, would seem to deal a terrible blow to the authority of European Union law. As doomsayers will be quick to point out, the Czech decision could set a dangerous precedent that may well one day bring down the entire edifice of EU law. However, borrowing insights from game theory and international relations, the present article argues that this judgment is more likely to remain an isolated episode than to be remembered as the tipping point when tensions between the CJEU and domestic courts escalated into the judicial equivalent of nuclear Armageddon. The author shows that many aspects of the jurisprudence of constitutional conflict can be represented as a simple Hawk-Dove game. A modified, slightly more sophisticated model then helps cast a wider light on the use of non-compliance threats by domestic high courts, notably the German Federal Constitutional Court.
Number of Pages in PDF File: 35

Faking Democracy with Prisoners' Voting Rights

Peter Ramsay 

London School of Economics - Law Department

February 11, 2013

LSE Legal Studies Working Paper No. 7/2013 

In the dispute between Strasbourg and Westminster over prisoners’ voting rights, the arguments of both sides help to consolidate the emerging ‘post-democratic’ political regime in Europe. The UK government’s position in Hirst v UK, and the judgments of the Strasbourg courts in Hirst, Frodl v Austria and Scoppola v Italy, all assume that democracy is no more than a matter of voter-consumers choosing between competing alternatives in the political market place. This minimalist conception of democracy also underlies the argument that enfranchising convicted prisoners will contribute to their rehabilitation. If, by contrast, democracy is thought of as a regime that seeks to achieve the collective self-government of the people, then one of its principles is that only those who enjoy civil liberties and formal independence of the executive can be self-governing citizens. Enfranchising prisoners subverts that democratic principle.

Full text available at:

The Preoccupation with Rights and the Embrace of Inclusion: A Critique

Alexander Somek 

University of Iowa - College of Law

January 22, 2013

U Iowa Legal Studies Research Paper No. 13-11 

Current European scholarship does not yet appear to be quite ripe to address the question of justice. Scholars focus on the protection of individual rights and remain largely oblivious of distributions. The question of how the burdens and benefits of social co-operation ought to be allocated does not enter the picture. This prevalent perspective is insufficient. A broader perspective on justice reveals that the European Union is less consistent with justice than with its apolitical counterpart, namely, inclusion. The European Union is an agent of inclusion rather than justice.
Number of Pages in PDF File: 21
Keywords: European Union, justice, social justice, human rights, inclusion

Disagreement and the Constitutionalisation of Social Rights

Murray Wesson 

University of Western Sydney - School of Law


(2012) 12(2) Human Rights Law Review 221 

A key reason for resistance to constitutional social rights is that in many democracies there is reasonable disagreement about the nature and extent of the state’s welfare obligations. Social rights are likely to be regarded by many not as principles capable of constituting the political space but rather as essentially political claims. The article argues that it is nevertheless possible to envisage a democratically appealing role for the judiciary in enforcing social rights provided that courts are understood as forums of accountability. Against this background, the interest generated by the South African Constitutional Court’s social rights jurisprudence is unsurprising given that the ‘reasonableness’ standard does not place the Court in the position of primary decision-maker. However, the Court’s jurisprudence has been subjected to criticism. The question is how to develop the Court’s approach without compromising its democratic appeal. The article rejects the proposal that the Court should accord detailed content to social rights, an approach that has been taken by courts in jurisdictions such as India, Colombia and Brazil. The article instead suggests that the reasonableness standard should be structured by principles that are indicative of the types of circumstances where judicial intervention is necessary and appropriate. Disagreements regarding distributive justice should be played out primarily through the political process subject to a structured form of judicial supervision.
Number of Pages in PDF File: 33
Keywords: Constitutional law, social rights, reasonableness standard, democracy, distributive justice, role of courts, South African Constitutional Court

Legal Theory Lexicon 071: The New Originalism

Lawrence B. Solum 

Georgetown Law

February 24, 2013

The entry in the Legal Theory Lexicon series describes the New Originalism. Originalism can be viewed as a family of theories organized around two core ideas: (1) The Fixation Thesis, the factual claim that the linguistic meaning of the constitution is fixed at the time each provision is framed and ratified, and (2) The Constraint Principle, the normative claim that the original meaning should constraint constitutional practice. To these two core ideas, the New Originalism adds two others: (1) The Public Meaning Thesis, the claim that the original meaning of the constitutional text is its public meaning, and (2) the Interpretation-Construction Distinction, the claim that constitutional practice consists of two distinct activities: (a) Interpretation is the discovery of linguistic meaning, and (b) Construction is the determination of legal effect, including both constitutional doctrine and the decision of constitutional cases. Criticisms of the New Originalism are briefly summarized.
Number of Pages in PDF File: 4
Keywords: constitution, constitutional law, constitutional theory, interpretation, construction, originalism, new originalism

The Gravitational Force of Originalism

Randy E. Barnett 

Georgetown University Law Center

February 15, 2013

Fordham Law Review, Forthcoming
Georgetown Public Law Research Paper No. 13-010 

In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In part II, I then discusses how originalism can influence the outcome of such cases as D.C. v. HellerMcDonald v. Chicago, and NFIB v. Sebelius. I suggest that, so long as there are justices who accept the relevance of original meaning, originalism can exert a kind of “gravitational force” on legal doctrine even when, as in McDonald and ​NFIB​, the original meaning of the Constitution appears not to be the basis of a judicial decision.
Keywords: Originalism, Supreme Court, Congress, Commerce Clause
JEL Classification: K00, K30, K39
Accepted Paper Series 

Full text available:

venerdì 15 febbraio 2013

European Solidarity and National Identity: An American Perspective

Peter L. Lindseth 

University of Connecticut School of Law

May 10, 2012

Christian Calliess, ed., 'In Vielfalt geeint: Wieviel europäische Solidarität? Wieviel nationale Identität?', Mohr Siebeck Verlag (Forthcoming) 

This contribution is based on a lecture given on 10 May 2012 at the Free University of Berlin, as part of a conference entitled "United in Diversity: How Much European Solidarity? How Much National Identity?" The conference proceedings will be published in a collective volume under the same title with Mohr Siebeck Verlag.

The EU clearly has a great deal of functionally and legally autonomous regulatory power — what in Germany you might call 'Hoheitsrechte' — whether legislative, executive, or judicial. These 'Hoheitsrechte' stretch across a vast range of regulatory domains that often penetrate deeply into national legal orders. But what the EU lacks is an autonomous legitimacy commensurate with this autonomous power. The EU may well enjoy several different kinds of legitimacy (technocratic, legal), but what it lacks is autonomous democratic and constitutional legitimacy — that is, the sense that it embodies or expresses the capacity of a new political community (‘Europe’) to rule itself in autonomously democratic and constitutional sense. The absence of this crucial form of autonomous legitimacy bears directly on the questions of national identity and European solidarity that are at the heart of this conference.

Despite the great advances in the integration process, inter-European expressions of solidarity have remained either limited (e.g., Articles 122 or 222 TFEU) or surprisingly grudging in the face of crisis (e.g., the EFSF/ESM). European solidarity has remained constrained in this way precisely because of the pervasive and, in some sense, incommensurable demand on the part of Europeans to preserve certain core democratic and constitutional prerogatives on the national level. This quest to preserve national democratic and constitutional legitimacy derives in no small measure from the persistence of national identity as a core political-cultural reality in the EU, even as regulatory power migrates to supranational bodies.

Full text available at:

mercoledì 13 febbraio 2013

Prince or Pariah? The Place of Freedom of Religion in a System of International Human Rights

Lorenzo Zucca 

King's College London School of Law

February 13, 2013

Philosophy of Human Rights, OUP, 2013 Forthcoming 

The human right to freedom of religion (HRFR) has radically different understanding in the historical constitutional instruments of the US and Europe. It is for example embedded in the first amendment of the American Constitution but finds no explicit recognition in the French Declaration of Rights. The question that emerges from this simple starting point is: what is the place of freedom of religion in a system of protection of international human rights? Is there a single answer to this question or is it a deeply contingent matter that depends on discrete constitutional histories? This chapter attempts to unravel this deeply contentious issue, which goes at the very core of disagreement about the nature of the human rights to freedom of religion. Lacking agreement on what constitutes freedom of religion, international intervention should limit itself to the bare minimum on that ground. This makes freedom of religion a pariah at the international level.

Full text available at:

German Law Journal Special Issue the ESM before the Courts

German Law Journal, special issue on the ESM before the Courts:

14 German Law Journal No. 1 (2013)

Special Section - The ESM Before the Courts



Fundamental Rights and the EU Internal Market: Just How Fundamental are the EU Treaty Freedoms? A Normative Enquiry Based on John Rawls’ Political Philosophy

Nik J. de Boer 

University of Amsterdam

January 31, 2013

Utrecht Law Review, Vol. 9, No. 1, p. 148-168, January 2013 

This article assesses whether the EU Treaty freedoms - the free movement of goods, persons, services and capital - should be considered as fundamental rights which are hierarchically equal to other fundamental rights. It uses the political philosophy of John Rawls to assess why we should attach priority to certain rights and which rights should therefore be considered fundamental rights. On this basis it is argued that we should recognise two main types of fundamental rights, namely basic rights and liberties associated with Rawls' first principle of justice and the rights associated with the principle of fair equality of opportunity. This is followed by an analysis of the interpretation that the European Court of Justice (CJEU) gives to the Treaty freedoms. On the basis of the normative framework, it is argued that the Treaty freedoms can be seen as fundamental rights insofar as they embody the value of equality of opportunity. Nonetheless, the CJEU increasingly seems to rely on a broader market access approach rather than an equal treatment approach in interpreting the Treaty freedoms. It is argued that where equal treatment is not at stake, the Treaty freedoms should not be seen as fundamental rights. Therefore, in cases where there is a conflict between a fundamental right and a Treaty freedom the CJEU should carefully distinguish between these two different interpretations of the Treaty freedoms. In cases where it is merely market access that is at stake, the CJEU should regard the protection of fundamental rights as more important, and be very careful in allowing a restriction of fundamental rights in order to protect the exercise of the Treaty freedom. On the other hand, in cases where the Treaty freedoms can be seen as protecting equality of opportunity and where they conflict with other fundamental rights, the Court is justified in construing the conflict as a right-right conflict in which a fair balance has to be sought.
Number of Pages in PDF File: 21
Keywords: fundamental rights, EU internal market, EU Treaty freedoms, John Rawls, equality of opportunity

Laws, Exceptions, Norms: Kierkegaard, Schmitt, and Benjamin on the Exception

Rebecca Gould 

Yale-NUS College; University of Iowa

February 2, 2013

Telos: A Quarterly Journal of Politics, Philosophy, Critical Theory, Culture, and the Arts 162 (2013): 1-19 

The concept of the exception has heavily shaped modern political theory. Kierkegaard first propounded the exception as a facilitator of metaphysical transcendence. Merging Kierkegaard’s metaphysical exception with Jean Bodin’s theory of sovereignty, Carl Schmitt introduced sovereignty to metaphysics and made this category usable in a post-metaphysical world. This essay carries Schmitt’s appropriation one step further. Drawing on Walter Benjamin’s replacement of transcendental metaphysics with contingent creaturehood, it reintroduces the anti-foundationalist repetition that was implicit in Kierkegaard’s paradigm but which was not made lucid until Benjamin crafted from the Schmittian exception a vision of the political grounded in creaturely existence.

Full text available at:

The Principle of Subsidiarity as a Constitutional Principle in International Law

Andreas Follesdal 

University of Oslo; University of Oslo - Norwegian Centre for Human Rights


Global Constitutionalism, Vol. 2, No. 1, pp. 37-62, 2013
MultiRights Research Paper No. 13-1 

This paper explores subsidiarity as a constitutional principle in international law. Some authors have appealed to a principle of subsidiarity in order to defend the legitimacy of several striking features of international law, such as the centrality of state consent, the leeway in assessing state compliance and weak sanctions in its absence. The article presents such defenses of state-centric aspects of international law by appeals to subsidiarity, and finds them wanting. Different interpretations of subsidiarity have strikingly different institutional implications regarding the objectives of the polity, the domain and role of subunits, and the allocation of authority to apply the principle of subsidiarity itself. Five different interpretations are explored, drawn from Althusius, the US federalists, Pope Leo XIII, and others. One upshot is that the principle of subsidiarity cannot provide normative legitimacy to the state-centric aspects of current international law on its own. It stands in need of substantial interpretation. The versions of subsidiarity that match current practices of public international law are questionable. Many crucial aspects of our legal order must be reconsidered – in particular the standing and scope of state sovereignty.

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‘Cut-and-Paste’? Rule of Law Promotion and Legal Transplants in War to Peace Transitions

Richard Zajac Sannerholm 

Folke Bernadotte Academy; Swedish Institute of International Affairs

February 12, 2013

NEW DIRECTIONS IN COMPARATIVE LAW, Antonina Bakardijeva Engelbrekt, Joakim Nergelius, eds., Edward Elgar, 2010 

This chapter looks at the process of international rule of law assistance in war to peace transitions from the perspective of legal transplants. Those familiar with the short but dynamic history of international promotion of legal reforms in developing countries (starting with the law and development movement in the 1960s) also know of the intense debate on legal transplants. Stripped to its essentials the debate has centered on the following question: is it possible to transfer laws and legal institutions from one legal culture to another?

Academics and practitioners that answer this question in the affirmative point to the way law travels. The spread of Roman law throughout Europe, or international or transnational commercial law of today, testifies to the possibility of legal transplants. Opponents in the other corner of the ring are often inclined to agree to the fact that law (or legal rules) travel, but then they ask what the effects of substantial legal borrowing is, ‘how does the transplanted law work and function?’ The litmus test is if law, once it has been transplanted, take the same function, role, and appearance as in the country of origin.

There is a need to revive the discussion on legal transplants within the context of war to peace transitions. The reason for this is simply that the process of legal borrowing, transfer and transplant is reaching monumental proportions within international assistance to war-torn societies (see i.e. United Nations Report of the Secretary-General. In these situations, transitional and interim governments face a paradoxical equation. While hard-pressed to break with the past and establish a new normative framework for governance, the weak capacity of interim governments makes the transition impossible. As deus ex machina the international community comes to assist in the legal transformation and state building under the banner of ‘rule of law promotion’.
Number of Pages in PDF File: 23
Keywords: post-conflict, legal transplants, rule of law, judicial reform, justice reform, legal borrowing

lunedì 4 febbraio 2013

The Global Expansion of Constitutional Judicial Review: Some Historical and Comparative Perspectives

Albert H. Y. Chen 

University of Hong Kong - Faculty of Law; University of Hong Kong - Faculty of Law

January 1, 2013

Modern constitutional law has developed various means of supervising and guaranteeing the effective implementation of the constitution. The principal means of judicial control of constitutionality is judicial review of the constitutionality of legislation enacted by Parliament, or constitutional judicial review. This has become a dominant feature of modern constitutionalism, and recent decades have seen a global expansion of such judicial review mechanisms. This article considers the phenomenon and institution of constitutional judicial review from historical and comparative perspectives. The different models, structures and forms of constitutional judicial review are discussed with reference to the historical contexts in which they have evolved, their modes of operation and their underlying rationales. The possible tension between constitutional judicial review and democracy is also considered.
Number of Pages in PDF File: 16
Keywords: constitutional law, judicial review, constitutionalism

domenica 3 febbraio 2013

Law, Rights and Development

John Linarelli 

Swansea University School of Law

February 1, 2013

Research Handbook on Global Justice and International Economic Law, Edward Elgar, ed., Forthcoming 

This chapter will appear in the forthcoming Research Handbook on Global Justice and International Economic Law, to be published by Edward Elgar. It does two things. First, it examines the idea of a human right to development and how it might be morally justified. It deals with some of the conceptual difficulties a human right to development faces, in both the law and in moral and political philosophy. Moral imperatives apply in the global context but they might not be in the form of a human right to development. Second, it provides an intellectual history of the field of law and development. In its beginnings in the 1960s, the field was focused on the “modernisation” of societies through law. In the immediate post-Cold War period of the 1990s, its focus was on economic development and economic growth. The field in its current stage still maintains a predominant focus on economic development, though it is has been experiencing something of a turn away from aggregated measures and towards measures of human development that respect the separateness of persons. The first law and development thinkers were mainly American legal scholars working at a time when modernisation theory was at its most prominent and in a post-American Legal Realist intellectual context in which law was seen as an instrument of social change. Their focus was on modernising societies, where law served as an instrument of change. A second movement took hold in the immediate post-Cold War period, based in the neoliberalism of the so-called Washington Consensus. This second movement grounds itself in New Institutional Economics (NIE). It is a more significant movement partly because of its acceptance and funding by the World Bank and other development institutions. While NIE accounts remain prominent in law and development, other accounts are or are becoming important, particularly as the world moves away from the Washington Consensus. Some development practitioners apply a human rights-based approach (RBA), but it is unclear whether this approach has had much influence in law and development. A move can be seen towards understanding the role of institutions in development from moral and political standpoints. The moral approach to the study and design of institutions tends to be located in the capabilities account developed by Amartya Sen and Martha Nussbaum. A political approach with strong ties to NIE is located in the work of political economists like Daron Acemoglu and James Robinson, who locate the most important variables in the development of states in political and civil rights for broad segments of a state’s population

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Recensione "James Daily e Ryan Davidson, The Law of Superheroes, 2012”, Gotham Books, Penguin Group (USA), New York"

I Need a (Super) Lawyer!”. Recensione a “ James Daily e Ryan Davidson, The Law of Superheroes, 2012”, Gotham Books, Penguin Group (USA), New York

Is Batman above the law? In realtà no e questa è una delle certezze che ci dà il libro qui recensito “The Law of Superheroes”(,,9781592407262,00.html), scritto da due giovani avvocati americani, James Daily e Ryan Davidson, già curatori di uno dei blog giuridici più originali e divertenti degli ultimi anni, “Law and the Multiverse. Superheroes, supervillains, and the law” (
Si tratta di un' originale opera che affronta i dubbi che ogni bravo giurista appassionato di fumetti si potrebbe porre leggendo i volumetti della DC o della Marvel.
Stiamo parlando (rectius, scrivendo) di un tema forse leggero ma che ha dato origine ad un libro interessante anche dal punto di vista giuridico; del resto, i fumetti (da noi ritenuti volgare sub-cultura) hanno già destato l'interesse di altre discipline, basti pensare a quanti articoli sul tema pubblica una rivista come il Journal of Popular Culture (stampato da un editore di punta come Wiley-Blackwell) oppure al noto (almeno oltreoceano) dibattito “etico” sull'influenza che molti degli storici fumetti dedicati ai supereroi avrebbero sui giovanissimi, dibattito scatenato all'indomani della pubblicazione del saggio “Seduction of the Innocent”, scritto dallo psichiatra Fredric Wertham nel 1954.

In quel saggio Wertham metteva sotto accusa molti dei supereroi entrati nell'immaginario collettivo, additati come causa della delinquenza e della perversione giovanile: il dibattito suscitato da quel volume portò indirettamente alla creazione della Comics Code Authority, un organo di censura auto-imposto dalla fumettistica statunitense.
A questo si può aggiungere che sempre Blackwell ha pubblicato nella sua collana, intitolata “Philosophy and Pop Culture Series”, alcuni interessanti libri dedicati alla “filosofia” dei supereroi (fra cui “Batman and Philosophy: The Dark Knight of the Soul”, curato da Mark D.White e Robert Arp,, per rimanere in tema). Forse i primi ad interessarsi dell'ambito sono gli studiosi delle scienze naturali, fra cui James Kakalios, Taylor Distinguished Professor alla School of Physics and Astronomy dell'Università del Minnesota, già autore di “The Physics of Superheroes” (
Tutto questo per dire che, in realtà, il tema è tutt'altro che arido anche da una prospettiva, diciamo, “impegnata” ed in effetti il libro qui recensito- dopo un primo, forse comprensibile, scetticismo- si dimostra ricco di spunti, offrendo una interessante introduzione, per molti versi, al diritto statunitense (dal diritto costituzionale alla procedura penale, passando per quello amministrativo e privato), senza scadere nel pressappochismo ma anche, altro merito importante a mio avviso, senza prendersi troppo sul serio, offrendo una gradevole introduzione al 'tema'.
“The Law of Superheroes” si divide in tredici capitoli più un'introduzione: i primi nove capitoli procedono per “branche” giuridiche, offrendo una interpretazione di alcuni dei più noti personaggi dei comics (Batman, Superman, Spiderman etc) secondo prospettive disciplinari (constitutional law, criminal law, evidence, criminal procedure, tort law and insurance, contracts, business law, administrative law, intellectual property) mentre gli ultimi quattro capitoli (con l'eccezione del cap. undici, dedicato al diritto internazionale) affrontano questioni più specifiche (“Travel and Immigration”, “Immortality, Alter Egos, and Resurrection”and “Non-human Intelligences”).
Il quadro che ne risulta è tuttavia coerente anche se sconta la mancanza di un capitolo conclusivo ma il fine degli autori non era certo quello di scrivere un libro scientifico, quanto quello, appunto, di offrire una interessante lettura giuridica di un fenomeno molto ampio che fosse rivolta ad un pubblico vasto e non composto necessariamente da fini giuristi.
Si tratta quindi di un libro divertente che risponde a molte delle domande che la genuina curiosità di un giurista appassionato di fumetti si potrebbe porre leggendo le avventure dei suoi eroi preferiti: “Batman è un 'attore statale' (nel significato coperto dalla 'state-actor doctrine' sviluppata in casi come Lugar v. Edmondson Oil Co.457 U.S. 922 [1982])'?” “La S.H.I.E.L.D.- è un'organizzazione internazionale in senso tecnico?”, “Che rapporto di lavoro intercorre fra Batman e Robin?”, “La testimonianza resa da Hawkman in 'Trial By Fire, Part. 2: Witness for the Prosecution' viola uno dei cardini del sistema processale americano, come la confrontation clause (codificata dal VI emendamento secondo cui 'In all criminal prosecutions, the accused shall enjoy the right to … be informed of the nature and cause of the accusation; to be confronted with the witnesses against him')?”. A tutte queste ipotetiche questioni giuridiche gli Autori tentano di rispondere utilizzando il diritto esistente (con episodiche scorribande nel diritto 'fittizio' creato dagli universi Marvel e DC per 'coprire' l'attività dei nostri supereroi, ovvero il 'Superhuman Registration Act' o il XII emendamento della Costituzione americana- non quello riguardante la procedura di elezione del Presidente e del Vice-Presidente, e questo rende il libro un elegante esercizio giuridico, una miniera per chi voglia preparare dei casi di studio ipotetici da sottoporre ai propri studenti (in un corso di diritto processuale americano, soprattutto).
In conclusione, se già qualche sospetto circa la non 'invulnerabilità giuridica' dei nostri eroi ce l'aveva fatto venire un bislacco fatto di cronaca (un malcapitato 'epigono' di Batman fermato dalla polizia a bordo della suabat-mobile, più seriamente, “The Law of Superheroes” si conferma una bella lettura per giuristi e non e rivela un potenziale che nemmeno i più arditi studiosi di “diritto e letteratura”- da noi, almeno- avevano mai esplorato:recommended!
Giuseppe Martinico