ciudadanos ante las elecciones europeas. Retos actuales y propuestas de
reforma." Panorama Social, n. 17, año 2013
principal derecho político que ejercen directamente los ciudadanos de la Unión Europea
consiste en votar a los miembros del Parlamento Europeo, en elecciones
convocadas en todos los Estados miembros cada cinco años. Sin embargo, la
participación electoral ha descendido de manera constante desde que en 1979 se
convocaran por primera vez las elecciones al Parlamento Europeo en los nueve
Estados que entonces formaban la Comunidad Económica Europea. En este artículo se
exponen las razones plausibles de este fenómeno preocupante desde la
perspectiva de la legitimidad de las instituciones europeas, y se apuntan las
dificultades estructurales que afrontan los defensores de un mayor compromiso
ciudadano con el Parlamento Europeo y un mayor interés por su funcionamiento.
También se muestra el limitado alcance de algunas reformas recientes orientadas
a mejorar la representación de los ciudadanos de los Estados miembros en el
Abstract: After decades in a culture of secrecy, ever since the Maastricht Treaty the European Union has made efforts to establish transparency as a fundamental principle of European governance. Yet, to what extent is the EU actually transparent? This paper explores new ground by approaching transparency from its flip side. It addresses secrecy and how secrecy operates in practice through the system of classification of documents. Focusing on Europol, an EU law enforcement agency and an important security actor which facilitates Member States to safeguard security through exchange of sensitive information, this paper provides an in-depth inquiry of who is the main actor for classifying documents and what are the implications for such state of affairs. It draws on Europol’s legal framework and enriches the discussion with empirical work by looking at the practice.
Number of Pages in PDF File: 35
Keywords: Europol, secrecy, classification of documents, security, openness
School of Law, University of Leeds; European University Institute April 26, 2013
Abstract: Comparative legal studies, whether taken as discipline or method, has long been engaged with the conundrum of translation. That is to say, with the question of whether or not it is possible to assert that a legal term, feature or process used in one locus has an equivalent in another, and the extent to which legal features specific to one legal setting, system, culture or mentalité can be ‘understood’ by individuals situated or educated in a different one. Translation is not only an important issue in terms of the focus and content of comparative law, however, but also informs and indeed frames the debate at second order level by permeating both the worldview and method of its proponents. This chapter will discuss how translation and its (im)possibility became the defining criterion within the debate and draw attention to the effect that this second order polarization has had upon contemporary comparative legal studies.
Abstract: Jurisprudence is generally thought to consist of two main classical rival branches — natural law and legal positivism — followed by a bunch of modern schools — legal realism, law and economics, critical theory, legal pragmatism, etc. In this essay I argue that three main branches of jurisprudence have existed, and battled, for centuries, not two, but the third goes unrecognized as such because it has traveled under different labels and the underlying connections have been clouded by various confusions. The core insights and focus of this third branch, what I call “Social Legal Theory,” traces in a continuous thread from Montesquieu, through historical jurisprudence, sociological jurisprudence, and legal realism, up to the present. This third branch, I argue, provides a contrasting/complementary perspective, in conjunction with natural law and legal positivism, which rounds out the full range of theoretical angles on law: natural law is normative; legal positivism is analytical/conceptual; and social legal theory is empirical. (Among a number of clarifications, I answer the common objection that empirically-grounded theories are not sufficiently theoretical.) The conventional jurisprudential narrative is redrawn in this essay in a way that exposes unseen connections among theoretical schools and brings into focus critical issues about the nature of law that currently are marginalized by natural law and legal positivism.
Number of Pages in PDF File: 46
Keywords: Jurisprudence, legal philosophy, law and society, legal realism, legal development, legal history
Abstract: This chapter, an invited contribution to a compendium on comparative constitutional law, argues that giving courts the power of docket control can contribute to their power and success. To make this point, this chapter surveys the experiences of several emerging and established constitutional democracies. Deciding what cases to decide permits a court to issue the right decisions at the right times, what this chapter calls ‘issue timing.’ A court can avoid encountering an issue until the country is ready to discuss the issue, and perhaps ready to resolve the issue in the manner the court is contemplating – or the court can decide to avoid the issue altogether because the issue is too polarizing for the court to encounter. As part of this ‘issue timing’ is what this chapter calls ‘legitimacy timing,’ meaning giving the court the power to decide what to decide allows courts both to initially create and then later maintain their legitimacy, even in situations when political forces might not support the specific outcome ordered by the court. Courts create and maintain their institutional legitimacy by giving political forces and the public time to adjust to a newer style of institution – a judicial institution – deciding leading issues of the day. But there is also a quantitative benefit to docket control, one related to legitimacy timing and the general politics surrounding courts. Giving courts docket control permits them to limit the sheer number of major issues they are deciding, which permits them to avoid excessive political fights, and gives them an agenda control power that allows them to compete on more equitable terms with the other branches of government, which do have agenda control.
Abstract: The aim of this paper is to examine the essential features of political science theories and methods as applied to international courts and tribunals, and to identify the value-added insights as well as the weaknesses of this research. The paper proceeds in five parts. Following a brief introduction, the second part of the paper considers a fundamental, epistemological distinction between law and political science as disciplines, with the former taking a largely – but not exclusively – doctrinal and “internalist” approach to international law, while the latter generally adopts a positivist and “externalist” approach. Next, in the third section, I briefly explore the range of political science theories about international politics, and the ways in which these theories have been adapted to the study of international law and courts. Building on this epistemological and theoretical basis, part four identifies five substantive, value-added contributions of political science to the study of international adjudication, which I organize under the rubrics of institutional design, judicial behavior, the behavior of litigants, judgment compliance, and the dynamic evolution of international adjudication systems over time. The fifth and final section identifies weaknesses, lacunae and blind spots of the extant political science literature, which I argue has drawn too heavily on off-the-shelf IR approaches and not enough on the insights of international legal scholarship, and concludes with a call for a more truly interdisciplinary law-and-politics approach to the study of international courts.
Number of Pages in PDF File: 57
Keywords: International courts, adjudication, litigation, realism, institutionalism, liberalism, constructivism, International Court of Justice, European Court of Justice, World Trade Organization
El Marco Financiero Plurianual (MFP) 2014-2020 pretende aumentar el papel del presupuesto de la UE para responder a la crisis económica, apoyar el crecimiento, la creación de empleo, la competitividad y la convergencia conforme a la Estrategia Europa 2020. En especial, las inversiones en investigación y desarrollo e innovación en la UE se consideran un elemento impulsor central para la reestructuración económica y la creación de empleo. Este documento analiza las razones subyacentes de las inversiones comunitarias con un enfoque especial en el sector del I+D y su valor añadido europeo. Asimismo, se ofrece un análisis del MFP 2014-2020 y cómo las expectativas mencionadas se reflejan en el acuerdo final. Finalmente se realizará también un estudio del balance financiero de España con la UE para este próximo
Central European Constitutional Courts in the Face of EU Membership
explores the enduring German legal influence on other systems of
constitutional justice, concentrating on the impact of the Federal
Constitutional Court’s approach to EU integration on its counterparts in
Hungary and Poland.
Such a model aims to protect Germany’s constitutional identity or
essential core of sovereignty, the contents of which are not susceptible
to transfer or limitation, in the face of the requirements of the
Union’s constitutional legal order.
The influence of this model on the two Central European
courts has encouraged them to take an active part in negotiating the
new multilayered judicial construct of Europe. Tatham thus firmly places
the Hungarian and Polish constitutional courts within the overall
context of the continuing dialogue between national courts and the Court
of Justice in the evolution of the European constitutional space.
University of San Diego School of Law April 11, 2013
San Diego Law Review, Forthcoming
Abstract: This essay explores the difficulty of using customary practices to establish legal rules in constitutional and international law. Many arguments styled as appeals to custom do not rest on custom alone, and as a result require justification on the basis of authority other than (or in addition to) custom. In particular, there are two basic types of arguments from custom. One is that certain practices have been accepted in the past and should be understood to establish law with respect to those particular practices in the future. The second is that certain practices have been accepted in the past and should be understood as the basis for law regarding other practices in the future, either because the other practices are (somewhat) analogous or because the prior practices support a general principle which then can be applied to new circumstances.
Only the first of these forms of argument is purely an argument from custom because – unlike the second form – it does not require contested value judgments to administer it (other than the initial judgment that custom itself should have legal force). In contrast, the second form of argument necessarily involves value judgments not just with respect to the force of custom, but also on the question whether a particular customary practice should be extended to a new and arguably distinct circumstance. Put another way, the first form of argument rests, as a normative matter, only on the proposition that custom can or must be binding; the second involves further normative determinations regarding the particular new circumstances at issue, external to the idea of custom in the abstract.
This distinction may have particular force for custom-based arguments in constitutional and international law. Unlike common law adjudication, neither field readily accepts that adjudicative decisionmakers have authority to make law on the basis of normative considerations. To take the more obvious example of customary international law, it is said that customary practices establish law between nations because by their practices sovereigns consent to longstanding ways of acting. To the extent sovereign consent provides the authority for unwritten international law, arguments depending on extensions of custom lack this authority and must draw authority from some other less congenial source. Similarly, in constitutional law, arguments from custom may draw authority from the nation’s (or a branch’s) consent to (or acquiescence in) a practice manifested by longstanding acceptance of it, even if the practice is not consistent with the Constitution’s text. Again, to the extent an argument is based not upon pure custom but upon an extension of custom, the argument has changed the basis of its authority because it no longer arises solely from widespread historical consent.
This essay illustrates these concerns by reference to two modern debates in which arguments from custom are commonly invoked: in constitutional law, the claim that the President has independent power to engage in low-level uses of force, as in the 2011 intervention in Libya; and in international law, the claim that private businesses may be sued for complicity in human rights violations of the governments of nations in which they do business. It concludes that both claims are examples of arguments from extensions of custom, and thus cannot draw authority from ideas related to consent or acquiescence.
Number of Pages in PDF File: 28
Keywords: Custom, customary international law, constitutional law, war powers, international human rights
Abstract: This Article offers a more sophisticated account of elite theory that incorporates the crucial insights underlying claims that Justices with life tenure will protect minority rights and claims that the Supreme Court follows the election returns. Put simply, the direction of judicial decision making at a given time reflects the views of the most affluent and highly educated members of the dominant national coalition. The values that animate the elite members of the dominant national coalition help explain the direction of judicial decision making for the last eighty years. During the mid-twentieth century, most Republican and Democratic elites held more liberal positions on most constitutional issues than less fortunate and less affluent Democrats or Republicans. This elite consensus minimized the impact of partisan control of the White House and the partisan composition of the Court on most matters of constitutional law. By the turn of the twenty-first century, that consensus had dissipated. Most Republican elites presently take far more conservative positions on most constitutional issues than the average Republican. Most Democratic elites take far more liberal positions on most constitutional issues than the average Democrat. One consequence of this elite polarization is that partisan control of the White House and the partisan composition of the Court have extraordinary influence on most matters of constitutional law.
A closely divided bench composed of polarized elites is vulnerable to what might be called constitutional yo-yos, dramatic swings in judicial policy making on numerous policy issues. Assume electoral politics remains fairly volatile for the near future, with Presidents of one party frequently replacing Presidents of the other party. The result will be a Supreme Court that lurches back and forth between making relatively extreme liberal and relatively extreme conservative decisions on the most important constitutional issues of the day. These potential constitutional yo-yos threaten both the majoritarian and the constitutional values that traditionally enjoy a precarious balance in the American constitutional regime. Elite polarization undermines majoritarianism by grossly exaggerating the impact of elections and public opinion on judicial decisions. Small fluctuations in public opinion and in voting behavior may induce judicial decisions that lurch back and forth between relatively extreme liberal and relatively extreme conservative opinions, even when most citizens prefer centrist positions on issues ranging from the constitutional status of abortion to the constitutional status of capital punishment. This volatility undermines constitutionalism by inhibiting such constitutional purposes as providing credible commitments to crucial stakeholders, maintaining the rule of law, and developing a national commitment to a set of fundamental constitutional aspirations. For these reasons, judicial minimalism during times of elite polarization and electoral volatility has particular merit, even if such an approach to the judicial function may disserve constitutional values during other political periods.
Number of Pages in PDF File: 59
Keywords: elites, liberals, conservatives, values, public opinion, voting behavior
Peking University School of Transnational Law April 11, 2005
Published in French in: Doctrine et droit dans l'Union europeenne (sous la direction de F. Picod) (Bruylant, Brussels, 2005)
Abstract: This article traces developments and interactions between legal scholarship, legal culture, and the publishing industry in Europe. It is based on an empirical study of leading French-language journals in the field of European Union law.
Peking University School of Transnational Law April 10, 2013
Peking University Transnational Law Review, Vol. 2, No. 1, September 2013, Forthcoming
Abstract: Globalization has irrevocably altered the world of food safety. This article focuses on WTO cases about food safety regulation which arise under WTO agreements other than or in addition to the SPS or the TBT Agreements and which are not directly concerned with relations between the WTO and international standardization bodies. It asks: What do these cases - which are not mainly about relations between WTO and international food standards - teach us about the role of the WTO in food safety regulation?
The WTO dispute settlement system deals with food safety more frequently than is sometimes thought. Virtually all such cases were settled, withdrawn or reached stalemate during consultation; in only a very few cases was a panel established. Complainants always won, and the winner was usually of equal or higher income category than the respondent, except when the case went to a panel.
These cases are the 'hidden jurisprudence' of the WTO with regard to food safety. They are mostly resolved, or at least concluded, by bilateral negotiations, sometimes between very unequal parties, rather than by decisions taken by a third party on the basis of multilaterally agreed rules. They also represent the basic philosophy or orientation of the WTO regarding food safety. Food safety is treated as simply another trade issue, rather than as a distinct subject matter with economic, political, social and cultural implications far beyond trade, as it should be. Powerful complainants use the WTO dispute settlement mechanism to export and if possible impose their national standards and practices.
Complainants, such as China, are well-advised for the time being to use a strategy of 'aggressive legalism' or of 'assertive legalism'. China should participate more actively throughout the WTO dispute settlement procedures. Neither 'aggressive legalism' nor 'assertive legalism', however, can in any way guarantee food safety.The globalization of local food safety standards through a dispute settlement mechanism designed to settle trade disputes is not an appropriate way to determine which standards should regulate food safety in an increasingly integrated, yet inescapably diverse global food economy. The hidden jurisprudence of the WTO is not a good way to regulate food safety today. We need a global food safety agency.
Number of Pages in PDF File: 58
Keywords: WTO law, WTO dispute settlement, consultations, food safety, China
Abstract: Debates and controversies about the democratic legitimacy of the EU have of course accompanied the Union from the very beginning. The “democratic paradox” of the EU exists because while committing itself to promote and scrutinize democracy in its member states, in candidate states, and in third states with whom it enters into contact, it does not display equivalent democratic features in its own functioning. Some commentators tried to define the problem out of existence; by pointing out that the EU is not a state-like polity, they argued that state-specific criteria of legitimacy, such as representative, participatory or deliberative democracy, do not apply. They postulated outcome-based or, at best, public reasons based, conceptions of legitimacy as applicable to the EU, and concluded that it satisfies those standards. But this argument is based on a non sequitur: from the statement that the EU is not a state (not even a quasi-federation or federation in statu nascendi) it does not follow that it should not be judged by the standards of democratic legitimacy.
The EU is a complex, untidy polity which amalgamates inter-governmental and supranational elements in its constitution, and therefore this article postulates a bifurcated approach to democratic legitimacy. In so far as the EU contains inter-governmental elements, indirect legitimacy is all that is required, i.e., democratic legitimacy of governments representing their respective states in the Council. The second face of the EU – its supranational character – calls for democratic legitimation of its institutions, in particular, in accordance with the promise contained in Article 10 TEU, proclaiming representative democracy in the institutional setup of the EU. This requires changes to the electoral system of the EP in order to provide incentives for a more trans-European electoral process; strengthening of the supervisory role of the EP over the Commission; the strengthening of the role of the EP with regard to legislation, and endowing it with the competence of legislative initiative. Overall, the idea is for the institutional setup to resemble a canonical model of separation of powers and inter-institutional accountability, with the EP in a dominant position. Additionally, the first gesture towards direct democracy in the EU, the European Citizens’ Initiative, should be strengthened, both by upgrading the status of successful initiatives and by lowering thresholds and administrative requirements.
Number of Pages in PDF File: 41
Keywords: European Union, democracy, legitimacy, European Parliament, public reason, federalism
European University Institute - Department of Law (LAW) April 1, 2013
EUI Working Papers LAW No. 2013/03
Abstract: Law and governance need to be justified vis-à-vis citizens in order to be accepted as legitimate and supported by civil society. This contribution argues that the legal and judicial methodologies of multilevel governance for international public goods need to be changed in order to protect basic needs and human rights of citizens more effectively. I define legal methodology in terms of the conceptions of the sources and ‘rules of recognition’ of law, the methods of interpretation, the functions and systemic nature of multilevel legal systems like IEL, and of the relationships between rules, principles, political and legal institutions and related practices. Section I recalls the historical evolution from ‘good governance’ to third-party adjudication and individual rights of access to justice. Section II discusses eight models of multilevel judicial governance in Europe. Section III uses constitutional and ‘public goods’ theories in order to explain the multiple functions of courts of justice and the increasing importance of judicial cooperation (comity) in protecting transnational rule of law in European and international economic law (IEL). Section IV argues that the diverse ‘constitutional methods’ applied by the EU Court of Justice (CJEU), the European Free Trade Area (EFTA) Court and the European Court of Human Rights (ECtHR) offer important lessons for multilevel judicial governance in IEL beyond Europe. Section V concludes by emphasizing the judicial task of administering justice in IEL and the need for limiting the existing ‘legal’ and ‘doctrinal fragmentation’ through multilevel judicial protection of transnational rule of law for the benefit not only of governments, but also of citizens as legal subjects and ‘democratic owners’ of IEL.
Number of Pages in PDF File: 23
Keywords: international economic law, judicial governance, European courts, EU law
Abstract: Marx is dead. But so is Hayek. With neoliberalism crumbling, Europeans are beginning to wonder what it is that is really wrong with the current European Union. The paper proposes the following answer: To this day, European integration has not been a process of emancipation. This shortcoming, however, is not written on the Union’s face. It requires, pursuant to best psychological traditions, a careful analysis of symptoms. One indication of the absence of emancipation is, indeed, the Union’s rhetorical embrace of empowerment.
Number of Pages in PDF File: 78
Keywords: European Integration, Economic Liberalism, Emancipation, Socialism, De-commodification, Individualism, Empowerment
Abstract: The early warning mechanism represents an opportunity for building new and direct relationships between regional councils and the national parliament, which to date have been substantially lacking in Italy. Relying on the provision of Art. 6 of Protocol no. 2 annexed to the Treaty of Lisbon, the new law on the participation of Italy in EU affairs provides, for the first time, a bottom-up process of transmission of regional opinions (also from the regional executives, by means of a 'political dialogue') to the Italian parliament, thus indirectly also enhancing the ties between the regional and national levels of government.
Number of Pages in PDF File: 40
Keywords: Italian parliament, regional councils, participation in EU affairs, early warning mechanism, political dialogue
La Collana di Studi “Sovranità, Federalismo,
Diritti”, del Centro di ricerca su “Federalismo e autonomie locali”
dell’Università dell’Insubria, con il patrocinio dell’Associazione “Gruppo di
Pisa”, bandisce un premio per la miglior tesi di dottorato in materie
giuspubblicistiche, discussa tra il 1° gennaio 2012 e il 30 aprile 2013, su
tematiche inerenti gli obiettivi della Collana, rivolta, come dal suo
manifesto, a promuovere e potenziare lo sviluppo di ricerche sulle tematiche
del federalismo, della sovranità, dei diritti, del regionalismo e delle
autonomie locali, con l’ambizione di ampliare il suo ambito di interesse ad
altri filoni di indagine, non direttamente legati alle questioni della
distribuzione territoriale del potere, per divenire luogo di confronto sugli
argomenti di maggior momento per il diritto costituzionale del Terzo Millennio.
consiste nella pubblicazione, all’interno della Collana, per i tipi
dell’Editoriale scientifica di Napoli, entro l’anno 2013, di un volume
monografico, originato dalla tesi di dottorato, anche a seguito di una
successiva rielaborazione da parte dell’autore, dopo la valutazione di merito
compiuta dalla Commissione giudicatrice.
Copia cartacea e
in formato elettronico della tesi di dottorato, con allegata domanda di
partecipazione, da redigere sotto forma di dichiarazione sostitutiva di atto
notorio e contenente le generalità del candidato, la data e l’esito della
discussione della tesi di dottorato, un abstract della medesima che ne dimostri
la coerenza con l’oggetto del presente bando, il titolo e la sede del dottorato
di ricerca frequentato, i recapiti telefonici e di posta elettronica del
candidato medesimo ed un suo sintetico curriculum vitae, dovrà pervenire al
seguente indirizzo: prof. Giorgio Grasso, Dipartimento di Economia, Università
dell’Insubria, Via Monte Generoso 71, 21100, Varese, entro il 30 maggio 2013,
non facendo fede il timbro postale.
La Commissione giudicatrice del Premio sarà formata da
tre membri, due nominati dal Consiglio di Direzione della Collana tra i
componenti della medesima e uno designato dal Direttivo del “Gruppo di Pisa”,
garantendo pluralità di competenze e di istanze culturali e scientifiche e
impedendo eventuali conflitti di interesse con i candidati al Premio.
del Premio avverrà nel corso del Secondo Seminario annuale con i dottorandi
delle discipline giuspubblicistiche, dal titolo “Lo studio delle fonti del
diritto e dei diritti fondamentali in alcune ricerche dottorali”, organizzato
dal “Gruppo di Pisa” insieme all’Università di Roma Tre, che si terrà a Santa
Severa (Roma), il 20 settembre 2013.
Abstract: Unwritten constitutional conventions have long been understood to be integral to the operation of Westminster parliamentary systems. The British legal scholar A.V. Dicey emphasized that "constitutional morality" supplemented legal rules in regulating the exercise of political power and limiting the discretion of government officials. The presence of a written constitution and judicially enforceable constitutional rules has sometimes been thought to render constitutional conventions superfluous, but these unwritten conventions have been common over the course of American history and have played an important role in defining the effective constitution of the polity. Constitutional law always threatens to displace constitutional morality, however, and unwritten conventions are often seen as in tension with the supremacy of the written text and the primacy of constitutional interpretation.
Number of Pages in PDF File: 19
Keywords: constitutional conventions, dicey, amar, norms, unwritten constitution, construction
Abstract: This paper makes a comparison between the US and the European reforms of the financial markets. At a first glance, these two schemes move from a similar less-market-and-more State grounds. However, a closer examination will show some differences the success of the reform may depend on. Basically, while the U.S. program has assigned to the Federal Government the definition of general criteria for future prudential regulation to prevent systemic risks; the EU Commission is focused on establishing three new European Supervisory Authorities. However, the common political decision-making has not improved. This difference between the US and European approach is due to the institutional weakness of the latter. As long as Europe is not able to settle the dilemma between being a strong political entity or a loose alliance of States, regulatory and supervisory powers cannot be concentrated in the hands of a Federal-like Government. Obviously, EU citizens will pay the price for this ambiguity. The inability of Europe to adopt solid and comprehensive regulations may favour the proliferation of a poor quality finance that will exploit the folds of complaisant rules for abuse and impunity.
Number of Pages in PDF File: 12
Keywords: European financial supervision, USA financial reform, prudential rules
Humboldt-Universität zu Berlin; Wissenschaftskolleg zu Berlin April 4, 2013
Abstract: In a case decided in 2008 (K.U. v. Finland - 2872/02), the European Court of Human Rights was confronted with the case of a boy whose photo had been posted on the internet and used for a sexual advertisement by a third person without knowledge or consent. The service provider denied the police access feeling itself bound to national rules of data protection. The ECHR, finally, held that under Art. 8 of the Convention, the right to privacy and family life, Finland was obliged to identify and sanction the wrongdoer.
The decision refers to different problems that are regularly addressed under the heading of human dignity: sexual autonomy and communicative privacy. The case will serve as an example for three conceptual conflicts in the notion of human dignity: The conflict between a sphere of protected privacy and the development of a social personality, the conflict between individual autonomy and the protection by public authorities, and the conflict between general normative demands and case specific criteria. While human dignity might be a useful theoretical concept to depict these conflicts it cannot provide criteria to solve them.
Number of Pages in PDF File: 19
Keywords: Human Dignity, Constitutional Law, Dilemmas
University of Bremen - Faculty of Law March 29, 2011
Christian Joerges, Tommi Ralli (ed.), After Globalisation: New Patterns of Conflict and their Sociological and Legal Reconstructions, Oslo: RECON Report Series 2011
Abstract: The acknowledgement of a transnational legal space beyond national or conventional international law has led to an almost explosive proliferation of literature on emerging global governance arrangements. Generally, this strand of literature exceeds the narrow scope of a legal positivist conception of law, and often refers to concepts of legal realism. However, until recently, this literature has primarily contributed to a descriptive inventory of these phenomena. Although questions about the legitimacy of the emerging transnational law have often been addressed, the discussion has remained rather conventional in this respect. While the scope of the attention has shifted from state-centred public international law “in the books” to transnational administrative law “in action”, normative conceptions of constitutionality and legitimacy seem to be far more resistant to the change in the post-Westphalian order.
The paper comments on Christian Joerges: "The Idea of a Three-Dimensional Conflicts Law as Constitutional Form", May 15, 2010,
Brunel Law School - Brunel University May 31, 2011
European Law Journal, Vol. 17, Issue 3, pp. 304-322, 2011
Abstract: The attributed sui generis character of the EU as a polity has often been cited as the basis for not applying a classic separation of powers analysis to it. Yet it is a logical non sequitur to infer the inapplicability of a separation of powers framework to the EU on this basis: no particular proposition of political or legal morality can be automatically inferred or excluded from the attributed generic novelty of the EU relative to States. The EU certainly has some novel features, but that observation of itself does not establish that such novelty requires an entirely new conception of institutional normativity (rather, it needs to be explained how whatever particular novelty the EU possesses is such as to require the exclusion of separation of powers thinking). This article argues that a separation of powers analysis is: first, descriptively accurate, to a large extent, for much of the working of the EU apart from the law-making role of the ECJ; and, secondly, normatively attractive as a means of practically safeguarding the principles of democracy and the rule of law. This view is supported by an analysis of the substitute for a separation of powers in the caselaw of the ECJ, namely the principle of institutional balance, which it is argued is too vague and indeterminate to be a satisfactory alternative.
Abstract: Under current workplace enforcement policy, an unauthorized worker may avoid, slow, or halt altogether the removal process in certain instances. The executive allocates these membership benefits to otherwise removable immigrants who have nonfrivolous labor claims against unscrupulous employers. Why do this? The most common justification is that doing so deters unauthorized migration over the long term. But this explanation is out of touch given longstanding enforcement realities. This article defends moving workplace enforcement policy in a more worker-centric direction, but relies on an alternative justification. I argue that screening for migrants who engage in acts of solidarity improves the member-selection process. Allocating membership benefits on this basis helps to identify those migrants who are most likely to integrate into the mainstream. Central to my claim is the notion that immigration rules tend to favor potential members who possess social and economic bonds with current members. Granting relief to unauthorized workers who are willing to stand in solidarity with their coworkers (especially citizen coworkers) is consistent with this vision of membership. Although the scope of my claim is limited, the solidarity principle can and should inform any efforts to redesign the rules surrounding labor migration.