lunedì 29 luglio 2013

Special Issue GJIL: Special Issue: The Law and Politics of Indigenous Peoples in International Law

Full issue available at:

The Law and Order Theme in Political and Popular Culture

Allen Rostron 

University of Missouri at Kansas City - School of Law

November 1, 2012

Oklahoma City University Law Review, Vol. 37, No. 3, 2012 

"Law and Order" became a political rallying cry in the 1960s, as conservative candidates like Barry Goldwater, George Wallace, and Richard Nixon criticized courts for putting the constitutional rights of criminals ahead of the need for effective police work and public safety. As the nation’s president after his victory in the 1968 presidential race, Nixon continued to emphasize the law and order theme. Meanwhile, a series of Westerns and cop movies, such as John Wayne’s "True Grit" and Clint Eastwood’s "Dirty Harry," began to echo Nixon’s claims about criminals, courts, and law. Concerns about crime and the impotency of the legal system soon produced a set of remarkably popular movies about vigilante justice, including "Walking Tall" and "Death Wish". Even when law and order faded as a national political issue, Hollywood continued to dwell on the idea that courts are too lax, turning the idea that criminals routinely escape justice because of legal technicalities into one of television’s and movies’ most familiar clichés. Crime rates have been plummeting for two decades now, and a series of re-makes of significant films from the Nixon era suggests that law and order’s grip on popular entertainment and the public imagination may finally be breaking.
Number of Pages in PDF File: 74
Keywords: law and order, crime movies, films, Richard Nixon, John Wayne, Clint Eastwood, True Grit, Dirty Harry, Walking Tall, Death Wish, Billy Jack, Star Chamber, Quincy, Bullitt, Madigan, Detective, Miranda, Coogan's Bluff, French Connection, Cobra, McQ, 10 to Midnight, Straw Dogs, Hardcastle & McCormick

The Role of the Judiciary in Environmental Governance - Chapter 6: Canada

Jamie Benidickson 

University of Ottawa - Common Law Section

Dr. Heather C. McLeod-Kilmurrary 

University of Ottawa - Common Law Section


In: Louis Kotze and Alexander R Paterson (eds.), 'The Role of the Judiciary in Environmental Governance: Comparative Perspectives' (Kluwer Law International) pp. 209-248, 2009 

Major environmental issues currently confront Canadian society in its global context, including threats to natural resources, deteriorating water and air quality in certain communities, and policy challenges related to climate change. There is a variety of actual and potential roles for Canada's courts, which are powerful, independent and well-respected institutions. The courts have been called upon to make decision regarding prosecutorial authority, and the exercise of statutory authority related to the environment. As voluntary policy instruments gain traction, traditional environmental enforcement in the courts may decline; this threatens to restrict future development of private law principles in the environmental context. Factors that will continue to shape courts' enforcement of environmental requirements include increasing pressures for accountability and democratic legitimacy in the enforcement process, the shift to a service economy, globalization, and international developments in environmental law. Strong language in Canadian environmental statutes suggests that courts' implementation of environmental values will entail including sustainability as a fundamental principle.
Number of Pages in PDF File: 40
Keywords: Canada, Canadian, law, legal environment, environmental, global, natural resources, water, air, quality, climate change, court, judiciary, prosecution, prosecutorial, authority, statutory, enforcement, private law, accountability, policy, voluntary, principles, globalization, sustainability, values

The European Union and National Human Rights Institutions

Jan Wouters 

Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies

Katrien Meuwissen 

Leuven Centre for Global Governance Studies

Ana Sofia Freitas De Barros 

KU Leuven - Leuven Centre for Global Governance Studies

July 1, 2013

KU Leuven - Leuven Centre for Global Governance Studies Working Paper No. 112 

Over the past twenty years, the potential of National Human Rights Institutions (NHRIs) to transmit and implement international norms at the domestic level, and to transfer human rights expertise to regional and global human rights forums, is increasingly recognised. At a time when the European Union is looking for a more coherent and strategic human rights policy, it is important that policy makers and academics pay more attention to the potential role of NHRIs.

This paper aims to highlight opportunities for a more structured cooperation between the EU and NHRIs in a variety of internal and external human rights domains. NHRIs do not replace other stakeholders in the field of human rights and will not always be the most appropriate partner for the EU. However, consistent consideration for NHRIs in the different areas of its human rights policy can help the EU to more effectively deal with various challenges it faces today, ranging from an enhanced outreach at the UN Human Rights Council to the fulfilment of EU citizens’ information needs with regard to fundamental rights and legal remedies. The current EU’s engagement with NHRIs reflects a critical disjuncture between the approach towards NHRIs internally and externally. In order to strengthen its fundamental rights architecture internally, and to enhance the credibility of its external human rights policy and action, the EU should encourage and support EU Member States to establish effectively functioning NHRIs which are in compliance with the Paris Principles. This way, the EU’s engagement concerning the establishment and support of Paris Principles compliant NHRIs in third states will be backed up by its internal initiatives.

Number of Pages in PDF File: 33
Keywords: National Human Rights Institutions (NHRIs), European Union (EU), Charter of Fundamental Rights of the European Union, EU Agency for Fundamental Rights (FRA), UN Human Rights Council, Development Cooperation, Rights of Persons with Disabilities

A Vision of Global Legal Scholarship

Pierre Larouche 

Tilburg Law and Economics Center (TILEC); College of Europe - Bruges; Tilburg University - Tilburg Law School; Center on Regulation in Europe (CERRE)

October 8, 2012

TILEC Discussion Paper No. 2012-034
Tilburg Law School Research Paper No. 09/2012 

Global legal scholarship should aim to be both post-national and inter-disciplinary. By post-national, we imply that it should rise above national legal systems and cover a more abstract corpus of knowledge about law, of which national legal systems would be an application. By inter-disciplinary, we mean that legal scholarship is enhanced by a deeper understanding of other sciences, without merging with any of them. This places global legal scholarship in a ‘sweet spot’, between traditional national legal scholarship and other social sciences. In order to retain its strong link with reality, global legal scholarship should also espouse empirical research methods.
Number of Pages in PDF File: 12
Keywords: legal scholarship, global law, comparative law, inter-disciplinarity, empirical

domenica 28 luglio 2013

Detention of Irregular Migrants and the European Public Order

Nicholas Hatzis 

University of Oxford - Faculty of Law; City Law School

July 1, 2013

European Law Review 259 (2013, Forthcoming) 
Oxford Legal Studies Research Paper No. 74/2013 

This article examines the regulation of pre-deportation detention of irregular migrants in the European Union. It begins with a brief discussion of the relevant legislative framework. It continues with an analysis of the case law on detention and exploration of the Court of Justice’s argumentative strategy of focusing on the need to safeguard the useful effect of EU law. Then, in the third part, it argues that there are two aspects of the Union’s public order which are particularly important for understanding that case law. The first is the dominance of security in the Area of Freedom, Security and Justice, which led the Court to avoid making a broad ruling on the fundamental rights irregular migrants enjoy in the territory of the Union. Thus, the main background constitutional question – whether such migrants are within Europe’s constitution – remained unanswered. After looking at how the United States Supreme Court has dealt with this question in relation to the federal Constitution, and the development of the “plenary power doctrine”, I argue that the Court of Justice’s general approach to the outer limits of European constitutional space indicates that it might be willing to open it up to irregular migrants in the future. The second aspect is the multiplicity of sources of human rights protection in Europe, which means that national law, the European Convention on Human Rights and EU law can all be relied on to establish rights for migrants. I argue that, given the very restrictive jurisprudence of the European Court of Human Rights on immigration detention, the Court of Justice should develop an independent interpretation of the relevant primary and secondary EU law, and that in doing so it can take a step towards becoming a fully-fledged human rights court.
Number of Pages in PDF File: 35
Keywords: Immigration law, constitutional law, EU law, immigration detention, deportation, irregular migrants, plenary power doctrine, Area of Freedom Security and Justice, Charter of Fundamental Rights, European Convention on Human Rights

Recent Developments Concerning the Promotion of Freedom of Religion or Belief in Italian Foreign Policy

Pasquale Annicchino 

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS)

July 24, 2013

The Review of Faith & International Affairs (Forthcoming) 

The right to freedom of religion or belief has visibly made an entry into the international arena through specialized institutions aimed at its protection and promotion in multilateral fora, in international organizations, and in relationships with third countries (countries that are not part of the European Union) and civil society at large. This is also true in the case of Italy, which recently joined the growing number of countries with dedicated policies for the protection and promotion of freedom of religion or belief in their foreign policy. In this article I provide a brief update and analysis of the recent attempts undertaken by the Italian Ministry for Foreign Affairs in the field. An English translation of the protocol between the City of Rome and the Ministry for Foreign Affairs establishing the Italian Oversight Committee for Religious Freedom is provided in the Annex.

This is an Author's Original Manuscript of an article submitted for consideration in The Review of Faith & International Affairs (copyright Institute for Global Engagement).

Number of Pages in PDF File: 14
Keywords: Religious Freedom, Freedom of Religion, Foreign Policy

A General Law on Administrative Procedure, Legislative Competence and Judicial Competence

Paul P. Craig 

University of Oxford - Faculty of Law

July 26, 2013

(2013) 19 European Public Law 503 

The desirability having a general law on administrative procedure in the European Union has been debated in the past and has now come back on the agenda, in part at least because of support from the Committee on Legal Affairs of the European Parliament. If such a law, or something equivalent thereto, is developed there will be a range of issues to address concerning its scope and content. This article considers the rationale for such an instrument, and the type of subject matter that might be included. The principal focus is however on the logically prior issue as to the competence to enact such an instrument. This was questioned in the pre-Lisbon world, and question marks remain post-Lisbon. It will be seen moreover that resolution of this question raises interesting and important issues concerning the relationship between legislative and judicial competence within the EU.
Number of Pages in PDF File: 25
Keywords: administrative procedure, competence, judicial competence, legislative competence

giovedì 25 luglio 2013

A Normative Theory of Sovereignty Transfers

Guglielmo Verdirame 

King's College London

May 01, 2013

49(2) Stanford Journal of International Law (2013) 371-424. 

News of its imminent demise notwithstanding, state sovereignty remains a central concept in international law, in legal and political theory, and in the practice of states. Political factors no doubt play a prominent role in explaining its endurance, but its normative foundations are no less important. This article examines those foundations in the context of the transfer of sovereignty from states to international organisations: why should the sovereignty of the state continue to matter? To what limits should these sovereignty transfers be subject?

International and domestic courts have increasingly had to grapple with the ‘first principles’ of sovereignty. This article attempts, first, to cast some philosophical light on the jurisprudence of these courts by distilling and examining the two central questions raised by sovereignty transfers: the liberty question (What limits does the liberty of the individual pose to sovereignty transfers?); and the sovereignty question (How much sovereignty should a state be permitted to transfer?). The second objective of the article is to formulate a normative argument for state sovereignty which, while accommodating and in most ways even supporting of supranational (or non-state) sovereignty, also identifies a principled liberal basis for setting limits to it.

Number of Pages in PDF File: 84
Keywords: international organizations, state sovereignty, political theory, supranational sovereignty

Human Rights in Political and Legal Theory

Guglielmo Verdirame 

King's College London

July 24, 2013

N. Rodley and S. Sheeran (eds.), Handbook on Human Rights, Routledge (2013) 

Contemporary academia generates vast amounts of human rights theory. Lawyers and anthropologists, philosophers and political scientists, historians and even natural scientists have contributed, and are contributing, to it. This chapter focuses on debates about human rights in legal and political theory. Providing a comprehensive exposition of theoretical argument in these two fields is still no easy task, particularly if one aims to offer an account that is not confined to the province of the present and includes a broader temporal dimension.

To navigate these challenges I have chosen four avenues of inquiry. The first one of inquiry concerns the relationship between the idea of human rights and the natural rights tradition: are human rights a re-statement or an evolution of natural rights? Or do they represent a genuine novelty? Secondly, the debate on foundations is examined, distinguishing between those who argue that foundational inquiries should be at the centre of theorising about human rights and those who consider argument about foundations to be inconclusive and even counterproductive. The last two avenues of inquiry focus on the two terms that shape any dialectics on human rights: the individual and power. Every theory of human rights will rest on, and in some cases openly advance, a conception of the individual and a phenomenology of power.

Number of Pages in PDF File: 22
Keywords: human rights, legal theory, political theory, natural rights, foundations

Keep Calm and Carry On: Martti Koskenniemi and the Fragmentation of International Law

Tomer Broude 

Hebrew University of Jerusalem - International Law Forum

May 2013

Temple International & Comparative Law Journal, Vol. 27, No. 2, 2013
ILF Research Paper No. 10-13 

As fragmentation in international law and institutions increases unabated, the associated theoretical debate has virtually gone silent. Koskenniemi’s contributions to the fragmentation debate, primarily the 2006 ILC study group report and several academic articles, played a central role in this ‘normalization of fragmentation’. They demonstrated that fragmentation is politically inevitable and legally manageable, through formal rules of interpretation. Adopting an analogy between states and functional regimes, Koskenniemi views fragmentation through the same lenses he applies to international law more generally, acknowledging and identifying its political undercurrents while advocating an applied ethics of formalism. While generally one might “keep calm and carry on” in the face of fragmentation, Koskenniemi flags one concern nevertheless: the propensity of fragmentation to promote anti-formalist managerialism in international affairs.
Number of Pages in PDF File: 14
Keywords: international law, fragmentation, critical legal studies, International Law Commission, international politics

mercoledì 24 luglio 2013

Natalia Caicedo Camacho, Seminario WOMINTRA: "El control de los flujos migratorios: ¿neutro desde la perspectiva de género?"

Jueves, 12 Septiembre 2013
12:00 hrs. Sala María Moliner 1F

Por Natalia Caceido Camacho (Universidad de Barcelona)

Organiza: Proyecto "Mujeres en Tránsito”, financiado por el Instituto de la Mujer y el FSE

Global Legislation and its Discontents

Gianluigi Palombella 

University of Parma - Faculty of Law; Robert Schuman Center, European University Institute

july 23, 2013

EUI Working Paper RSCAS 2013/60 

‘Legislation’ is flourishing in the global sphere from a large number of sources, in the lack of a unified system. Current redefinitions of legality/validity, or attempts at a global constitution deserve some scrutiny and should cope with a global sphere legislation bearing unprecedented features: issued from deracinated sources, bearing new scope and functions, developing ‘managerial’/regulatory modes, cancelling the distinction vis-à-vis 'administration', electing functional rationalities with 'limited responsibility', loosing connection to the comprehensive well being of social communities. Despite the search for devices of accountability ‘global’ legislation remains a source of discontents.

The promises of legal form are at stake in keeping alive the distinction between global decision making and universalizability. The future of global legislation (and its legitimacy) shall depend not only on shared criteria of legality, but also on how it shall interfere against the autonomy of less-than-global orders: that is, on the justice-related, legal quality of the relationships between the plurality of orders.

Number of Pages in PDF File: 23
Keywords: legality/validity, global governance, legitimacy, pluralism, justice

Kadi and the Role of the CJEU in the International Legal Order

Veronika Fikfak 

University of Cambridge - Homerton College; University of Cambridge - Lauterpacht Centre for International Law

July 10, 2013

Cambridge Yearbook of European Legal Studies 2012-2013 (Forthcoming) 

This article investigates the role of the Court of Justice of the European Union in the international legal order in light of its decision in Kadi and the forthcoming Kadi II. It focuses on establishing how the Court perceives its relationship with the Security Council and its position in the international legal order. The CJEU’s approach is analysed by identifying the characteristics of review adopted by the Court as a ‘constitutional court of a municipal legal order’. In this context, the article reveals how the CJEU’s review resembles that employed by domestic courts seeking to give force to the same or similar actions of international institutions and shows which motives may have led the CJEU to follow the practice of national courts in constructing its relationship with the international organs. This practice is contrasted with Advocate General Bot’s desire to depart from the image of an all-powerful but isolated CJEU, a court ignorant of other legal orders. Instead, he insists that what the CJEU ought to do in Kadi II is adopt both a more modest, deferential role in reviewing international sanctions and a rather more active role as a participant in the international legal order.
Number of Pages in PDF File: 20
Keywords: Kadi, Court of Justice of the European Union, Security Council, domestic courts, international law

Revolutionary Lawyering? On Lawyers’ Social Responsibilities and Roles during a Democratic Revolution

Yaniv Roznai 

London School of Economics - Law Department

July 22, 2013

Southern California Interdisciplinary Law Journal, Vol. 22, No. 2, 2013 

Do lawyers have any social responsibilities during a revolution? If so, what are they? Does the lawyer hold any special roles in revolutionary times? This article discusses these questions, which raise thorny theoretical and practical dilemmas. According to the article, revolutions in the Western world and the legal profession are linked. Therefore, the article describes the historical role lawyers have played in the great revolutions which have created stable liberal traditions based on the idea of “rights”: The Glorious English Revolution of 1688-1689 and the American and French Revolutions of the end of the 18th century. Moreover, the article deliberates on the characteristics of lawyers which support conservatism and oppose revolutions and vice versa. It then presents the conflicting duties which are imposed upon lawyers during revolutions. On the one hand, the lawyer has an obligation to preserve the legal order and the rule of law. This obligation may entail a duty to act in a counter-revolutionary manner. On the other hand, the lawyer has obligations to improve the legal system and to promote the rule of law. These may entail actions which support the revolutionary values or goals, especially in a democratic revolution. Lastly, the article considers the practical role of lawyers during a revolution, inter alia, in public speaking and assisting in drafting the basic documents of the new legal order. Even in times of revolutions that seek to collapse the existing legal order, the legal milieu is of great importance. The revolutionary lawyer plays a significant role in preserving and creating the temporary, transitional and new legal orders. According to the article, the participation of lawyers in a revolution strongly influences the legitimacy of the existing legal order and necessarily the legitimacy of the revolution itself.
Number of Pages in PDF File: 32
Keywords: lawyers, revolutions

martedì 23 luglio 2013

Erasmus Law Review: new issue

full text available here:

Two Models of General Jurisprudence

Dan Priel 

York University - Osgoode Hall Law School

July 18, 2013

Transnational Legal Theory, Vol. 4, no. 3 

The essay is a comment on William Twining’s recent book Globalisation and Legal Scholarship (2011), to be published as part of a symposium issue on the book. The aim of my comment is to present and contrast two models of general (or universal) jurisprudence: the one favoured by Twining and the other adopted by Jeremy Bentham. Twining’s model aims to be general by capturing the great variety of laws as they exist in the world; by contrast, Bentham argued that it is mostly prescriptive claims about law that can be universal. I argue that the descriptive model suffers from serious flaws: it either has to posit arbitrary boundaries between law and non-law (this is the problem from which HLA Hart’s version of descriptive jurisprudence suffers) or it does away with all boundaries, resulting in a shapeless barrage of data (this is the problem with Twining’s version of this model). By contrast, I argue, the Benthamite version of general jurisprudence is free from these problems. I then argue that Twining’s descriptive approach is subtly tied to various prescriptive recommendations he makes in his book, which I believe are unattractive.
Number of Pages in PDF File: 11
Keywords: general jurisprudence, William Twining, Jeremy Bentham, H.L.A. Hart, legal pluralism
Accepted Paper Series 

Full text available at:

The Polysemy of Privacy

Ronald J. Krotoszynski Jr. 

University of Alabama - School of Law


Indiana Law Journal, Vol. 88, 2013
U of Alabama Legal Studies Research Paper No. 2294511 

“The Polysemy of Privacy” considers the highly protean nature of the concept of “privacy,” which extends to myriad disparate legal interests, including non-disclosure, generalized autonomy interests, and even human dignity. For a concept of such central importance to many systems of protecting fundamental rights, its precise contours are surprisingly ill-defined. This lack of determinate meaning is not limited to the concept of “privacy” in the United States; virtually all legal systems that utilize “privacy” (or its first cousin “dignity”) have experienced difficulty reducing the concept into specific, carefully delineated legal interests. In some respects, privacy means everything – and nothing – at the same time. Moreover, even in those contexts where one can identify privacy at a relatively choate, rather than highly abstract, level of jurisprudential analysis, the right of privacy often comes into direct conflict with other fundamental rights. For example, commitments to freedom of speech and to a free press often conflict with privacy interests; these conflicts, in turn, force courts to secure one interest only at the price of undermining another. In the United States, unlike in the wider world, protecting privacy interests through tort law generally will give way to advancing concerns associated with securing expressive freedoms. This Article considers some of the causes and effects of the privileging of expressive freedom over privacy/dignity in U.S. constitutional law and suggests that comparative legal analysis of the concept of privacy might help us to better understand both what privacy does mean and also what it should mean.
Number of Pages in PDF File: 39
Keywords: constitutional law, comparative law, privacy, dignity, Germany, United States, autonomy, free speech, hate speech, distrust, democracy, dissent, low value speech, democratic deliberation, first amendment, expressive freedom, free press, reputation, libel, defamation

La Devolution De Escocia Y El Referéndum De 2014: ¿Cuáles Son Las Repercusiones Potenciales En España? (The Scottish Devolution and the 2014 Referendum: What are the Potential Reverberations in Spain?)

Vito Breda 

University of Wales System - Cardiff Law School

November 15, 2002

Teoría y Realidad Constitucional, núm. 31, 69-88, 2013 

En este artículo se analiza la devolution escocesa y la repercusión potencial en España del referéndum consultivo sobre la independencia de Escocia que tendrá lugar en 2014. Este referéndum podría ser percibido como uno de los muchos efectos del reciente resurgimiento nacionalista y su resultado es todavía objeto de especulaciones. Sin embargo, la posibilidad de asistir a la disolución de una de las más antiguas democracias occidentales como resultado de un referéndum es motivo de gran preocupación para los constitucionalistas en España.

Se argumentará que el riesgo de un referéndum similar en España es bajo. Los procesos que han impulsado el referéndum sobre la independencia de Escocia son el resultado de un discurso pragmático que se produjo dentro de una historia constitucional específicamente británica. Por ejemplo, tanto las tradiciones constitucionales escocesa como británica consideran a sus parlamentos respectivos como los depositariosdel poder constitucional soberano.

El artículo se divide en tres partes, precedidas por una introducción y seguidas de una conclusión. La primera parte contiene una discusión metodológica preliminar que explica el elemento distintivo del Sistema de Derecho Público del Reino Unido. La segunda explica las características distintivas de la devolution escocesa. En particular, se aclaran los efectos de tener dos parlamentos (el escocés y el del Reino Unido) que se aferran a dos conceptos diferentes de soberanía legislativa. En la tercera sección se compara el proceso constitucional a seguir para la celebración del referéndum escocés y un pretendido referéndum sobre la secesión de una de las Comunidades Autónomas españolas.

This article discusses the Scottish Devolution and the potential repercussion of the 2014 consultative referendum over Scottish independence in Spain. The 2014 referendum might be perceived as one of the many effects of the recent nationalist revival and its result is still a matter of speculations, yet, the possibility of seeing the dissolution of one of the UK, one of oldest western democracies, as the result of a referendum is of great concern for constitutional lawyers in Spain.

However, I would argue that a risk of an analogous referendum in Spain is low. The processes that were the proxy for the Scottish referendum over independence are the result of a pragmatic discourse that took place within a distinctively British constitutional history. For instance, both the Scottish and UK constitutional traditions consider their respective parliament the repository of sovereign constitutional power.

The article is divided in three parts, preceded by an introduction and followed by a conclusion. The first part is a preliminary methodological discussion that explains the distinctive element of the UK Public Law System. The second explains the distinctive features of the Scottish Devolution. In particular, I will dwell the effects of having two parliaments (the Scottish and the UK ) that hold on to two different concepts of legislative sovereignty. The third section compares the constitutional process required for the Scottish referendum and a putative referendum over a regional secession in a Spanish autonomous regions (e.g. Catalonia).

Note: Downloadable document is in Spanish.
Number of Pages in PDF File: 20

Method, Community and Comparative Law: An Encounter with Complexity Science

David J. Gerber 

Illinois Institute of Technology - Chicago-Kent College of Law

October 9, 2011

16 Roger Williams University Law Review 110 (2011)
Chicago-Kent College of Law Research Paper 

Assume that you are attending a symposium on comparative law being held in conjunction with the annual meeting of the American Society for Comparative Law. Comparative law scholars from many universities are present, and a few legal practitioners are attending as well. One speaker begins as follows: "This talk will be about complex adaptive systems — the emerging science of complexity." Based on experience in similar contexts, I would anticipate several common reactions among members of the audience. The most common might be "he’s in the wrong room." Another set of reactions is likely to be "What? What’s that? Never heard of it!" A third might be "What possible relevance can that have for comparative law?" Beneath these specific responses — and less likely to be expressed — is an assumption that this type of scientific discussion is alien and potentially inimical to the world of comparative law. The "scientific" language of the subject is likely to seem foreign to many, and the idea of a tie to comparative law is often perceived as not only foreign, but also perhaps threatening.

I use this imagined scenario as a window into the topic of the symposium: methodological approaches to comparative law. It provides a perspective on thinking about comparative law methods and a means of locating those methods in relation to other potentially relevant academic pursuits. The reactions to which I refer reveal much about comparative law at the outset of the twenty-first century.

Number of Pages in PDF File: 20
Keywords: comparative law, complexity science, community, methodology

The Issue of Values

Dimitry Kochenov 

University of Groningen - Faculty of Law

July 17, 2013

Forthcoming in Roman Petrov and Peter Van Elsuwege (eds.), The Application of EU Law in the Eastern Neighbourhood of the European Union, London: Routledge, 2013. 

This contribution provides a brief overview of the EU’s engagement with values both internally and externally, to illustrate the problematic nature of a number of deeply-held assumptions which inform the EU’s engagement with the Member States and with the third countries alike. As the analysis of the recent legal-political developments demonstrates, we are only witnessing the first timid attempts to move away from these assumptions. The introduction of Article 7 TEU into the Treaties, treating the Rui Tavares Report seriously, as well as the spirit and the letter of the draft Association Agreement with Ukraine all point in this direction. Essentially, in dealing with values no coherent distinction can be made between the EU on the ‘inside’ as opposed to the third countries: problems can equally arise in both spheres. This makes it clear that the acquis as such is not about the values and should be treated accordingly. Its promotion in the neighbourhood is not necessarily capable of doing the trick of democratizing EU’s partners or ensuring that they adhere to the rule of law. In other words, the rules that the EU promotes are not necessarily about values and should be treated as such. This conclusion is of essential importance also for the procedural side of the EU’s engagement with the neighbours, allowing the questioning of the reported successes of the principle of conditionality. Taking the wide-spread misconceptions into account is of essential importance both when designing the EU’s engagement with the neighbourhood as well as in the context of EU’s internal reform.
Number of Pages in PDF File: 22
Keywords: EU Law, external relations, ENP, neighourhood policy, Ukraine, values, conditionality, human rights, Association Agreement, Rule of Law, Tavares, Hungary, crisis

Domestic Judicial Defiance in the European Union: A Political Economic Approach

Arthur Dyevre 

Max Planck Institute for Comparative and International Law

June 27, 2013

Drawing on insights from the international relations literature, I develop a formal framework to analyze interactions between domestic and supranational judges in the EU legal order. I find that domestic high courts differ considerably in their ability to influence ECJ decision making but that, overall, overt judicial non-compliance should remain rare. Weak domestic courts have much to lose and little to win from an escalated conflict with the ECJ. But, while they do wield sufficient influence to contain the European Court's activism, domestic judicial superpowers -- such as the German Federal Constitutional Court -- also have a strong incentive to compromise. I demonstrate that, under certain conditions, their opinions may serve as an effective signalling device in a peaceful issue-trading equilibrium. An analysis of the German Court's opinions on European Integration using computer-based text scaling techniques (Wordscores, Wordfish) provides some empirical support for the way in which the model reinterprets the notion of judicial dialogue.
Number of Pages in PDF File: 32
Keywords: game theory, judicial behaviour, European integration, EU judicial politics, German Federal Constitutional Court, judicial dialogue, political economy

Servizio Studi del Senato: Le Camere alte in Europa e negli Stati Uniti

Servizi Studi del Senato: Le Camere alte in Europa e negli Stati Uniti

Aboriginal Title in Canada: Site-Specific or Territorial?

Kent McNeil 

Osgoode Hall Law School - York University

July 1, 2013

This paper addresses the issue of Aboriginal title to land, and the relationship I see between Indigenous law and the common law in this context. In my understanding, there have been three judicial approaches to Aboriginal title: 1. A purely proprietary approach, based on occupation of land and the effect given to occupation by the common law (common law Aboriginal title). 2. An Indigenous law approach, whereby Aboriginal title arises from and is defined by pre-existing Indigenous law (Indigenous law title). 3. A territorial approach, whereby Aboriginal title is derived from both common law and Indigenous law and has governmental dimensions (territorial Aboriginal title). I am going to describe each of these, and then offer some critical comments on the Supreme Court of Canada’s decision in R. v. Marshall; R. v. Bernard and the British Columbia Court of Appeal’s more recent decision in William v. British Columbia (the Tsilhqot'in Nation case).
Number of Pages in PDF File: 16
Keywords: aboriginal, title, land, territory, indigenous, court, law