The Judgment in Akerberg – A Paradigm of Circular Reasoning

Martin Angelov 

University of Groningen - Faculty of Law
June 14, 2013

Abstract:      

Concerns over the material scope of the Charter of Fundamental Rights of the European Union (CFR) have been consistently growing since its solemn proclamation in 2000. Fears of the increased jurisdictional scope of the Court of Justice of the European Union placed Article 51(1) CFR at the center of academic attention, particularly after the official incorporation of the Charter as a binding source of primary law in 2009 . Despite the wide attention paid to the issue in the legal and academic circles, clarifications from the Court on the meaning of “implementing Union law” have been rather limited until the Akerberg judgment of February 2013. There, the Court extended the scope of the arguably strict wording of Article 51(1) and held that “implementing Union law” shall be read, as the official Explanations to the Charter provide, “within the scope of Union law” . In an attempt to put this landmark ruling into perspective, this article, first, briefly discusses the academic debates prior to and after the proclamation of the Charter, and second, analyzes a preceding decision in N.S. where the Court provided an implicit guidance on the proper interpretation of the scope ratione materiae of the Charter.

In investigating the Court’s reasoning related to the scope of Article 51(1) CFR in Akerberg, this article finally examines whether the CJEU attempts to reclaim the jurisdictional contours it used to possess prior to the incorporation of the Charter, when the Court enjoyed a wide discretion evident in its practice of running a comparative survey of rights protected by, inter alia, the constitutional traditions of Member States. Notwithstanding the clarification that the Court provided as to the proper way of interpretation of Article 51(1) CFR, this article respectfully submits and presents that the judgment lacked proper logical links between apparently conflicting arguments and is essentially based on circular reasoning. This article’s strong criticism of the Court’s approach in Akerberg is based on three major points: (i) the overt use of strong words instead of arguments and logical links; (ii) the problematic use of the indistinct fundamental rights-based case law as a justification for deviating from the language of the Charter which was itself created to make those very same fundamental rights more visible; (iii) the evidently circular logic applied in justifying the link between widened scope of Article 51(1) CFR, the case law on fundamental rights and the explanations.

Number of Pages in PDF File: 15

Keywords: Akerberg, Human rights,Charter of fundamental rights, European Union, Explanations, European law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2323857

Coda: Kafka, Kadi, Kant

Robert Schutze 

Durham University - Durham Law School
September 11, 2013

Abstract:      

While Yusuf only knocked at the judicial gates of the European Court of Justice, another case managed to get passed the door of Europe’s highest court. This second judicial review case was – not without sublime irony – called Kadi; and it is that case that has become the modern point of reference for the relationship between international and European law. Presumed to be a Taliban terrorist, the plaintiff’s financial assets had also been frozen as a result of European legislation reproducing a United Nations Security Council Resolution. Kadi (“K”) tried to challenge the “arrest”, but the General Court rejected – on the same day and with the same reasons as in Yusuf – the request for judicial review; yet “K” appealed to the European Court of Justice by insisting that his (European) rights of due process (among other things) had been violated. When the European Court delivered its judgment, Kadi I instantly became a constitutional cause célèbre, which has caused barrels of academic ink to be spilt. How has the Court decided Kadi II; and what are the broader philosophical questions involved in this story? This Coda explores the milestones of this Kafkaesque saga, in which “K” ultimately walked free after a decade of judicial battles.

Number of Pages in PDF File: 10

Keywords: Kadi, European Law, International Law, Human Rights, United Nations, Terrorism

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2324574

International Law in Constitutional Interpretation: A Theoretical Perspective

Brent Michael 

University of New South Wales (UNSW)
2012

23 Public Law Review 197-215, 2012 
Abstract:      

Domestic courts have greater access than ever before to a wealth of international legal materials in a world with a plethora of international laws and courts. In this context, the question of what role international law should play in Australian constitutional interpretation is an important issue. This article explores the dilemma from a theoretical perspective, drawing on a distinction between the reliance on international law as a source of ideas, on the one hand, and reliance on international law purely because of its status as international law, on the other. It is argued that international law can be used legitimately as a source of ideas, and may have a limited role as a moral yardstick for considering public values where the Constitution requires examination of community standards. In all other situations, the author argues, the role of international law in constitutional interpretation should be carefully confined.

Number of Pages in PDF File: 19

Keywords: constitutional interpretation, international law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2324429

Hart on Sovereignty

Pavlos Eleftheriadis 

University of Oxford - Faculty of Law
September 6, 2013

Forthcoming in Andrea Dolcetti, Luís Duarte d’Almeida and James Edwards (eds), Reading HLA Hart's 'The Concept of Law' (Hart Publishing 2013).
Oxford Legal Studies Research Paper No. 85/2013 
Abstract:      
This essay is part of a volume of essays by various authors on the 50 years of H. L. A. Hart’s The Concept of Law (the book will be published as: Andrea Dolcetti, Luís Duarte d’Almeida and James Edwards (eds), Reading HLA Hart's 'The Concept of Law' (Hart Publishing 2013). Although discussing mainly Hart’s chapter 4, my essay seeks to give a more general account of Hart’s achievements and failures. Focusing on Hart’s account of sovereignty, the essay shows how Hart’s descriptivism prevented him from giving an adequate account of the law and the legal system. In my view (see also Eleftheriadis, Legal Rights, 2008) because law is part of practical reason, its theory is also practical reason and cannot be accommodated by Hart’s causal, descriptive model. Hart never accepted this. When speaking of the ‘internal point of view’ Hart ought to have been speaking instead of the practical, deliberative standpoint of the reflective agent who faces a first person choice about action and remains situated in the common circumstances of social life. This standpoint is necessary both at the highest offices of state and in the idea of sovereignty and at the lowest matters of social interaction. That Hart did not see this in chapter IV is the origin of all the subsequent failures of the Concept of Law.

Number of Pages in PDF File: 18

Keywords: jurisprudence, legal philosophy, Hart, sovereignty

Fullt ext available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2321612

Managerial Judging and Substantive Law

Tobias Barrington Wolff 

University of Pennsylvania Law School
September 6, 2013

Washington University Law Review, Vol. 90, p. 1027, 2013
U of Penn Law School, Public Law Research Paper No. 13-20 
Abstract:      
The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.

In this Article, I examine the interface between substantive law and managerial judging. The Article sets forth a mode of analysis that grounds the powers of district judges in a richer account of the role that substantive legal policy can and should play in defining those powers, using three current or recent disputes as points of reference: the ruling of the Supreme Court of the United States on class certification and Title VII in Walmart v. Dukes; the 9/11 first responders litigation overseen by Judge Alvin Hellerstein in the Southern District of New York; and the joinder disputes surrounding the swarm download copyright cases that are now being filed in district courts around the country.

Number of Pages in PDF File: 44

Keywords: civil procedure, complex litigation, class actions, 9/11, copyright, procedure, judges, judging, managerial judging, Rule 23, Title VII, employment discrimination, swarm download, joinder, WalMart, Dukes, Rules Enabling Act, public law, private law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2321633

Constitutional Self-Interpretation

Jason Marisam 

Hamline University School of Law
September 7, 2013

Ohio State Law Journal, Forthcoming 
Abstract:     
What are the constitutional norms for self-interpretation – that is, the constitutional rules governing whether and when a government body has the power to issue controlling interpretations of legal texts that it drafted? The answer to this question could determine the fate of Seminole Rock deference, the nearly seventy-year-old doctrine enabling agencies to issue controlling interpretations of their own regulations. Jurists and scholars have argued that the doctrine runs afoul of a constitutional norm against self-interpretation, and last term Chief Justice Roberts asked future litigants to brief whether the court should overturn the doctrine on this basis. This Article is the first to comprehensively examine constitutional self-interpretation norms by looking at the conditions under which the heads of the three branches of government exercise self-interpretation powers. It shows that self-interpretation is pervasive and that the Supreme Court would be wrong to overturn Seminole Rock on self-interpretation grounds. Moreover, by examining self-interpretation practices, this Article brings new insight to the many areas of law that involve self-interpretation, including presidential oversight of agencies and judicial stare decisis.
Number of Pages in PDF File: 47
Keywords: administrative law, separation of powers, Seminole Rock, Auer, Chevron

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2322194

A Reply to Dworkin's New Theory of International Law

Adam S. Chilton 

University of Chicago Law School
August 10, 2013

University of Chicago Law Review Dialogue, Vol. 80, pp. 105-115, 2013 
Abstract:      
Scholars have long debated whether states are obligated to follow international law. In a posthumously published article, Professor Ronald Dworkin recently contributed to this debate, arguing states have a prima facie obligation to follow international law. Professor Dworkin suggests that this obligation arises not because the international legal system is based on consent (as many have suggested), but instead because states are obligated to improve their political legitimacy, and international law can help to do so by correcting the shortcomings of the state-sovereignty system. That is, international law can help provide a check against states that would abuse their own citizens, or can help compensate for the fact that states acting alone cannot solve global problems requiring coordination. Professor Dworkin argues that this theory has the advantage of both justifying the sources of international law — such as customary international laws states cannot opt out of — and providing a principle to guide international law’s interpretation.

Professor Dworkin’s theory, however, is at best incomplete and at worst fatally flawed; it may provide an account of why international law should be binding over autocratic states that would shirk their obligations to their own citizens and others, but it does not explain why democratic states have a general obligation to comply with laws they disagree with or that are against their interest. Moreover, if the international community took Professor Dworkin’s theory of interpretation seriously, it would result in states being less willing to negotiate deep international agreements in the future.

Number of Pages in PDF File: 11

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2323538

EU Citizenship without Duties

Dimitry Kochenov 

University of Groningen - Faculty of Law
September 10, 2013

ELJ 2014 (Forthcoming) 
Abstract:      
Many believe that duties should be at the essence of citizenship. This paper dismisses this view, using EU law as the main context of analysis, by making five interrelated claims. 1. There are no empirically-observable duties of EU citizenship; 2. Such duties would lack any legal-theoretical foundation, if the contrary were true; 3. Legal-theoretical foundations of the duties of citizenship are lacking also at the Member State level; 4. EU law plays an important role in undermining the ability of the Member States where residual duties remain, to enforce them; 5. This development is part of a greater EU input into the strengthening of democracy, the rule of law and human rights in the Member States and reflects a general trend of de-dutification of citizenship around the democratic world. If these conclusions are correct, it is time to stop categorizing EU citizenship duties among the desiderata of EU law.

Number of Pages in PDF File: 27

Keywords: CItizenship duties, EU citizenship, duties, obligations, rights, freedoms, eu law, liberty

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2323273

Structural Constitutional Principles and Rights Reconciliation

Robert R. Gasaway 

Kirkland & Ellis LLP

Ashley C. Parrish 

King & Spalding LLP
2009

Citizenship in America and Europe: Beyond the Nation-State? (Michael S. Greve and Michael Zoller, eds. 2009) 
Abstract:      
This paper is about contrasting approaches to constitutional rights. We contend that the American Constitution achieves an often underappreciated reconciliation both among individual rights and between individual rights and representative democracy — a reconciliation rooted in structural principles that emerge, on one hand, from the Constitution’s pattern of rights inclusion and omission, and, on the other, from canonical statements of the Constitution’s larger purposes. Our sense is that modern Europeans have largely embraced an alternative, rights-proliferating approach to individual rights — more rights are better. That approach inevitably triggers the sort of conflict among rights, and between rights and democracy, that the American Constitution properly seeks to avoid.

We hope to make two contributions to the transatlantic discussion. First, we hope to dispel a possible misconception among Europeans. Europeans appreciate that our Constitution declines to recognize many rights proposed for inclusion in the ultimate arrangements for future Europe. They appreciate that rights can conflict and that more rights can lead to more conflict. Their possible misconception, we believe, is a too-ready assumption that conflicts between democratic rights and other rights are inevitable and that differences between rights-scarce and rights-laden constitutions reduce to matters of degree. We argue, in contrast, that the structural principles of the American Constitution help to avoid such conflicts altogether by recognizing only those rights that can achieve a large degree of peaceful coexistence.

Second, we cast onto the American side a good share of blame for what we perceive as European misconceptions. “Originalism,” the dominant American school of constitutional interpretation, threatens to shortchange the Constitution’s structural principles — principles that are essential for explaining to non-Americans and nonspecialists the Constitution’s reconciliation of rights. We therefore aim to go beyond the received practices of academic originalism, elevate the interpretive stature of structural principles, and show how structural principles are rooted in the four corners of the Constitution and other legitimate, objective sources of constitutional meaning.

We conclude with a soft (but important) suggestion that the American Constitution has endured precisely because it avoids specifying a long, conflicting roster of individual rights and, instead, safeguards each generation’s ability to debate and decide the pressing issues of the day. The structural principles we identify confine our Constitution to a less comprehensive role than that filled by constitutions in other nations. But they ensure that constitutional rights are for the most part reconciled; that democratic outcomes are perceived as fair and reasonable; and that citizens enjoy the right not to have substantive constitutional law, etched in stone, governing their everyday lives.

We begin with a brief description of the current constitutional landscape in Europe and America. Europe’s tendency is to insulate citizens from vagaries of democracy by cataloguing a vast array of individual rights. This approach, we contend, threatens to compromise democratic self-government by empowering legal elites to determine how myriad rights are reconciled, prioritized, and enforced. In contrast, the most prominent approach to interpreting the American Constitution — originalism — is a useful balm for rights-proliferation syndrome. In its purest, most “academic” form, however, originalism threatens to truncate the quest for objective constitutional meaning and to obscure America’s most profound constitutional achievements.

Number of Pages in PDF File: 29

Keywords: transatlantic, constitutional rights, rights, originalism, constitutional interpretation, representative democracy, structural principles, academic originalism, American constitutionalism, Europe

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2323065

Regulating Tobacco, Alcohol and Food Products: The Impact on, and Role of, Intellectual Property Rights

Enrico Bonadio 

City University London - The City Law School; University of Abertay Dundee
August 2013

Chapter in: Tania Voon, Andrew Mitchell, and Jonathan Liberman, 'Regulating Tobacco, Alcohol and Unhealthy Foods: The Legal Issues', Routledge (Forthcoming) 
Abstract:      
The paper first aims to highlight the impact of a growing number of regulatory measures aimed at reducing the consumption of products that are harmful to people, such as tobacco, alcohol and unhealthy foods, on intellectual property regimes. Such measures include rules related to product presentation, measures limiting advertising and product availability as well as rules related to manufacturing and fiscal measures. The purpose of these measures is to reduce the consumption of products considered harmful and thus protect consumers’ health.

Yet these measures also have the effect of reducing the ability of tobacco, alcohol and food manufacturers to produce, present, advertise and market their products as they wish, and to make them appealing to consumers. More importantly, all these measures impair the ability of manufacturers to fully exploit their IP assets, whether they are (a) registered or unregistered trademarks affixed on products and packaging; (b) copyrighted works displayed on products or packaging; (c) distinctive trade dress and get-up for products; (d) registered or unregistered designs incorporated in products or packaging; or (e) patented inventions related to ingredients and constituents or related to packaging.

The second part of the paper looks at whether the inability of tobacco, alcohol and food manufacturers to fully use their IP assets due to the introduction of regulatory measures intended to curb their consumption also entails a violation of the rights offered by IP laws.

Finally, the last part of the paper tries to verify if and to what extent IP laws, and in particular patent procedures, may be amended with a view to incentivizing companies to produce and market healthier products in the field of foodstuff and beverages.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318029

Clarifying or Diluting the Application of the EU Charter of Fundamental Rights? – The Judgments in Akerberg and Melloni

Xavier Groussot 

Lund University

Ingrid Olsson 

Independent
September 3, 2013

Groussot, X. and Olsson, I., 'Clarifying or Diluting the Application of the EU Charter of Fundamental Rights? – The Judgments in Åkerberg and Melloni', LSEU, Vol. 2, pp. 7-35, 2013 
Abstract:      
This article assesses the impact of the Akerberg and Melloni judgments on the interpretation of the horizontal provisions of the EU Charter of Fundamental Rights. Specifically, it evaluates whether the European Court of Justice (ECJ) has chosen an expansive approach or a minimalist one; asking if the Court’s approach in these cases has clarified or diluted the application of the EU Charter of Fundamental Rights. The article is limited to looking, in light of the judgments in Akerberg and Melloni, firstly at Article 51 of the Charter; then at Article 52 and finally at Article 53. It will be shown that Article 51 of the Charter is the most important provision, whilst Article 52 the most complex and Article 53 the most underestimated. In the final sections it is highlighted that the judgments are illustrative that the ECJ strongly protects the level of protection of the Charter and the effectiveness and uniformity of EU law. However, it will also be shown that these two cases whilst clarifying the application of Article 51, and the meaning of implementing Union law, are the source of new questions rather than final answers.

Number of Pages in PDF File: 29

Keywords: Akerberg, Melloni, EU Charter of Fundamental Rights, European Court of Justice, level of protection of the Charter

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2319957

Roberto Bin, Order and Disorder Legal Adjudication and Quantum Epistemology

Abstract

The central issue of this paper concerns the discretion of judges in the application of the law, discretion that has expanded enormously, since judges are engaged in the direct application of principles drawn from the constitution or even - at times - from other legal orders altogether. Every legal system has its own methods of selecting and instituting judges, but of no system can it be said that they enjoy full democratic legitimacy and may be free to create law at will. Both in the US and in continental Europe many perceive the need to find some strategies that might bring the interpretative discretion under control, seeking suggestions sometimes in the theory of legal sources, sometimes in the theory of legal interpretation. The point of this paper is that no answer can be found because we are asking the wrong questions.
The work is divided into two parts. In the first part, I make use of some hints provided by epistemological reflections of quantum physics theorists, above all Heisenberg. The critical perspective is that of “ontological materialism”, i.e. the idea that in the process of legal interpretation and application, the interpreter is dealing with a “thing” that exists independent of his/her intervention. In the second part, I attempt to suggest a possible solution to the impasse, exploring the meaning of the institutional dimension of legal interpretation and application.


Full text available at: http://www.nyustraus.org/pubs/1112/documents/WP2Bin.pdf

National Constitutional Courts, the Court of Justice and the Protection of Fundamental Rights in a Post-Charter Landscape

Maartje De Visser 

Singapore Management University ; Maastricht University, Department of International and European Law; Tilburg University
2013

Singapore Management University School of Law Research Paper No. 47/2013
14 Human Rights Review, pp1-14, Forthcoming, 2013 
Abstract:      
This article critically evaluates the possible impact of the Charter on the relationship between the Court of Justice of the European Union (CJEU) and national constitutional courts. While it is premature to provide a definitive assessment of the kind of collaboration that these courts will develop, it is crucial to identify a number of features of the new landscape that will influence the direction in which the relationship between the CJEU and constitutional courts will evolve. This article discusses several reasons that may result in better or a higher number of judicial interactions, as well as factors that may create tension or cause problems in the relationship between the CJEU and national constitutional courts. As such, it offers a framework that may help us to understand future post-Charter judgments by these courts setting out how they conceive their engagement with their counterpart(s) on fundamental rights issues.

Number of Pages in PDF File: 15

Keywords: Court of Justice of the European Union ˖ National constitutional courts

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2319670

Cantore and Marhold "The WTO at a Crossroads: Destination, Doha. Pit Stop, Bali Opportunities for Reform of the World Trading System"

Full text available at: http://cadmus.eui.eu/handle/1814/27738

Exit Hercules -- Ronald Dworkin and the Crisis of the Age of Rights

Lorenzo Zucca 

King's College London School of Law
June 10, 2013

Abstract:      
This paper is about the end of an era as well as the end of its hero. The era is that of rights; its hero is Ronald Dworkin. Throughout his life, Dworkin saw the emergence, ascent, triumph and eventually crisis of the moral idea of rights in the US and abroad. His work has incessantly defended rights as the backbone of liberal democracies and suggested that judges were the gatekeepers of rights. Dworkin always resisted and dismissed the suggestion that rights might clash and might be incapable to yield one right answer after appropriate deliberation. His imagined judge, Hercules, is deemed to be capable to find a solution to all the quandaries in a Republic. But just like in a grand Greek tragedy, time has shown that rights have their own inner limitations. Rights can conflict in a way that does not lend to a right answer. Moreover, rights may not always be the engine of social progress but may indeed be a source of endless disagreement and polarisation of the society. When that happens, Hercules may try to use all his strength to fuel hope and faith in rights and in liberal democracies. But at times, he will have to exit the scene by acknowledging the stalemate, the state of relentless disagreement and inability to cope with diversity. Exit Hercules, and thus ends the tale of rights.

Number of Pages in PDF File: 18

Keywords: rights, tragedy, pluralism, monism, interpretation, liberalism, judicial review, liberal agenda

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2276979

Austerity and the Faded Dream of a Social Europe

Colm O'Cinneide 

University College London - Faculty of Laws
June 1, 2013

A. Nolan (ed.), Economic and Social Rights after the Global Financial Crisis, Cambridge University Press, 2014, Forthcoming 
Abstract:      
Most constitutional systems in Europe are based upon the assumption that the state should play an active role in securing the economic and social well-being of its people, almost all European states have ratified the European Social Charter and the key UN and ILO instruments relating to social rights, while the European Union (EU) is committed to the establishment of a ‘social Europe.’ However, the fallout from the economic crisis of 2008 has accelerated the disintegration of the much-vaunted Europe social model. A considerable gulf currently exists between the rhetoric and the reality of ‘social Europe.’

These developments have begun to generate tension across and between the multiple layers of European governance: the human rights provisions of national and European law are increasingly being used to challenge austerity measures, even as social security and employment law across Europe is being re-shaped to conform with the requirement of ordo-liberal and neo-liberal policy prescriptions. This paper explores these tensions, and critically examines the extent to which respect for social rights can be said to be constitutionally embedded within European society. It also calls into question whether European states are seriously committed to translating the idea of a ‘social Europe’ into reality,

Number of Pages in PDF File: 26

Keywords: Human Rights, Social Rights

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2317534

Lex Sportiva: A Playground for Transnational Law

Antoine Duval 

European University Institute
July 31, 2013

Abstract:      
This article argues that lex sportiva, the law of international sport, is a fruitful research object in order to address three key questions raised by transnational law scholarship: What is transnational law? Is transnational law legitimate? How do we deal with transnational legal pluralism? We will address each of these questions separately, complementing each time a general analysis with empirical examples drawn from the field of lex sportiva. In our view, there is a pressing need for empirical work and pragmatic description of legal phenomena reaching beyond the state. With this in mind, this paper demonstrates that lex sportiva constitutes a pertinent legal playground to study and grasp the practical and theoretical challenges of law in a transnationalizing world.

Number of Pages in PDF File: 24

Keywords: Transnational Law, Lex Sportiva, Global Law, Legal Pluralism, Transnational Private Regulation, Legal theory

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2317826

Democracy Without State? The Case of the European Union

Miodrag A. Jovanovic 

University of Belgrade - Faculty of Law
January 15, 2011

in M. Podunavac (ed.), State and Democracy (Belgrade, 2011), pp. 538-557. 
Abstract:      
This paper proceeds from the two prominent, yet conflicting, views on the relationship between the concepts of ‘state’ and ‘democracy’. One is exemplified in David Held’s argument in favor of ‘cosmopolitan democracy’, which views certain policies as appropriate for nation-states, others as appropriate for different regions, and still others, such as the environment, world health, or economic regulation, that need new institutions at the global level to address them. The opposite standpoint is advanced by Robert Dahl, who holds that democracy, for variety of reasons, is next to impossible in organizations and processes above the level of the classical nation-state (country). These two views will be contrasted on the case of the European Union.

The EU has long been charged to suffer from ‘democratic deficit’. The basic assumption of this charge is that the EU’s democratic capacities and achievements should be measured against some benchmarks of the traditional state. Since the EU is more than a mere international organization and less than the classical state, those who disagree with the previous thesis argue that this sui generis character of the EU polity should be taken into account when assessing its democratic nature. Thus, they commonly try to provide some alternative theoretical constructs in order to reflect this peculiar legal and political nature of the EU. Though this latter line of thought seems more plausible at first glance, this paper will, nonetheless, argue that if the EU strives to constitute itself as a democratic polity - and it normatively does so (Article 6 TEU) - then it will necessarily have to find ways to develop societal features that more closely resemble the traditional state, that is, a Europe-interested public in possession of some sort of common collective identity.

Number of Pages in PDF File: 20

Keywords: Held, Dahl, cosmopolitan democracy, democratic deficit, European Union

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318367

Jurisprudential Disagreements and Descriptivism

Dan Priel 

York University - Osgoode Hall Law School
August 30, 2013

Osgoode CLPE Research Paper No. 43/2013 
Abstract:      
Many contemporary legal philosophers argue that general jurisprudence is “descriptive.” I challenge this view in this essay by focusing on one familiar aspect of jurisprudence: persistent disagreements among legal philosophers. I argue that this fact is in tension with the claim that jurisprudence is descriptive. I consider several possible reconciliations of jurisprudential disagreements with descriptivism, but I argue that none of them succeeds. I then argue that persistent jurisprudential disagreements are easy to explain from within a normative framework. I conclude by suggesting that legal philosophers abandon descriptivism in favor of a view that more explicitly sees legal philosophy as part of normative political philosophy.

Number of Pages in PDF File: 22

Keywords: jurisprudence, descriptive jurisprudence, jurisprudential methodology, legal positivism, H.L.A. Hart

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318588

Building a Government of Laws: Adams and Jefferson 1776-1779

James R. Maxeiner 

University of Baltimore - School of Law
August 31, 2013

Legal Doctrines of the Rule of Law and of the Legal State: IUS GENTIUM, 2013
University of Baltimore School of Law Legal Studies Research Paper 
Abstract:      
Critics call for rethinking the rule of law. American laws are either too specific or are too readily ignored by judges. The American rule of law, by largely ignoring statute law and focusing on judge-made law and asserting judicial supremacy over statutes, undermines good government. This article contends that the "government of laws, not of men" of John Adams and the complete revision (Revisal) of Virginia laws made by Thomas Jefferson show these two founders thought of law in statute law terms closer to the ideas of a legal state than to the common law rule of law.

Number of Pages in PDF File: 28

Keywords: rule of law, codification, judicial supremacy, legislative supremacy, code, revisal, revisors, revision, Jefferson, Adams, Declaration of Right, Frame of Government, Massachusetts Constitution, Virginia law, legqal state, Rechtsstaat

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318838