martedì 22 ottobre 2013

CEU S.Pablo, Madrid, "International Conference Fostering Growth: Reinforcing the Internal Market, Madrid 28-29 October 2013"

Congreso Internacional: “Fostering growth: Reinforcing the internal market”

El Instituto de Estudios Europeos de la Universidad CEU San Pablo ha organizado el Congreso Internacional “Fostering growth: Reinforcing the internal market” como parte del ambicioso proyecto de investigación financiado por el Jean Monnet Lifelong Learning Programme de la Comisión Europea. Dicho congreso se celebrará el próximo 28 y 29 de octubre de 2013 en el Salón de Grados de la Facultad de Económicas de la Universidad CEU San Pablo, C/ Julián Romea, 23, Madrid y será impartida en su integridad en inglés.

Este congreso pretende explorar las potencialidades que un mercado más integrado y unido, libre de barreras interiores, puede ofrecer para fomentar el crecimiento, la productividad y la innovación en el contexto actual de crisis económica. Académicos de renombre internacional y prestigiosos especialistas en la materia debatirán en torno a la necesidad de reforzar el mercado interior para impulsar el crecimiento económico.

Se ruega confirmen asistencia mediante email dirigido a Para más información puede consultar nuestra web

The Politics of Relevance: Law, Translation and Alternative Knowledges

Peer Zumbansen 

York University - Osgoode Hall Law School

October 15, 2013

In this article, I want to suggest that there is a significant difference between the current interest of law in sociology (anthropology, geography) and the earlier instance of legal sociology. Whereas historically earlier stances responded, in no small degree, to legal positivism and, eventually, to both technological and societal change, the current social scientific engagement by lawyers appears driven by a differently articulated concern, even anxiety, about the viability of legal analytical, conceptual and semantic tools in a changed, transnational context. With the shift of law’s bearings from the nation-state to globalization’s strange land, law’s need to learn anew and differently can be felt throughout: in textbooks, classrooms, professional ethics and legal practice. In light of the again growing importance of interdisciplinarity, legal pluralism and globalization, law’s new frontier might lie in its reconstitution as transnational sociological jurisprudence. At the center of such an enterprise lies an engagement with the ways in which legal “fields” are conceptualized and put into practice as determinative translations between competing sets of knowledge. The here made contention is that underneath the shifts between different disciplinary approaches to law in the context of legal sociology, comparative law, post-colonial studies or different iterations of “law and…” (culture, history, anthropology, geography etc) are longstanding questions regarding law as doctrine, theory, practice, culture. These are re-emerging with particular thrust in the transnational regulatory realm, that is to markedly characterized by the absence of institutional infrastructures known from the Western rule of law and welfare state traditions.

Number of Pages in PDF File: 33

'Crimmigration' in the European Union Through the Lens of Immigration Detention

Izabella Majcher 

Global Detention Project, Programme for the Study of Global Migration, Graduate Institute (IHEID), Geneva

September 30, 2013

Global Detention Project Working Paper No. 6 

The phenomenon of “crimmigration” — or the convergence of criminal and immigration laws — appears to have a harmful impact on migrants, ranging from increasing negative attitudes about non-citizens to more restrictive immigration policies. This Global Detention Project working paper argues that immigration detention regulated by European Union (EU) directives represents a peculiar manifestation of crimmigration. In particular, detention provisions laid down in the Returns Directive and the recently revised Reception Conditions Directive selectively incorporate criminal justice objectives while rejecting protective features that are provided in criminal processes. Thus, while immigration detention sanctioned by EU directives may pursue objectives similar to those of criminal justice — retribution, deterrence, or incapacitation — detainees are not entitled to due process guarantees afforded to their criminal counterparts. This paper argues that in cases where formally administrative immigration detention is punitive in practice, detainees should be granted broader procedural protections, including presumption in favour of non-custodial alternatives to detention, automatic review of detention, personal hearings, and legal and linguistic assistance.
Number of Pages in PDF File: 21

Keywords: Immigration Detention, European Union, Returns Directive, Reception Conditions Directive, Crimmigration, Deterrence

The Democratic Qualities of Courts: A Critical Analysis of Three Arguments

Richard Bellamy 

University College London - Department of Political Science

October 17, 2013

Representation, Volume 49, Issue 3, 2013 , pp. 333-346, Special Issue: Courts and Representative Democracy, ed. C Parau and R. Bellamy, 

The democratic critique of judicial review by constitutional courts has prompted its defenders to counter that courts have democratic qualities as good as, and in certain respects even stronger than, conventional democratic politics. This article offers a critical analysis of three arguments favouring this approach. The first argues that constitutional courts operate as exemplars of democratic deliberation. In particular, they give expression to the public reasons underlying democracy and ensure democratic practice does not subvert its ideals. The second holds that rights-based litigation offers a form of democratic participation, providing a voice to those who might have been excluded from electoral democracy. The third contends that judges operate in a similar way to elected representatives, who are best conceived as trustees rather than as delegates. All three views are found wanting. Courts do possess certain limited democratic qualities. However, they are not intrinsic features of courts themselves. They arise from their being dependent upon rather than independent from the conventional democratic process.
Number of Pages in PDF File: 23

Keywords: courts, democracy, deliberation, participation, representation, judicial review

Towards a Sociology of International Courts

Mikael Rask Madsen 

University of Copenhagen - iCourts - Centre of Excellence for International Courts

October 10, 2013

Oxford Handbook of International Adjudication, Karen Alter et al., eds., Oxford University Press, 2013/14 (Forthcoming)
iCourts Online Working Paper, No. 1, 2013 

This paper first outlines how classical sociological theories have contributed to the understanding of international courts (ICs) and society. It then explores the original law and society stance on legal institutions, and outlines a recent scholarship, which draws on law and society and contemporary sociology for explaining ICs and their link to global society. The final part of the article identifies a set of key questions with respect to understanding ICs using both classical and contemporary sociology. It considers the question of institutions from a sociological perspective; the place of agency in studies of ICs; and the notion of legitimacy as it is found in both classical and contemporary sociology and its implications for studying ICs.
Number of Pages in PDF File: 29

Keywords: international courts, sociology and globalization, sociological theories

International Law and Courts: The Promise of Historical Institutional Analysis

Karen J. Alter 

Northwestern University - Department of Political Science; University of Copenhagen, Faculty of Law - iCourts Center of Excellence 

October 10, 2013

Oxford Handbook of Historical Institutionalism, Orfeo Fioretos, Tulia G. Falleti, and Adam Sheingate, eds., Oxford University Press (Forthcoming)
iCourts Working Paper Series, No. 3, 2013 

This paper examines what the tools of historical institutional analysis can bring to the study of international courts. Rather than seeing the creation of an international court as a new institutional moment, I argue that the proliferation and fundamental reorientation of international courts over time is best understood as institutional evolution across three critical junctures: the disappointing Hague Peace conference era, the trauma of WWII, and the end of the Cold War. New-style international courts reflect lessons learned that combine with a desire to make state legal commitments more meaningful and international legal instruments more effective. To understand the varied influence of established ICs, one should look at international law and international courts as opportunity structures that societal actors activate. The paper then considers whether courts, as legal institutions, are a distinct type of institution and whether international courts are distinct types of courts. I argue that international courts draw on the authority of the rule of law yet per force operate in a polycentric context, with the competing authority and pull of domestic law and democratic choice serving as counterweights that fuel and limit appeals to international courts and that constrain international court decision-making and influence. Within this context, historical institutional approaches are likely to significantly contribute: 1) in helping us understand the differing decisions of political actors to invoke litigation threats and litigation; 2) in helping us understand the choices of international judges and the varying impact of international legal rulings; 3) in helping us understand how national legal doctrine vis-à-vis international law evolves over time.

Number of Pages in PDF File: 31

Between Power and Persuasion: On International Institutions’ Authority in Making Law

Ingo Venzke 

University of Amsterdam - Amsterdam Center for International Law

October 18, 2013

Theoretical Inquiries in Law, Forthcoming
Amsterdam Law School Research Paper No. 2013-57
Amsterdam Center for International Law No. 2013-21
Postnational Rulemaking Working Paper No. 2013-07 

Drawing on the work of Hannah Arendt, this contribution places authority between power and persuasion. It first argues that authority is a specific kind of power that claims to be legitimate because it connects to the consent of the addressee. But at the same time, authority needs to constrain even if it is not met with agreement. Otherwise it would collapse into persuasion through arguments. What sustains authority between power and persuasion is a discursive practice that builds up a social expectation and that ties actors to the command of the authority. It is with attention to the larger discursive practices that international institutions’ authority in making law is best understood. The notion of semantic authority is introduced in order to capture international institutions’ capacity to establish reference points for legal discourse that other actors can hardly escape.
Number of Pages in PDF File: 24

Keywords: International public authority, international law-making, international organizations, power, persuasion, Hannah Arendt, Max Weber

Post-Modern Perspectives on Orthodox Positivism

Ingo Venzke 

University of Amsterdam - Amsterdam Center for International Law

October 18, 2013

International Legal Positivism In A Post-Modern World, (Jean d’Aspremont & Jörg Kammerhofer eds, Cambridge, Cambridge University Press 2014), Forthcoming
Amsterdam Law School Research Paper No. 2013-58
Amsterdam Center for International Law No. 2013-22
Postnational Rulemaking Working Paper No. 2013-08 

This contribution explains the travails of international legal positivism (ILP) from post-modern perspectives. It identifies conventional precepts of orthodox ILP and shows how variants of post-modern thinking unravel them. The focus rests on three main such precepts and their critique: first, orthodox ILP works against the backdrop of a given language that stands stable and unsoiled from the operation of the law. Second, it embraces a political philosophy that gives the legal subject – traditionally the sovereign state – a foundational role. Third, orthodox ILP sees but a small space for politics in international law that is confined to law’s creation through legal sources. These three basic precepts relate to linguistics (the location and generation of meaning), to subjectivity (the place of state consent), and to politics (here understood as the struggle for power and its exercise). Three key concepts of post-modern thinking are introduced in order to question each of these precepts: the vivacious concept of performativity embodies lessons of the linguistic turn. Deconstruction suggests unveiling conflicting diversity underneath harmony and unity of any subject. Governmentality, finally, exposes the many faces of power. In sum, law and politics are much more entangled than ILP would traditionally have it.
Number of Pages in PDF File: 20

Keywords: Legal positivism, subjectivity, politics, performativity, deconstruction, governmentality, post-modernism, sources of law, interpretation

Contemporary Theories and International Law-Making

Ingo Venzke 

University of Amsterdam - Amsterdam Center for International Law

October 18, 2013

Research Handbook On The Theory And Practice Of International Law-Making (Catherine Brölmann & Yannick Radi, Elgar 2014), Forthcoming
Amsterdam Law School Research Paper No. 2013-59
Amsterdam Center for International Law No. 2013-23
Postnational Rulemaking Working Paper No. 2013-09 

Many contemporary theories approach international law-making with a shift in emphasis from the sources of law towards the communicative practices in which a plethora of actors use, claim and speak international law. Whereas earlier approaches would look at the sources as the singular moment of law-making, it is now generally understood that the broader process of speaking the language of international law contributes to its making. The contribution proceeds by sketching the move from sources to communicative practice against the backdrop of the 'linguistic turn', which proposes that law is made 'in action' (II.). It then dedicates sections to principal contemporary theories, starting off with the New Haven School as a pioneering approach to thinking of international law-making as a process of authoritative decision-making (III.). Its heritage is refined in the theory of transnational legal process (IV.). In contrast to these voices from New Haven, systems theory abstracts from the political strategies of concrete actors and is therefore in a good position to recognize law as an autonomous enterprise (V.). Practice theory then combines, first, sociological thought on the heels of Pierre Bourdieu and, second, philosophical insights of pragmatism (VI.). Governance theory then suggests paying more attention to regulatory networks as sites of law-making and to private actors whose normative output gains bite in the market place (VII.). The concluding outlook discusses the Global Administrative Law project and research centered on international public authority as responses to the normative challenges that come with the multiplication of forms and fora of international law-making (VIII.).
Number of Pages in PDF File: 27

Keywords: International law-making, practice theory, linguistic turn, New Haven theory, transnational legal process, systems theory, Global Administrative Law, International Public Authority

Book Review, Luis I. Gordillo, Interlocking Constitutions: Towards an Interordinal Theory of National, European and UN Law

Guilherme Vasconcelos Vilaça 

Eric Castren Institute of International Law and Human Rights 


Law and Politics Book Review, Vol. 27, No. 3, pp. 349-354, 2013 

Interlocking Constitutions is a recent addition to the already voluminous scholarship on the fragmentation of international law. The book advances two claims: one descriptive and one normative.

Interlocking Constitutions is a ponderous book that documents exhaustively, from a doctrinal and case law standpoint, the degree of fragmentation in the relations between the European legal order(s) and the international one represented by the United Nations. At the same time, this description is not particularly new and will only be of interest for those readers wishing to have a comprehensive picture, particularly with regard to the historical details, of such legal fragmentation.

Unfortunately, the articulation of the book’s normative thesis, i.e. soft constitutionalism as the most adequate model to address interordinal constitutionalism, is rather unconvincing. This is because the author neither elaborates on the normative aspects of the theory of interordinal constitutionalism nor engages properly in normative reasoning. Since the descriptive claim, albeit solid, is fairly standard, the shortcomings of the normative argument effectively limit the contribution the book makes to existing scholarship on the fragmentation of international law.
Number of Pages in PDF File: 5

Keywords: Transnational legal orders, Soft constitutionalism, EU law, United Nations

EU Counter‐Terrorist Sanctions: The Questionable Success Story of Criminal Law in Disguise

Christina Eckes 

Amsterdam Centre for European Law and Governance

October 19, 2013

Colin King & Clive Walker (eds.), Dirty Assets: Emerging Issues in the Regulation of Criminal and Terrorist Assets, Ashgate, 2013 

European counter-terrorist sanctions (in the form of individual sanctions) have acquired a somewhat dubious reputation. Foremost, they have been criticized for breaching fundamental rights, in particular the right to judicial review. Indeed in their current form, they breach fundamental rights because neither those sanctioned nor the judiciary possess the necessary information to ensure effective defence rights. This is the case irrespective of whether or not individual sanctions constitute criminal law. However, the question of whether or not EU sanctions fall within the category ‘criminal law’ does not amount to Begriffsjurisprudenz. The procedural protection of those listed and sanctioned depends on whether sanctions substantially amount to a criminal charge within the meaning of Article 6 of the European Convention on Human Rights (‘ECHR’).

Furthermore, if counter-terrorist sanctions represent criminal law, rather than temporary emergency measures, they must withstand a different type of impact assessment than emergency measures. Emergency measures are not commonly subjected to elaborate efficiency assessments, considering both costs and benefits; however this becomes necessary when these measures turn into ordinary criminal sanctions of unlimited duration. In the case of counter-terrorism sanctions, the costs of adopting and enforcing them should be set against the benefits of containing terrorist activity.

The aim of this chapter is twofold. It first aims to demonstrate that autonomous EU counter-terrorist sanctions constitute criminal law in substance and that they are in many ways built on, and interlinked with, national criminal law. They have far-reaching consequences not only for those sanctioned but also for the individuals and entities that are connected to them and interact with them. Second, the chapter addresses the efficiency of sanctions. It argues that because counter-terrorist sanctions have these far-reaching consequences, and have been in place for a long period of time without any termination clause, they must be evaluated from an efficiency perspective. So far this has not been undertaken. On the contrary, even the limited effectiveness assessments that have been conducted are flawed: they take into account the wrong indicators.
Number of Pages in PDF File: 20

Keywords: counter-terrorism; sanctions; European Union; criminal law

Individuals in a Pluralist World: The Implications of Counter‐Terrorist Sanctions

Christina Eckes 

Amsterdam Centre for European Law and Governance

October 19, 2013

Global Constitutionalism, 2013, pages 218‐236 

Counter-terrorist sanctions against individuals are a prime example of pluralism. Multiple claims of constitutional authority (in resolutions of the UN Security Council, under European Union law, and national law) assume to govern the same legal situation. Choosing between these different authorities has great implications for the legal situation of individuals. This paper analyses the legal position of individuals facing this plurality of claims of constitutional authority and how their rights are largely dependent on the choices of domestic courts. Attention will be given not only to procedural and judicial rights but also to the broader implications of individual sanctions as an example of pluralism. What does it mean for popular sovereignty? Do patterns or guidelines emerge of how courts should address multiple claims of authority? The paper takes into account the latest amendments of the UN sanctioning procedure (Resolutions 1988 and 1989 (2011)).

Number of Pages in PDF File: 20

A Dubious Montesquieuian Moment in Constitutional Scholarship: Reading the Empirical Turn in Comparative Constitutional Law in Light of William Twining and His Hero

Ming-Sung Kuo 

University of Warwick School of Law


Transnational Legal Theory, Forthcoming
Warwick School of Law Research Paper No. 2013/27 

In this essay, I take a closer look at the empirical turn in contemporary comparative constitutional law to see whether its ‘global approach’ to comparative law suggests the realisation of what Twining calls a ‘genuinely global perspective.’ I argue that it falls short because constitutional empiricists provide a refracted scientific view of constitutional law. I first show that they focus attention on institutional design in written constitutional codes. I then discuss how this methodological written constitutionalism points to a legal formalism in constitutional empiricism, which is aimed at excluding subjective judgments from constitutional studies to safeguard its claimed scientific character of comparative constitutional law. I suggest that constitutional empiricists extricate themselves from the spell of formalism and to live out Montesquieu’s genuine empiricist spirit. Neither climate nor soil nor coding can tell the spirit of constitutional laws, the pursuit of which should be the spirit of serious constitutional scholarship.
Number of Pages in PDF File: 25

Keywords: comparative constitutional law, empirical legal studies, methodological written constitutionalism, neo-formalism/new legal formalism, William Twining, Montesquieu

The Interplay with the Judicial Committee of the Privy Council

Kenneth J. Keith 

Victoria University of Wellington - Faculty of Law; International Court of Justice


In Louis Blom-Cooper and others (ed) The Judicial House of Lords (Oxford University Press, Oxford, 2009) 315 

This chapter considers aspects of the role of the Law Lords from the mid 19th century, when they moved along Whitehall from the committee rooms in the Palace of Westminster and sat in the hearing rooms of the Judicial Committee of the Privy Council in Downing Street. What has their impact been on the law of countries and territories from which appeals came? The answers given to that question varies greatly from place to place and time to time and in respect of different areas of law.
Number of Pages in PDF File: 13

Keywords: Privy Council, appeals, commonwealth jurisdictions

"Constitución, Derecho de la UE y Derecho internacional: fragmentación, diálogo y codificación"

Constitución, Derecho de la UE y Derecho internacional: fragmentación, diálogo y codificación

miércoles,23 de octubre 2013 (17:30 -  19:30)


Luis Gordillo
Javier García Roca
Pablo Pérez Tremps
Giuseppe Martinico

Organizado por:
Grupo de trabajo: La Unión Europea en una perspectiva comparada (UEPC). Desafíos de la crisis de la deuda soberana: cuestiones institucionales, gobernanza multinivel y democracia

Lugar: CEPC, Sala de Juntas

“A (Dis-)Order of Disagreements Exploring the constitutional nature of conflicts in EU Law”

23 October 2013 (11.30-13.30)

A (Dis-)Order of Disagreements Exploring the constitutional nature of conflicts in EU Law

Speaker: Giuseppe Martinico (CEPC, Madrid)

Discussant: Luis Gordillo (Deusto University, Bilbao)

Venue: Centro de Estudios Políticos y Constitucionales, Madrid. 

lunedì 21 ottobre 2013

European Union Legal Methods – Moving Away from Integration

Christina Eckes 

Amsterdam Centre for European Law and Governance

October 19, 2013

Ulla Neergaard and Ruth Nielsen (eds.), European Legal method ‐ Towards a New European Legal Realism? (DJOF Publishing, 2013), pages 163‐188 

Notwithstanding the permanent state of crises of the European Union (EU or Union) in the past seven years, EU law continues to govern the legal relationships of individuals and Member States in ever more areas. Union law is self-reinforcing in the sense that it is constructed to increase in scope and relevance when it is used. It determines, displaces and intimately interlocks with national law. Indeed, Union law has become so omni-influential that it is no longer possible to study legal methods in EU Member States without understanding the methods deployed to interpret and explain Union law (EU legal methods). Additionally, international law is changing in a way that makes it more directly relevant to the legal heritage of individuals, as well as to the domestic exercise of public power. The legal landscape in Europe, in which practitioners and scholars have to find their way, has become increasingly compound. It is characterized by pluricontextuality, which makes it unavoidable to look beyond the boundaries of one’s own legal order in order to read and understand relevant external legal norms. This increased relevance of legal norms external to the domestic legal context stands in sharp contrast to a public opinion that is characterized by a growing dissatisfaction with the externalization of power, be it Europeanization or globalization. External authorities, such as the EU and the European Court of Human Rights (ECtHR), face growing public resistance.

The mismatch between public resistance and normative influence of external norms puts pressure on domestic public actors, including political authorities and the judiciary to adequately reason why they are engaging with external authorities and how domestic law relates to them. This calls inter alia for convincing legal methods to argue in a comprehensible fashion why certain external authorities have force in a specific situation or why this is not the case. Following the European Legal Methods project, ‘legal method’ is here understood as ‘the doctrine of the sources of law and their interpretation’ (doctrinal method). This paper aims specifically to explore doctrinal legal methods in the sub-discipline of EU law and consider the following questions: Why and how is the legal method of EU law different from that of national or international law? What legal method(s) do we need in a legal environment influenced by globalisation and Europeanization (postnational setting)? Do we need new or different legal methods? What could be the commonly agreed starting point for legal reasoning?

Number of Pages in PDF File: 25

lunedì 14 ottobre 2013

Children's Rights in EU Law

Chantal Mak 

University of Amsterdam - Centre for the Study of European Contract Law (CSECL); University of Amsterdam - Faculty of Law

October 10, 2013

Post-national Rulemaking Working Paper Series No. 2013-06
Centre for the Study of European Contract Law Working Paper Series No. 2013-08
Amsterdam Law School Research Paper No. 2013-55 

This paper addresses the question of how EU rights of children should be interpreted and applied in the light of international children’s rights principles, in particular dignity. In other words, what normative framework should inform the enforcement of children’s rights in Europe? The analysis of this problem, first, necessitates a brief exploration of the concept of dignity underlying established international children’s rights instruments, in particular the Convention on the Rights of the Child. Subsequently, the institutional framework for the protection of children’s dignity as a principle of EU law is explored on the basis of the case law of the Court of Justice of the EU. The codification of the concept of dignity in the EU Charter of Fundamental Rights then is addressed, focussing on its meaning for the interpretation and application of the rights of the child protected under Article 24 of the Charter. Children’s rights in EU law are evaluated in light of the principle of dignity adhered to in international law; to what extent do they overlap and to what extent do they put forward a different, genuinely European idea or ideal? On the basis of this assessment, it is submitted that the further development of the normative framework for safeguarding children’s rights in the EU needs to address the possibility of taking a shared, European vision on the requirements of children’s dignity in the context of the internal market, which may guide the empowerment and protection of children under the Charter.
Number of Pages in PDF File: 12

Keywords: EU Charter of Fundamental Rights, children's rights, dignity, legal pluralism, European contract law

Disagreement — Commonality — Autonomy: EU Fundamental Rights in the Internal Market

Daniel Augenstein 

Tilburg University

October 10, 2013

The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution — that the autonomy of EU fundamental rights law is rooted in the unity of the market — with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.
Number of Pages in PDF File: 26

Keywords: fundamental rights, human rights, EU, ECHR, European, internal market, autonomy

Does Humanity Law Require (or Imply) A Progressive Theory of History? (And Other Questions for Martti Koskenniemi)

Robert L. Howse 

New York University School of Law

Ruti Teitel 

New York Law School

October 10, 2013

Temple Journal of International Law, Forthcoming
NYU School of Law, Public Law Research Paper No. 13-67 

In a number of essays over the last decade or so, Martti Koskenniemi has analyzed post-cold war developments in international law, especially the human rights revolution or the emergence of "humanity law" (Teitel, Humanity’s Law). In these works, Koskenniemi asserts a close, if not essential, connection between optimistic or progressive theories of history and liberal, cosmopolitan, post- or anti-statist approaches to international law. We challenge Koskenniemi’s arguments that humanity law is associated with a dogmatically progressive theory of history, that it is oriented toward a world government, that it relies on a version of historical determinism, that it posits a false universalism, and that legal indeterminacy undermines its claims. Many of our disagreements are related to Koskenniemi’s reading of Kant, and we explain in some detail where our readings diverge. Other differences reflect our competing notions of how contemporary law works, particularly the significance of non-state actors and the effects of international law beyond and below the state.

Number of Pages in PDF File: 19

Constitutionalism and the Cosmopolitan State

Mattias Kumm 

New York University School of Law

October 10, 2013

Indiana Journal of Global Legal Studies, Vol. 20, No. 2, 2013
NYU School of Law, Public Law Research Paper No. 13-68 

If the point of constitutionalism is to define the legal framework within which collective self-government can legitimately take place, constitutionalism has to take a cosmopolitan turn. Contrary to widely made implicit assumptions in constitutional theory and practice, national constitutional legitimacy is not self-standing. Whether a national constitution and the political practices authorized by it are legitimate does not depend only on the appropriate democratic quality and rights respecting nature of domestic legal practices. Instead, national constitutional legitimacy depends, in part, on how the national constitution is integrated into and relates to the wider legal and political world. The drawing of state boundaries and the pursuit of national policies generate justice sensitive externalities that national law, no matter how democratic, can not claim legitimate authority to assess. It is the point and purpose of international law to authoritatively address problems of justive-sensitive externalities of state policies. International law seeks to help create the conditions and define the domain over which states can legitimately claim sovereignty. States have a standing duty to help create and sustain an international legal system that is equipped to fulfill that function. Only a cosmopolitan state -- a state that incorporates and reflects in its constitutional structure and foreign policy the global legitimacy conditions for claims to sovereignty -- is a legitimate state.

Number of Pages in PDF File: 29

venerdì 11 ottobre 2013

Fundamental Freedoms, Fundamental Rights and the Scope of Free Movement Law

Francesco De Cecco 

Newcastle University - Newcastle Law School

October 8, 2013

German Law Journal (Forthcoming) 

This paper explores the question whether “fundamental freedoms”, the four EU internal market freedoms, should be regarded as fundamental rights. The Charter of Fundamental Rights appears to treat some, but not all, fundamental freedoms as fundamental rights. The paper tries to make sense of this dichotomy by relying on an account of fundamental rights that adopts a non-instrumental focus on the right-holder. It argues that certain free movement provisions, namely the free movement of goods and of capital, cannot be characterised as fundamental rights because they are inherently instrumental — they are a means to the internal market end. By contrast, the other free movement provisions appear to match the account of fundamental rights adopted here. As this paper aims to show, the classification of certain or all of the fundamental freedoms as fundamental rights is a question that affects the interpretation of the scope of the free movement provisions. Moreover, as will be seen, the question is closely related to, and has an impact on, the debate on the convergence between the free movement provisions and on the persistence of the wholly internal rule.
Number of Pages in PDF File: 24

Keywords: EU Law, Fundamental Freedoms, Fundamental Rights.

giovedì 10 ottobre 2013

Nudging Legally - On the Checks and Balances of Behavioural Regulation

Alberto Alemanno 

HEC Paris (Groupe HEC) - Tax & Law

Alessandro Spina 

University of Milan

October 8, 2013

Jean Monnet Working Paper, New York University School of Law, Volume 6, 2013 Forthcoming 

As behavioural sciences are unearthing the complex cognitive framework in which people make decisions, policymakers seem increasingly ready to design behaviourally-informed regulations to induce behaviour change in the interests of the individual and society. After discussing what behavioural sciences have to offer to administrative law, this paper explores the extent to which administrative law may accommodate their findings into the regulatory process. After presenting the main regulatory tools capable of operationalizing behavioural insights, it builds a case for integrating them into public policymaking. In particular, this paper examines the challenges and frictions of behavioural regulation with regard both to established features of administrative law, such as the principle of legality, impartiality and judicial oversight and more innovative control mechanisms such as the use of randomized control trials to test new public policies. This analysis suggests the need to develop a legal framework capable of ensuring that behavioural considerations may inform the regulatory process while at the same time guaranteeing citizens' constitutional rights and freedoms vis-à-vis the Regulatory State.
Number of Pages in PDF File: 32

Keywords: behavioural sciences, administrative law, nudges, regulation, regulatory policy, policymaking, global administrative law, behavioural policy, impact assessment, randomized control trials, judicial review