Cross-Perspectives: Spring/Summer 2007

Cross-Perspectives: Spring/Summer 2007 - Volume 1 - Issue 1

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Editorial


Editorial

By: Karine Caunes   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (FR)

Comparative Law


The ‘War on Terror’ and the United Kingdom’s Constitution

By: Mark Elliott   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (FR)

That its “unwritten” nature makes the United Kingdom’s constitution extremely flexible is a truism if not a cliché. It is, nevertheless, a phenomenon that has never been more clearly evident than in the last ten years. No exaggeration is entailed in the statement that the British constitution has, during that period, undergone a truly dramatic period of change, including the devolution of legislative and administrative power and the reform of judicial and related institutions. However, most important, for present purposes, is the Human Rights Act 1998, which gives effect in national law to certain parts of the European Convention on Human Rights. This is the backdrop against which this paper considers the legal dimensions of the “war on terror” being waged by the British government – most notably its (now-abandoned) policy of indefinitely detaining suspected foreign terrorists without charge or trial. This is a useful context in which to seek to understand the implications of the HRA and to consider a broader discourse about the nature of the modern British constitution and the place of human rights within it.

Due Process Rights and Terrorist Emergencies

By: James Nickel   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (PT)

This essay discusses the grounds for due process rights (DPRs) and the permissibil¬ity of suspending them during terrorist and other emergencies. The two topics are profitably treated together because DPRs—along with freedoms of movement, expression, and political participation—are often suspended or restricted when national emergencies occur. Although I present a strong case for DPRs as human rights, this justification does not settle their priority during emergency situations. That issue raises additional questions, and I discuss some of them. The overall thrust of the essay is to defend the importance of respecting DPRs during troubled times. The penultimate section discusses DPRs in the context of the “war on terror” in the United States.

European Law


Can the European Union be legitimized by Governance?

By: Philippe Schmitter   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (ES)

This article begins by attempting to define legitimacy and governance. Thereafter, it draws several implications from these specifications. The author reaches the interim conclusion that actors must reach consensus concerning the correct criteria to be applied when settling on shared expeactations about how the EU’s authority should be exercised. Futhermore, it is contended that incremental improvements in the legitimacy of the EU are more likely to stem from the praxis of governance rather than the conventional institutional makeup of government. The paper then suggests principles for the generation of legitimacy for the EU as a whole.

Good Governance via the OMC? The cases of Employment and Social Inclusion

By: Caroline de La Porte   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (IT)

This article focuses on how the EU, via the Open Method of Coordination (OMC), governs the employment and social inclusion policies of the EU Member States. It derives three operational governance principles – Participation, Coherence and Effectiveness - from the EU White Paper on Governance and the definition of the OMC itself. Participation is conceptualised as two broad categories of actors involved in the OMCs: first, a core policy community that is a closed group of insiders which prepares work in a delegated policy area, and second, a broader policy network, that is more open and that has a stake in the policy area concerned, without having any central decision-making power. Empirically, the analysis reveals that an institutionally similar policy community has been developed in employment and social inclusion within the main national-level ministries, respectively the Labour and Social Ministries. These are responsible for upstream reporting to the European level, horizontal integration across relevant ministries, and downstream integration of other levels of government, which is increasingly important in the context of devolution of employment and inclusion policies. However, the broader policy network of organised interest organisations is dissimilar in the two areas: the social partners are more superficially involved in the EES than the civil society actors in the OMCincl., that use it as a means to strengthen their own position vis-a-vis governmental actors. Policy coherence is conceptualised as political and ideological consistency of key policy objectives throughout time. In terms of policy coherence, the EES has identified a core supply-side policy means, “employability”, that has been consistent throughout time, to achieve a clear policy outcome: the full employment model. The overall policy coherence of the OMCincl. temporally has been consistent in seeking to include people in society through work, to develop a rights-based approach and to target actions towards vulnerable groups. Together, the OMC in Employment and in Social Inclusion support the economic growth and full employment model, by increasing the employment rate of the Union. Both, particularly from the perspective of the socially-oriented protagonists, also embrace social objectives of equity and decent standards of living. In a sense, the policy objectives of the Employment and Social Inclusion processes embody the hybridisation that increasingly characterises the outcome of the social policy reform processes in the different EU Member States. At the same time, the objectives of both processes can be interpreted in different ways across the political spectrum, rendering their consistency relatively fragile. Effectiveness, defined as the integration of core policies (under each OMC) into the context of Member States, is assessed via key quantitative indicators that have been created by Eurostat to reflect the objectives of each of the OMCs. In the EES, the indicators around “employability” or “activation” show that expenditure on Active Labour Market Policies (ALMP) has been decreasing throughout time. However, if we turn our attention to the core outcome indicator – employment rates - which has been increasing over time, then the EES objectives are in conjunction with an increase in employment rates observed in the EU-15 over last decade. This suggests, first, that employability measures are not the main cause of employment growth and second, that while activation has become a mainstream concept in labour market reform, the EES does not have the capacity to promote the development of a particular line of employability schemes. It suggests, second, that the EES does have a capacity to promote a societal model of full employment, re-enforced by the Lisbon Strategy in 2000 and its revision in 2005. The EES as an agenda setting instrument influences or supports the core economic and employment reform agendas of the EU-15. The analysis of effectiveness of the OMCincl. takes account of the fact that the model it upholds is not as strong as that of the EES, as there are no quantitative benchmarks. Nevertheless, from the perspective of an anti-poverty policy, it does provide comparative information on poverty in the EU-15; this data is novel for more countries than the statistics of ALMP. In the countries of the EU-15, there has been a trend towards convergence of poverty rates in 2004, compared to 1997. The OMCincl., through statistics depicts poverty comparatively and for the EU as a whole, but more importantly, it proposes solutions for problems of exclusion that are increasingly similar. The OMCincl. supports the development of a policy agenda in fighting exclusion, an area that is generally underdeveloped and at the sidelines of the core social protection reform agendas. The OMCincl. nevertheless continues, in terms of information provision, and as a policy agenda, to develop incrementally and to different degrees, in the domestic context of various Member States of the EU-15.

Self-regulation in European Contract Law

By: Fabrizio Cafaggi   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (FR)

This essay focuses on rule-making procedures in European Contract Law and the role of self-regulation. Self-regulation may serve different purposes in this respect: it operates as a standard-setting mechanism for contracts, in particular through standardisation; it may interpret European and national law offering firms and consumers guidelines: and finally it contributes to monitoring the conduct of contracting parties to ensure compliance, and it provides enforcement mechanisms. Self-regulation plays already a significant role at European level, it is already relevant for European Contract Law and may perform important functions in the process of drafting the Common frame of references and more broadly in the process of harmonisation of ECL. This paper addresses self-regulation as a complementary means to harmonize and regulate ECL. Two main choices may characterize the use of self-regulation as a means of harmonising European Contract Law. On the one hand, self-regulation can be a partial or a total device for harmonization, i.e. (a) it can be a complement to hard or soft law harmonisation or (b) it can, in certain areas, substitute hard law harmonization . On the other hand, self-regulation can be general and/or sector specific, i.e. it can operate within the general Common Frame of reference or it can specify the general standard forms to be used for individual sectors, unregulated or regulated (banking, insurance, securities). The choice between the first two alternatives, complementarity or substitution will partly depend on the form of legislation. The role of self-regulation will increase in a principle-based legislative framework and decrease in a rule-based framework. In practical terms self-regulation operates both as a complement and as a substitute. It is a complement when it specifies or interprets existing legislation. It is a substitute when harmonises, by means of Standard contract forms, Framework contracts or Master Agreements, contractual relationships otherwise regulated at State level in different fashions. In turn from the perspective of the State or the European institutions the use of self-regulation in ECL may imply a functional change: from the ‘theoretical’ monopoly of law making to a duopoly. But the change could be even more radical if the public legislator, be it at European or national level, becomes a coordinator and/or a mediator among different self-regulatory bodies, negotiating among themselves contract law rules. The evolution of the regulatory state in Europe will probably affect which combination between these two identities will emerge in the next future. The main aims of the paper are (1) to demonstrate the necessity to consider self-regulation as a significant component of the debate concerning the definition of Common Frame of References related to European Contract law, (2) to identify the role and the limits of self-regulation in the formation of European Contract Law, and (3), more in general, to show the strong correlation between the governance of self-regulatory bodies and the substance of European Contract Law.

International Law


Constitutionalism, Managerialism and the Ethos of Legal Education

By: Martti Koskenniemi   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (FR)

The judgment of the European Court of Justice in the Mox Plant case in 2006 is striking in its narrowness of vision. It imagines European law in fully autonomous terms, analogous to the national laws of European States under the strict ”dualism” of late-19th century jurisprudence. But Mox Plant is only one example of the increasing fragmentation of law beyond the nation-State into more or less autonomous technical “boxes”, each geared to realise a particular ethos, the structural bias of a particular form of expertise. Not only “European law” but also “trade law”, “human rights law”, “environmental law” are examples of such boxes, systems for the management of particular types of problem from a particular perspective. But law ought not to be conceived in managerial terms. It should not be reduced into an instrument of the preferences of those who manage this or that technical problem-area. Legal training – in the European University Institute and elsewhere – should be about the conditions and limits of particular forms of managerial authority. And if education in international law should be about how to attain a universal perspective, in today’s conditions this means the development of a critical sensitivity to the forms of international power exercised though particular forms of technical expertise.

A Doctrinal Debate in the Globalisation Era: on the “Fragmentation” of International Law

By: Pierre-Marie Dupuy   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (FR)

The fragmentation of international law is not proven, even if the dangers of its realisation are, according to some commentators, certain; but this idea already constitutes a common point, a way of thinking, within academic theory, where it has become a phenomenon in itself. It is thus appropriate to restate the reasons for, and even more so to examine the object of, the concept of a legal order as it applies to international law. The stakes of the debate on the unity or fragmentation of international law are even higher as they involve not only legal, but also political, considerations. However, the core of the problem of unity and fragmentation, which is primarily technical, is well-defined by the International Law Commission’s recent study of the topic, even if its assessment is definitively based on the invocation of well-established principles.

Interconnecting International Jurisdictions

By: Enzo Cannizzaro   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (IT)

In the Genocide Convention case the ICJ seemed to adopt a twofold attitude towards the findings of the ICTY. Whereas it tended to show a certain deference to these findings, in matters of common concern, it radically denied the relevance of findings allegedly adopted by that judicial body outside the scope of its jurisdiction. Although both kind of references can be traced back to a principle of judicial propriety, the conclusions of the ICJ might lend some element of support to the idea that findings of the ICTY in proceedings before the ICJ might be relevant not qua judicial decisions but rather as international law rules binding for the parties of these proceedings. This unusual approach seems to shape a normative methodology, which can be of some avail in the study of overlapping international jurisdiction. The article engages in a technical analysis of this methodology and tries to shed some light on some of its far-reaching implications. The paper closes with some cursory remarks on the role of this methodology in the debate on the unity of international law, and, in particular, on the possible use of substantive law as a remedy to the incoherence which ensues from the proliferation of international jurisdictions.

The Yearning for Unity and the Eternal Return of the Tower of Babel

By: Anthony Carty   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (FR)

International lawyers frequently aspire to affirm the existence of international community and the presence of authority to speak on its behalf. However by forcing a hierarchical representation of legal values upon nations, which have not accepted them, international lawyers, and the politicians whom they advise, risk unleashing a whirlwind of violence. The myth or the Biblical story of the Tower of Babel, is a millenniums old warning of the presumption which can lie behind an apparently reasonable desire for global unity and harmony. I take as a welcome task assigned to me by the coordinator of this issue of the journal, to demonstrate that those who support the idea of international community fail to address the horizontal inter-state fragmentation of international society.

The Opening of the Human Mind

By: Philip Allott   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (FR)

An anthropology of law is a useful method for diagnosing the mental health of a given society. The sad state of the idea of international law has made, and has been made by, the sickness of international society. Social forms are products of the human imagination. Throughout the whole of recorded human history, the self-socialising human mind has struggled to find ways to overcome the natural self-corrupting tendency of government and law, a pathological process in which the governors and the governed are liable to be co-conspirators. For better and worse, the European mind has played a leading part in the long story of the making of social forms, national and international, including the self-destructive mythology of the international system, dominated by the social forms of diplomacy and war. Since 1945, the European mind has abdicated its global intellectual responsibility, as it has constructed an inadequately imagined system of law and government in Europe, a state without a society – an ominous precedent. In the new social situation, national and international, of the twenty-first century, the human mind will imagine new ideas of law and government, new ideas of international society and international law.

Theories of Law


Legal Socialisation: From Compliance to Familiarisation through Permeation

By: Chantal Kourilsky-Augeven   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (FR)

A une conception américaine initiale d’une socialisation juridique envisagée du point de vue de la société et dont le critere de « réussite » est le choix par le sujet de l’obéissance aux normes juridiques et sociales impératives, l’auteur oppose une conception d’une socialisation juridique observée du point de vue du sujet et dont la clé est « l’appropriation » progressive par ce dernier des éléments du droit qui fait partie intégrante de la culture dans laquelle il est immergé. Cette appropriation, fondée sur une familiarisation par imprégnation, implique que le sujet réinterprete, a l’aide des codes assimilés dans son milieu familial et social, les informations qui lui sont transmises, de maniere a ce qu’elle fassent sens pour lui et qu’il puisse les intégrer dans son systeme de représentations, d’attitudes et de comportements a l’égard du droit. Elle comprend d’abord une acculturation juridique du sujet aux savoirs communs au sein de la culture juridique dominante de sa société, qui lui fournit, par l’acquisition de concepts a significations communes, la possibilité de communiquer avec les autres membres de sa société et de s’en faire accepter a travers des « évidences partagées ». Mais elle se double d’une acculturation par le sujet de ces concepts a la lumiere des codes d’interprétation acquis dans son milieu familial et social. A l’aide de données d’enquete recueillies en France, Pologne, Hongrie et Russie, l’article examine les spécificités des différents modeles culturels de socialisation juridique et l’évolution dans le temps des modeles français et russe.

Legal Pluralism, Plurality of Laws, and Legal Practices

By: Baudouin Dupret   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (ES)

Legal pluralism has become a major theme in socio-legal studies. However, under this very broad denomination, one can identify many different trends which share little but the very basic idea that law is much more than state law. Despite their eclectic character, these many conceptions of legal pluralism also share some common fundamental premises concerning the nature of law, its function, and its relationship with its cultural milieu. This contribution aims at critically addressing these premises and at suggesting some re-specification of the question of law, its plural sources, and the many practices that enfold in relationship with it. In its spirit, this re-specification can be characterised as realistic and praxiological. Indeed, I shall argue that it is at best useless and at worst wrong to start from a label like “legal pluralism” so as to describe something which is presumed to be an instance of such label. My contention here is that law is what people consider as law, nothing more nothing less, and that occurrences of legal plurality are limited to these situations where people explicitly orient themselves to the fragmented spectrum of law. Instead of looking at the hypothetical pluralistic model of law which something like, e.g., Egyptian law, would be an instance of, the task of social scientists is, rather, to describe the situations, the mechanisms and the processes through which people orient to something legal which they identify as pluralistic. This position is grounded on a principle of indifference, by which one seeks to avoid normative and evaluative engagements: the focus is put on the description of practices, not on their evaluation. Moreover, this position is based on the refusal of any ironic standpoint, i.e. the denial that social scientists occupy any kind of overhanging position vis-a-vis the social, by which they would be entitled to “reveal” to “self-deceived people” the truth which is concealed from them because of their “lack of critical distance”, “ignorance” and/or “bad faith”. In a first section, I shall briefly describe the main trends in the field of legal pluralism, from its historical scientific background to its more recent theories. In a second section, I formulate some of the major criticisms which can be addressed to the postulates sustaining these many versions of legal pluralism. These critical stances vis-a-vis the legal pluralistic study of law articulate around three main questions, i.e. the definitional problem, the functionalist premises, and the culturalist conception which undermine existing theories. I shall argue, in the third section, that realism is a possible remedy to these flaws. However, these are best addressed through what I call a praxiological re-specification of the whole issue of legal pluralism, which I shall illustrate through the study of Egyptian cases. In conclusion, I shall formulate some remarks on praxiology as a way to fill the “missing-what” of classical socio-legal studies.

Wedding a Critical Legal Pluralism to the Laws of Close Personal Adult Relationships

By: Roderick MacDonald, Thomas McMorrow   UK - Download PDF Version Download pdf (UK)

Among private lawyers trained in Western European or Western European-derived legal traditions there is broad consensus about the central features of law. This consensus crystallizes around the features that distinguish law from other normative systems (exogenous criteria of identification), and around the features that distinguish Western European law from other legal orders (endogenous criteria of identification). This paper presents alternatives to both orthodoxies: it adopts a legal pluralist conception of normativity itself, rejecting the tenets of monism, centralism, positivism and prescriptivism that together define conventional conceptions of law’s domain (law’s sites); and it adopts a legal pluralist conception of legal normativity in particular, rejecting both institutionalization and formalization as litmus tests for identifying legal rules (law’s modes). As a ground for exploring the legal pluralist heresy we have chosen a central concept of private law – marriage. Consistently with critical legal pluralist methodology, which emphasizes heterogeneity, flux and dissonance in the normative lives of human agents and which is especially attuned to trajectories of internormativity, we organize this inquiry around (and in counterpoint to) the liturgical form of the Roman Catholic wedding ceremony. Ultimately what is heresy in one normative order may be apostasy in another; and what is apostasy in one may be revelation in a third. In a legal pluralist cosmology, eschatological questions are always present and must always be subject to attornment because they can themselves never be finally decided.





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