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Year 2010 x
Article

Access_open Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords constitutionalism, globalization, democracy, modernity, postnational
Authors Neil Walker
AbstractAuthor's information

    The complexity of the relationship between democracy and modern constitutionalism is revealed by treating democracy as an incomplete ideal. This refers both to the empirical incompleteness of democracy as unable to supply its own terms of application – the internal dimension – and to the normative incompleteness of democracy as guide to good government – the external dimension. Constitutionalism is a necessary response to democratic incompleteness – seeking to realize (the internal dimension) and to supplement and qualify democracy (the external dimension). How democratic incompleteness manifests itself, and how constitutionalism responds to incompleteness evolves and alters, revealing the relationship between constitutionalism and democracy as iterative. The paper concentrates on the iteration emerging from the current globalizing wave. The fact that states are no longer the exclusive sites of democratic authority compounds democratic incompleteness and complicates how constitutionalism responds. Nevertheless, the key role of constitutionalism in addressing the double incompleteness of democracy persists under globalization. This continuity reflects how the deep moral order of political modernity, in particular the emphasis on individualism, equality, collective agency and progress, remains constant while its institutional architecture, including the forms of its commitment to democracy, evolves. Constitutionalism, itself both a basic orientation and a set of design principles for that architecture, remains a necessary support for and supplement to democracy. Yet post-national constitutionalism, even more than its state-centred predecessor, remains contingent upon non-democratic considerations, so reinforcing constitutionalism’s normative and sociological vulnerability. This conclusion challenges two opposing understandings of the constitutionalism of the global age – that which indicts global constitutionalism because of its weakened democratic credentials and that which assumes that these weakened democratic credentials pose no problem for post-national constitutionalism, which may instead thrive through a heightened emphasis on non-democratic values.


Neil Walker
Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, United Kingdom.
Discussion

Access_open The Co-originality of Law and Democracy in the Moral Horizon of Modernity

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords co-originality, deliberative democracy, Habermas, Lefort, modernity
Authors Stefan Rummens
AbstractAuthor's information

    This paper argues that Neil Walker’s analysis of the complementary relationship between democracy and constitutionalism remains one-sided. It focuses only on the incompleteness of democracy and the democracy-realizing function of constitutionalism rather than also taking into account the reverse complementary and constitution-realizing function of democracy. In this paper, I defend a fuller account that takes into account this mutual complementarity between democracy and constitutionalism. Such an alternative approach is consequential for Walker’s argument in two respects. In terms of the general analysis of the relationship between democracy and constitutionalism, my adjusted approach leads to a defence of the Habermasian thesis of the co-originality of constitutionalism and democracy which is too quickly dismissed by Walker himself. A fuller appreciation of this co-originality suggests that the relationship between constitutionalism and democracy is perhaps, after all, more singularly complementary (as opposed to being both complementary and oppositional) than Walker recognizes. In terms of the more specific analysis of the impact of globalization, this adjusted approach tilts the argument in favour of the critics of current practices of postnational constitutionalism. Without complementary postnational democratic structures, this constitutionalism remains problematic and potentially oppressive.


Stefan Rummens
Stefan Rummens is Assistant Professor of Political Theory at the Institute for Management Research of the Radboud University Nijmegen, the Netherlands.
Discussion

Access_open The Globalizing Turn in the Relationship Between Constitutionalism and Democracy

Some Reiterations from the Perspective of Constitutional Law

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords constitutional law, constitutionalism, historic constitutions, revolutionary constitutions, pouvoir constituant (irrelevance of)
Authors Leonard F.M. Besselink
AbstractAuthor's information

    This essay complements Walker’s essay with some historical and constitutional observations. It submits that Walker’s analysis is based to a large extent on reasoning derived from a particular continental European constitutional tradition. This creates certain problems of its own, that do not arise in a different constitutional tradition. This is not to say, however, that this invalidates his conclusions, but rather underpins them in an alternative manner.


Leonard F.M. Besselink
Leonard Besselink is Professor of European Constitutional Law in the Faculty of Law of the University of Utrecht, the Netherlands.
Discussion

Access_open Constitutionalism and the Incompleteness of Democracy

A Reply to Four Critics

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords constitutionalism, globalization, democracy, modernity, postnational
Authors Neil Walker
AbstractAuthor's information

    This reply to critics reinforces and further develops a number of conclusions of the original paper. First, it answers the charge that it is biased in its discussion of the relative standing of constitutionalism and democracy today, tending to take the authority of the former for granted and concentrating its critical attention unduly on the incompleteness of democracy, by arguing that contemporary constitutionalism is deeply dependent upon democracy. Secondly, it reiterates and extends the claim of the original paper that the idea and practice of democracy is unable to supply its own resources in the development of just forms of political organization. Thirdly, it defends its key understanding of the overall relationship between democracy and constitutionalism as a ‘double relationship’, involving both mutual support and mutual tension. A fourth and last point is concerned to demonstrate how the deeper philosophical concerns raised by the author about the shifting relationship between democracy and constitutionalism and the conceptual reframing they prompt are important not just as an explanatory and evaluative window on an evolving configuration of political relations but also as an expression of that evolution, and to indicate how this new conceptual frame might condition how we approach the question of a democracy-sensitive institutional architecture for the global age.


Neil Walker
Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, United Kingdom.
Editorial

Access_open Presentation

Editors of this special issue

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Authors Mireille Hildebrandt, Bart van Klink and Eric Tjong Tjin Tai
Author's information

Mireille Hildebrandt
Mireille Hildebrandt is Associate Professor of Jurisprudence at Erasmus University Rotterdam and senior researcher at the centre for Law Science Technology and Society Studies (LSTS), Vrije Universiteit Brussel.

Bart van Klink
Bart van Klink is Professor of Legal Methodology at VU University Amsterdam, the Netherlands.

Eric Tjong Tjin Tai
Eric Tjong Tjin Tai is Professor of Private Law at Tilburg University.
Article

Access_open Is de vrijheid van godsdienst in de moderne multiculturele samenleving nog een hanteerbaar recht?

Journal Netherlands Journal of Legal Philosophy, Issue 2 2010
Keywords freedom of religion, human rights, human dignity, traditional religion, unequal treatment
Authors Koo van der Wal
AbstractAuthor's information

    There are two fundamental problems with regard to the freedom of religion. The first concerns the content and scope of the right; the second, a possible unequal treatment between population groups. The first problem can only be dealt with by a preliminary analysis of the religious phenomenon, which precedes a legal definition. It turns out that there is a range of different types of religion, with on the one hand traditional forms of religion which are narrowly interwoven with the culture in question (all kinds of ‘cultural’ practices possessing a religious dimension), and on the other forms of religion which loosen to a considerable extent the ties between culture and religion. Evidently, the former types of religion cause problems in modern society. An additional problem is that freedom of religion as a modern basic right rests on a view of human being – including the idea of the inherent dignity and autonomy of the human person – which is at odds with the symbolic universe of traditional religion. The conclusion of the article is that in the modern pluralist society freedom of religion is on its way to becoming, or already has become, an unmanageable right. So the problems arising around this right (including that of unequal treatment) can only be solved in a pragmatic, not really satisfactory way. In that context, modern humanitarian standards should be observed in the implementation of the right of freedom of religion because fundamental human rights are connected with a specific concept of humanity.


Koo van der Wal
Koo van der Wal is emeritus professor of Philosophy at the University of Amsterdam and the Erasmus University Rotterdam.
Article

Access_open Constitutionele toetsing in een democratie zonder volk

Een kelseniaanse rechtvaardiging voor het Europees Hof van Justitie

Journal Netherlands Journal of Legal Philosophy, Issue 2 2010
Keywords Kelsen, Democracy, Legitimacy, European Union, European Court of Justice
Authors Quoc Loc Hong
AbstractAuthor's information

    This article draws on Hans Kelsen’s theory of democracy to argue that, contrary to conventional wisdom, there is nothing fundamentally wrong with the democratic legitimacy of either the European Union (EU) or the European Court of Justice (ECJ). The legitimacy problems from which the EU in general and the ECJ in particular are alleged to suffer seem to result mainly from our rigid adherence to the outdated conception of democracy as popular self-legislation. Because we tend to approach the Union’s political and judicial practice from the perspective of this democracy conception, we are not able to observe what is blindingly obvious, that is, the viability and persistence of both this mega-leviathan and the highest court thereof. It is, therefore, imperative that we modernize and adjust our conception of democracy in order to comprehend the new reality to which these bodies have given rise, rather than to call for ‘reforms’ in a futile attempt to bring this reality into accordance with our ancient preconceptions about what democratic governance ought to be. Kelsen is the democratic theorist whose work has enabled us to venture into that direction.


Quoc Loc Hong
Quoc Loc Hong was a FWO Postdoctoral Fellow from 2007 to 2009 at the University of Antwerp. He is currently an independent researcher.

P. Clerc
Article

Space Procurement: A European Toolbox

Recent Developments in Space Law

Journal International Institute of Space Law, Issue 5 2010
Authors S. Hobe, M. Hofmannova and J. Wouters

S. Hobe

M. Hofmannova

J. Wouters

Stephen Waddams
Goodman/Schipper Professor of Law, University of Toronto.

Simon Deakin
Centre for Business Research and Faculty of Law, University of Cambridge. E-mail: s.deakin@cbr.cam.ac.uk.
Article

Access_open Informing Consumers About Themselves

Journal Erasmus Law Review, Issue 2 2010
Authors Oren Bar-Gill and Franco Ferrari
Author's information

Oren Bar-Gill
Professor of Law, New York University School of Law.

Franco Ferrari
Professor of Law, New York University School of Law. We wish to thank Jenifer Arlen, Ian Ayres, Lucian Bebchuk, Omri Ben-Shahar, Richard Craswell, Clay Gillette, Ofer Grosskopf, Christine Jolls, Marcel Kahan, Ehud Kamar, Daryl Levinson, Ronald Mann, Florencia Marotta Wurgler, Avishalom Tor, Elizabeth Warren and workshop participants at Harvard, NYU, the University of Haifa and the University of Illinois for helpful comments. Special thanks to Anthony Ogus, Willem van Boom and the participants in the Rotterdam Workshop on Juxtaposing Autonomy and Paternalism in Private Law for valuable comments and discussions. We are also grateful to an anonymous referee for helpful comments and suggestions. Robin Moore, Tal Niv and Rebecca Stone provided excellent research assistance. Financial support from the Filomen D'Agostino and Max E. Greenberg Research Fund and from the Cegla Center for Interdisciplinary Research of the Law in Tel-Aviv University is gratefully acknowledged.
Article

The Accommodation of Minority Customs in Sweden

The Islamic Law of Inheritance as an Example

Journal European Journal of Law Reform, Issue 3-4 2010
Keywords multiculturalism and law, private international law, Islamic law of inheritance
Authors Dr. Mosa Sayed
AbstractAuthor's information

    Sweden, as well as many of the other member states of the European Union, has transformed into multicultural societies. In these increasingly culturally differentiated societies demands are raised by immigrant groups for the recognition of their cultural identity and uniqueness. Minority customs may in some cases conflict with fundamental values in the state law. In this article the author is elaborating on the Swedish private international law rules and the multicultural dilemma in relation to the Islamic law of inheritance, which is often considered to belong to those areas of the Islamic law that express principles that are incompatible with the core values of Swedish law.


Dr. Mosa Sayed
Mosa Sayed is Doctor of Laws at Faculty of Law, Uppsala University and researcher within the multidisciplinary research programme Impact of Religion: Challenge for Society, Law and Democracy, founded as a Centre of Excellence at Uppsala University.
Article

The ECJ Ruling in Cartesio and Its Consequences on the Right of Establishment and Corporate Mobility in the European Union

Journal European Journal of Law Reform, Issue 3-4 2010
Keywords Cartesio, right of establishment, Corporate mobility
Authors Prof. dr.sc. Siniša Petrović and Tomislav Jakšić
AbstractAuthor's information

    Before Cartesio, the case law of the European Court of Justice on freedom of establishment mainly considered company immigration situations, i.e. legal entities moving into another Member State. Cartesio is the first major ruling on company emigration since the 1988 decision in Daily Mail. Consequently, much was expected from Cartesio, notably that it would confirm a company’s right to directly invoke its freedom of establishment in emigration scenarios. However, this was not the case. Although Cartesio introduced some new concepts into the freedom of establishment case law like the concept of company conversion, the freedom of establishment actually took a step backward. This effectively resulted in almost complete disregard of the freedom of establishment in emigration situations - unlike in immigration situations. This partial denial of freedom of establishment, one of the fundamental freedoms of Community law, would seem urge the continuation of work on the new 14th Company Law Directive. In light of the current ECJ case law, only a legislative approach would seem suitable to guarantee non-discrimination in the ongoing regulatory competition between Member States which apply the registered seat theory and those which apply the administrative (real) seat theory.


Prof. dr.sc. Siniša Petrović
Prof. dr. sc. Siniša Petrović is a full professor at the Faculty of Law of the University of Zagreb.

Tomislav Jakšić
Tomislav Jakšić is a Junior Researcher at the Faculty of Law of the University of Zagreb.
Article

Good Governance

Journal European Journal of Law Reform, Issue 1-2 2010
Keywords international cooperation, state administration, substate-level administration, steering non-governmental bodies, principles of Human-Rights-and-Rule-of-Law, democracy structures, procedures and manpower of administration
Authors Prof. Dr. Ulrich Karpen
AbstractAuthor's information

    “Good Governance” is a term used worldwide to measure, analyse and compare, mainly quantitatively and qualitatively, but not exclusively, public governments, for the purpose of qualifying them for international developmental aid, for improving government and administration domestically, etc.
    In Section A the use of the key term is explained more thoroughly; Section B lists goals and effects of governance from the international, supranational (European) and national perspective; Section C contains guidelines for governance as vested in constitution and law and Section D describes the main instruments and tools to work on better governance.


Prof. Dr. Ulrich Karpen
Prof. Dr. Ulrich Karpen, Faculty of Law, University of Hamburg.
Article

Establishing Protection Mechanisms for Bureaucrats

The Case of the Independent Oversight Board of Civil Service of Kosovo

Journal European Journal of Law Reform, Issue 1-2 2010
Keywords Kosovo Civil Service, Civil service, Oversight Board, law, reform
Authors Dren Doli, Fisnik Korenica and Artan Rogova
AbstractAuthor's information

    This article discusses the position and powers of Kosovo’s Civil Service Oversight Board, mainly from a legal perspective. The article describes the reforms undertaken upon the Board and the civil service in Kosovo, while illustrating the central pillars of concern in regard to both the international presence and domestic institutions in Kosovo. The article then explains the three reforms and reviews each of the main legal changes the Board and the civil system have experienced, respectively. The last section of the article comprises an institutional review of the powers and the position of the current framework on the Civil Service Oversight Board, while allowing a part of the article to question its independence and pluralism. The article culminates with policy suggestions that would make the work of the Board, and the entire civil service, more independent and accountable to its mission.


Dren Doli
Dren Doli is a Senior Research Fellow at the Group for Legal and Political Studies, and a Senior Lecturer on Law Principles at Universum University College, having served earlier as a Senior Legal Executive for Integration to the Kosovo Prime Minister.

Fisnik Korenica
Fisnik Korenica is a Lecturer on the Theory of State and Law at the University of Prishtina, and a Senior Research Fellow at the Group for Legal and Political Studies.

Artan Rogova
Artan Rogova is a Senior Research Fellow at the Group for Legal and Political Studies, as a Lecturer on Economics of European Integration at Universum University College.

Willem H. van Boom
Professor of Law at the Erasmus School of Law, Erasmus University Rotterdam.

Anthony Ogus
Professor of Fundamentals of Private Law at Erasmus University Rotterdam; Emeritus Professor of Law at the University of Manchester.

Nick Huls
Professor of Socio-Legal Studies, Erasmus School of Law and Leiden Law School.

Ann-Sophie Vandenberghe
Ann-Sophie Vandenberghe is Assistant Professor of Law and Economics, Rotterdam Institute of Law and Economics, Erasmus School of Law.
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