Search result: 19 articles

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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 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.
Article

Future Directions for International Space Collaboration for Exploration

Joint IAF-IISL Session: "Legal Framework for Collaborative Human Space Missions"

Journal International Institute of Space Law, Issue 8 2010
Authors Z. Szajnfarber, T. Coles, A. Wicht e.a.

Z. Szajnfarber

T. Coles

A. Wicht

A. Weigel
Article

Report of the 53rd Colloquium on the Law of Outer Space in Prague, Czech Republic, October 2010

Colloquium Report

Journal International Institute of Space Law, Issue 6 2010
Authors M. Sánchez-Aranzamendi, I. Marboe, M. Mineiro e.a.

M. Sánchez-Aranzamendi

I. Marboe

M. Mineiro

K. Reinhardt

M. Sundahl

    Peter van Schilfgaarde, book review of Amartya Sen, The Idea of Justice


Peter van Schilfgaarde
Peter van Schilfgaarde is emeritus professor of corporate law at the law faculties of Utrecht University and the University of Groningen and currently publishes in the field of legal theory.

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

The Moon Agreement in the Current Scenarios

30 Years of the Moon Agreement: Perspectives

Journal International Institute of Space Law, Issue 2 2010
Authors M. Williams

M. Williams
Article

Women Can and Should Have It Both Ways

Finding a Balance Between the EU’s New Law on Maternity Leave and American Maternity Provisions

Journal European Journal of Law Reform, Issue 3-4 2010
Keywords European Union, maternity leave, family, work
Authors Amy Lai
AbstractAuthor's information

    This paper critiques the EU’s new la won maternity leave by contextualizing it in the historical development of EU law as well as in feminist criticism. It arguaes in favour of generous paid maternity leave provisions based on economic and psychological arguments. It then examines the likely impact of an extension of maternity leave a the EU level on member states. Finally, it studies the Family and Medical Leave Act of the United States to reveal the insufficiencyof its maternity leave provisions, especially when compared to the generous provisions in current EU law. This paper arrives at the conclusion that new mothers, be they Europeans or Americans, can and should be able to reconcile their wort and family obligations.


Amy Lai
Amy Lai is a student at Boston College Law School and holds a Ph.D. from Cambridge. The author would like to express her gratitude to Professor Sophie Robin-Olivier for her comments on the draft.
Article

Karlsruhe v. Lisbon

An Overture to a Constitutional Dialogue from an Estonian Perspective

Journal European Journal of Law Reform, Issue 3-4 2010
Keywords constitutional dialogue, Karlsruhe decision, supranationalism
Authors Tanel Kerikmae and Katrin Nyman-Metcalf
Abstract

    The article uses the 2009 decision of the German Constitutional Court on the Lisbon Treaty as a basis for an analysis of the relationship between EU law and Member State law, especially Member State constitutions. The authors argue that an uncritical openness of Member States to supremacy of EU law and the interpretations made of it by the European Court of Justice is not necessary but rather an analytical attitude towards the development of EU with active legal argumentation to protect the rule of law – a deliberative supranationalism. A constitutional dialogue between Member States and the EU is the best protection and promoter of rule of law. The constitutional discussions in Estonia are used as an illustration of the balancing of national constitutional principles and supremacy or EU law.


Tanel Kerikmae

Katrin Nyman-Metcalf
Practice

Legislatures in Modern States: The Role of Legislature in Ensuring Good Governance Is Inadequate

A Case Study of the United Kingdom and Sierra Leone

Journal European Journal of Law Reform, Issue 3-4 2010
Keywords legislature, good governance, comparative analysis
Authors Kadija Kabba
AbstractAuthor's information

    This essay is about examining the role of legislature in ensuring good governance and how adequate or otherwise they are in ensuring good governance. To examine and establish the facts, a comparative analysis is made between the United Kingdom and Sierra Leone Legislatures.This article first and foremost tried to establish that, indeed legislatures all over the world have an important role in ensuring good governance, which is the bed-rock and an essential ingredient in any government intending to thrive in governance, achieve its goals of success and a well-ordered and sustainable society.This piece of work chose transparency and accountability, two vital components that make up the concept of good governance as criteria in making the comparative analysis between two independent countries with legislatures as an arm of the Government.In comparing and analyzing the two jurisdictions, it was further established that there are certain factors that may limit or enhance the achievement of good governance by these legislatures. Nevertheless, the irrefutable fact this article tried to illustrate is that Good Governance needs an effective Parliament.


Kadija Kabba
Kadija Kabba is a Legal Officer and Legislative Drafter at the Central Bank of Sierra Leone. She holds an LL.M from the Universitty of London, A MPhil from the University of Tromsee, Norway, a LL.B and BA Degrees from the University of Sierra Leone. She is also a qualified barrister and Socilitor of the High Court of Sierra Leone.
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

The Right to Food

Journal European Journal of Law Reform, Issue 3-4 2010
Keywords food crisis, right to food
Authors Ying Chen
AbstractAuthor's information

    With the development of society, new agricultural technologies have been widely introduced and effectively applied to agricultural cultivation. Agricultural productive capacity has greatly improved and the world’s food producers are capable of providing all the people on this planet with sufficient food to satisfy everyday dietary needs for a healthy life. Ironically, food insecurity continues to be a critical issue in the contemporary world. More than 923 million people suffer from chronic hunger, malnutrition or related diseases, and this number grows with continually rising food prices. This article responds to the current food insecurity by addressing a new issue: is there any legal basis for both the international community and national governments to protect vulnerable people from hunger and malnutrition?


Ying Chen
S.J.D. Candidate, LL.M., Indiana University School of Law Indianapolis.

    This article examines the use of arbitration in wills and trusts as a method to honor decedents wishes. It explores the use of contracts drafted prior to the creation of a will or trust – referred to as a pre-drafting contract – as a method to allow for the inclusion of arbitration. The article also briefly discusses the use of in terrorem clauses – also known as disinheritance clauses – in wills and trusts. It suggests that in terrorem clauses can be detrimental and that the issues that can arise as a result of such provisions can be avoided by using pre-drafting contracts. Finally, the article suggests the benefits of using arbitration and pre-drafting contracts can include confidentiality, the ability to save time and money, and the ability to protect family relationships.


Tzena Mayersak
Tzena Mayersak M.S. received her Master’s of Science in Justice, Law, and Society from the American University in August 2006 and is a Candidate for Juris Doctor, Hamline University School of Law, May 2012.
Article

Act of Parliament: The Role of Parliament in the Legislative Process

A Commonwealth Perspective

Journal European Journal of Law Reform, Issue 1-2 2010
Keywords parliament, legislation, pre-legislative scrutiny, supremacy of parliament, delegated legislation, Uganda, legislative process
Authors Denis Kibirige Kawooya
AbstractAuthor's information

    Whereas making law is one of the principal functions of Parliament, Parliament plays a very limited role in the legislative process. In Uganda, like in many commonwealth jurisdictions due to the role the Constitution has given to Parliament, the legislature should take a more active role in the legislative process. The paper examines the legislative authority of Parliament, the concept of Parliamentary supremacy, pre-legislative scrutiny and whether Parliament should be involved in the scrutiny of delegated legislation.


Denis Kibirige Kawooya
Denis Kibirige Kawooya is a Senior State Attorney in the Ministry of Justice and Constitutional Affairs, Uganda, a member of the Commonwealth Association of Legislative Counsel, Uganda Law Society, East African Law Society and an Advocate of the High Court of Uganda.

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.

Gerhard Wagner
Dr. Gerhard Wagner LL.M. is Professor of Fundamentals of Private Law at Erasmus University, Rotterdam, as well as, Professor of German and European Private Law and Civil Procedure at the University of Bonn.
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