Search result: 12 articles

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Year 2011 x
Discussion

Access_open Against the ‘Pestilential Gods’

Teubner on Human Rights

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords semiosphera, paranomia, Drittwirkung, matrix argument
Authors Pasquale Femia
AbstractAuthor's information

    Examining the function of human rights in the semiosphere requires a strategy of differentiation: the dissolution of politics into political moments (politics, it is argued, is not a system, but a form of discourse); the distinction between discourse and communication; the concept of systemic paranomic functionings. Paranomia is a situation generated by the pathological closure of discourses, in which knowledge of valid and observed norms obscures power. Fundamental rights are the movement of communication, claims about redistributing powers, directed against paranomic functionings. Rethinking the debate about the third party effect implies that validity and coherence must be differentiated for the development of the ‘matrix argument’.


Pasquale Femia
Pasquale Femia is Professor of Private Law at the Faculty of Political Studies of the University of Naples II, Italy.

Philippe Clerc
Centre National d’Etudes Spatiales (CNES)

Prof. dr. Mark. J Sundahl

Marco Ferrazzani
European Space Agency, ESA Legal Counsel and Head of Legal Department, marco.ferrazzani@esa.int
Article

Access_open When regulators mean business

Regulation in the shadow of environmental Armageddon

Journal Netherlands Journal of Legal Philosophy, Issue 1 2011
Keywords ecological catastrophe, regulatory legitimacy, regulatory effectiveness, geo-engineering
Authors Han Somsen
AbstractAuthor's information

    This article considers the question how knowledge of an impending ecological catastrophe is likely to impact on regulatory legitimacy and regulatory effectiveness. If the ultimate aim to safeguard meaningful human life on earth is in acute danger, this is likely to translate into zero tolerance towards non-compliance with environmental rules designed to avert catastrophe. This, in turn, will persuade regulators to employ normative technologies that do not engage with the moral reason of regulatees at all, but leave no option but to comply. In addition, regulators may turn to panoptic surveillance techniques that allow no breaches of rules to remain undetected. Finally, it is argued that if and to the extent that impending ecological catastrophe marks the end of maintaining the status quo as a plausible policy goal, regulators will be more sympathetic towards potentially apocalyptic technologies that carry greater promise for future gain than otherwise would be the case.


Han Somsen
Han Somsen is Professor of Regulation & Technology at the Tilburg Institute for Law, Technology and Society, and Dean of Research of Tilburg Law School.

Rafael Harillo Gomez-Pastrana
Lawyer and Space Consultant, STARDUST CONSULTING
Article

Methods and Materials in Constitutional Law

Some Thoughts on Access to Government Information as a Problem for Constitutional Theory and Socio-Legal Studies

Journal European Journal of Law Reform, Issue 1 2011
Keywords Citizenship, democracy, government information, representative government, secrecy
Authors Barry Sullivan
AbstractAuthor's information

    To be subject to law, Hobbes argued, is to be deprived of liberty, as we understand it. In this respect, democratic governments are no different from others. Hobbes’s insight has not caused us to abandon our commitments to democracy, but it still challenges us to think hard about the nature of representative government, the nature of citizenship in a democratic society, and the conditions necessary for fulfilling the promise of democratic citizenship. Two recent trends are evident. Some citizens have embraced a more active sense of citizenship, which necessarily entails a more insistent need for information, while governments have insisted on the need for greater concentration of governmental power and a higher degree of secrecy. Much is to be learned from the approaches that various national and transnational regimes have taken with respect to this problem. This essay will consider the problem of access to government information from a comparative perspective and as a problem for constitutional theory and socio-legal studies.


Barry Sullivan
Cooney & Conway Chair in Advocacy and Professor of Law, Loyola University Chicago School of Law.
Article

The Problems and Promises of a Legal Constitution

The Constitutional State and History

Journal European Journal of Law Reform, Issue 1 2011
Keywords constitutional state, legitimacy, progressive history, legal constitution, political constitution
Authors Davit Zedelashvili
AbstractAuthor's information

    Nowadays, in the West, especially on the European Continent, the legitimacy of the modern state is once again subject to multifarious challenges. Against this background, the article revives one of the most important, though often overlooked themes of the constitutional theory, the relevance of the concept of progressive history for the legitimacy of the constitutional state. It is suggested, that the reappearance of the progressive history brings the supposedly forgotten themes of the objectivist metaphysics, back into the constitutional theory. The conclusion points that, only the accounts of a legal constitution, which reject the connection with progressive history, have the potential to deal with the problematic consequences that the reemergence of the metaphysically charged concept of progressive history may entail, given the contemporary socio-political conditions, characterized by the value and ideological pluralism.


Davit Zedelashvili
SJD Candidate in Comparative Constitutional Law, Central European University, Budapest.
Article

Investor Protection v. State Regulatory Discretion

Definitions of Expropriation and Shrinking Regulatory Competence

Journal European Journal of Law Reform, Issue 1 2011
Keywords regulatory freeze, expropriation, investor protection, economic governance, environmental protection
Authors Ioannis Glinavos
AbstractAuthor's information

    The purpose of this paper is to offer support to the idea that the contemporary international legal framework offers opportunities to investors to challenge and control government action via what has been described as a ‘regulatory freeze’. This regulatory freeze is the consequence of government reluctance to legislate/regulate in areas where claims of expropriation may be brought. The paper presents evidence from investment-treaty dispute resolution mechanisms, national and supranational judicial processes from both sides of the Atlantic. The paper concludes by suggesting that the potential for expanded definitions of expropriation is having a greater impact than actual case outcomes, as states seek to preempt any adverse developments by shying away from regulations that may provide fertile grounds for challenge. This effect is significant, as it is contrary to expectations of greater state involvement in economic management bred by the financial crisis.


Ioannis Glinavos
Dr. Ioannis Glinavos is Lecturer in Law at the University of Reading, School of Law, i.glinavos@reading.ac.uk.
Article

Competing Constitutional Ideals in the United States’ Force Majeure-Federalism Cases

Calling the Shots in Disaster Management

Journal European Journal of Law Reform, Issue 1 2011
Keywords federalism, force majeure, disaster, commerce clause, necessary and proper clause
Authors Riddhi Dasgupta
AbstractAuthor's information

    Structure is no less important than substance in the long run. When dealing with disaster management, what is truly national and what is truly local? Disasters are the “perfect” time, if only because of the confusion they sow and/or witness, for the central government to usurp some sovereign powers of its constituent states (and sometimes vice versa). This article examines where, in the American model with its strong federalism tradition, the constitutional tipping point lies. The article conveys the practical imperatives of federalism and why ordinary citizens should care: a federalist structure to promote democratic participation and the carrying out of democratic will by splitting up authority and stopping any one layer of government from becoming too powerful or making it a dysfunctional appendage. That has special significance in the disaster context, of course, and there is no better kaleidoscope than the recent Gulf of Mexico oil spill.


Riddhi Dasgupta
Doctoral student (Expropriation in International Investment Regimes), University of Cambridge.
Article

Judicial Activism

Usurpation of Parliament’s and Executive’s Legislative Functions, or a Quest for Justice and Social Transformation

Journal European Journal of Law Reform, Issue 2 2011
Keywords judicial activism, separation of powers, constitutional interpretation
Authors Reyneck Matemba
AbstractAuthor's information

    This article examines the concept of judicial activism in relation to the courts’ role of interpreting legislation, particularly focusing on the courts’ function of interpreting the Constitution. It specifically examines modes of constitutional interpretation obtaining in RSA and Nigeria, by focusing on selected judicial decisions by superior courts in the two countries. It also examines constitutional provisions governing the interpretation of the Constitution (Bill of Rights) and legislation as provided for in the Constitution of RSA and that of Nigeria. It also makes a comparative examination of judicial approaches to the interpretation of socio-economic rights enshrined in the Constitution of each of the two countries, specifically focusing on the rights to health and housing.The article observes that the concept of judicial activism is a necessary tool for attaining justice and achieving social transformation.


Reyneck Matemba
Reyneck Thokozani Matemba is a member of the Malawi Law Society and the Commonwealth Association of Legislative Counsel (CALC) and works as an Assistant Chief Legislative Counsel for the Ministry of Justice, Malawi.

Diego Zannoni
University of Padua, Italy
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