Prospects and Limits of Democratic Governance in the EU

The EU Treaty contains for the first time a title on democratic principles. These provisions emphasise the importance of national parliaments and the EU parliament for the democratic legitimacy of the EU. The new chapter on democratic principles does not address the central challenge of the EU polity to the traditional understanding of democratic legitimacy, the disjunction of political and economic governance as expressed by the important role of independent institutions like the Commission, the European Central Bank and agencies in EU governance . This is a consequence of the fact that the status of independent regulatory institutions in a democratic polity has not been clarified—neither in the EU nor in the Member States. However, such independent institutions exist in diverse forms in several Member States and could hence be understood as a principle of democratic governance common to the Member States. Such an understanding has not yet evolved. The central theoretical problem is that regulatory theories which explain the legitimacy of independent institutions as an alternative to traditional representation remain outside the methodology of traditional democratic theory. Economic constitutional theory, based on social contract theory and widely neglected in the legal constitutional debate, offers a methodological approach to understanding independent regulatory institutions as part of representative democratic governance.     

The Self-Referential European Polity, its Legal Context and Systemic Differentiation: Theoretical Reflections on the Emergence of the EU's Political and Legal Autopoiesis

Abstract:  This article starts by summarising major theoretical debates regarding European polity and governance. It highlights the role of statehood in those debates and suggests moving beyond the constraints of institutionalist and constructivist perspectives by adopting specific notions from the theory of autopoietic social systems. The following part describes the EU political system as self-referential, functionally differentiated from the system of European law, and internally differentiated between European institutions and Member State governments. Although the Union transgresses its nation-state segmentation, the notions of statehood and democratic legitimacy continue to inform legal and political semantics of the EU and specific responses to the Union's systemic tensions, such as the policy of differentiated integration legislated by the flexibility clauses. The democratic deficit of instrumental legitimation justified by outcomes, the most recent example of which is the Lisbon Treaty, subsequently reveals the level of EU functional differentiation and the impossibility of fostering the ultimate construction of a normatively integrated and culturally united European polity. It shows a much more profound social dynamics of differentiation at the level of emerging European society—dynamics which do not adopt the concept of the European polity as an encompassing metaphor of this society, but makes it part of self-referential and self-limiting semantics of the functionally differentiated European political system.     

Regulating security on the Internet: control versus trust

ABSTRACT

This article focuses on the role of government in relation to cybersecurity. Traditionally, cybersecurity was primarily seen as a technical issue. In recent years, governments have realised that they, too, have a stake in securing the Internet. In their attempts to grapple with cybersecurity, governments often turn to technical solutions to ‘code away’ illegal or undesired behaviours. ‘Techno-regulation’ has become popular because it may seem to be an effective and cheap way of increasing control over end users’ behaviours and increasing cybersecurity. In this article, we will explain why using techno-regulation has significant downsides and, therefore, why it may be unwise to use it as a dominant regulatory strategy for securing the Internet. We argue that other regulatory strategies ought to be considered as well, most importantly: trust. The second part of this article explains that trust can be used as an implicit strategy to increase cybersecurity or as an explicit mechanism for the same goal.     

Civil Society and the Re-imagination of European Constitutionalism

Abstract: The twin concepts of constitutionalism and democracy, which offer a complex template for the structural organisation of a polity, can be understood in terms of a dialectic of complementary but competing values, values represented by responsiveness to an existing order and innovation towards a potentially new order. Recognising this necessarily dynamic relationship, an essentialist reading of a constitutionalisation of the demos is abandoned, and an examination of the extent to which the dialectic can credibly or legitimately be played out in a supranational ‘community’ and in the context of an emerging transnational civil society can be undertaken. Rather than seeking credibility or legitimacy through the rationalisation of a community by an ethical consensus as in some forms of republicanism and communitarianism, the dialectic opens up the norms and boundaries of the polity and leads to an understanding of the ‘community’ in less rigid and more diffuse, even plural, terms. Once understood in this way the possibility emerges for legitimacy to be pursued through a public sphere enlarged by a context‐transcending constitutional discourse mediated by transnational civil society. Alternatively the normative ‘openness’ of the polity might be prioritised and with it the uncertainty/fluidity of the constitutional arrangement itself; in this way the legitimate pursuit of constitutionalism is understood in terms of a never‐ending agonistic struggle or experimental practice.     

“三个代表”与政治文明：构筑起政治合法性的双翼

政治合法性是政治学研究的一个基本命题，是各个政权更是执政党应该首先解决好的重大问题。在我国，解决这一问题，关系到执政党执政地位的持久性、稳固性，关系到社会主义制度优越性的发挥和合理性认证。针对我国政治合法性的特殊性，我们党与时俱进，开拓创新，提出了“三个代表”的重要思想和建设社会主义政治明这一全新执政课题，构筑起了我国政治合法性的双翼，为实现执政党执政合法性和社会主义政治制度合法性的良性互动指明了前进方向和现实路径。     

European Integration: Popular Sovereignty and a Politics of Boundaries

The problem raised by popular sovereignty in the framework of the EU is not whether it is relevant to European integration; it is. The problem is another, namely the identity and, thus, the boundary of a democratic polity. The very idea of ‘European’ integration suggests that integration is only imaginable by reference to the closure provided by an identity, a boundary that is normative rather than merely geographical. In this minimal sense, a European people is the necessary presupposition of integration, not merely its telos. Bluntly, there is no integration without inclusion and, also, no integration without exclusion. This, then, is the real problem raised by popular sovereignty in a European context: if there is no such thing as non‐exclusionary integration, how can a reflection on the boundedness of European integration be more than a rationalisation of exclusion?     

The Competition for Pupillages at the Bar of England and Wales (2000–2004)1

Fair entry into the legal profession promotes legal legitimacy and the inclusiveness of the administration of justice. This article asks which individual factors predict success in the competition for entry to the Bar of England and Wales. Using data from 2,178 British aspiring barristers, it finds that university attended and attainment at university and in the BVC were the strongest predictors of gaining pupillage. Ethnic minorities were initially disadvantaged in the competition for pupillages, but this became statistically insignificant when taking into account attainment and type of university. However, those aged 30 and above were still disadvantaged in securing pupillages when controlling for attainment and university. The article highlights the challenges of fair selection into a graduate‐entry legal profession. Entry is reliant on the profile of graduates emerging from the prior education system where ascribed characteristics such as ethnicity, attainment, and university type influence opportunities.     

论刑法的公众认同

保持刑法与市民感觉、国民规范意识之间的一致性 ,以保持刑法的亲和力 ,并使之获得公众对刑法的认同感 ,在我国是一个比较突出的问题。刑法理论在因果关系、不作为犯、违法论、故意、共犯、责任论等问题上都充分考虑了公众认同感问题。公众对刑法的认同包括对“生活利益的重要性”和“规范有效性”的认同两个方面。作者进一步指出 ,今后我国刑法理论与实践要更多地考虑公众认同 ,就必须注意三方面的问题 :理论总体思路的调整 ;在具体问题上的理论创新和反思 ;鼓励市民介入刑事司法裁判过程。     

规范性政治哲学的道德基础:柏拉图与亚里士多德

柏拉图继承苏格拉底的伦理反思,拒斥习俗主义,把国家与社会统一于道德之中,并以道德统摄城邦政治和社会生活。政治对人的要求是“应当做……”,所以,我们将它概括为“产生于道德的政治哲学”。亚里士多德则把政治看作是道德实践,将政治与社会分别开来,政治的目的是实现人的善,它对人的要求是“能够做……”。所以,我们把它概括为“产生道德的政治哲学”。柏拉图与亚里士多德共同奠定了一切规范性政治哲学的道德根基。     

Legitimacy and Social Impact in the Context of Changing Public Cultural Organizations

This article explores an organization's practices, values, and its role in society within a transformed legal status. The article clarifies the role of the organizational form in engagement with society and outlines the connections between different types of legitimacy by elaborating concepts of neo-institutional theory and cultural policy. A conceptual map of the institutional elements, cultural values, and legitimacy is presented. The analysis is based on the Estonian Russian Theater and concludes that an organization can influence the basis of its legitimacy. The management's aspirations to balance values and deal with cognitive legitimacy may lead to rearranging the institutional framework.     

The Institutional Requirements of the WTO in an Era of Globalisation: Imperfections in the Global Economic Polity

To the liberal economist, ‘globalisation’ denotes the virtuous circle of expanded trade, investment and economic growth around the globe. In the political world, ‘globalisation’ is the vaguely understood and yet powerful undercurrents of irrevocable economic changes which have generated social tensions and environmental damage, loss of domestic competitiveness and national sovereignty. Throughout the social sciences, the usage of the term ‘globalisation’ is largely inconsistent and inconclusive—but its imprecision is matched only by its popularity. This article suggests that globalisation should be understood as a reconstruction process of the market as well as the polity. It is essentially a form of global market integration which can be observed from different vantage points, including governance. The premise of the article is that global market integration is surprisingly fragile and requires an adequate institutional foundation in order to move forward. Globalisation and governance are mutually constitutive phenomena. The polity governing the global market integration process cannot be separated in any meaningful sense from the changes in the market itself. This article concerns the institutional requirements of globalisation. While globalisation has produced institutional changes, it has not necessarily produced the most effective or legitimate ones. Exactly what polity construction should underpin globalisation? Should globalisation be left ungoverned? Should existing institutions be improved? Does it require the establishment of supranational sites and the re‐construction of hierarchical legal order at global level?     

The Legitimacy of Judicial Responses to Moral Panic: Perceived vs. Normative Legitimacy

In some instances, the criminal justice system is affected by a moral panic; that is, by an exaggerated social reaction to an assumed threat to moral values. When influenced by moral panic, courts demonize defendants and aggravate punishments. Are such responses legitimate? This article argues that by contrast to legitimate condemnation of criminal conduct, demonizing defendants ought never be legitimate. The legitimacy of aggravating punishment requires distinguishing between the sociological concept of legitimacy (“perceived legitimacy”) and the moral concept (“normative legitimacy”). Aggravation of punishment in response to moral panic might be perceived as legitimate since it expresses public perceptions about the severity of the threat to a social value, even when these perceptions are exaggerated; however, punishments that are proportionate to such a perceived, exaggerated, threat to a social value are unjust and unfair, and therefore are normatively illegitimate. When the panic subsides, courts tend to return to lower levels of punishment. The subsidence of the panic enables one to realize that a gap between perceived and normative legitimacy has been created during the panic. Should and can the gap be bridged retroactively in order to gain full legitimacy? One way to bridge the gap is to grant clemency that will reduce the punishment of defendants whose sentences were exaggerated unduly during the panic. The article proposes a more radical mechanism that allows for sentence re-evaluation in cases of moral panic.     

Democracy and Legitimacy in the Shadow of Purposive Competence

This article argues that the way EU competences are defined plays an important role in the social legitimacy problems of the EU. The fact that its powers are purposive compels the EU to privilege narrow functional goals and act in a highly focused way. This has the consequence that politics cannot be meaningful within the EU, since essential choices of direction are pre‐empted. It also has the consequence that EU law is over‐instrumental and lacks expressive qualities, alienating the public. Now that EU law is so broad, the same defects are being imposed increasingly on Member States. Without another form of conferred power, the legitimacy of the EU, and of law and government in Europe, will be increasingly undermined. The constitutional DNA, which has been a functional success for Europe, may also be its political nemesis.     

Governing Without Law or Governing Without Government? New‐ish Governance and the Legitimacy of the EU

The way the EU is governed and the way such governance is perceived contributes centrally to the legitimacy of the European enterprise. This legitimacy underpins both the acceptance and the effects of EU activity. Legitimacy is a product of the way in which decisions are taken, and the nature and quality of such decisions. Pressures created by concerns about both forms of legitimacy affecting EU decision making partially explain the turn in legal scholarship away from the more traditional preoccupation with the analysis of legislative instruments and case-law, towards a more broadly based conception of governance which involves the examination of a more diverse range of processes and instruments. This article offers an analysis of the parameters of newness in governance. The overall argument is that some of the more innovative governance modes are not so new, whilst more recent and celebrated modes, although displaying elements of newness, are, perhaps, not that innovative. The focus of the new governance in the EU is largely on governing without law, rather than the more radical governing without government; hence the suggestion that we are experiencing only 'new-ish governance'. The article asks whether a limited conception of new governance is inevitable given the legitimacy constraints within which the EU operates, or whether the potential for developing a broader conception of governance, through wider participation and involvement of non-governmental governing capacities, might bolster legitimacy through both better processes and better outcomes.     

Criminalizing the State

In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against it by building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing.     

A Formal Theory of the Rule of Law*

Abstract
The author presents a relatively formal theory of the rule of law which includes three basic components: conceptual, institutional and axiological. He then emphasizes the differences between a formal and a substantive theory of the rule of law and highlights the advantages and limits of the former. Finally, the author indicates the importance of this type of theory, namely the values it implies such as predictability, justified reliance, autonomous choice, minimization of disputes and legitimacy.**     

Post‐Sovereignty and the European Legal Space

The political constitution of the European polity has become strained in recent years by insistent pressures on its institutional capacity to resolve social problems. The article examines the EU's polity crisis in the context of the development of a distinctive modern conception of secular constitutional authority, focused on the ideal of sovereign self‐determination. As the work of Neil MacCormick illustrates, the EU provides a radical challenge to the on‐going capacity of the concept of sovereignty to provide a framework to address problems of legitimacy. The article explores the nature of this challenge, its historical context and its consequences with reference to debates over the nature of constitutional pluralism. It sets out a path to the renewal of the European constitutional debate through a re‐consideration of secular constitutional authority and the necessity of its connection to the idea of sovereignty. The article seeks to re‐engage in the task of ‘questioning sovereignty’.     

Democratic Legitimacy and the International Criminal Court: A Liberal Defence

In response to the criticism that the International CriminalCourt is undemocratic, this article outlines a liberal conceptionof institutional legitimacy and defends its appropriatenessas a moral foundation for the International Criminal Court.In contrast to a communitarian concept of democracy (which seesdemocracy as an expression of the general will), liberals seepolitical legitimacy as stemming from a respect for fundamentalhuman rights. Thus, as long as the International Criminal Courtrespects the right of the accused to a fair trial, then it isa legitimate institution.     

The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy

The paper reviews key aspects of the new constitutional framework for the European Union, once the Treaty of Amsterdam has been ratified, in the light of the core challenges of managing flexible integration in an enlarged Union and securing adequate legitimacy for the integration project. Reviewing briefly the general debates on flexibility, and its relationship to different constitutional and political futures for the Union which are suggested by those involved in the debates, the paper examines the principal provisions governing what is termed 'closer cooperation' within the new Union treaties. The emphasis is placed on the framework provisions of the TEU, and those in the First Pillar. It is noticeable that the Treaty takes a 'non-ideological' approach to flexibility, eschewing direct support for those who interpret flexibility as meaning more or less integration in the future. It provides a framework for future cooperation which is likely to be too restrictive to be workable, except in very limited circumstances. However, particular instances of flexibility are provided in the Treaty, in the form of the opt-outs from the new free movement title and the communitarisation of Schengen for the United Kingdom, Ireland and Denmark, and some might even describe these as 'pick-and-choose'. The paper concludes by reviewing the flexibility debate against the background of the ongoing legitimacy challenge for the Union, arguing that, as currently conceived, flexibility is more to do with balancing political interests than with securing or enhancing legitimacy.     

Legitimate Force in a Particularistic Democracy: Street Police and Outlaw Legislators in the Republic of China on Taiwan

This article explores a “particularistic” concept of legitimacy important to Taiwanese democracy. This form of legitimacy, I suggest, has been instrumental for Taiwan's successful democratic consolidation in the absence of the rule of law. As evidence, I combine ethnographic observation of neighborhood police work with historical consideration of a type of political figure emergent in the process of democratic reform, which I call the “outlaw legislator.” I focus my analysis on the institutional and ideological processes articulating local policing into the wider political field. The center of these processes is a mode of popular representation that positions the outlaw legislator as a crucial hinge articulating the particularistic local order with central state powers. By analyzing the cultural content of the dramaturgical work used to reconcile low policing with higher‐level state operations, this article shows how a particularistic idiom of legitimacy helps hold Taiwanese democracy together.