Democratic Authority and the Boundary Problem

Theories of political authority divide naturally into those that locate the source of states' authority in the history of states' interactions with their subjects and those that locate it in structural (or functional) features of states (such as the justice of their basic institutions). This paper argues that purely structuralist theories of political authority (such as those defended by Kant, Rawls, and contemporary “democratic Kantians”) must fail because of their inability to solve the boundary problem—namely, the problem of locating the boundaries between different states' domains of authority in the natural or intuitive places.     

Liberalism and Minority Rights. An Interview

The interview focuses on Kymlicka's major area of research, i.e., the issue of minority rights. Kymlicka explains why the rights of national minorities have been traditionally neglected in the Western political tradition. He argues that these rights promote individual freedom, and so should be seen as promoting liberal democratic principles. The interview covers many issues including the relationship between ethno-cultural groups and other forms of "identity politics"; how to individuate cultural groups with legitimate claims to minority rights; whether something like a "cosmopolitan view" can seriously challenge the need for minority rights; what are the dangers of building transnational political institutions such as the EU for democratic citizenship; what are the bases of social unity in multination states and what are the limits of toleration of illiberal minorities.     

From Balance to Conflict: A New Constitution for the EU

As the crisis (and the Union's response to it) further develops, one thing appears clear: the European Union post‐crisis will be a very different animal from the pre‐crisis EU. This article offers an alternative model for the EU's constitutional future. Its objective is to invert the Union's current path‐dependency: changes to the way in which the Union works should serve to question, rather than entrench, its future objectives and trajectory. The paper argues that the post‐crisis EU requires a quite different normative, institutional and juridical framework. Such a framework must focus on reproducing the social and political cleavages that underlie authority on the national level and that allow divisive political choices to be legitimised. This reform project implies reshaping the prerogatives of the European institutions. Rather than seeking to prevent or bracket political conflict, the division of institutional competences and tasks should be rethought in order to allow the EU institutions to internalise within their decision‐making process the conflicts reproduced by social and political cleavages. Finally, a reformed legal order must play an active role as a facilitator and container of conflict over the ends of the integration project.     

Levelling the EU participatory playing field: A legal and policy analysis of the Commission's public consultations in light of the principle of political equality

The EU Commission has a long tradition of consulting interested parties when formulating its policies. While the rationale, format and legal basis relied upon by the Commission when holding public consultations have changed over time, its systematic inability to make those consultations equally accessible to all affected parties has remained constant. This article discusses the extent to which such a consultation practice conflicts with the principle of political equality, as enshrined in Article 9 TEU. Given the Commission's unrestrained discretion regarding who, how and when to consult and the absence of corresponding participatory rights, it argues that the EU can no longer presume that all stakeholders—especially citizens and civil society groups—enjoy equal access to EU institutions. Rather, under a proposed substantive reading of the principle of political equality, it contends that EU institutions are procedurally required to ensure that everyone will effectively be given equal opportunities of access to the policy process. Only a series of structural, power‐shifting reforms—some of which are proposed in this article—may enable participation to become an autonomous form of legitimation of the Union.     

Risk Regulation and Deliberation in EU Administrative Governance—GMO Regulation and Its Reform

The article analyses the problems of EU risk regulation of genetically modified organisms (GMOs) through the lens of deliberative theories of EU law and governance, such as deliberative supranationalism and experimentalist governance. Previous research had suggested that the GMO issue is not conductive to deliberation within EU institutions because of its high politicisation. This article argues that another equally salient factor is the scientification of the GMO authorisation process. Scientification stands for the Commission's overreliance on epistemic legitimacy as the basis for risk management. Given the deadlock of comitology in this field, scientification is exacerbated by a reversion to top‐down regulation by the Commission. As a result, political responsibility for GMO authorisations gets lost. This article argues that both scientification and politicisation are mutually accelerative processes ultimately leading to a break down of dialogue at the EU level. This contradicts the assumption that deliberation is fostered by technocratic ‘behind closed door’ decision‐making. In the GMO case, the top‐down imposition of epistemic authority has only increased politicisation contributing to the de‐legitimation of all EU institutions involved in GMO regulation. The recent EU reform on national opt‐outs is not sufficient to address this problem. A successful reform should mitigate the negative effects of both politicisation and scientification.     

Partisanship,Sophistication, and Public Attitudes about Majority Rule and Minority Rights in Congress

The balance between majority rule and minority rights is a central issue in the design and operation of democratic institutions and remains a contested issue in debates of policy‐making processes. Remarkably, public attitudes about this balance are not subjected to scholarly investigation. In this article, we report the findings of the first survey experiment in which the American public's attitudes about majority rule and minority rights in legislative bodies are explored. We find robust support for both majority rule and minority rights, discover that only a few Americans distinguish between the US House of Representatives and Senate in the application of these principles, and demonstrate that views of majority rule and minority rights can be moved once we introduce respondents to the partisan implications of procedural rules. Moreover, with conflicting theoretical expectations about the effect of political sophistication on attitudes about majority rule and minority rights, we find that higher levels of political sophistication are associated with stronger partisan effects on attitudes about the balance between majority rule and minority rights in Congress.     

The Lisbon Judgment of the German Constitutional Court,the Primacy of EU Law and the Problem of Kompetenz‐Kompetenz: A Conflict between Right and Right in Which There is No Praetor1

The ECJ has long asserted its Kompetenz‐Kompetenz (the question of who has the authority to decide where the borders of EU authority end) based on the Union treaties which have always defined its role as the final interpreter of EU law. Yet, no national constitutional court has accepted this position, and in its Lisbon Judgment of 2009 the German Constitutional Court (FCC) has asserted its own jurisdiction of the final resort' to review future EU treaty changes and transfers of powers to the EU on two grounds: (i) ultra vires review, and (ii) identity review. The FCC justifies its claim to constitutional review with reference to its role as guardian of the national constitution whose requirements will constrain the integration process as a standing proviso and limitation on all transfers of national power to the EU for as long as the EU has not acquired the indispensable core of sovereignty, i.e. autochthonous law‐making under its own sovereign powers and constitution, and instead continues to derive its own power from the Member States under the principle of conferral. Formally therefore, at least until such time, the problem of Kompetenz‐Kompetenz affords of no solution. It can only be ‘managed’, which requires the mutual forbearance of both the ECJ and FCC which both claim the ultimate jurisdiction to decide the limits of the EU's powers—a prerogative which, if asserted by both parties without political sensitivity, would inevitably result in a constitutional crisis. The fact that no such crisis has occurred, illustrates the astute political acumen of both the FCC and the ECJ.     

The role of state government in criminal justice higher education

Criminal justice higher education has grown rapidly beyond its early roots as subfields of sociology, social work, political science, and law. Programs, which are generally found at state institutions, are initiated at the institutional or state level and must be approved by campus governing bodies, who must be satisfied of the need, and by state legislatures, who must approve funding, and by separate coordinating councils. Influences such as the traditional vocational background of some of these programs, police training councils, associations of practitioners and educators, national organizations, and, to a lesser extent, students and minority groups, should be taken into consideration, but the responsibility of initiating programs should lie with the faculty members and their institutions. The state should then determine the need for graduates of such programs and should oversee the programs' continuity and quality.     

Judicial empowerment expanded: Political determinants of national courts' cooperation with the CJEU

Scholars in EU studies have developed diverse justifications for explaining why national judges cooperate with the Court of Justice of the European Union. In this regard, judicial empowerment theories have stressed the strategic importance of cooperation for empowering national courts vis‐à‐vis high courts and political actors. Nevertheless, these explanations have been restricted to the use of preliminary references by lower courts. This contribution expands the explanatory power of these approaches by exploring other potential scenarios and instruments that national judges can use to challenge the position of their governments and judicial superiors, for example, by emphasising the importance of CJEU precedent for their strategic behaviour. By offering new data collected from case‐law and surveys, this article offers a more systematic assessment of the relevance of cooperation for national judges to reinforce their authority against other institutions. The findings call for a revision of the traditional understanding of judicial empowerment theories.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

A Struggle for Competence: National Security,Surveillance and the Scope of EU Law at the Court of Justice of European Union

In Privacy International and Quadrature Du Net, the Grand Chamber of the CJEU ruled that the e-Privacy Directive generally prevents bulk retention and transmission of traffic and location data, unless Member States can prove serious threats to national security. In such cases, bulk data can be retained during a strictly necessary period, subject to review by a court or independent administrative body. The judgments will impact other data retention and sharing arrangements, such as the PNR, proposed e-Privacy Regulation and e-Evidence package, and adequacy decisions under GDPR, including for post-Brexit UK. The rulings suggest the CJEU's significance in national security, which has been outside of European integration, but has become a ground for political struggle between EU institutions and Member States. While Privacy International unequivocally asserts CJEU's authority in national security and is a victory for data protection, Quadrature Du Net does not oppose indiscriminate data retention in principle and is an ambivalent response to political pressure.     

Bringing the State into Constitutional Theory: Public Authority and the Constitution

This article brings the state into constitutional theory by presenting a theory of the development of the American state from the late 19th century to the present. The focus of the theory is the ability of the national state to exercise sovereignty or public authority over civil society. The main thesis is that the Constitution did not establish a government with a level of public authority adequate to the requirements of a modem democratic state. The result was a mismatch between the demands of civil society and the competence of state institutions, causing a reorganization of the political institutions of civil society in the early 20th century and a crisis of public authority in the 1960s. The United States continues to experience the consequences of an imbalance between the state institutions established by an 18th-century constitution and 20th-century democratic politics.     

Employment Discrimination Law and Industrial Psychology: Social Science as Social Authority and the Co‐Production of Law and Science

This article combines Monahan and Walker's classification of social facts, social authority, and social frameworks with political‐institutionalism's view of law and science as competing institutional logics to explain how, and with what consequences, employment discrimination law and industrial‐organizational (I‐O) psychology became co‐produced. When social science is incorporated into enforcement of legislative law as social authority—rationale for judicial rule making—law's institutional logic of relying on precedent and reasoning by analogy ensures that social science will have ongoing influence on law's development. By helping set research agendas and providing new professional opportunities, institutionalized legal doctrine shapes social science knowledge. But because of differences in institutional logic, wherein legal cumulation is backward looking whereas scientific cumulation is forward looking, co‐production of law and science may produce institutional mismatch between legal doctrine and scientific knowledge.     

Orphans,apprenticeships, and the world of work

This article explores a frequent and important practice in the ancien Régime society, namely, apprenticeship. The apprenticeship contracts of legitimate orphans (boys and girls) who were received in institutions that specialized in caring for them — such as the Trinité or the Saint-Esprit — provide the data for this study. By focusing on these two, it is possible to compare two groups of orphans, as well as differences in the intentions and accomplishments of the institutions in terms of offering instruction and preparation for the working world. This examination focuses on the transition from the institution to society. How did the orphans interpret this transition? And how did administrators perceive their roles? The example of the Trinité and the Saint-Esprit serves to rectify the common image of the hospitals as poor and highly imperfect in terms of education and apprenticeship. It shows that these were genuine training institutions for older children.     

Minority Status,Ideology, or Opportunity: Explaining the Greater Retirement of House Republicans

Republicans in the U.S. House of Representatives tend to retire at a higher rate than Democrats—a fact with potentially important electoral and policy ramifications—but research on the possible explanations for this partisan disparity has been scarce. I test various explanatory hypotheses using multilevel statistical analyses and find that Republicans are more likely to retire—not because they have been the predominant minority party, had more political opportunities, or had different private‐sector experiences, but because they harbor more conservative ideologies than their Democratic colleagues.     

Critical Mass for Affirmative Action: Dispersing the Critical Cloud

The concept of critical mass has been invoked by social scientists and the Supreme Court in affirmative action decisions as a solution to problems related to underrepresentation of minority students in institutions of higher education. Little distinction is made by scholars between the Court's use of critical mass as a metaphor and its application in research as a mathematical concept. I use Agent‐Based Modeling—a simulation technique in which systems are modeled through repetitive interaction of autonomous decision‐making “agents” to observe the complex dynamics that emerge from interaction—to investigate the Supreme Court's conception of the relationship between student‐body composition and student isolation and stereotyping. Findings demonstrate that the relationship between student body representation and the educational outcomes of interest as detailed by the Court, specifically minority students' feeling of isolation and majority students' retention of negative stereotypes, does not exhibit a specific threshold or tipping point as we would expect from a system that has a critical mass at which sudden and sustainable change in the state of the system occurs. Simulations of student interactions show there is not one definable threshold or critical mass of minority students that achieves educational goals of reducing either the isolation felt by minority students or the negative stereotypes held by majority students about their minority peers. Instead, greater minority representation is consistently associated with better outcomes for students in all contexts.     

The evolution of the political criteria for accession to the European Community, 1957–1973

This article describes the evolution of political conditions for accession to the European Community from 1957 to 1973 on the basis of the responses of the Community and national parliaments to applications for association (Article 238 EC Treaty) and membership (Article 237 EC Treaty) and to a US foreign policy initiative. It challenges the thesis that the European Community was originally uninterested in the political nature of its members as long as they were non‐communist and that the Community made a volte face in 1962 in reaction to a request for an association agreement by Franco's Spain. It argues that the Copenhagen political criteria, except minority protection, were firmly established by 1973 after a series of pronouncements and decisions by the European Parliament, national parliaments (both 1962), the Commission (1967) and the Council (1973). The article aims to contribute to the early history of the constitutionalization of the Union and discusses how demands from outsiders prompted the Six to define the constitutional requirements for (candidate) members. It is partly based on new archival research.     

European Economic Governance and Parliamentary Representation. What Place for the European Parliament?

This article aims to analyse the European Parliament's (EP) position in the reform of the European economic governance, in particular after the adoption of the ‘six‐pack,’ the ‘two‐pack’ and the ‘fiscal compact.’ References are made to the involvement of the EP in the decision‐making process that led to the adoption of the new measures as well as to the substantive role assigned to this institution in the new regulatory framework. The article argues that the new provisions, which undermine the budgetary authority of national parliaments while, at the same time, designing a limited role for the EP—though strengthened compared to the previous version of the Stability and Growth Pact—can jeopardise the effectiveness of the landmark principle of ‘no taxation without parliamentary representation’ in the EU.     

The Question Concerning the Common Frame of Reference

The many directives on private consumer law enacted in the last three decades have met with considerable neglect and resistance amongst domestic judges, legislatures and scholars, bringing about less legal unity and more ‘legal fragmentation'—to say it in the words of the Commission. The Draft Common Frame of Reference is one more attempt, on the part of certain strands of European private law scholarship, at imposing a formal break on, and at overcoming, such fragmentation. Presented as a ‘comprehensive and self‐standing’ document, its ambition is to definitively implement the Commission‐generated, market‐orientated agenda of private law reform, so much resisted at the national level. The article argues that the EU legislative institutions should not go ahead with the plan of incorporating the Draft's content in EU law, by adopting a CFR. A CFR would confer an unprecedented degree of authority on a range of contested directive‐generated rules, from the test of fairness to the risk development defence in product liability. In creating a climate in which CFR‐based legalistic arguments promote unity over fragmentation, a CFR would emasculate public debate by implementing, under the spell of legal necessity, exactly those partisan, Commission‐initiated policies that have been, and still are, openly opposed in domestic legal circles. The Draft embodies a grammar of imposition that should be questioned.