The Paradox of Constituent Power.The Ambiguous Self‐Constitution of the European Union

Abstract. The French and Dutch referenda on the adoption of a European Constitutional Treaty highlight a remarkable ambiguity in the self‐constitution of a polity, which can be viewed as both constitution by and of a collective self. This ambiguity is a fundamental feature of polities in general, and the European Union in particular. Rather than suppressing this ambiguity, democracy—and a fortiori a European democracy worth its name—institutionalises it as the guiding principle of political action. As will transpire, the conceptual and normative problems raised by political self‐constitution are linked to self‐attribution, i.e., the conditions under which a collective ascribes legislation to itself.     

The Crime of Self‐Solicitation

I hold that we could justifiably criminalize some threats, on account of the fact that issuing them renders one more likely to commit a crime. But I also point out that if we criminalize some threat‐issuing, we will de facto criminalize some warning‐issuing, which is unjust. So we ought not to criminalize any threat‐issuing. Instead, we should criminalize (roughly) rendering oneself more likely to commit a crime. This would allow us to punish all the threat‐issuers we should want to punish. It would also force us to punish some warning‐issuers, but we would not be punishing them for their warning‐issuing.     

Conceptualizing Semi‐Legality in Migration Research

What is semi‐legality, and why does it offer a viable alternative to the legality–illegality binary divide? Semi‐legality, as a heuristic device, is useful to frame the various “in‐between” statuses and not resorting to illegality every time ambiguities arise as this casts the net of potential fraud far too wide. It could be viewed as a multidimensional space where migrants' formal relationships with the state interact with their various forms of agency toward the law. As a sensitizing theoretical perspective, it helps to explain why many neoliberal regimes, which claim that law and order are the main features distinguishing them from others, actually engage in perpetuating the legally ambiguous modes of incorporation. Delineating the conditions of semi‐legality, I use data from 360 qualitative interviews with migrants in four European countries. I discuss: (1) “incomplete” responses to regularization programs (amnesties) – de facto fulfilling the legalization conditions, yet facing barriers to formally (de jure) corroborate this; (2) balancing between the temporality of residence in various EU countries—under‐staying in some and overstaying in others; and (3) the nexus with employment—where migrants' residence in a country is lawful, but their work exceeds the restrictions permitted by their visas.     

The Legality of Law

Abstract. In this paper I outline various different objects of investigation that may be picked out by word “law” (or its cognates). All of these objects must be investigated in an integrated way before one can provide a complete philosophical explanation of the nature of law. I begin with the distinction between laws (artefacts) and law (the genre to which the artefacts belong). This leads me to the distinction between the law (of a particular legal system) and law (the genre of artefacts). Then I discuss the contrast between law (the genre of artefacts) and law (the practice). Finally I comment on legality as the name of an ideal for laws and legal systems to live up to. I commend H. L. A. Hart's explanation of the nature of law for investigating these various objects in an integraed way, while nevertheless respecting the distinctions among them. I also criticise some of R. M. Dworkin's work for failing to respect the same distinctions.     

Large‐scale Map or the A‐Z? The Place of Self‐help Services in Legal Aid

Australian legal aid agencies are increasing their reliance on self-help legal services as part of their service delivery mix. Self-help legal services seek to harness the productive capacity of consumers,enabling wider distribution of legal aid services. The move to self-help services as an alternative to traditional legal service delivery appears to have gained momentum in advance of any sound understandings of what legal consumers, and legal aid consumers in particular, are capable of. In addition to the cost benefits of providing self-help services rather than traditional legal services, these services have been promoted on the basis of their capacity to empower users to address their own legal matters. Examples of the misuse by government agencies of notions of empowerment emphasize the importance of ensuring the usefulness of self-help legal services.     

The Legality of the Image

Intimate links exist between political power, law and images. Theology, philosophy and law have always developed elaborate rules about visuality. The iconophilic and iconoclastic traditions complemented one another and combined to construct subjectivity and to reconcile humanity with finitude. In modernity, law replaced religion and philosophy conceptualised legality through the aesthetic category of the sublime. The law understands the importance of the governance of images for the maintenance of the social bond and helps organise a regime of permitted images and forbidden idols which amounts to a complex legal administration of aesthetics and a related aesthetic organisation of law.     

Self‐Determination and Sovereignty over Natural Resources

This article makes the normative case for a differentiated approach to the sovereignty of states over natural resources. In the first half of the article, drawing on the example of the Yasuní‐ITT‐Initiative, I will argue that countries commit a moral wrong when they exploit natural resources for their own benefit (and to the detriment of the climate), but that they have the moral right to do so given the current structure of the international system. In the second half of the article, I address the question of whether states' rights over natural resources can be justified. Central to my argument will be the distinction between “control rights” and “income rights.” Only control rights, I will argue, can be justified as inherently tied to collective self‐determination.     

论预先性自卫的合法性问题

在国家实践中出现的预先性自卫行为 ,从国际法角度看 ,既无法律依据 ,又未获得国际社会的普遍支持 ,因此预先性自卫不具有合法性     

Case Comment: The Legality of ‘Kettling’ after Austin

This case comment considers the European Court of Human Rights decision of Austin v United Kingdom (2012) 55 EHRR 14. Austin claimed, unsuccessfully, that police kettling at a public protest in London amounted to a violation of her right to liberty under Article 5 of the European Convention of Human Rights. This case comment suggests that the court took an unexpected and unorthodox approach to the issue of ‘deprivation’ within Article 5. This decision may come to undermine the protections afforded by Article 5 and extend the current exceptions to Article 5 to an indefinite range of situations.     

Self‐Determination in the Constitutional Future of the EU

This article analyses three prominent proposals for the functional and political transformation of the EU from a constitutional perspective. It argues that existing EU reform proposals, to varying degrees, entrench rather than reverse the challenges to individual and political self‐determination brought about by the EU's response to its Euro crisis. As the article will conclude, challenging ‘authoritarian liberalism' in an EU context may require the development of a constitutional structure for the Union able to contest, rather than set in stone, the EU's existing economic and political goals.     

关于反规避措施合法性的几点思考

国内学普遍对反规避措施的合法性持否定观点。但本以为,面对规避反销措施的行为,反倾销法律需要也应该作出及时和恰当的反应,以捍卫贸易自然化所取得的成果。因此,从本质上看,反规避措施不仅符合ＧＡＴＴ和ＴＷＯ所确立的公平竞争原则,而且也符合其;宗旨。     

The Legal Case File as Border Object: On Self‐reference and Other‐reference in Criminal Law

What do case files do? With help of an ethnographic study on the care, maintenance, and use of legal case files in a Dutch, inquisitorial context, we work through Latour's and Luhmann's conceptualizations of law. We understand these case files as enacting and performing both self‐reference and other‐reference. We coin the term border object to denote the way the legal case file becomes the nexus between two worlds it itself performatively produces: the world of ‘law itself’ on the one hand, and the ‘world out there’ on the other. As such, our discussion offers clues for a partial reconciliation of Latour's and Luhmann's conceptualizations of law: while Luhmann's insistence on other‐referential operations assist in showing how law forges an ‘epistemic relationship’ with the realities it seeks to judge, Latour's concentration on the materialities of epistemic practices assists in situating these other‐referential and self‐referential operations.     

The Legality of Legislation by Resolution

This article describes the Commonwealth Moot 2007, organized by the Commonwealth Legal Education Association, which was held in Nairobi, Kenya, in conjunction with the 15th Commonwealth Law Conference. The Moot Court competition is described from the eyes of a coach to one of the participating teams and provides an individual and unique insight into the preparations, build up and experiences gained from the competition.     

超范围征收的合法性控制

征收范围指拟征收财产的物理范围,应为公共利益(建设项目)所必需的范围。因不动产整体上紧密结合且难以分割,实际征收范围可能超出此必需范围,造成超范围征收。超范围征收与一般征收本质无异,其合法性尤与公共利益要件相关。现行征收规范不排除对被征收房屋实际情况的考虑,为超范围征收提供了合法性空间,但毕竟是征收权的扩张,应作更严格限制。可以从目的设定、手段选择、启动主体、超范围财产处置等环节入手,建立一种过程导向的公共利益保障机制,实施对超范围征收的合法性控制。     

Linking Gender,Minority Group Status and Family Matters to Self‐Control Theory: A Multivariate Analysis of Key Self‐Control Concepts in a Youth‐Gang Context

The variable roles of family, gender, and race are underdeveloped in Gottfredson and Hirschi's general theory of crime, also called self control and propensity‐event theory. Using cross‐sectional data generated as part of the National Evaluation of the Gang Resistance Education and Training program, we assessed the links between the self‐reported gang involvement of 5,935 eighth‐grade public school students residing in eleven widely dispersed cities and their levels of self‐control, gender, minority group status, and family context. We found that youths with low self‐control levels reported that they were more deeply involved in gangs than youths with high self‐control, as were youths who were not closely monitored by their parents. We also found differences by gender, minority group status, and family structure. This article explores the limitations and implications of these findings for gang research, theory, and juvenile justice practice.