Denationalization and the Very Idea of Democratic Constitutionalism: The Case of the European Community

Within the current debates about Euro‐constitutionalism, the conventional options are either to defend a vision of the European Union (EU) which separates global economic law from national sovereignty, and thus relies on the legitimizing powers of free markets, or to regard the legitimation problem (at least under current conditions) as beyond solution: This view argues that any further progress towards an ever closer Union would inevitably increase the legitimation deficit and that therefore the capacity for political action of the nation state should be protected or restored. This paper seeks to break the stranglehold of the, as is argued, false dichotomy (global markets vs. national democracy), and it argues that an extension of democracy beyond the nation state is possible.     

From Intergovernmental Bargaining to Deliberative Political Processes: The Constitutionalisation of Comitology

This article argues that the irresistible rise of Comitology is an institutional response to the deep-seated tensions between the dual supranational and intergovernmentalist structure of the Community on the one hand, and its problem-solving tasks on the other. Comitology has accordingly provided a forum in which problems are addressed through evolving and novel processes of interest formation and decision-making. However, neither legal nor political science have been able properly to evaluate the workings of the committee system, both disciplines remaining trapped within normative structures and traditional methodologies ill-suited to the analysis of these institutional innovations. As a consequence, this article advocates the trans-disciplinary study of Comitology, and furthermore argues that the two disciplines might be drawn together by the concept of 'deliberative supranationalism': being on the one hand a normative approach which seeks both to preserve the legitimacy of national democracies and to set limits upon the traditional Nation State within a supranational community; and on the other, a theoretical tool which is nonetheless responsive to and accomodating of 'real-world' phenomena.     

Understanding the Costs of Litigation: The Case of the Hourly-Fee Lawyer

What does it mean to talk about the “cost of civil justice”? What can be done to bring down that cost? This article addresses these two important questions. Drawing on data collected by the Civil Litigation Research Project, the authors first examine the components of cost and then present an extensive analysis of what is by far the dominant element of the cost equation-legal services. The analysis of the cost of legal services examines the amount of time lawyers devote to cases and the rates they charge for their time. The major factors influencing time include adversariness, stakes, litigant goals, and court (federal versus state); hourly rates appear to be determined primarily by the legal services market. The article closes with a discussion of the implications of the results of the analysis for reforms of the civil justice system that might seek to lower the cost of justice.     

The Constitutionalisation of Party Unity: The Origins of Anti-defection Laws in India and Israel

In spite of a pronounced increase in the number of states that have adopted anti-defection laws over the past several decades, the literature on party unity in democratic legislatures has paid scant attention to understanding the conditions that lead to the adoption of such restrictive measures on the mobility of elected deputies. This article seeks to fill this gap. The authors provide a simple game-theoretic model to explain the passage of anti-defection measures in India, in 1985, and Israel, in 1991. These two democratic states were among the first to experiment with the constitutionalisation of anti-defection measures. Moreover, their comparison is important because although these laws were adopted under seemingly very different circumstances, they were supported with a strong consensus by both the government party, or coalition, and the opposition. It is argued that the reasons for the passage of the anti-defection laws in these two states were rooted in the strategic consequences of the changes that took place in the format of their party systems. The Indian and the Israeli cases show, respectively, that a dominant party system (India) and a tightly balanced bipolar party system (Israel) provided equally compelling incentives for rampant party switching between government and opposition, which therefore created an incentive for both sides to agree to, and adopt, a strict legislative measure to curb defections.     

论法国民法典的宪法化

《法国民法典》具有极为崇高的地位，为形成和维系大革命以来的法兰西社会提供了重要的法律基础。但20世纪80年代以来，法国宪法法院通过合宪性审查不断使民法典受到宪法规范的约束、辐射和渗透，实现了路易·法沃赫教授所说的“宪法化”。30余年的宪法化进程使民法与宪法的关系进入了一种规范语境，民法典在规范上已经受到宪法的切实约束，同时，民法典作为“真正宪典”的社会作用也逐渐被人权宣言所取代。在探讨民法与宪法的关系时，“民法典是真正宪典”这一社会学命题不应错误地扩大到规范领域，更不能不顾时代变迁，忽视宪法化的时代背景。     

Regional Technological Differences: The Case of Southern European Union

This paper examines the spatial spillover effects and the productivity rate of patents in southern European Union. It provides a systematic analysis of the relationship between productivity of patents and the factors that generate economically useful new technological knowledge. An applied spatial econometric framework is employed since this approach is particularly useful in the study of the spatial patterns of patents productivity, at the lowest possible levels of spatial aggregation.     

The European Democratic Challenge: The Forging of a Supranational Volonté Générale

This article explores in a systematic manner the different components of the democratic legitimacy of the Union from the standpoint of deliberative democratic theory. Contrary to standard accounts, it is claimed that the democratic deficit must be disaggregated, given that the Union has not only several shortcomings, but also some democratic surpluses. On the one hand, the Union was created to tackle the democratic deficit of nation states, and has been partially successful in mending the mismatch between the scope of application of their legal systems and the geographical reach of the consequences of legal decisions. Moreover, the European legal order is based on a synthetic constitutional law, which reflects the common constitutional traditions of the Member States, which lend democratic legitimacy to the whole European legal order. On the other hand, the lack of a democratically written and ratified constitution is a central part of the democratic challenge of the Union. But equally important is the structural bias in favour of certain material legal results, which stems from the interplay of the division of competences and the plurality of law-making procedures.     

Human Rights Trials in an Era of Democratic Stagnation: The Case of Turkey

Domestic human rights trials are often conceptualized within the context of transition toward democracy. Yet, a recent cascade of trials in Turkey defies this argument. Between 2008 and 2015, Turkish courts oversaw fifteen trials examining individual criminal accountability for human rights violations carried out by the Turkish military during the conflict with the PKK in the 1990s. The cascade of trials has emerged and remained ongoing while the Turkish regime has become steadily more authoritarian. This article explains the emergence of these trials by the redistribution of power among elite actors, which created a window of opportunity allowing for ongoing legal mobilization to result in prosecutions. Drawing on original data from interviews conducted in Turkey between 2014–2015, this study demonstrates the importance of power redistribution for human rights during periods of democratic stagnation, while emphasizing the ability of trials to contribute to the contestation of hegemonic narratives.     

Risks, Costs and Alternatives in EC Environmental Legislation: The Case of 'REACH'

European Community standards of environmental law are commonly framed in terms of the risks of activities to human health and the environment. Under this cover of uni-dimensional concern, considerations of an activity's benefits, regulatory costs and the availability of alternatives play a crucial role in the regulatory practice. The REACH proposal is a first and ambitious attempt to bring these other dimensions to the fore and give them shape. This article analyses this approach, identifies its merits and flaws, and develops a scheme that makes the complex calculus practicable. It is submitted that the scheme is applicable also in other areas of EC environmental law.     

Democratic legitimacy in the European Union: Fulfilling the institutional logic

The European Union's delicate institutional balance between intergovern‐mentalism and supranationalism has been the source of both the EU's successes and its problems. This balance is under scrutiny as representatives of Member States and EU institutions pursue their particular visions of democratic legitimacy in the course of the 1996–97 Intergovernmental Conference. This essay examines three competing conceptualisations of democratic legitimacy: the Gaullist view, which associates legitimacy narrowly with national sovereignty; a national culture perspective that posits a unique correspondence of national character and national parliaments; and a parliamentary view that associates legitimacy with the role played by parliaments in scrutinising the behaviour of executives, whether at national or European level. Only the last of these perspectives acknowledges that democratic legitimacy is a continuous variable rather than an all‐or‐nothing concept, and that the EU may therefore accumulate legitimacy by improving both the process and substance of policy making within the logic of existing institutional structures.     

Referendums and the Political Constitutionalisation of the EU

Abstract:  This article argues that European integration has triggered a dual constitutionalisation process in Europe. One is the revision of national constitutions to accommodate the integration project at the national level. The other is the construction of transnational rules to regulate novel inter-state relationships at the European level. EU referendums are contextualised in such a duel constitutionalisation process. At the domestic level, EU referendums handle the debates on national constitutional revision. At the transnational level, these popular votes ratify supranational constitutional documents. The article comparatively analyses three types of EU referendums—membership, policy and treaty referendums—according to this analytical framework, exploring the campaign mobilisation of voters, national governments, and transnational institutions, and examining the legal and political interaction between referendums and European integration. A key finding is that, as the dual constitutionalisation process deepens and widens, entrenched domestic players and restrained transnational actors are under increasing pressure to 'voice' themselves in EU referendums.     

Accountability, Control and Independence: The Case of European Agencies

This article points at two problematic assumptions made in some of the contemporary European agency literature. It proposes a conceptual framework, integrating accountability, autonomy and control, and aims to demonstrate how this type of conceptualisation contributes to clarifying problematic aspects of the current European agency debate. Empirical evidence from interviews with high-level practitioners is provided to illustrate the relevance of the proposed framework. The empirical information reveals that, at times, the de facto level of autonomy displayed by some European agencies is below the autonomy provided by the formal legal rules as a result of ongoing controls exercised by one (or other) of the principals. The repercussions that flow from these empirical insights for the agency debate in general, as well as for our understanding of agency accountability, will be discussed at length.     

Democratic accountability and the changing European political order

This article is about democratic accountability and a Europe struggling to find viable answers to the questions of who and what shall constitute “Europe” and how to develop legitimate political institutions for governing it. The article is, nevertheless, first and foremost about political order and change, rules for living together, the role of democratic politics in society and the relations between political organization and civilized coexistence, and the study of the political. Modern democracies live with unresolved conflict, and accountability regimes are part of an institutional arrangement for preserving order and continuity and also for creating dynamics and change. Accountability processes take place within settled and unsettled orders, and they affect and are affected by existing orders. Without denying the importance of contending interests, power struggles, strategic behaviour, non‐cooperative games, and (re)distributional battles, attention is directed towards the search for unity, political cohesion and solidarity based upon the informed voluntary consent of the people through reflection and reasoned deliberation among individuals with different values, interests, understandings and resources.     

The European Emissions Trading Scheme Case Law

Within European climate change and energy policy, the European Emissions Trading Scheme (EU ETS) occupies a prominent role. This article considers the developing case law of the European courts on the EU ETS. Specific attention is paid to the role of the different actors within the EU ETS and the impact that their applications to the courts may have on the further development of the EU ETS. Moreover, the continuing lack of standing of private parties in EU ETS cases is analysed in light of demands for legal certainty within a developing economic market.     

The Costs and Benefits of Transferring Technology Infrastructures Underlying Complex Standards: The Case of IPv6

Industry stakeholders and Internet experts generally agree that networks using Internet Protocol version 6 (IPv6), an Internet communications standard which is being promoted strongly by many parties, would be technically superior to today’s networks, which are largely based on IPv4. The improvements designed for IPv6 could provide numerous benefits to Internet users, network administrators, and applications developers; among these potential benefits are cost reductions due to improved security and increased efficiency, improvements to existing products and services, and innovations leading to new products and services. However, there is wide disagreement about the characteristics and timing of benefits associated with IPv6, and the costs associated with the transition could be substantial. In this paper, we will discuss the likely costs of a transition to IPv6 for the major stakeholders and the potential benefits. Subsequently, we will introduce the cost impact of an accelerated adoption case and discuss potential ways in which the government could become involved in the process. This paper is based on a broader study funded by the National Telecommunications and Information Administration (NTIA) and National Institute of Standards and Technology (NIST). We wish to thank Greg Tassey, Fred Lee, Tim Sloan, B. Keith Fulton, John Streck, and Baran Erkel for comments and suggestions on earlier versions of this paper.     

Tailoring Representative Democracy to the European Union: Does the European Constitution Reduce the Democratic Deficit?

Abstract Even if the institutions of representative democracy that have developed in the nation‐state context cannot be simply transposed to the European Union, for practical and normative reasons they do provide the main starting point for any reflection on the EU's ‘democratic deficit’. This article draws upon the Constitution prepared by the European Convention to reconstruct the concept of representative democracy in the EU. Drawing on the proposals put forward, it identifies two distinctive challenges that need to be overcome if the concept of representative democracy is to be successfully applied to the EU: the multilevel character of the polity and the shift of the centre of political gravity from legislative to executive politics. The article then examines the extent to which the institutional proposals contained in the Constitution go to meet these two challenges and also highlights some aspects in which these proposals fall short.     

‘European Governance’ or Governmentality? The European Commission and the Future of Democratic Government

The word ‘governance’ has become an increasingly central policy motif in the European Union and elsewhere yet its meanings are ambiguous and often poorly understood. This article examines the genealogy of that concept focusing in particular on the European Commission's claim to have developed a new, more open and progressive model of ‘European governance’. The paper is set out in four steps. The first analyses the European Commission's claims for ‘governance’ as a concept integral to its new vision for Europe. The second interrogates some of the conflicting definitions and meanings inherent in the term and examines the highly selective paradigm of governance that has been developed in official Commission discourse. The third addresses two specific areas where the Commission's governance model has been applied: the Green paper on The Future of Parliamentary Democracy and the Open Method of Coordination. The fourth turns to analyse these findings using critical social theory. I conclude that far from laying the grounds for a more inclusive, participatory and democratic political order, the Commission's model to governance represents a form of neoliberal governmentality that is actually undermining democratic government and promoting a politics of exclusion.     

A European Constitutional Patriotism? The Case Restated

Abstract:  Especially since the failure of the European Constitutional Treaty, the idea of a European constitutional patriotism has become subject to ever more intense criticism. This article argues that many of the criticisms of the idea of a European constitutional patriotism have been based on philosophical misunderstandings (both of the notion of constitutional patriotism as such, and of the role it could play in Europe) or rely on implausible empirical claims. Accordingly, the normative idea of constitutional patriotism is first clarified; second, the article discusses some of the most common normative and empirical traps when trying to 'transfer' constitutional patriotism from a domestic nation-state context to the supranational level, as well as the tendency to overburden constitutional patriotism with expectations of solidarity and deliberative democracy; third, an EU-specific post-sovereign, pluralist version of constitutional patriotism is defended against critics who see even such a vision as insufficiently sensitive to value pluralism and cultural diversity.     

The Non-Subversive Function of European Private Law: The Case of Harmonisation of Family Law

Abstract:  This article challenges the widely diffuse view of family law as peripheral to private law. It aims to the de–marginalisation of family legal issues, by showing their ties to the market realm and freedom of contract. In this theoretical framework, the article analyses the process of family law harmonisation in Europe. In particular, it focuses on three steps or aspects in respect to which the presumed peculiarity of family law is proclaimed and reveals, at the same time, its groundlessness: the status/contract dichotomy as a reflection of the family/market divide which seems to influence future developments of the harmonisation of law in Europe; the presumed political character of family law, which represents the leitmotiv in most recent harmonisation projects; and the subsequent strictly national character of family law, which makes EC institutions much more cautious in intervening in these matters than in any other field of private law.