共查询到20条相似文献,搜索用时 10 毫秒
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Ian Ward 《European Law Journal》2001,7(1):24-40
Two recent books, Joseph Weiler's The Constitution of Europe and Larry Siedentop's Democracy in Europe, seek to address one of the defining issues in contemporary European legal studies; the search for a European public philosophy. Both site their critiques within a particular jurisprudential tradition, the modernist; one that is bound up with anxieties about legitimacy and constitutionalism. This review article suggests that the ‘new’ Europe has been too easily distracted by the lures of constitutionalism, and more particularly by the temptations of Treaties. Public philosophies are not found in Treaty articles. Rather, a public philosophy is a state of mind, a product of the political imagination. And it is the absence of such an imagination which lies at the root of contemporary concerns regarding constitutionalism and legitimacy; the concerns which underpin Weiler's and Siedentop's books. A discussion of these books, in the first two parts of this article, is followed by a discussion of Godfried Wilhelm Leibniz's ‘universal’ jurisprudence. It is suggested that such a jurisprudence is better able to furnish a public philosophy for the ‘new’ Europe; just as, indeed, it was for the ‘old’ Europe. Moreover, such a jurisprudence is far more than a mere theory of laws and constitutions. Leibniz's jurisprudence requires that we think, not merely ‘beyond’ sovereignty, or even beyond democracy, but beyond constitutionalism. 相似文献
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Michael A. Wilkinson 《The Modern law review》2013,76(2):191-222
What kind of constitution is emerging in Europe? There are two approaches to answering this question. The first, a ‘foundational’ approach, rejects the premise: there can be no real constitution in the absence of a ‘demos’, a foundation which exists only nationally. The second, ‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan constitutionalism, based on individual rights guaranteed through a transnational rule of law. Rejecting both for their failure to account for European constitutionalism as a historical process of polity‐building, a third approach, ‘political constitutionalism’, is proposed, capturing the dynamic quality of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested. It is by capturing this complex picture of the political formation of Europe that the constitutional question will be most fruitfully pursued. 相似文献
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Nathan Gibbs 《Law and Critique》2010,21(2):147-162
This article seeks to shed light on some of the problematic assumptions underpinning the contemporary debate over the constitutional
identity of the European Union. The central claim put forward here is that the development of the European Union’s constitution
is significantly constrained by what Charles Taylor has described as the modern social imaginary. The constraint operates
at two levels. First, modern understandings of constitutionalism typically ignore or underemphasize its dynamic and historical
characteristics and its relationship with the self-understanding of political subjects. Thus, modern constitutionalism fails
to acknowledge the importance of historically conditioned assumptions involved in the formation of the identities of political
subjects. In short, it fails to understand constitutionalism as a ‘regime’. Second, modern constitutionalism’s blind-spots
result in a relatively unreflective adherence to a particular type of constitutional regime: the modern economy and its associated
‘consumerist’ form of political citizenship. 相似文献
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Michael A. Wilkinson 《European Law Journal》2003,9(4):451-472
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. 相似文献
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Oliver Gerstenberg 《Ratio juris》2001,14(3):298-325
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. 相似文献
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Paul Craig 《European Law Journal》2001,7(2):125-150
The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The difficulties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties. 相似文献
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Rachel A. Cichowski 《Law & society review》2004,38(3):489-512
This analysis examines supranational constitutionalism in the European Union (EU). In particular, the study focuses on the role of the European Court of Justice in the creation of women's rights. I examine the interaction between the Court and member state governments in legal integration, and also the integral role that women's advocates—both individual activists and groups—have played in the development of EU social provisions. The findings suggest that this litigation dynamic can have the effect of fueling the integration process by creating new rights that may empower social actors and EU organizations, with the ultimate effect of diminishing member state government control over the scope and direction of EU law. This study focuses specifically on gender equality law yet provides a general framework for examining the case law in subsequent legal domains, with the purpose of providing a more nuanced understanding of supranational governance and constitutionalism. 相似文献
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Netherlands International Law Review - International investment law as it is currently being transformed in the European Union (EU) proves to be an ideal test case for assessing global... 相似文献
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Peter L. Lindseth 《European Law Journal》2016,22(5):696-718
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. 相似文献
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宪政:中国的困境与出路——梁漱溟宪政思想研究 总被引:2,自引:0,他引:2
本文述介梁漱溟先生关于宪法与宪政的基本看法 ,特别是他从不同人文类型的观照中对于中国模仿、移植西方宪政的困境的分析 ,有关中国走向宪政之路的思虑 ,同时并述及各种政治力量对此所作的反应 ,指出在中国近代百年宪政思潮中 ,梁漱溟宪政思想的特立卓越处。 相似文献
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英国宪政传统的历史成因 总被引:8,自引:0,他引:8
英国早在盎格鲁 -撒克逊时代就滋生了“王在法下”的法治传统和政治协商传统的最初萌芽。诺曼征服后 ,在强大王权和贵族联合势力大致平衡的力量对比条件下 ,封建法历史地充当了推动法治传统成长的“不自觉工具”。随后形成的普通法以其特有的判例法形式、相对独立的法庭组织、司法职业化以及富有理性的审判方法 ,进一步巩固了英国法治传统的制度基础。与此同时 ,古代的政治协商传统发展到了具有一定代议性质的政治协商新阶段。到中世纪末 ,以普通法制度和议会制度为支柱的宪政传统在英国确立起来。总而言之 ,促成英国宪政传统形成的根本原因还在于国家和社会的适度紧张关系与相对均衡结构。 相似文献
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Justice Dunstain Fipamutima Mwaungulu 《Commonwealth Law Bulletin》2013,39(2):267-272
Against the backdrop of the emergence and evolution of copyright law in Nigeria, a weak strain is inherent in the nature of protection it offers. The limitation of copyright law to the expression of an idea rather than the idea itself begs for a complementary species in this genus of intellectual property. The centrepiece of this work, therefore, is to explore the legal protection of ideas by illuminating the prospects in the law of confidence which push the envelope as far as the tentacles of copyright law are concerned. 相似文献
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