Subsidiarity and ecologically based taxation: A european constitutional perspective

The principle of subsidiarity through its re-affirmation in the Treaty of Maastricht became an integral and central part of European constitutional law. Its relationship to ecological issues, however, has so far not been explored. Subsidiarity is a general principle of organization. It can apply to all areas of policy: financial, agricultural, technological, education, defense, economic development and, e.g. environmental policy. The principle of subsidiarity is silent about the specific purpose, direction or content of a particular policy. Whatever be the purpose of any such policy, the principle of subsidiarity requires that it be carried out within that context which is the smallest viable one in which the objective can successfully be attained. When a task is too complicated for a small unit such as an office or a firm to be successfully performed, that unit has to be augmanted to the point where the task can be effectively performed. Likewise, if an organization is too large to successfully handle particular problems as its procedure may be too cumbersome or as it lacks sufficient detailed information or experience repeated recurrences of problems it has tried to settle, then a different organizational form must be found, preferably an existing one, which is closer to the problem at hand and able to carry out the policy. With the shift in responsibility will also travel the access to resources with which to carry out the task. Since ecological units rarely co-incide with political units, the principle of subsidiarity poses a specific challenge to politicians and administrators who have to decide on assignments of tasks and responsibilities as well as funding within the different echelons and among the different Member States of the European Union. This essay explores those tasks and, in particular, advances the notion of establishing ecological tax units.     

The Concept of Subsidiarity and the Debate on European Cooperation: Pitfalls and Possibilities1

This article explores whether and how subsidiarity can serve as an instructive aid to discussion and clarification of the current and future structure and functioning of the European Community. W e argue that the debate over the principle of subsidiarity may be undermined or cut off prematurely in at least three ways. First, if the debate is conducted with a view to arriving at a fairly fixed, detailed and instrumental understanding of the allocation of responsibilities and tasks between different levels of government. Second, if the principle of subsidiarity is mainly used as an instrument of political expediency and opportunism to further organizational or self interests. Third, if the principle is linked to and interpreted as an endorsement and justification of existing (entrenched) political and social doctrines. In a concluding last section we consider how the principle of subsidiarity may contribute to constructive discussion.     

Restoring the Rule of Law to Public Administration: What Frank Goodnow Got Right and Leonard White Didn't

Although the rule of law is universally regarded as a fundamental principle of democratic governance, the field of public administration continues to exhibit the "anti-legal temper" that emerged in the 1920s, when Leonard White's managerialism largely displaced Frank Goodnow's emphasis on the intimacy of law and administration. Although administrative law is a distinguished subfield of scholarship and practice within public administration, the consensus view within the profession seems to be that law is one of many constraints on administrative discretion rather than its source, a challenge to administrative leadership rather than its guiding principle. In addition to unacceptably narrowing the range of values infusing public administration, such a view undermines the profession's ability to contribute to the design of our governance arrangements at a time when constitutional institutions are being seriously challenged. To fulfill its constitutional role, public administration must commit itself to the rule of law as an institution that secures its legitimacy.     

Europe and the Information Society: Problems and Challenges for Supranational1 Intervention

This article proposes that European intervention for the enhancement of the information society is legitimate and appropriate but, despite recent improvements, very difficult to design and implement. Intervention has taken three forms: 1. European-wide deregulation and liberalization of public procurement, to stimulate competition and specialization; 2. R&;D incentives, which have improved European capabilities and given academic research a chance to take off in poorer regions but which have also favored oligopolies and increased barriers to entry; and 3. Incentives offered to the less favored European regions to improve their infrastructure and to adopt strategies that would facilitate the stimulation of demand. Despite their ambitions to help the Union as a whole rapidly close the gap with the U.S. or level internal imbalances, these interventions appear insufficient as yet to do so. But even if policy results are not (yet?) visible, these interventions have put a process in motion that acts in parallel with the market forces of globalization. Although European ambitions are limited by jurisdiction due to the subsidiarity principle imposing action at the lowest possible level, supranational policies demonstrate interesting features of development policies and suggest some innovative schemes of intervention for less favored regions.     

Does constitutionalizing economic and social rights promote their fulfillment?

This article explores whether constitutional provisions promote fulfillment of economic and social rights. This is accomplished by combining unique data on both enforceable law and directive principles with the Social and Economic Rights Fulfillment Index (SERF Index), which measures government fulfillment of such rights. The results indicate that there is a positive and significant correlation between enforceable law provisions and the right to health and education components of the SERF Index. The strongest relationship appears to be for the right to health component where the inclusion of an enforceable law provision on economic and social rights in the constitution is correlated with an increase in the health component by 9.55, or 13.0%, on average. These results support the idea that constitutional provisions may be one way to improve economic and social rights outcomes.     

Social Citizenship of Young People in Europe: A Comparative Institutional Analysis*

This article explains the diversity of young people’s access to social welfare by distinguishing between two models of social citizenship in a comparative analysis of 15 Western European countries. On the one hand, social citizenship can be familialized, when young people are considered as children and therefore do not receive state benefits in their own name. This form of citizenship is found in Bismarckian welfare states, based on the principle of subsidiarity. On the other hand, it can be individualized, in which case young people can be entitled to benefits in their own right, insofar as they are considered as adults. This form of social citizenship is found more in Beveridgean welfare states.     

From Street-Level to System-Level Bureaucracies: How Information and Communication Technology is Transforming Administrative Discretion and Constitutional Control

The use of information and communication technology (ICT) is rapidly changing the structure of a number of large, executive public agencies. They used to be machine bureaucracies in which street‐level officials exercised ample administrative discretion in dealing with individual clients. In some realms, the street‐level bureaucrats have vanished. Instead of street‐level bureaucracies, they have become system‐level bureaucracies. System analysts and software designers are the key actors in these executive agencies. This article explores the implications of this transformation from the perspective of the constitutional state. Thanks to ICT, the implementation of the law has virtually been perfected. However, some new issues rise: What about the discretionary power of the system‐level bureaucrats? How can we guarantee due process and fairness in difficult cases? The article ends with several institutional innovations that may help to embed these system‐level bureaucracies in the constitutional state.     

司法权与法律解释权辨析

司法权是法官在个案中行使的以裁判权为重心的权力,法律解释权是法官在个案中行使的对所适用的法律和所要处理的案件事实进行解释的权力,法律解释权属于司法权的一部分。司法权与法律解释权是同一种性质的权力,二者有许多相同之处。但法律解释权是一种相对独立存在的权力,它与司法权有一定的区别。厘清二者的关系,才能正确适用法律,保证司法公正。     

What Makes Popular Government Self‐reinforcing?

This article explores the ongoing debate on whether popular government is a continually improving or a continually deteriorating constitutional principle in Scandinavian politics. In particular, three recent articles that address this question are reviewed. One puts an almost entirely positive light on developments in Denmark. By contrast, the authors of the articles on Sweden and Norway are less inclined to see any parallel between economic growth, a sustainable welfare state and good public finances, on the one hand, and improved popular government, on the other. The aim here is to bring some clarity into this paradoxical picture by distinguishing between popular government as such and the prerequisites for popular government's long-term legitimacy. What makes popular government self-reinforcing, this article concludes, is the underlying, more fruitful question to pose. This query should be brought into the open and answered.     

Enhancing WTO Legitimacy: Constitutionalization or Global Subsidiarity?

Increasingly, scholars have articulated the challenge of global economic governance in constitutional terms. The World Trade Organization (WTO) is often painted as an incipient global economic constitution. Its legitimacy would be enhanced, some contend, by transforming the WTO treaty system into a federal construct. But the application of the language of constitutionalism to the WTO is likely to exacerbate the fears of the "discontents" of globalization that the international institutions of economic governance are not democratically accountable to anyone. We argue that the legitimacy of the multilateral trading order requires greater democratic contestability. The notion of global subsidiarity would be a more appropriate model for the WTO than that of a "federal" constitution. This notion incorporates three basic principles: institutional sensitivity, political inclusiveness, and top–down empowerment.     

Reforming the state: The policy of administrative reform in Italy under the Ciampi government

Since 1992, administrative reform has become a major theme on the Italian political agenda. This article examines the pressures leading to reform under the Ciampi government (April 1993‐May 1994). It focuses, first, on the directions to be taken by reform that were identified and, second, on their implementation. Also considered are the obstacles to reform found in the political and administrative systems. The limits to the reform and its legacy illustrate the more general problems of the Italian legal and constitutional order.     

Aquinas's Two Doctrines of Natural Law

This paper examines the role which the concept of natural law has to play in the political thought of Aquinas, as this is to be found in the Summa Theologiae . It focuses particularly on Aquinas's understanding of the relationship which exists between natural and positive law. It argues that Aquinas's views are inconsistent and that the Summa actually contains two quite different positions regarding this subject. One of these is inherited from the Stoic natural law tradition and the other from Aristotle. The former considers natural law to be a critical standard by means of which positive law can be evaluated by individuals, whereas the latter does not. On the contrary, it maintains that according to Aquinas the principles of natural law require interpretation, and that this interpretation is to be provided, not by the conscience of the individual moral agent, but by positive law. Focus on either one or the other of these two documents leads to quite different interpretations of Aquinas's political thought as a whole. One such interpretation sees Aquinas as being a distant forerunner of the liberal political tradition. The other associates Aquinas much more closely with the notion of authority and hence with conservatism in politics. The article concludes by commenting on the relevance of these different interpretations of Aquinas for the contemporary debate between liberals and communitarians.     

Child soldiers and international law: Patchwork gains and conceptual debates

This article reviews and also compares developments within international humanitarian law and human rights law in regard to matters relating to child soldiers. Beginning with the Geneva Conventions and early twentieth century legal developments for children in general, this article identifies the legal and conceptual discrepancies in the child soldiers issue and how they relate to and affect each other. It also includes an overview of the child soldiers issue, followed by summary discussions of the respective strengths and weaknesses of international humanitarian law and human rights law in regard to child soldiers. Following from that, conceptual problems in the field that are problematic in regard to law are also considered, and some concluding observations are then offered. Among them is how the patch-work developments of the past still prevail, as evidenced by the ongoing two-tiered age division that exists within the under-18 category.     

Constitutional law in social choice perspective

Constitutional scholars do not typically employ spatial reasoning in their work. And yet, constitutional jurisprudence and much work in judicial politics implicitly rest on assumptions best cast in spatial terms. These include assuming that positions in constitutional disputes, and the views of Supreme Court justices, generally lie along a common liberal-to-conservative ideological dimension. Although the single dimension assumption is often appropriate, it suffers inherent limitations. First, Supreme Court decision-making rules, both within and across cases, expose problems of dimensionality. Second, important substantive doctrines likewise reveal dimensionality. Third, and finally, throughout the Supreme Court’s history, positions deemed liberal (or conservative) in one period have emerged as conservative (or liberal) in a later period, suggesting that dimensionality is a persistent feature in our jurisprudential history. Social choice proves uniquely suited to explaining these important aspects of constitutional law. After briefly introducing the discipline of constitutional law and its relationship to social choice, this article offers three illustrations of how social choice analysis deepens our understanding of important substantive areas. The analysis exposes dimensionality within Supreme Court decision-making rules, within separation-of-powers doctrine, and over historical shifts in the liberal and conservative valence of once-prominent jurisprudential positions. Failing to appreciate dimensionality, which lies at the core of social choice theory, when studying the Supreme Court and constitutional law risks a truly one-dimensional understanding of a richer and multidimensional institution and body of doctrine.     

Pluralism and the Hobbesian Logic of Negative Constitutionalism

According to an essentially Hobbesian account of political order, the claims of cultural and national minorities within a state to some form of constitutional or institutional recognition are morally suspect and politically undesirable. Underlying this Hobbesian logic is a particular understanding of the relation between law and politics. 'Negative constitutionalism' is focused primarily on limiting the damage government can do. However the pursuit of constitutional minimalism runs up against the challenges presented by deeply diverse political communities. By investigating the manner in which Hobbes has been invoked in arguments concerning the relation between the rule of law and the 'politics of recognition', I argue (i) that the distinction between the rule of law and politics is fundamentally unstable, and (ii) that in invoking Hobbes, modern theorists have missed an important element of Hobbes's own argument—namely, his appreciation of this instability. As an example, I examine the way Hobbes is used in some of John Gray's recent writings on pluralism and liberalism.     

Bargaining Constitutional Design in Italy: Judicial Review as Political Insurance

Why would politicians, who expect to hold political power in the future, choose to create a constitutional court with the power of judicial review that can veto politicians' policies? Some theories suggest that international forces may be causal, as institutions or ideas are diffused geographically or within legal systems. Others focus on domestic politics as driving the decision to institute judicial review. Among these are the commitment, hegemonic preservation, party alternation and insurance theories. This article looks at the decision to establish a constitutional court in the Republic of Italy, the first post-World War II court in Europe that was not in a federal system. It argues that the insurance model drove the decision of the Italian Christian Democrats to support creation of a constitutional court at the point of constitutional design, but later to delay implementation once in power. Conversely, the Italian Communist–Socialist bloc opposed establishment of the court at the Constituent Assembly that wrote the post-war constitution on the ideological ground that it was contrary to popular sovereignty. However, once the leftist bloc found itself in the role of the opposition, it became a champion of the Constitutional Court and judicial review. The insurance theory is shown to explain the behaviour of the Christian Democrats in both design and implementation phases and the actions of the Communist–Socialist bloc during implementation.     

Playground or Church? Implications for Public Administration from Trinity Lutheran v. Comer

The roots of public administration are in the fields of management, political science, and the law. The law is underrepresented in the literature and is not as well understood by nonlawyer practitioners, yet it increasingly enables, constrains, and prescribes government action. In 2017, the U.S. Supreme Court ruled on a case involving whether a government grant awarded on secular criteria must be provided to a qualified church. This article contributes to the field's understanding of the interplay of law and administration by examining the constitutional issues in the case and their implications for public administration. By considering how this dispute was framed and the ways in which the court approached its resolution, public officials can better understand the issues in similar cases; anticipate potential disputes; and (re)design policies that will serve their communities, remain within constitutional limits, and reduce the likelihood of litigation.     

Ein integrales Modell der Ursachen von Überhangmandaten

Surplus mandates are an interesting peculiarity of the German electoral system and are a consequence of a special form of two-tier districting. Surplus mandates emerge if a party gains more constituency seats in any Bundesland than the total of seats to which it is entitled by its share of votes. Until 1990, surplus mandates were a subject of interest mainly for experts of constitutional law while exerting only negligible influence on the transformation of the electoral outcome in parliamentary seats. Since the election for the German Bundestag of 1990, however, the number of surplus mandates has increased significantly and so has the number of publications on their compatibility with constitutional law. The empirical aspects of the problem however have been largely neglected. In this article a model is developed which analyzes the effects of different factors in creating conditions which promote the emergence of surplus mandates.     

Law as the articulation of the state in Western Germany: A German tradition seen from a British perspective

The main purpose of this paper is to consider why in the Federal Republic of Germany legal categories are still so important in expressing what is understood by ‘the State’. This discussion is not, however, pursued solely in terms of concepts and traditions derived from German legal and political experience. Nor is the matter looked at just within the German context. There is in addition an attempt to look at the problem of law and the state in the Federal Republic against the background both of English legal theories and of contemporary arguments in Britain about constitutional issues. Thus what is offered is also a modest exercise in comparative political analysis.     

On referendum voting in Italy: YES, NO or non–vote? How Italian parties learned to control referendums

Abstract. National referendums progressively became a part of Italian political life in the last three decades of the twentieth century. The increased use made of them came as a genuine surprise. Some 53 issues were put before the electorate between 1970 and 2000, the majority following citizen petitions, with a smaller number promoted by regional councils. The so–called 'abrogative referendum,' conceived as a sort of modern–day veto, proved to be a multi–use political tool wielded predominantly by the Radical Party, a political movement largely outside the Italian party system. Parties were the main actors in referendums as far as the mobilisation of voters was concerned. Indeed, the parties gave birth to a variety of alignments, some supporting mobilisation and competition, while others encouraged abstension and effective demobilisation. By virtue mainly of the constitutional rule that requires 50 per cent turnout for the result to be valid, the vote on 18 issues was declared void. Many lessons can be learned from the Italian experience, and one in particular is of special interest to all who value the survival of liberal democracies: all electors are equal, but in referendums non–voters are more equal than the voters.