The European Constitution: A Semiotics Analysis of Ideology, Identity and Global Commun in Present-Day Europe

This paper proposes an analysis of the European Constitution from the perspective of its conditions of possibility. The focus is on the conditions that subtend the European constitution, the conditions, the premises that make the European Constitution possible. In the present context of discourse “possibility” is understood in the sense of Kantian critique. But here critique is based on Reasonableness rather than on Reason—in fact a thesis orienting this essay is that the human being to survive and to survive well must quickly change from a rational animal into a reasonable animal. Is the European constitution possible? Where must we search for the necessary conditions that support the European constitution (1) in common historical and cultural traditions, in common practices, in common social behaviours or (2) merely in a shared decision, an accord, a contract, a convention? There exists a third possibility: the idea that Europe has no future without a European constitution founded on awareness that all European Nations participate in a common destiny, which in the era of globalization is the destiny the whole world, indeed of life over the whole planet. Such participation must be based on the logic of otherness and reasonableness of which the human being alone as a semiotic animal is capable. As a semiotic animal, that is, an animal capable of metasemiosis, reflection and critical consciousness, the human being is responsible for all of life over the planet.     

A European Constitution in a Multinational Europe or a Multinational Constitution for Europe?

Abstract: What is the role of the nation‐state in the process of European constitutional integration? How can we transcend our divisions without marginalising those who believe in them? This article critically analyses the theoretical bases of the Treaty Establishing a Constitution for Europe and tries to explain why its ratification is so problematic. Authors such as Habermas have argued that a new European model of social cohesion is needed, and Habermas suggests that the sense of ‘community’ in a democratic Europe should be founded exclusively on the acceptance of a patriotic constitution. However, this view is criticised by authors such as Weiler and MacCormick. In this article, I explain the limits of these theoretical analyses. I will argue that a European constitutional project can be more than formally legal only if two normative conditions are satisfied: it is the result of public debate and the European Constitution includes the procedures for the recognition of European national diversity. I suggest that a theory of constitutional multinationalism, similar to the one proposed by Tully, might provide an attractive model for a European social integration. The article is divided in two parts. In the first, I explain why Habermas’ constitutional patriotism or MacCormick's states based Europe cannot provide a convincing theoretical model for a socially and constitutionally integrated Europe. In the second part, I will give an outline of Tully's idea of multinational democracy as a model for a European constitutional integration.     

宪政——人类法治文明的最高结晶

文章从依法治国首先要依宪治国 ,实行法治关键要实行宪政立论 ,层层深入地阐析了宪政的涵义 ,宪政与宪法的关系 ,宪政的性质、特征及要义 ,宪政与民主、法治、人权的关系等重要问题。     

Crime and the EU's Constitutional Future in an Area of Freedom, Security, and Justice

Abstract: The European Union is finalising negotiations in respect of a constitution that will define its identity and future. The draft constitution begins with a quote from Thucydides ‘Our constitution . . . is called a democracy because power is in the hands not of a minority but of the greatest number’. 1 In this article I look at the proposed constitutional framework of the European Union from the perspective of the gradual realisation of measures in criminal law capable of affecting the lives of individuals. The central question is to what extent the Union is providing itself with the tools to achieve democratic exercise of the power to maintain order and to punish individuals within a single area of freedom, security, and justice. Within the draft constitution an ambiguity arises as regards the principles which underlie this part of the project: mutual recognition and approximation. Mutual recognition of national decisions maintains power within the borders of the state, approximation leads towards a consolidation of power. The extent to which the constitution pulls in two rather different directions and the consequences for the individual are examined here.     

A Manifesto for Social Europe

The European Union is still far from having social legitimacy. The issue is indicative of a huge uncertainty about Social Europe. What is it? What are the principles of social justice behind it? In our view, a new social constitution of the European Union is needed. Political democratisation must be accompanied by the foundation of a social Europe. We argue that were the IGC to combine the Charter of The Fundamental Social Rights of Workers with the Maastricht Protocol on Social Policy, inserting both into the TEU, it would lay the legal foundations for a dynamic European social constitution; a Social Europe dedicated to the combating of social exclusion and the maintenance of solidarity.     

Eclipse of the Constitution {Europe Nouveau Siècle}

The Court of Justice of the European Union has come to adopt a peculiar mode of balancing, revolving around a set of ‘general principles of law’, which results in key social rights at the core of the postwar constitutional settlement no longer being sheltered from review by reference to supranational economic freedoms. It is submitted that this does not only imply a kind of ideological restyling of European law, as noted in the literature but, more fundamentally, the erosion of Europe's composite constitutional architecture (at once European and national) resulting from playing down social rights qua ‘constitutional essentials’. As the new jurisprudence ‘obscures’ Europe's constitutional constellation, it is submitted that the Court should rule under the constitution and not over it.     

论欧盟宪法危机认知之理论方法

如何看待所谓的欧盟宪法危机,在很大程度上是一种理论分析形态选择的问题。分析欧盟这一政治体系或者政治体的各种理论,其共同之处在于解释欧盟现象因何而生又如何发展的问题。欧盟宪政的发展过程实际上就是欧盟法律人格丰富与健全的过程。分析欧盟法律人格的构成因素以及各个因素之间的逻辑联系,既能解释欧盟宪政的历史演进,又能分析目前欧盟宪法危机的症结所在。欧盟法律人格构成因素的丰富与强健,既是欧盟宪政发展的动力之一,同时也给欧盟宪政发展带来了挑战,无论是保持欧盟发展的动力还是避免欧盟宪政发展所遇到的挑战,都依赖于欧盟法律人格构成的三个因素———规制性支柱、规范性支柱与认知性支柱———之间的平衡。     

Taking the Law Seriously: On Political Science and the Role of Law in the Process of European Integration

Abstract: The interdisciplinary discourse on European law seems paradoxical. While the editors of this Journal plead for a contextual jurisprudence, political scientists are discovering the importance of law for the integration process. This article explores the merits and problems of both of these shifts¹. On the one hand, it points to implicit assumptions of legal arguments that need to be contrasted with the insights of political sciences into mechanisms of integration processes and the functioning of inter-governmental bargaining - and is thus to be read as an appeal for a 'contextual' jurisprudence. On the other hand, it argues that political science analyses, even when they take the legal dimension of European integration into account, tend to rely upon an instrumentalist view of the legal system which fails to acknowledge the Law's normative logic and discursive power. This theoretically complex argument is exemplified first by an analysis of the tensions between the legal supranationalism of the European Court of Justice and the German Constitutional Court's defence of national constitutionalism, already intensively discussed in this Journal². What the article adds is an extension of the constitutional debate to the economy. It argues that Europe cannot, and should not, be based upon a dichotomous structure of (national) political rights and (European) economic liberties.     

The Concept of the Supremacy of the Constitution

The article compares and assesses the idea of the supremacy of the constitution found in Germany with the competing British tradition of parliamentary sovereignty. It concludes by examining the need for a supreme constitutional law in the European Union.     

公平理念与环境侵权

本文运用公平理念探讨了环境侵权的构成问题,认为对环境侵权的违法性应作实质性理解,并提出了环境侵权推定因果关系的新构想即"正反因果关系说",提出了对环境侵权的正当防卫和紧急避险主张和共同环境侵权与混合过错环境侵权的责任制度。     

The Economic Constitution of the European Community: From 'Rome' to 'Maastricht'

Abstract: The present paper analyses, from an economic point of view, the changes in the economic constitution of the European Community since its foundation in 1958. In order to identify the various changes, we start by developing an economic frame of reference. Our proposition is that the constitution of the European Community (EC) came closest to this frame of reference: an economic constitution for a market system. In the subsequent parts, we try to show that the process of European integration was largely based on the introduction of non-market elements. Our final argument will be that as far as the economic constitution is concerned, the Treaty on European Union (TEU) is dominated by traits which are Characteristic of modern welfare states.     

Reformation,Regulation and the Image: Sumptuary Legislation and the Subject of Law

This article considers the development of the individual subject of law and his constitutional status in the early modern English State, within the context of sumptuary legislation enacted by the Crown and the Inns of Court. During the sixteenth century, the legal community took upon itself the role of exemplifying the correct use of symbols and of elucidating the purpose of sumptuary law. The image of the lawyer was manipulated to represent the inherent divinity of common law. The reformation of the image was inevitably influenced by the doctrinal concepts of the European Reformation and is a graphic indication of the centrality of Anglicanism to the development of early modern common law. I discuss these developments with reference to theories of the image proposed by Goodrich, Legendre and Marin. I refer also to Carlyle's satirical treatise on the symbolism of clothes,Sartor Resartus. The constitution of clothes represents the idea of citizenship and the centrality of reason to the body-politic. The rediscovery of classical texts during the Renaissance was instrumental in shaping a constitution in which an embryonic social contract was apparent, as represented in the sumptuary legislation of the Inns of Court. This revised version was published online in July 2006 with corrections to the Cover Date.     

环境时代宪法的权利生态化特征

文章首先指出无论是近代宪法的法理基础———个人主义 ,还是现代宪法的法理基础———团体主义 ,都难以对付当前日益严重生态危机的挑战 ,主张可在团体主义的基础上将生态主义作为环境时代宪法的法理基础 ;而后 ,文章通过对传统宪法价值取向在环境时代所表现出种种局限的反思 ,提出环境时代宪法的价值取向———当代人与后代人 ,人与自然 ;最后 ,文章认为随着环境时代宪法法理基础———生态主义的建立和宪法价值取向———当代人与后代人 ,人与自然的确立 ,宪法将在权利社会化的基础上向权利生态化扩展 ,并围绕“人类和生态共同利益”之保护而精心构建 ,从而极具权利生态化的特征。     

Cosmopolitan Law

The European Union need not choose between the two options of a federalist constitution or a loose intergovernmental association of states. There is a third possibility. This is described by Kant as an order of perpetual peace, whereby states undertake to one another to be good republics, to join in a federation of peace, and to respect the rights of each other's citizens. For Kant this corresponds to a combination of principles of constitutional law, international law and, a new category, 'cosmopolitan law'. If we adopt Kant's concepts we can see, first, that the international law of human rights has become some kind of cosmopolitan law of the international community and that, second, parts of European Community law can also be seen as cosmopolitan law for its member states. The features of cosmopolitan law are that it does not follow a conventional theory of sources of law, it does not respect traditional state sovereignty and does not require a hierarchy of institutions for its interpretation and application.     

宪法是关于主权的真实规则

语言要有意义 ,就必须或直接或间接地指示物理客体。思想和言说之谬误的根源在于 :混淆实名词 (即主项之名 ,包括物理名词和抽象名词 )和物理世界之关系 ,冒称前者是后者。本着此种语言观 ,宪法学者的首要职责就是解释主权的真相。此种身份定位决定了宪法的概念 :它是关于主权之构成和运作的真规则 ,包括道德无涉的宪法法律和惯例。在成文宪法作用仍待提升的国家 ,要解释主权的真规则 ,培育符合宪政的宪法 ,尤其要倚重宪法惯例。     

作为根本法的宪法:何谓根本

根本法是盛行于17世纪英国的一个古老概念,表达了统治者须受制于外在权威这一理念,后在主权概念的冲击下衰落。18世纪美国复兴这一观念,根本法成文化为宪法,它强调约束主权的根本法与约束个人行为的普通法律之间的区别,发展了法院实施宪法保障根本法地位的机制,完成了根本法的法律化。德国根本法是真实和实定的协定。根本法概念其后注入基本权保障元素。我国民国和新中国宪法学都继受了这一概念。新中国宪法学理论的根本法观念侧重于强调宪法与普通法律的区别、宪法作为普通法律的立法基础、宪法的优位地位,但基本权保障未得到应有重视,司法实施宪法保障根本法的机制亦不健全。鉴于宪法的政治性,须重新恢复根本法和普通法律的区别,完成当代司法审查和现代宪法维护社会基本价值的使命。     

宪法在中国实施何以艰难

一部完整的宪法典至少必须解决两项攸关宪政实现的根本问题：一是谁来判断政府机关的行为是否违宪以及违宪之后的责任承担;二是公民的基本权利遭受政府行为的侵害后如何得到宪法救济。如果以此作为衡量现行宪法是否得以充分实施的标尺的话,现行宪法在当下中国的实施仍然存在着诸多问题。一部良宪之实施何以如此艰难？概括起来,其原因主要在于“宪法不是法”的认知观念尚未被打破;法官发现法律之方法机械与教条化;最高法院司法批复客观上阻碍了宪法的可诉性;社会成员普遍缺乏宪法思维以及缺乏宪法实施的制度机制。     

A coup d'état in law's empire: Dworkin's Hercules meets Atlas

In Law's Empire, Ronald Dworkin advances two incompatible versions of law as integrity. On the strong thesis, political integrity understood as coherence in fundamental moral principles constitutes an overriding constraint on justice, fairness and due process. On the weak thesis, political integrity, while a value, is not to be privileged over justice, fairness, and due process, but to be weighed along with them. I argue that the weak thesis is superior on both of Dworkin's criteria: fit and justifiability. However, the weak thesis must be amended to allow for coherence in policies as well as in principles: the social consequences of legal decisions must be taken into account.I would like to thank Kenneth Kiprnis for his helpful comments on earlier drafts.     

A European Constitution for Citizens: Reflections on the Rethinking of Union and Community Law

Whilst the European Union or Community is not a state and does not possess a political constitution in the sense of a series of irrevocable norms existing prior to and above Community or Union law, the evolution of the European legal system might nonetheless be regarded as a fundamental constitutional process. In this light, primary and secondary European law, together with the jurisprudence of the ECJ, might be said to be subjectivising certain specifically European principles thus contributing to the legal creation of sometimes novel rights for European Citizens. In a legal process similar to that seen within 19th Century Germany, European law is seeking a compensate for an incomplete political constitution through the development of a – second best – European Charter for Citizens.     

论我国行政许可的设定事项

行政许可是行政机关根据公民、法人或者其他组织的申请,经依法审查,准予其从事特定活动的行为。文章对我国行政许可的设定事项问题进行深入研究,认为我国行政许可法在行政许可设定事项上“态度”不坚决,导致行政机关易对行政许可法第12条、13条理解有偏差。建议应把行政许可法第12条、13条设定行政许可的内容分成两部分表述,把普通许可和特许规定为应当设定,把认可、核准、登记规定为可以设定。对我国行政许可制度改革也提出合理建议和措施。