Normative transformations in EU external relations: the phenomenon of ‘soft’ international agreements

Abstract

The European Union increasingly uses ‘soft’ international arrangements rather than formal international agreements in establishing relations with non-EU states. This contribution aims to raise the question of to what extent a move from hard to soft law in relations between the EU and its partners can be seen as allowing the Union to ‘step outside’ the legal framework (if that indeed is what is happening) and disregard the rules and principles that define the way in which EU external relations are to take shape. Possible consequences include the risk that these instruments are not subject to appropriate safeguards, that parliamentary influence (by the European Parliament as well as by national parliaments) is by-passed and that transparency is affected. There are various reasons for the EU not to use formal procedures, but a turn to informality does come at a price.     

Desperate equilibrium: on guilt,law and rationality

Abstract

This paper is about the role of guilt in relation to practical reason. It analyses guilt not as a passive emotion but as a particular kind of strategy at the level of subjective rationality. The concept of guilt occupies a complex and contested semantic space with other concepts, most notably shame. There have been many attempts – philosophical, psychological, sociological – to define these concepts in relation to each other. This paper suggests that whilst guilt is a moral concept that is oriented towards a certain kind of legalism, shame is a moralistic concept. As such, the relations between guilt and shame are discussed in relation to some literary examples, for instance Macbeth's guilt and Conrad's Lord Jim. The conclusion is that on the one hand our confusion over the concept of guilt comes down not least to what may be our confusion over the difficult concept of law and that on the other hand this has consequences that can ultimately be political.     

Legitimacy beyond the state: institutional purposes and contextual constraints

ABSTRACT

The essays collected in this special issue explore what legitimacy means for actors and institutions that do not function like traditional states but nevertheless wield significant power in the global realm. They are connected by the idea that the specific purposes of non-state actors and the contexts in which they operate shape what it means for them to be legitimate and so shape the standards of justification that they have to meet. In this introduction, we develop this guiding methodology further and show how the special issue’s individual contributions apply it to their cases. In the first section, we provide a sketch of our purpose-dependent theory of legitimacy beyond the state. We then highlight two features of the institutional context beyond the state that set it apart from the domestic case: problems of feasibility and the structure of international law.     

Empty Neighborhoods: Using Constructs to Predict the Probability of Housing Abandonment

Abstract

Enforcement of the law prohibiting housing discrimination depends largely on actions initiated by persons who believe they have been victimized and, presumptively, on their knowledge of their legal rights. It is therefore important to establish what people know about fair housing law. A recent national survey examines this topic and explores whether public knowledge makes any difference.

A majority of the public is aware of and approves of many aspects of fair housing law, although the size of that majority varies depending on which aspect of the law is considered. By contrast, only a minority of the public is aware of and accepts protections provided to renter families with children. There is an association between knowledge of the law, recognition of conduct perceived to contradict it, and willingness to respond to such conduct, suggesting a link between knowledge and likelihood of self‐protective responses, as envisioned by the Fair Housing Act.     

Normative transformations in the European Union: on hardening and softening law

Abstract

Until the late 1980s, European integration was generally said to be based on ‘integration through law’. However, in the 1990s, a group of scholars observed that law seemed to be increasingly challenged and new modes of governance tended to distance themselves from legal integration. They were confronted with another group arguing that the EU was still subject to processes of judicialisation, juridification and Eurolegalism. Against this background, this special issue aims at understanding what triggers normative transformations, be it the hardening or the softening of law, at both EU and national levels. In this introduction, soft and hard law are given a definition based on obligation and enforcement. Then, normative transformations are situated in a framework which makes a distinction between processes, normative levels and political/administrative levels of transformation. Finally, three types of explanations are suggested to help us understand when and why transformations occur.     

Social Hope and State Lawlessness

Abstract

Hope is a precious resource. But, deluded, not based on a sober appraisal of the relevant realities, hope can also be lethal. One kind of hope is utopian hope. It does not exhaust what social hope is, or should be, about. The hope of remedying the most terrible injustices makes an urgent call on our attention. The world has travelled some way from the time when tyrannical governments could act with impunity in dealing with those under their jurisdiction. But it has not travelled far enough. There remain a number of deficits in the system of international law: "thresholds of inhumanity".     

Shades of Gray: A Liminal Interpretation of Organizational Legality-Illegality

ABSTRACT

We apply the concept of liminality to the analysis of legality and illegality in organizations. Considering the centrality of rules to modern organizations and the potential discrepancy between general rules and specific situations, people are often confronted with a dilemma: apply the rules even when they should not be applied or bend the rules to improve their applicability. If they do what they should do (adapt the rules to the circumstances), they will be doing what they should not do (disrespecting the rules). This double binding situation forces people to slip into a liminal space, betwixt and between, accepting the structure while, at the same time, challenging it. The situation of liminality must eventually be solved, but it confronts individuals with the limits of legality. The relationship between liminality and illegality is explored, and some implications for the control legal and illegal networks extracted.     

The age of apology: evidence from the Israeli public discourse

At the time of its presentation, Derrida's 'Force of law' represented deconstruction's perhaps most direct statement on the possibility of justice and its most explicit engagement with law. The ensuing responses to that paper have typically focused on deconstruction's position regarding the force and authority of law, and especially on what is taken as Derrida's theory of justice. As such, 'Force of law' is often discussed in isolation to mainstream legal philosophy or is otherwise understood to represent a radical counter to that tradition. It is possible to take a different direction, however, by considering the event of that paper's presentation and reception in relation not only to the existing disciplines of legal studies, but also to the problematic of discipline itself. Re-reading some of the work of contemporary legal philosophy in the light of that problematic may thus enable a certain questioning of the disciplinary divisions whose very institution underscores the 'radical' nature of deconstruction's 'critique' of traditional understandings of law. Such a re-reading may even allow a speculation upon a certain (trans)disciplinarity of deconstruction, reconsidering the latter's relation to traditions.     

Ownership in Theory and in Practice: Transfer of Authority in UN Statebuilding Operations

The language of ‘ownership’ is commonly used in statebuilding operations, but it is not clear that the term has either consistency or substance. It certainly does not have its literal meaning, in the sense of rights of possession either of property or a formal stake in an organization, such as shares in a corporation. Instead ownership tends to be used figuratively – much as ‘buy-in’ in this context usually does not suggest an actual financial transaction – to refer in a more vague way to the relationship between stakeholders, with meanings ranging from a sense of attachment to a programme or operation, to (rarely) actual controlling authority. This essay explores how ownership emerged as a shibboleth of the development community and how it has influenced UN statebuilding operations. The emphasis will be on rule of law institutions, but the critique of ownership applies to post-conflict operations more generally.     

Legitimacy and Coercion in Peacebuilding: A Balancing Act

ABSTRACT

Despite the tendency of the power literature to analyse legitimacy and coercion in isolation, both theoretical and empirical evidence suggest that coercion and legitimacy are not parallel lines but can interact in different ways, supporting or undermining each other. A methodical exploration of the relationship between legitimacy and coercion is important not only for improving the theoretical literatures on power and legitimacy but also in the light of the increasing interest in the power of legitimacy in statebuilding and peacebuilding. This article first analyses the overall interaction between coercion and legitimacy, and then explores the question that emerges from the interaction analysis; what level of coercion is permitted or required in order for a mission’s local legitimacy to be sustained? Finally, for the practice of peacebuilding, the article shows that an operation needs to understand its initial legitimacy standing with the local population, as this determines how much coercive force it can employ without undermining its overall legitimacy.     

Equality,value pluralism and relevance: Is luck egalitarianism in one way good,but not all things considered?

Abstract

Some luck egalitarians argue that justice is just one value among others and is thus not necessarily what we should strive for in order to make the world better. Yet, by focusing on only one dimension of what matters – luck equality – it proves very difficult to draw political implications in cases where several values are in tension. We believe that normative political philosophy must have the ambitionto guide political action. Hence, in this paper we make a negative and a positive point. Negatively, we argue that the inability to offer recommendations on what to strive for potentially weakens Kasper Lippert-Rasmussen’s account of luck egalitarianism. In order not to be irrelevant for political practice, a more serviceable version of luck egalitarianism that would allow for all-things-considered judgments is needed. Positively, we examine two possible routes toward such a view. One would be to stick to pluralism, but to discuss possible clashes and find a rule of regulation in each case. Another would consist in giving up value pluralism by identifying an over-arching value or principle that would arbitrate between different values. We suggest that Lippert-Rasmussen’s foundation of equality carries the potential for such an overarching principle.     

Lists as Social Grid: Ratings and Rankings in Everyday Life

It is argued that the inundation of lists in our everyday lives has become part of the social grid, which tells us who and what we are and how we relate to the world. Using Baudrillard's three mutations of the sign, this paper examines the relationship between lists (rankings and ratings) and social life. This updated grid, which is increasingly defined by market capitalism, makes for not only a greater commodified self but a simulated self based on the external statistical world.     

‘No Interest in Land': Legal and Spatial Enclosure of Gypsy-Travellers in Britain

This paper examines the place of Gypsy-Travellers within the British legal system. It considers the function of the law in establishing moral and social norms and pathologising aspects of Traveller life. It examines how a variety of legal principles, discourses and bureaucratic agencies combine to construct travellers as deviant with regard to the moral and social order. It considers the attempts in British law to control Travellers' spatial practices and nomadic lifestyle, and the ambivalent nature of legislation in this area. The Caravan Sites Act 1968 is examined in terms of its formation and implementation. The origin and impact of the Criminal Justice and Public Order Act 1994 are assessed. It contends that the criminal justice system has its own rationality which may conflict with both that of the formal law and other parts of the state. It is argued that institutional discrimination exists within the legal system, based on ingrained ‘sedentarist' assumptions about what constitutes a normal way of life. Both the 1968 and the 1994 Acts can be criticised in these terms. Travellers have, however, been able to resist many of the practices of legal and spatial enclosure to which they are subject.     

Judicialization of politics or politicization of the judiciary? Considerations from recent events in Thailand

Abstract

Courts are becoming major players in the political landscape of Southeast Asia. This paper seeks to examine the causes and consequences of this new trend with particular reference to Thailand. Our study primarily analyzes the behavior of the Thai Constitutional Court during the political crisis in 2006–2008; the findings suggest that recent judicial activism and assertiveness in political matters, while partly explained by the interests of judges themselves and by the constitutional rules guiding their activities, is best understood as a direct consequence of the intervention of the monarchy, to which the judiciary has traditionally been closely aligned. Accordingly, the Thai case not only provides new evidence about what may be driving the new judicialization trend, it also draws attention to problematic aspects of this trend, namely the gradual politicization of the Thai judiciary and with it the erosion of the rule of law in Thailand and its replacement with rule by law. Our findings may also illuminate some larger issues at the intersection of politics and the courts throughout the region in ways that advance the theoretical understanding of both.     

Cyberspace Effects on Civil Society. The Ultimate Game-Changer or Not?

ABSTRACT

The article studies the effects of the emergence of cyberspace, or digitization, on civil society, and develops an analytical framework to that effect. It is distinguished between four types of civil societies: apolitical, political, transnational, and uncivic. Each type of civil society is considered separately vis-à-vis cyberspace developments in order to understand what kind of civil society is enhanced by these developments and, conversely, what kind of civil society is constrained. This understanding helps inform how cyberspace has changed the more generic society-state relations. While one can identify many instrumental changes and developments in civil society practices, the article concludes that the emergence of cyberspace has not profoundly changed society in terms of the relative power of one type of civil society over another. Thus, its transformative power is rather limited in a more fundamental sense. The empirical focus of the article is on Norwegian civil society, representing a Western developed democratic state, but it is argued that while the empirical results may vary, the analytical framework can arguably be applied and tailored to any society.     

Withdrawing (from) waste,and the end of law: reflections on DeLillo’s prophecies in Mao II (1991) and Underworld (1997)

ABSTRACT

An often heard phrase these days is “There is something about this chaotic 21st century of ours ...”. This “something”, it is argued here, lies at the heart of a new form of life which has become predominant in recent decades in globalizing culture: the life of aspiring, radicalizing sovereigns. This “something”, then, could the called the end of Law. In an age of aspiring and radicalizing sovereigns the Law, indeed law in all its forms and shapes, has become not just an irrelevance, but a nuisance and embarrassment as well. One of the manifestations of this irreverent sovereign attitude is the growing inability to accept waste, that is, an inability to live with all that generates waste (i.e. Law), and an inability to live with all that is waste. Waste, i.e. the accumulation of spent potential, is not what the aspiring, radicalizing sovereign wants. The sovereign's desires are all about conserving all potential. Although this new form of life has become manifest only very recently, it had been predicted by the novelist Don DeLillo in his novels Mao II and Underworld. The themes and images in both these novels are the focus of this contribution.     

International Soft Law, Human Rights and Non-state Actors: Towards the Accountability of Transnational Corporations?

During this age of globalisation, the law is characterised by an ever diminishing hierarchical framework, with an increasing role played by non-state actors. Such features are also pertinent for the international enforceability of human rights. With respect to human rights, TNCs seem to be given broadening obligations, which approach the borderline between ethics and law. The impact of soft law in this context is also relevant. This paper aims to assess whether, and to what extent, this trend could be a proper path to enforce the legal accountability of transnational corporations for human rights. It will be argued that the interplay between law and ethics should be assessed differently depending on which kind of correlative duty is at stake. With regard to negative duties, soft law tools concerning TNCs’ conduct may weaken the impact of hard law. By contrast, when positive duties are concerned, insofar as the horizontal effect of rights cannot be assumed, soft law turns out to be much more useful.

Fake and Dishonest: Pathologies of Differentiation of the Civil and the Political Sphere in Hungary

ABSTRACT

Almost 25 years has passed since transition, and Hungarian democracy is in a deplorable state. Party politics pervades every aspect of political life, undermining the autonomy of civil actors, treating them as a potential ‘fan club’ of parties rather than cooperating and consultative partners. In order to capture what went wrong in Hungarian civil society, we propose a structural analysis that highlights pathologies of the differentiation between the political and civil spheres. We elucidate how the political sphere usurps the autonomy of the civil sphere; thereby not only does it undermine trust in civil actors, but also undercuts their capacity to perform their control function over the political sphere. In the analysis, we concentrate on what we identify as the ‘fake-civil/pseudo-civil’ phenomenon and related discourses, relying on the conceptual and theoretical apparatus developed by Arato and Cohen.     

‘A Nation Reborn’: Right to Law and Right to Life in The Purge Franchise

ABSTRACT

Popular culture matters for helping make sense of our political lives. This article addresses the value of dystopian horror films in challenging narratives about the state. It is situated within broader understandings of popular culture and politics, and specifically within narrative understandings of the state as a performative body. It presents The Purge film franchise as an example of such a challenge to state narratives, and argues that through its distortion of dominant state narratives, the franchise reveals and challenges the intersections of economic and racial inequality in the neoliberal United States. It examines in particular the emergency broadcast featured in all four films, which positions citizens in a relationship with law and life where the right to law conflates the right to life, and argues that the films present an understanding of vulnerability and abandonment that are in some ways already present in the state. It concludes by questioning what, if any, the capacities are for resistance.     

Security Sector Reform in Liberia: An Uneven Partnership without Local Ownership

Abstract

The security situation in Liberia is currently quite good, and at a glance the peacebuilding process seems to be moving ahead. However, the root causes of the conflict have not been adequately addressed, but have in fact become more interlinked in the aftermath of the civil war. Instead of addressing local perceptions of insecurity the international community made plans for Liberia without considering the context in which reforms were to be implemented. The peace in post-conflict Liberia is therefore still fragile and the international presence is regarded as what secures the peace. Still, the UN is supposed to start its full withdrawal in 2010—indicating that the international community will leave the country without addressing the root causes of conflict.