Concept or Context? The Exchanges between Ross and Kelsen on Valid Law and Efficacy

The aim of this paper is to point out the salient patterns of agreement and dis- agreement between Alf Ross and Hans Kelsen's analyses of valid law and efficacy. I argue that the disagreement has the character of systemic postulation on the part of both interlocutors. My main thesis is that the disagreement is not one of philosophical principle, but one that must be resolved on the basis of pragmatic considerations, i.e., the choice between the two valid-law schemes pertains neither to necessity nor to truth, but to expediency and values.     

Juridification: Disrupting the Relationship between Law and Politics?

The article addresses some possible implications of juridification in the society. The concept of juridification is unclear, and the empirical knowledge of the social implications of various processes of juridification is weak. We argue that clear‐cut conclusions about the implications of such processes cannot be drawn. To address questions of implications of juridification processes, we focus on the relationship between law and politics. An analytical framework for the analysis of juridification processes is introduced to manage the vast implications of these processes. The discussion indicates complexity and contradictory outcomes of juridification processes. We conclude that to understand the vast complexity of the different kinds of juridification processes, we need more empirical studies from a range of academic fields, including law, economics and political sciences, and that researchers in these fields need to take a step back to get a more satisfactory analytical point of departure for such studies.     

Law by human intent or evolution? Some remarks on the Austrian school of economics’ role in the development of law and economics

In the late nineteenth century, economic analysis of law experienced an outright rejection by the German-speaking legal community. In the second half of the twentieth century, it became a dominant approach in American legal inquiry. We argue that this success was partly due to the insights of Austrian economics which the second wave of law and economics has incorporated. We argue that Austrian legal and economic scholars marked the two cornerstones between which the subsequent discussion oscillated: social planning versus evolution (spontaneous order).     

Hybrid Texts and Uniform Law? The Multilingual Case Law of the Court of Justice of the European Union

The case law of the Court of Justice of the European Union (ECJ) is shaped by the language in which it is drafted—i.e. French. However, because French is rarely the mother tongue of those drafting that case law, the texts produced are often stilted and awkward. In addition, those drafting such case law are constrained in their use of language and style of writing (owing to pressures of technology and in order to reinforce the rule of law). These factors have led to the development of a ‘Court French’ which necessarily shapes the case law produced and has implications for its development, particularly insofar as it inevitably leads to a type of precedent in that case law. That case law also undergoes many permutations of translation into and out of up to 23 different languages. The resultant texts that make up the case law are hybrid in nature—consisting of a blend of cultural and linguistic patterns, constrained by a rigid formulistic drafting style and put through many permutations of translation. The present paper investigates the production of the Court’s multilingual case law and considers whether the hybrid nature of that case law can actually aid the presentation (and thus the development) of a ‘uniform’ EU case law.     

Principles of European Private or Civil Law?

The aim of this piece is to draw the attention of the debate on principles in European private law to an institutional question. As the question of who detects these principles is crucial to understand the values and intentions behind the provisions on principles, I turn to the significance of the authority question of who detects principles of European Private law with regard to the two players ECJ and the academic circle ‘Joint Network on European law'. After analysing the role of these players I will ask whether private law principles (which are principles derived from the analysis of contractual relationships by academics) or principles of civil law (derived from conflict solution by judges) govern the principles debate in European Private law. I will argue for a pluralistic understanding of European Private law, where neither academia nor the ECJ enjoy a monopoly on the detection of principles in European Private law. Instead, they form a symbiotic relationship in several respects. Understood in this way, the DCFR's role as a toolbox for the legislator is supplemented with its maybe even stronger significance as a toolbox for judges.     

How Has the Law Gone Mad? Reflections on Semiotics and Postomodernism

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique -     

No Harm No Foul? Objectivism and the Law of Attempts

Law and Philosophy -     

Fazhi vs/and/or Rule of Law?: A Semiotic Venture into Chinese Law

The paper is an investigation offazhi (rule of law) in China. The studyproposes a tentative semiotic framework for theinterpretation of the rule of law as a legalconcept to be applied to China in the light ofits recent incorporation into the ChineseConstitution. The paper argues that legalconcepts such as the rule of law are triadic innature and their constituents are relative,relational and contextual in the semioticinterpretative process. The study examines howthe concept can be explicated with the thin orformal theory of the rule of law as a frame ofreference, and how the semiotic model maycontribute to the understanding of the Chineserule of law or the lack thereof. This approachalso attempts to account for the gap betweenthe legal ideal and reality in China andcanvasses cross-cultural considerations. In thefirst part of the paper, a semiotic frameworkfor legal concepts is postulated forconstructing the meaning of the rule of law,followed by its application to contemporaryChina.     

Governing Without Law or Governing Without Government? New‐ish Governance and the Legitimacy of the EU

The way the EU is governed and the way such governance is perceived contributes centrally to the legitimacy of the European enterprise. This legitimacy underpins both the acceptance and the effects of EU activity. Legitimacy is a product of the way in which decisions are taken, and the nature and quality of such decisions. Pressures created by concerns about both forms of legitimacy affecting EU decision making partially explain the turn in legal scholarship away from the more traditional preoccupation with the analysis of legislative instruments and case-law, towards a more broadly based conception of governance which involves the examination of a more diverse range of processes and instruments. This article offers an analysis of the parameters of newness in governance. The overall argument is that some of the more innovative governance modes are not so new, whilst more recent and celebrated modes, although displaying elements of newness, are, perhaps, not that innovative. The focus of the new governance in the EU is largely on governing without law, rather than the more radical governing without government; hence the suggestion that we are experiencing only 'new-ish governance'. The article asks whether a limited conception of new governance is inevitable given the legitimacy constraints within which the EU operates, or whether the potential for developing a broader conception of governance, through wider participation and involvement of non-governmental governing capacities, might bolster legitimacy through both better processes and better outcomes.     

The Animal: A Subject of Law? A Reflection on Aspects of the Austrian and German Juridical Systems

In recent years there has been a marked increase in interest in animal welfare issues worldwide. This subject often evokes extreme points of view, and can be both intellectually challenging and emotionally dividing. It is undeniably a field where substantial progress has taken place, with a multitude of countries worldwide implementing their own animal welfare and protection laws. However, calls continue to be voiced for more extensive and courageous measures to be taken concerning both the content and the enforcement of animal welfare legislation. To highlight a variety of these promising and noteworthy ideas this article outlines and examines some selected and qualified aspects of a potential juridical approach to the subject by consulting the legal systems of Austria and Germany under this particular premise. The aim will be to ascertain the extent to which animals have been granted consideration and protection, for instance in spheres of Constitutional or Civil Law. What options exist to safeguard an animal by a legally founded and secured position, and on which rank in the legal system could such provisions possibly be established? Ideally, a complete legal network on all possible levels of the legal system should be developed, ensuring a comprehensive and an all-embracing protection of the individual animal.     

Blurring the dimensions of privacy? Law enforcement and trusted traveler programs

Risk has become a ubiquitous tool for security governance. This paper analyzes the ongoing shift in airport/aviation security from rule-based to risk-based screening. Seeking to explore the effects of data based passenger risk assessment on privacy through the collection and processing of personal data, it is argued that risk is likely to enroll passengers into a partly voluntary, partly enforced membership in trusted traveler schemes in order to enhance the database, thus enabling a more precise assessment of risk levels. In a disciplinary spatial setting, the once distinct privacy dimensions of citizen-state and consumer-market become increasingly blurred, as law enforcement authorities seek to exploit data that was originally obtained for commercial purposes to improve risk calculations.     

Should the EU Protect Democracy and the Rule of Law inside Member States?

Against the background of recent developments in Hungary, the article discusses the question whether the European Union ought to play a role in protecting liberal democracy in Member States. First, it is argued that the EU has the authority to do so, both in a broad normative sense and in a narrower legal sense (though the latter is more likely to be disputed). The article then asks whether the EU has the capacity to establish a supranational militant democracy; here it is argued that at the moment both appropriate legal instruments and plausible political strategies are missing. To remedy this situation, the article proposes a new democracy watchdog, analogous to, but more powerful than, the Venice Commission. Finally, it is asked whether EU interventions would provoke a nationalist backlash. There is insufficient evidence to decide this question, but the danger of such a backlash probably tend to be overestimated.     

Allies or Foes? A Review of the Relationship between the International Criminal Court and the United Nations Security Council

Netherlands International Law Review - The question concerning the relationship between the United Nations and the International Criminal Court proved controversial during the drafting of the Rome...     

Can Law Account for the Past? Law and the Road from Oblivion to Memory

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique -     

Concept of “Semi-Protected Natural Areas” in Environmental Law of Russia and in the Post-Soviet Space: Discussion Questions

The article proves that environmental law of Russia and the countries of the Commonwealth of Independent States (CIS) includes a rather wide legal category, which the authors suggest calling “semi-protected natural areas”. It contains land plots, which occupy an intermediate position between common lands and specially protected natural areas (wetlands, water-protective zones, soils included in the Red Data Book of Soils, wilderness areas), as well as between common lands and ecological disaster zones (sanitary protection zones). Further doctrinal research and normative consolidation of this category will allow improving the legal regime of these areas, including existing restrictions and bans in the field of economic and other activity, filling existing legal gaps, forming a more adequate system for counteracting modern environmental threats, including expanding the arsenal of legal means in the field of protection of the environment.     

Law’s Cultural Project and the Claim to Universality or the Equivocalities of a Familiar Debate

Do our present circumstances allow us to defend a specific connection (that specific connection) between ?legal rules?, ?moral claims? and ?democratic principles? which we may say is granted by an unproblematic presupposition of universality or by an ?acultural? experience of modernity? In order to discuss this question, this paper invokes the challenge-visée of a plausible reinvention of Law??s autonomous project (a reinvention which may be capable of critically re-thinking and re-experiencing Law??s constitutive cultural-civilizational originarium in a ?limit-situation? such as our own). The discussion is developed by recognising that the claim to universality is not only incompatible with a substantive conception of juridicalness as validity but also sustained with difficulty by a procedural representation of discourse and rationality (a representation which, against its own conclusion-claims, could also be said to be culturally and civilizationally bounded). Not forgetting some specific features of contemporary juridical pluralism??namely that which emerges from the counterpoint between semiotic groups or interpretative communities (and their differently assumed claims of intersemioticity concerning the signifier law)??this train of reflection diagnoses briefly a sequence of complementary main difficulties (as ?obstacles? to recognising Law??s demand as an unmistakable cultural project), namely those arising from the formalistic normativistic inheritance (confounding legal autonomy with isolationism), from the challenges and seductions of practical holism (justifying a continuum in which Law??s project loses its sense and autonomy), and also from the familiar debate between exclusive and inclusive versions of positivism and non-positivism (a debate which establishes-consecrates an equivocal counterpoint between Law and Morality).