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 impact of South Africa's new constitution on the organization of health services in the post-apartheid era

This essay evaluates the transformation of the health care system in South Africa in the five years following the end of apartheid. This period has witnessed dramatic and wide-ranging changes in the roles of the central and provincial governments as well as many of the same problems related to decentralization as have been seen elsewhere in the world. The importance of effective intergovernmental relations to the creation of a national health system is highlighted. Negotiation. contracting, and coordination skills and mechanisms need to be strengthened to ensure a more effective national health system within a decentralized political system.     

The Climate Change Regime: An Enviro-Economic Problem and International Administrative Law in the Making

The climate change problem, or global warming, has gained a prominent place on the international political agenda, since the mid-1980s, when it first attracted political attention. The problem was initially perceived mainly as an environmental problem that could be resolved by technological solutions, its current perception, this essay argues, is best characterized as that of an enviro-economic problem. A perception that is exemplified by the ongoing negotiations for the development of economic mechanisms to tackle the problem. The climate change arena is a complex one, involving dichotomies between developed and developing countries, between fossil fuel producing and importing countries and between small island developing states and other states. This essay outlines the interests that play a role in the climate change negotiations and discusses the international climate change regime as contained in the United Nations Framework Convention on Climate Change and its Kyoto Protocol. It concludes that the climate change negotiations are complicated by the fact that the negotiators, in addition to developing new substantive rules for a complex problem, are involved in developing new systemic rules for the international legal system. These new systemic rules have more in common with rules of national systems of public or administrative law than with traditional rules of international law, which have many similarities with national systems of contract law.     

Prisoners' expectations of the national forensic DNA database: surveillance and reconfiguration of individual rights

In this paper we aim to discuss how Portuguese prisoners know and what they feel about surveillance mechanisms related to the inclusion and deletion of the DNA profiles of convicted criminals in the national forensic database. Through a set of interviews with individuals currently imprisoned we focus on the ways this group perceives forensic DNA technologies. While the institutional and political discourses maintain that the restricted use and application of DNA profiles within the national forensic database protects individuals' rights, the prisoners claim that police misuse of such technologies potentially makes it difficult to escape from surveillance and acts as a mean of reinforcing the stigma of delinquency. The prisoners also argue that additional intensive and extensive use of surveillance devices might be more protective of their own individual rights and might possibly increase potential for exoneration.     

政治文明的现代诉求

文章立足于政治文明发展的基本历程,并从法治的视角解读现代政治文明,认为现代政治文明是以法治为底蕴,其核心和实质是民主政治,同时蕴涵自由、人权、民主、公平、正义等人类普适性价值,现代政治文明所追求的目标应该是宪政国家体制。     

政治变革与国家能力——对中国近代宪治探寻的再思考

从现代化的角度看,宪治探寻在近代中国不是自发启动的,而是在原有的政治体系难以容纳、应付外部因素的强烈挑战时不得不作出的一种反应。在此过程中,政治变革与国家能力呈现出鱼和熊掌难以兼得之势。一方面,中国近代宪治探寻所启动的政治变革始终无法在国家有效政治统合能力的帮持下顺利进行。另一方面,政治变革所具有的合法性因素并未给国家能力提供有效帮助,反而对其进一步消解。这种近乎“负和博弈”的现象可以从中国传统社会形态和中国现代化特殊路径得到部分解释。     

When is a group not a political group? the dissolution of the TDI group in the european parliament

This article is about political groups and non-attached members in the European Parliament (EP). Although the strengthening of the former to the detriment of the latter is an old as well as an incremental phenomenon, it is with the current legislature that the struggle between the two has become a central issue of the EP agenda. The peak is the case of the TDI Group (‘Bonino-Le Pen’), the first political group dissolved by the assembly itself, backed by an unprecedented judgment of the Court of First Instance, on the basis of the lack of political affinities between its members. At the same time as shedding light on the way political groups are conceived and the prerogatives they reserve, this episode emphasises the special imperatives of the EP internal organisation and helps to explain the most recent revision of the Rules of Procedure. The study reveals that over time the EP has increasingly enhanced the role of political groups to an extent that non-attached members consider prejudicial for the full exercise of the democratic mandate; moreover, it shows that the requirement of political affinities to form political groups is formal in nature so that only an explicit denial would entail its actual enforcement, as was the case for the TDI Group; finally, while emphasising that the EP's internal structure needs to be considered in the light of the special legislative role and unique transnational features of the institution itself, it warns that reference to other national models can be misleading.     

The Electoral Connection and Legislative Committees

This article examines whether the career needs of legislators – to be re-elected or to move on to another political post – allow us to explain the rules governing committee structures and the committee assignments individual legislators obtain. It uses the institutional variations provided by Argentina, Costa Rica, and Venezuela to test hypotheses about committee assignments and committee assignment mechanisms. It finds that incentives created by candidate selection procedures and electoral rules show some relationship to committee assignments, but with a good deal of variation across national cases and individual careers.     

Free trade agreements for the environment? Regional economic integration and environmental cooperation in East Asia

Traditionally, it has been argued that increased economic competition through free trade agreements would bring about environmental degradation. This study, however, argues that recent international free trade agreements have tended to enhance environmental cooperation among participating countries. This study has examined the process by which East Asian countries have developed mechanisms for the extant level of regional environmental cooperation, particularly highlighting the reasons for commonalities and differences in regional environmental cooperation between ASEAN and the dominant economies in the region. It finds that three factors particularly matter for developing regional environmental cooperative mechanisms: networks of intergovernmental organizations, the strong willingness of political leaders which is often embodied in national strategies for regionalism and the establishment, and the institutionalized linkage—particularly through FTAs—between trade and the environment. Tracing the process of policy evolution within three groups of countries sheds light on the political conditions under which the four entities involved (the ASEAN, Japan, China, and the Republic of Korea) have produced and strengthened cooperative environmental mechanisms among them along with free trade agreements. Focusing especially on the environmental policy changes in Japan, China, and the ROK associated with the creation of its FTAs with ASEAN, the study concludes that each of free trade agreements has incrementally developed environmental cooperation, especially when integrated into a vision for regional integration.     

对反腐倡廉建设的几点新认识

反腐倡廉是党一贯坚持的政治立场，是全国人民关注的重大政治问题。党的十八大报告又赋予其新的内涵。本文着眼于新时期反腐倡廉建设的需要，提出了反腐倡廉建设的新观点、新举措。     

Denationalization and the Very Idea of Democratic Constitutionalism: The Case of the European Community

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.     

Authority,Nationality, and Minorities

Prominent normative theories for accommodating minority national groups appeal to the value of national cultures and/or the psychology of group recognition. This article aims to show that an argument from political authority provides a better justification. Building on Joseph Raz's theory of authority, the article argues that members of minority national groups are disadvantaged in relation to their majority counterparts under standard democratic institutions; such institutions do not provide minority national groups with comparable access to the conditions for legitimate political authority. Constitutional arrangements for accommodating minority national groups—such as territorial self‐government or power‐sharing—are justified insofar as they might offset this disadvantage.     

From Balance to Conflict: A New Constitution for the EU

As the crisis (and the Union's response to it) further develops, one thing appears clear: the European Union post‐crisis will be a very different animal from the pre‐crisis EU. This article offers an alternative model for the EU's constitutional future. Its objective is to invert the Union's current path‐dependency: changes to the way in which the Union works should serve to question, rather than entrench, its future objectives and trajectory. The paper argues that the post‐crisis EU requires a quite different normative, institutional and juridical framework. Such a framework must focus on reproducing the social and political cleavages that underlie authority on the national level and that allow divisive political choices to be legitimised. This reform project implies reshaping the prerogatives of the European institutions. Rather than seeking to prevent or bracket political conflict, the division of institutional competences and tasks should be rethought in order to allow the EU institutions to internalise within their decision‐making process the conflicts reproduced by social and political cleavages. Finally, a reformed legal order must play an active role as a facilitator and container of conflict over the ends of the integration project.     

Plurinational democracies in Europe: the quest for a profane constitutionalism

How should we understand the claims on the right to decide on status made within plurinational member states of the European Union by actors and institutions seeking to protect the self-government of sub-state nations or peoples, or at least their right to consent to their ascribed status? Peaceful solutions to conflicts involving contested claims over territory, citizenship, and national sovereignty (authority) can be found when a conceptual or cultural transformation takes place towards a pluralist and bottom-up or federal concept of plurinational democracy, recovering the centrality of self-determination as the self-assertion of a political community. Constitutional law based on the popular sovereignty of a majority nation within plurinational democracies often neglects the question of the definition of the demos as the prefigured constituency, and the existence of national or territorial minorities. If constitutions are interpreted as precluding any claim to self-determination by a constituency, and any debate about that claim, then an undemocratic, sacralized model of militant constitutionalism may emerge. That model is not so much about protecting democracy as it is about imposing a national mould, a pre-defined demos. This article revisits the claims of sovereignty made by national territorial minorities in Spain, against the background of the constitutional doctrine of the Spanish judiciary that precludes these constituencies from engaging in political debates on the right to decide. The resulting sacralization of the Constitution leads to a new version of the model of ‘militant democracy’, a militant nationalist constitutionalism, which can be countered by an alternative, secular, even profane approach to the Constitution.     

The European Convention and the Relative Rights of Resident Aliens

By virtue of conceptual abstraction, the notion of nationality plays a pivotal role in liberal democracies, governing distinctions in the allocation of 'absolute' and 'relative' rights, and determining that while national citizens, as full member of a sovereign political community, enjoy both human and political/social rights, resident aliens are excluded from the scope of these latter, community-related, rights. Further, The European Convention upon Human Rights appears to countenance this dichotomy, allowing sovereign states to restrict the political activity of aliens. This paper nonetheless argues that such a distinction undermines the democratic imperative upon which liberal constitutional states are founded. A 'social integration thesis,' holding that individuals should enjoy, as a fundamental right, the possibility fully to develop their personalities though establishing and pursuing secure social contacts, as well as interpreting those contacts in the light of prevailing cultural perceptions, not only raises the right of stable residence to one of most fundamental attaching to the human condition, but also indicates that political rights—a mere extension of self‐expression and self-fulfilment within civil society—should be recast as a universal entitlement. Article Three of the First Protocol ECHR may be construed in line with the social integration thesis, and consequently, in the matter of the definition of the members of the national community, the political sovereignty of the Nation State must be limited.     

The National Judiciary—Sword of European Court of Justice Rulings: The Example of the Kohll/Decker Jurisprudence

The role of the national judiciary in enforcing EC law, and particularly European Court of Justice (ECJ) rulings, has been largely neglected by empirical legal and political science research. Existing research has categorised the role of the national judiciary as either shielding national legislation from the ECJ or as serving as a ‘sword’ to foster integration and to force change on reluctant governments. This article sides with the second assumption and attempts to empirically assess it using the example of the patient mobility jurisprudence by the ECJ, the so‐called Kohll/Decker jurisprudence. The three case studies on France, the UK and Germany show that national courts played an important role in overcoming the resistance against this jurisprudence: via a multiplication of national court cases that contradicted domestic legislation they forced the legislator to end judicial uncertainty.     

Governing Parenting: Is There a Case for a Policy Review and Statement of Parenting Rights and Responsibilities?

This paper addresses the governance of families in the context of a political philosophy that endorses a rights perspective in social policy and the need to promote transparent government. The status of parenting as a function of government has grown substantially under the present Labour administration and now commands cross-party support as a priority issue. However, it would be wrong to claim that there is a national consensus regarding the role of the state in supporting and regulating families in their upbringing of children. This paper assesses current parental rights and responsibilities in relation to financial support, and the physical and emotional care and control of children. Emerging themes and ambiguities are drawn out, and consideration is given to the need for a strategic policy statement embracing the broad ambit of government legislation, discussion documents, and commentaries. In conclusion, the case is made for a regular policy review and for a national debate as to whether there should an official statement of parents' rights and responsibilities.     

Doing family

This paper draws on how constructions of ‘the migrant family’ in political discourse influence migrants' and their families' lives. In specific national contexts, ‘the migrant family’ is determined according to the national and European debates and expressed by their respective rules and regulations. By ‘doing family’, migrants and their families develop strategies in order to fit these requirements of living a certain family life. Fulfilling specific norms and perceptions which are not necessarily required for the majority of society is a precondition to succeed. Who is and who is not part of the family, who holds responsibility — such aspects have to be proved and repeatedly reproduced by migrants and their families. This not only affects their position in society, but also has strong implications on their lives as a couple and family, since it requires the continuous adaptation and reconstructions of their everyday reality.     

Elections as Focusing Events: Explaining Attitudes Toward the Police and the Government in Comparative Perspective

Traditional views hold that citizens' attitudes toward the police are driven by local concerns. We contend that public attitudes toward the police are responsive to systematic and periodic national-level political factors. In particular, we show that national elections as a focusing event alter periodically the determinants of attitudes toward the police. Using a logistic regression model and diachronic data from Costa Rica, Mexico, and the United States, we find that attitudes toward the police and the national government are linked, and this linkage is responsive to the influence of national election campaigns in varying degrees. In addition, we find that attitudes toward the Mexican police are sensitive to partisan changes in the composition of the national political government. We find no such sensitivity in the police attitudes of Costa Rican and U.S. citizens. This suggests that police attitudes are not only affected by the performance of the national political government but also by the character (consolidated versus unconsolidated) of the national political government. In short, police attitudes in new democracies are an indication of the unconsolidated nature of the state apparatus.     

Quasi-National European Identity and European Democracy

Democracy may well be the primary virtue of political systems. Yet European politics is marked by a democracy deficit that will not disappear spontaneously. While legal and political theory on this issue is dominated by supporters of civic institutionalism and constitutional republicanism, liberal nationalists seem to be split. They justify the civic nationhood of member states, but they shrink away from the idea of a European people. This essay claims that a quasi-national conception of European identity can be conducive to the rise of a democratic political union of Europe. It discusses the mechanisms and rules for Europeanization of the sense of equal dignity and solidarity. This approach to supranational identity is explicitly instrumental and orientated towards the long run. However, the main liberal objections against it can be countered.