Balancing Security and Democracy, and the Role of Expertise: Biometrics Politics in the European Union

What is the relationship between security policies and democratic debate, oversight and rights? Does coping with security threats require exceptions to the rule of law and reductions of liberties? The inquiry that follows tries to answer such questions in the context of the European Union and takes the case of biometric identification, an area were security considerations and the possible impact on fundamental rights and the rule of law are at stake. Some hypotheses are explored through the case study: “securitisation” and “democratisation” are in tension but some hybrid strategies can emerge; the plurality of “authoritative actors” influences policy frames and outcomes; and knowledge is a key asset in defining these authoritative actors. A counter-intuitive conclusion is presented, namely that biometrics, which seems prima facie an excellent candidate for technocratic decision-making, sheltered from democratic debate and accountability – is characterised by debate by a plurality of actors. Such pluralism is limited to those actors who have the resources – including knowledge – that allow for inclusion in policy making at EU level, but is nevertheless significant in shaping policy; it explains the central role of the metaphor of balancing security and democracy, as well as the “competitive cooperation” between new and more consolidated policy areas. The EU is facing another difficult challenge in the attempt at establishing itself as a new security actor and as a supranational democratic polity: important choices are at stake to assure that citizens’ security is pursued on the basis of the rule of law, respect of fundamental rights and democratic accountability.     

Still in Deficit: Rights,Regulation, and Democracy in the EU1

Abstract: Critics of the EU's democratic deficit standardly attribute the problem to either sociocultural reasons, principally the lack of a demos and public sphere, or institutional factors, notably the lack of electoral accountability because of the limited ability of the European Parliament to legislate and control the executive powers of the Commission and the Council of Ministers. Recently two groups of theorists have argued neither deficit need prove problematic. The first group adopts a rights‐based view of democracy and claims that a European consensus on rights, as represented by the Charter of Fundamental European Rights, can offer the basis of citizen allegiance to EU wide democracy, thereby overcoming the demos deficit. The second group adopts a public‐interest view of democracy and argues that so long as delegated authorities enact policies that are ‘for’ the people, then the absence of institutional forms that facilitate democracy ‘by’ the people are likewise unnecessary—indeed, in certain areas they may be positively harmful. This article argues that both views are normatively and empirically flawed. This is because there is no consensus on rights or the public interest apart from the majority view of a demos secured through parliamentary institutions. To the extent that these remain absent at the EU level, a democratic deficit continues to exist.     

The Institutionalised Participation of Management and Labour in the Legislative Activities of the European Community: A Challenge to the Principle of Democracy under Community Law

The legislative procedure established by Articles 138-139 of the Amsterdam Treaty is sensitive with regard to democratic prerequisites, but does not, in the final analysis, breach the formal principle of democracy established under Community law. Although the establishment of a parliamentary right of consultation is desirable, sufficient democratic legitimation is nonetheless supplied by virtue of Council and Commission participation within the legislative procedure and by their unlimited right to examine and reject substantive provisions designed by management and labour. By the same measure, the participation of management and labour in the Articles 138-139 legislative process is not of itself sufficient to create democratic legitimation. However, although management and labour organisations might never claim to represent the public of Europe as a whole, they can contribute to the 'substantive' legitimacy of European social law-making where they are adequately representative of persons and groups affected by EC legislative acts and take positive steps to ensure that the interests of such persons are reflected in secondary EC law. Accordingly, the Commission and the Council should review the representative nature of organisations engaged in European social law-making, paying particular attention to under-represented interests and, if necessary, should also make use of their right of rejection where privately negotiated agreements neglect these interests.     

近代中国社会地方民主政治实践的历史考察——以民初湖南省地方议员选举为例

民主所具有的普世价值,历来为人们所重视并进而成为整个人类孜孜以求的价值目标。理想的民主政治,不但需要民主的"民"具有"众"的属性,而且需要民众具有丰富的民主政治经验和较高的民主政治素养。然而"民"的范围是随着民众的逐渐觉醒而不断增大的,民众的民主政治经验和素养也不是与生俱来的,需要民众在社会政治实践中不断地参与,持续地积累和提高。民主是理想与经验的统一。     

Misunderstanding Corruption and Community: Comparative Cultural Politics of Corruption Regulation in the Pacific

This paper will take as its empirical foundation the author’s experience of corruption and regulation in small Pacific island states. The argument is that notions of corruption and strategies for its regulation suitable for modernized societies, which lack cultural specificity and community engagement, may in fact stimulate corruption relationships in transitional cultures. The other consequence of the imposition of inappropriate definitions and regulation strategies is a profound misunderstanding of communities of dependence. In fact, corruption control can misconstrue and exacerbate economic and political dependence environments, fostering the conditions for corruption which accompany socio-economic development. Two remedies are suggested. First, corruption requires an appreciation which is ‘community-centered’, while at the same time not being neutralized by disconnected cultural relativity. Second, an enterprise theory of corruption in modernized societies and international political/commercial entities may assist in the relevant translation of global anti-corruption policies in a way which advances good governance in traditional communities. This is so when corruption is conceived as dependant on phases of modernization, and the tensions which arise when the interests of societies at different phases intersect. Corporate citizenship and compliance with anti-corrupt business practices by major corporations with a commercial interest in these transitional economies may be more beneficial than deference to uniform international codes of governance.

"Jurisdictional Politics" in the Occupied West Bank: Territory, Community, and Economic Dependency in the Formation of Legal Subjects

This article examines the distribution of legal rights in the Israeli occupied West Bank. It argues that legal rights are distributed through a "jurisdictional politics" that tries to stabilize the contingent relationship between political community, territory, and legal subjects. In particular, this jurisdictional politics seeks to delimit the contradictory boundaries of the Israeli state by creating distinct categories of person out of the populations that live and work in the region. These issues are addressed by examining a dispute concerning the jurisdiction of Israeli law over Palestinian workers in Israeli settlements in the West Bank. The article ends by arguing that in the context of multiple movements of people, capital, and military force, attention must be paid to the often contradictory ways in which jurisdictional regimes seek to produce particular types of citizens and subjects.     

Force,Stress, and Decision-Making Within the Belgian Police: the Impact of Stressful Situations on Police Decision-Making

Stress and fear are inevitable aspects of the police job and may have a large impact on police officers’ decision-making process. Many studies have explored how stress and fear may influence assessments of police officers, especially with regard to the use of force. This article aims to contribute to this research domain by reporting the findings from two empirical studies among Belgian police officers: a quantitative study of police officers’ attitudes towards and experiences with the use of force and a qualitative study on the influence of stress and emotions on officers’ decision-making and assessment abilities and accuracy of shooting. Both studies confirmed that stress and fear are often present in Belgian police practice. One of the main findings is that Belgian police officers are anxious about the consequences of their actions because they know they will be held accountable for them. The pressure that results from this accountability can make it even more difficult for police officers to react to stressful situations. Therefore, we need to look for the right balance in this difficult position, by providing tools that support police officers in making daily decisions, and help them do their job as effectively as possible.     

行政复议委员会试点五年情况回顾

自1999年行政复议法颁布实施以来,全国人大常委会於2013年首次检查该法的实施情况。统计结果显示,中国每年受理的行政复议案件数量与行政诉讼的一审案件数量基本持平,部分地方的复议案件还多于一审行政诉讼案件,而多数的行政复议案件涉及土地．房屋拆迁、劳动和社会保障、卫生、城市规划等与群众利益密切相关的领域。作为化解行政争议的第一道防线,国务院在推动行政复议法修改的同时,在实践中也积极探索建立专业、便民、高效、权威的行政复议体制．整合多头行政复议办案机关,部署行政复议委员会试点是其中一项有益探索。本期特选取国务院法制办公室行政复议司副司长方军的文章,全面解读行政复议委员会试点工作开展五年以来的实效及未来走向。     

Planes, Trains and Automobiles: The Impact of the WTO 'Court' on Canada in its First Ten Years

Observers interested in the nature and scope of judicial policy-makingtraditionally focused on the extent to which domestic courtsshaped national policy arrangements. With the emergence of morerobust international tribunals, however, many are raising questionsabout the degree to which foreign judges are influencing domesticlegal regimes. This project addresses one corner of this debateby analysing the impact of the WTO ‘court’ on Canada.The legal challenges have provoked considerable controversyas the country has lost, either in whole or in part, each casebrought against it. Moreover, there has been widespread publicconcern about these disputes as many have involved significantsocial issues. Yet despite the country’s successive defeatsbefore the WTO ‘court’, the policy impact of thetrade tribunal has been relatively modest. Contrary to suggestions,the WTO dispute settlement mechanism has not superimposed someform of neo-liberal order on the Canadian state via its judicialdecision-making process.     

双层互动决策模型:近十年来中国政策过程的一个解释框架

近十年来,在决策环境影响下,互动关系成为影响中国公共政策过程的关键变量。通过对中国新医改方案制定过程的案例研究发现,当下中国公共政策过程是官僚体系层面(政策前台)的制度环境、社会网络层面(政策后台)的博弈格局和两者界面的互动结构共同作用的过程。这种双层互动决策模式在新常态下仍然具有强大的生命力,应得到积极的推广和发展。发展双层互动决策模式,尤其关注充分发挥执政党意识形态的政策价值导向功能、创造各利益群体平等参与公共决策的博弈平台以及以程序公正保障政策公正等三个问题。     

The Compliance Mechanism of the Cartagena Protocol on Biosafety: Development, Adoption, Content and First Years of Life

The compliance mechanism of the Cartagena Protocol on Biosafety has been functioning for approximately 5 years. This period is probably too limited to draw any firm conclusions in respect of the future role of the compliance mechanism. On the other hand, the findings of the Compliance Committee have been considered by no less than three Conferences of the Parties serving as the Meetings of the Parties to the Protocol (2005, 2006 and 2008). Therefore, a preliminary stocktaking of the achievements of the compliance mechanism seems to be appropriate. This article attempts to provide such stocktaking, the conclusions being that while there are a number of positive indications, there are also some rather negative trends represented by the outcomes of the last Conference of the Parties serving as Meeting of the Parties (2008). In order to provide an informed background of the analysis, the article is introduced by a brief account of the negotiation history of the compliance mechanism and a presentation of its legal basis and main features.     

Less Democracy, More Courts: A Puzzle of Judicial Review in Russia

This article explores why, throughout the 1990s, some Russian regions created their own constitutional courts and others did not. Contrary to current theories that assert that politicians create a strong and independent judiciary to protect them from the tyranny of election-winners in the context of political uncertainty, my analysis finds that constitutional courts emerged only in those regions where governors virtually guaranteed their re-election by consolidating their political power vis-à-vis federal and local governments. The article argues that both federal and regional politicians used the process of creating subnational constitutional courts to legitimize their federalism and judicial reforms. The changes in the balance of power between those governors, who aspired to have their own judicial system, and the federal government that insisted on a single federal judicial system, determined the variation in the process of court-building across Russian regions.     

Power Politics and the Rule of Law: Shakespeare's First Historical Tetralogy and Law's 'Foundations'

Legal scholars’ interest in Shakespeare has often focusedon conventional legal rules and procedures, such as those ofThe Merchant of Venice or Measure for Measure. Those plays certainlyreveal systemic injustice, but within stable, prosperous societies,which enjoy a generally well-functioning legal order. In contrast,Shakespeare's first historical tetralogy explores the conditionsfor the very possibility of a legal system, in terms not unlikethose described by Hobbes a half-century later. The first tetralogy'sdeeply collapsed, quasi-anarchic society lacks any functioninglegal regime. Its power politics are not, as in many of Shakespeare'sother plays, merely latent, lurking beneath the patina of anotherwise functioning legal order. They pervade all of society.Dissenting from a long critical tradition, this article suggeststhat the figure of Henry VI does not merely represent antiquatedmedievalism or inept rule. Through Henry's constant recourseto legal process, arbitration and anti-militarism, the firsttetralogy goes beyond questions about how to establish a functioninglegal order. It examines the possibility, and meaning, of ajust one.     

新民主主义民主政治的可贵探索——以哈尔滨解放区1946年参议员选举制度为例

哈尔滨解放区1946年参议员选举是中国共产党尝试在大城市中建立和巩固新民主主义政权的关键性步骤,奠定了哈尔滨市临时参议会召开的基础.这次选举首次以城市建设为中心展开,以城市市民为主体行使宪政权利,开创性地提出了"推选哈尔滨市民各阶层的代表,树立纯正的崭新的民主政治"的选举方针以及确立了"职业团体推选"与"聘请先达"相结合的选举方式,是一次既有民主形式又有民主内容的新民主主义①民主政治②的可贵尝试.     

Privatization in Poland: Politics,Society, and the Law*

The paper presents the beginning and the initial results of the process of privatization in Poland. Starting from the summer of 1990 it examines the political debate on the Privatization Act and corresponding social reaction. It shows how the society answers such important questions as: who, and on what principles, is to take over the hitherto state-owned property? The next question is on the content of the “social contract on privatization”: the legal starting point and the first empirical results. It appears that the most visible social effect was the growth in the inequalities between workers and the elites of the society. The role of workers in the process of transformation is also of special interest. Finally, the paper examines the role of privatization law, which on the one hand presents a compromise between the ruling class and the society and on the other hand has been replaced by current privatization policy.