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.     

Hermeneutical Violence: Human Rights,Law, and the Constitution of a Global Identity

In this paper I want to analyze the process of denationalization of the law, to show how the globalization of the law can be considered as a new form of imperial control, but this time, labeled as acting for the welfare of its victims. In the first part I will analyze the national character of the law and show how it was used as an imperialistic instrument for the benefit of the imperial powers. In the second part I will show how the discourse of human rights and its universality has been the base to deny indigenous communities their right to define their own identity and how this discourse was used to destroy the old conception of sovereignty. The globalization of human rights implies the imposition of a western conception of rights, regardless of the contextual conception of the indigenous people. The discourse of human rights is part of a hermeneutical violence.     

欧洲一体化与欧盟制宪:一种宪法学的解读

作为世界上最成功的目标和价值共同体 ,欧盟制宪既是欧洲一体化进展的必然结果 ,也是欧洲一体化深化和扩大的现实需要。用宪法学的理论分析欧盟制宪的动因、宪政基础 ,有利于从理论上解决欧洲宪法制定过程中可能产生的问题 ,也有利于向世界范围扩展宪政理念。     

British Imperialism in Fiji: A Model for the Semiotics of Cultural Identity

The history and effects of British imperialism in Fiji created a model for analyzing the semiotics of cultural identity. Following the acquisition of land in Fiji, the British recruited impoverished people from India and relocated them as indentured servants to do work on sugar cane plantations that natives refused to do. When Fiji became independent nearly 100?years later, the island nation had nearly equal populations of native Fijians and people of Indian decent. Fiji experienced three military coupes between 1987 and 2000 while the two ethnic and culturally distinct groups competed for jobs and political power. As a small, island nation, identity-based communication in Fiji represents a microcosm of other more complex multicultural societies. This study examines the semiotics of cultural identity among the people of Fiji.     

《欧盟宪法条约》框架下的欧盟机构改革

2004年 10月,欧盟各成员国在罗马签署了《欧盟宪法条约》,这标志着欧盟政治一体化进入了一个崭新的阶段。该条约涉及欧盟政治与经济生活的方方面面,其中最令人关注的莫过于其对欧盟机构体系所进行的改革。《欧盟宪法条约》对欧盟机构体系改革规定了诸多内容,但改革中仍存不足。     

The Unpatriotism of the Economic Constitution? Rights to Free Movement and their Impact on National and European Identity

Abstract:  Instead of the political reading of the EU Constitution adopted by advocates of constitutional patriotism, this article examines the European economic constitution. The four single market freedoms can be used by the Court of Justice to strike down Member State laws which represent deeply held aspects of national cultural identity. The article examines whether the court does in fact act in this way and proceeds to argue that the issue of identity protection does not stop with the court. In those policy areas where the court is more interventionist, and its case-law is perceived as an identity threat, one is likely to find binding Treaty-based derogations. Where, in contrast, the effect of the court's case-law poses less of a threat, one is more likely to see non-binding declarations. The article examines a number of policy areas in which specific cultural derogations and declarations are to be found, including abortion, property acquisition, football and alcohol control.     

The Meaning of 'Natural Person' and the Impact of the Constitution for Europe on the Development of European Private Law

Abstract:  European codes of private law have traditionally commenced with a concept of the person. In the development of private law in the European Union, we require a modern concept of the person, one which goes beyond the idea of the bearer of economic rights, to one which embraces ideas of human rights and social solidarity, as found in the Universal Declaration of Human Rights and the Nice Charter of Fundamental Rights of the European Union.     

Moment of Stasis: The Successful Failure of a Constitution for Europe

The 2005 French and Dutch negative votes on the Constitution open up a space of conceptualisation, not only of Europe's relation to its demos, but significantly to its failures. Through a critical analysis of mainly Niklas Luhmann's systems theory, the article proposes taking a distance from traditional constitutional dogmatics that are no longer capable of dealing with the paradox of contemporary society, and more specifically with the eventual resurgence of the European project as one of absence and stasis: the two terms are used to explain the need, on the one hand, to maintain the 'absent community' of Europe, and, on the other, to start realising that any conceptualisation of the European project will now have to take place in that space of instability and contingency revealed by the constitutional failure. The relation between law and politics, the location of a constitution, the distinction between social and normative legitimacy, the connection between European identity and demos, and the concept of continuity between constitutional text and context are revisited in an attempt to trace the constitutional failure as the constitutional moment par excellence.     

The Splendors and Miseries of Constitutional Reasoning in Times of Global Crisis: A Critical Look from the Realist Perspectives of Semiotics

The European Stability Mechanism (ESM) is the rescue fund that may grant loans to struggling euro zone governments by issuing bonds, collectively by the euro zone members. The implementation of the ESM spawned a lot of legal challenges brought to higher judicial authority in Ireland, Austria, Estonia, Germany and Poland. In the fall of 2012 the ESM was subject to legal analysis in the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Delivering much anticipated rulings in legal challenges to the legal provisions establishing the ESM, courts avoided upsetting the complex arrangements in question by producing legal decision of direct political import and letting EU bailout measures go forward. In looking over different critical responses, we have seen an argument raised by media and legal scholars, according to which courts’ capitulation before the power of financial markets in the EMS rulings represents “a sign of judicial crisis” that marks the weakness of modern European jurisprudence. In light of their importance, we undertake a preliminary semiotic analysis of the ESM rulings of the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Our analysis aims at discerning the crucial aspects of those rulings is performed on the basis of different semiotic methodologies combined with the refined ideas of the Scandinavian analytical school of the doctrinal study of law. In traditional legal studies there seems to be a taken for granted assumption that there is one analytical way to dissect judicial reasoning of the supreme courts. This paper argues that the manner of analyzing the constitutional reasoning needs to be congruent with the particular research methodology.     

Beyond Peirce: The New Science of Semiotics and the Semiotics of Law

This paper shows how Peirce's semeiotic could be turned into a powerful science. The New Science of Semiotics provides not only a new paradigm and an empirical justification for all these applications, but also a rational and systematic procedure for carrying them out as well. Thus the New Science of Semiotics transforms the philosophy of law into the science of legal scholarship, the discipline that I call jurisology.

Preserving the Identity Crisis: Autonomy,System and Sovereignty in European Law

This article uses Hans Kelsen's theory of a legalsystem to take a fresh look at European Community law,and the relationship between the European Community,its Member States, and international law. It arguesthat the basis of the Community's legal legitimacy isindeterminate, and offers a model to accommodate thatindeterminacy. This model is founded on aconstructivist approach suggested to be particularlyuseful in the EC context. Using this approach, it isargued that the concepts of system, autonomy andsovereignty in the Community can only be understoodthrough the recognition of a plurality of viewpoints,and that it is crucial, in describing the Community,to distinguish between a concept per se and thechoice to adopt that concept.     

The European Group on Ethics: Law,Politics and the Limits of Moral Integration in Europe

Abstract: The article offers a critical review of the institutional role of the European Group on Ethics in the EU, focusing on the appointment and composition of the group, the nature of its ‘opinions’, the way these are used by the Commission and other EU institutional actors, looking in particular at its controversial Opinion 22 on the ethical review and funding of stem cell research under the FP7 programme. The analysis highlights the methodological difficulties faced by the group in the grounding of its Opinions, the blurring of normative moral and legal orders, the risk of politicisation of ethics and the potential overreach by the EU of its competences in reliance on a group of this kind to reach unity on deeply contested moral questions in a culturally and morally diverse Europe.     

Mixed Messages in Bottles: the European Union,Devolution, and the Future of the Constitution

An unprecedented eleven‐member UK Supreme Court decided R (Miller) v Secretary of State for Exiting the European Union on 24 January 2017. The Government's argument, that it could start the process of withdrawing from the EU using a prerogative power instead of an Act of Parliament, was comprehensively defeated by an 8:3 majority. However, the Government also secured a unanimous verdict that it did not need the consent from the devolved legislatures in Scotland, Wales, and Northern Ireland before invoking Article 50 of the TEU. I explore the judicial argumentation in light of Philip Bobbitt's six modalities of constitutional argument, five of which feature, and one of which ought to have featured, in this seminal case.     

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.     

The Semiotics of Civil Rights in Consumer Society: Race,Law, and Food

Cooking and constitutionalism. Food and racial equity. I intend the juxtaposition to be jarring, even humorous. I would like to view it as a subtle indication of a historical trend in which central aspects of legal memory have been repressed from contemporary civic practice and important intellectual questions, concerning semiotics in consumer society, have been neglected in mainstream legal scholarship. As I will explain, the story of Ollie's barbecue suggests not only that cooking and constitutionalism are intricately linked, but also that the expansion of postwar economic life formed a material basis for this hidden bond. Considering the history of Ollie's thus can both illuminate the deep historical meaning of the Civil Rights Act, and also point the way toward a more general field of research, the development of what might be called a legal semiotics of consumption.     

中国特色社会主义法治体系的理论基础、指导思想和基本构成

党的十八届四中全会在理论上的重大贡献之一,就是科学提出与阐明依法治国的总目标——中国特色社会主义法治体系。作者认为,其首要问题就是要明确其理论基础与指导思想。理论基础是以唯物史观为理论武器的马克思主义法学;指导思想是马克思主义法学中国化、时代化、大众化的里程碑式成果。在当前和今后一段时期,主要是学习和运用习近平关于依法治国的科学论述。