From European Integration to European Integrity: Should European Law Speak with Just One Voice?

Abstract: This article examines whether and how the moral principle of legal coherence or integrity, which has recently been developed further as a response to disagreement in the national legal context, applies to European law. According to the European integrity principle, all national and European authorities should make sure their decisions cohere with the past decisions of other European and national authorities that create and implement the law of a complex but single European legal order. Only by doing so, it is argued, can the European political and legal community gain true authority and legitimacy in the eyes of the European citizens to whom all these decisions apply. Although European integrity is primarily a product of European integration, it has gradually become one of the requirements of further integration. The article suggests that the principle of European integrity would help dealing with the growing pressure for common European solutions under conditions of increasing diversity. It places disagreement at the centre of European politics, as both an incentive and a means of integration by way of comparison and self‐reflectivity. It constitutes therefore the ideal instrument for a pluralist and flexible further constitutionalisation of the European Union.     

The Maastricht-Urteil: Sovereignty Now

Abstract: The sovereignty issue in European law, which was recently raised again before the highest national courts, poses a challenge to legal theory. The supremacy of EC law should not be regarded as imposing a strict hierarchy within a monistic legal system. A pluralistic and interactive analysis of the relations between the legal systems of the Member States and their common system of EC law suggests instead that the highest court within each system retains interpretative competence-competence. Although pluralist legal theory therefore supports the claim that sovereignty has not passed to the organs of the Union, the same analysis confirms that sovereignty has not remained with the individual Member States either: a more subtle understanding of the meaning of sovereignty and its locus is necessary.     

Who is Afraid of Radical Pluralism? Legal Order and Political Stability in the Postnational Space*

Constitutional pluralism has become a principal model for understanding the legal and political structure of the European Union. Yet its variants are highly diverse, ranging from moderate “institutional” forms, closer to constitutionalist thinking, to “radical” ones which renounce a common framework to connect the different layers of law at play. Neil MacCormick, whose work was key for the rise of constitutional pluralism, shifted his approach from radical to institutional pluralism over time. This paper reconstructs the reasons for this shift—mainly concerns about political stability that also underlie many others' skepticism vis‐à‐vis radical pluralist ideas. It then seeks to show why such concerns are likely overdrawn. In the fluid, contested space of postnational politics, a common, overarching frame is problematic as it might inflame, rather than tame, tensions. Leaving fundamental issues open along radical pluralist lines may help to work around points of highly charged contestation and provide opportunities for resistance from less powerful actors.     

The changing face of wardship

Abstract

I have been teaching Ethnic Minorities and the Law at undergraduate and Masters level for some eight years now. It is my conviction that the subject has achieved a certain maturity and that it is high time that serious notice was taken of it in legal education circles at all levels. This article presents some reflections on approaches adopted and experiences of being involved in teaching this field. In the next section some of the reactions that are likely to be encountered when working in this area are discussed briefly. In the following section the nature and extent of ethnic diversity in the UK are outlined, and some of the limits in academic and policy conceptualisations of this diversity are highlighted. There follows a critical discussion of the various paradigms within which legal knowledge has framed discussion relating to ethnic minorities in the UK. This forms a prelude to the introduction of legal‐pluralist perspectives which, it is argued, offer the most positive approach in the area of ethnic minority legal studies. Lastly, some of the practical issues that arise in teaching about ethnic minorities in law are discussed.     

不抵触宪法原则的适用范围:规范差异与制度逻辑

不抵触宪法原则是我国宪法上国家法制统一原则的一项重要内容。该原则对于贯彻宪法精神和原则,维护国家法制统一以及确定合宪性审查的对象范围,具有重要作用和指导意义。根据宪法第5条第3款、第67条第7项第8项、第100条第1款第2款的规定,不抵触宪法原则的适用范围包括法律、国务院制定的行政法规、决定和命令以及省、自治区、直辖市、设区的市人大及其常委会制定的地方性法规和决议。而根据《立法法》第72条第1款第2款、第87条、第97条第2项、第99条第1款第2款、第100条第1款第3款的规定,不抵触宪法原则的适用范围"被扩大"了,还包括自治条例、单行条例和规章。从合宪性审查的制度逻辑出发,宪法之所以将部分行政法规和地方性法规纳入不抵触宪法原则的适用范围,是因为它们存在着直接依据宪法制定的情形。而《立法法》将不抵触宪法原则的适用范围扩展到所有的法律规范,遵循的是一种宽泛意义上的制度逻辑,其所谓的"不抵触",不应当被解释为不抵触宪法原则适用范围的"扩大"。     

Theorizing Sovereignty and European Integration

This article examines the relationship between the concept of sovereignty and the process of European integration. It is argued that the nature of this relationship has been both mutually informative and transformative. As a particular understanding of sovereignty has influenced and determined the perception of European integration, i.e., its conceptualization, so the process of European integration has reflected back on sovereignty and entailed its rethinking. This poses a particular challenge for legal theorists: how to pin down the meaning of sovereignty and European integration so as to put both in the best conceptual and normative light. The article begins by looking at the traditional perspective on sovereignty and how this has been challenged by European integration. The focus then shifts from sovereignty to European integration in order to examine how different perspectives on sovereignty, when used as an epistemic lens for understanding the process of European integration, have produced uneven conceptions of this integration. Finally, the article concludes by making a choice between the various conceptions of sovereignty and European integration. It is argued that the best conception of European integration is offered by the constitutional form of a union founded on pluralist sovereignty.     

Paradoxes of Urban Housing Informality in the Developing World

This article addresses a series of paradoxes regarding informal settlements in cities in the developing world and their relation with the legal system. The first paradox regards the penalization of illegal land occupations on the one hand versus the legalization of that same practice on the other. Second, it looks at the relationship between land occupations as systematic violations of property rights, but with the goal of forming new property rights and thus paradoxically supporting private property as a substantive principle. Third, the reasoning behind the fact that the same system that denies legal access to housing for poor sectors simultaneously attempts to incorporate informal settlements in an ad hoc manner through legalization schemes is examined. It is shown that there is a logic to these paradoxes, which, although contradictory from standard legal perspectives, can be accommodated within a theoretical framework that distinguishes an internal normative order operating within informal settlements, from the state legal system, operative outside it. The proposed framework not only settles the paradoxes, but, this article concludes, can also guide attempts to deal with the enormous anticipated growth of informality in the developing world.     

作为一种"国家法与非国家法多元互动"的全球化进程——对"法律全球化"争辩的中立性批判

中国法学界的"全球化论辩"可以从"肯定"与"否定"这两种态度加以分析。以"国际化"与"全球化"的区分为参照性判准,可以发现,"反法律全球化"论者与对"法律全球化"持肯定态度中的"唯法律全球化"论者其实都处在着同"去国家化"相关的"法律一元论"这一层面上,只不过前者主张的是"国家法律一元论",而后者主张的是"非国家法律一元论"。"法律全球化"是一种在全球层面上展开的包含"法律国际化"的进程,是一种从"国家法律一元论"走向"国家与非国家法律多元论"的开放性进程。中国法学论者之所以尊奉"法律一元论",实是因为教条性地尊奉"法律的唯国家意志论"与"经济基础决定上层建筑"这两个经典论说的结果。     

中国现代物流法制环境建设

本文分析了中国物流业发展及其法制环境的现状,指出中国物流业正处于从传统物流转向现代物流的过渡时期,良好的物流法制环境对于中国物流业的发展具有重要的制度支持与保护作用。在中国物流业法制建设的过程中,政府的作用举足轻重,物流法制环境建设涉及管理体制、基础设施建设、物流服务、市场准入和市场竞争等诸多方面。中国目前应当着手制定《物流业管理条例》,引导我国物流业健康发展。     

Pluralism and Integrity

One of the theoretical developments associated with the law of the European Union has been the flourishing of legal and constitutional theories that extol the virtues of pluralism. Pluralism in constitutional theory is offered in particular as a novel argument for the denial of unity within a framework of constitutional government. This paper argues that pluralism fails to respect the value of integrity. It also shows that at least one pluralist theory seeks to overcome the incoherence of pluralism by implicitly endorsing monism. The integrity and coherence of European law is best preserved by considering that both the national legal order and the international or European legal orders adopt sophisticated views of their own limits.     

The double helix of rule of law and EU competition law: An appraisal

By discussing the experiences of Hungary and Poland, this article aims to demonstrate that there are three layers of the rule of law which are relevant for EU competition law. The first one is external: it relates to the legal system of EU Member States of which competition law is a part. In national legal systems, rule of law safeguards need to be put in place in order to provide an adequate legal environment for the competition law system to perform its role. The second one is internal: it concerns rule of law safeguards in relation to the Member States' competition authorities, in particular their independence. The third one is consequential: the weakening of the rule of law within the external and internal layers affects the proper functioning of the competition law system. As a result, the effectiveness of Articles 101 and 102 TFEU is endangered, and a vicious circle of mutually reinforcing competition law and rule of law crises unfolds.     

Studies of foreign legal history in china over the past 60 years

This article gives a detailed review of the evolution of the Chinese study of Foreign Legal History over the past 60 years. It covers five aspects: academic conferences, Chinese translated works on Foreign Legal History, the education of Chinese scholars in this field, academic activities and contestations, and the prospect of Foreign Legal History as a discipline. This article aims to tease out the achievements and problems of the studies of Foreign Legal History and analyze the social conditions underlying these problems and achievements. It concludes that the reconstruction of Chinese legal system and the development of Chinese legal system cannot stand in isolation from the process of absorbing, transplanting, and learning from foreign jurisprudence and legal systems. Though Foreign Legal History might not become a hot topic, it remains of great significance to the Chinese understanding of law.     

Tort Law and Corrective Justice

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary tort duties,' one is compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches.     

Sex/gender‐based decision‐making in the criminal justice system as a possible (additional) explanation for the underrepresentation of women in official criminal statistics — a review of international literature

This article represents an analysis of the literature on sex‐based selection processes in the criminal justice system. It is only since the feminist wave of the sixties that sexual discrimination has been considered as an issue of importance in the study of the criminal justice system and that female criminality has been looked at more thoroughly. The article deals with the different assumptions and hypotheses which have come forward in the debate on the possible discrimination of men and women in the criminal justice process. In the first part of the article the various theoretical models are outlined: the chivalry and evil women hypotheses, the legal or etiological model, the social control theory, the family‐based justice model, and a multifactoral model. In the second part of the article, the results of empirical research relevant to these hypotheses are presented. American, British, Belgian, Dutch and some German literature has been taken into account. The review of the literature shows that the chivalry hypothesis cannot offer an all‐embracing explanation for the possibly perceived preferential treatment of women. Similar conclusions can be drawn for the explanatory value of the legal model. Although a more lenient treatment of women can sometimes be explained by legal factors, these factors can offer no more than a partial explanation for observed sex differences in the criminal justice system. Especially in the case of pre‐trial release and sentencing, more particularly when deciding whether or not to send a defendant to prison, a noticeable sex‐effect can still be found. In the literature we find strong suggestions — although not always confirmed — that an (initially observed) more lenient treatment of women at these stages can be explained by stereotypes and expectations about the personality of women as less dangerous and the specific role which women fulfill in western society.     

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.     

Legal parent versus biological parent: the impact of disclosure

This article addresses arguments regarding disclosure of information to donor-conceived individuals, showing that disclosure is entirely different from the recognition of parental rights and responsibilities for the gamete providers. It argues that disclosure of information is not equivalent to saying: "donors are parents". Instead, information release simply provides a basis for donors, donor-conceived individuals and recipient parents to exchange information about themselves. When a jurisdiction enacts laws that provide for such information release, these statutes are distinct from any other legal rights and responsibilities for any members of the donor-conceived community. In its first section, the article briefly explains the means for determining legal parentage before reviewing research on how parents tell their children about their means of conception. Next, it explores studies of why members of the donor-conceived world search, providing an empirical basis for the claim that disclosure does not equal parenthood. The article explores concerns about information release, and, in the final section, suggests possible approaches for protecting the rights of donor-conceived people while reinforcing the legal separation between social and biological parents.     

Improving the Non-Governmental System of Outsourcing Labour Regulation in China

Abstract:  This article examines, from a legal point of view, the working and functioning of the non-governmental system of outsourcing labour regulation in China. This examination is conducted from two angles. First, by adopting the analytical tool of contemporary international law, in particular human rights law, it is found that generally the outsourcing regulation system possesses its full legitimacy and special value in realising business entities' responsibilities to respect, protect, fulfil and promote labours' fundamental rights and interests. The international community has also set some minimum legal requirements in this regard. Second, reviewed in the context of domestic law and policy, this article identifies that many legal questions arising from the outsourcing of labour regulation in China have been neglected by either the governmental or the non-governmental labour regulation system. Some representative legal issues are illustrated. It is argued that the underlying causes are three pairs of controversies, i.e. the controversy between the ideal standardised model norms vis-à-vis the realistic specified local societal concerns; the controversy between the voluntary nature of the non-governmental norms vis-à-vis the necessity for official authorities' legal guidance and enforcement; and the controversy between the internal interests of the international production chain vis-à-vis the external interests of outer stakeholders. Finally, this article concludes that, on the one hand, the foreign buyer companies and the international non-governmental organisations must not neglect the particular societal concerns and demands in China, and, on the other hand, the Chinese public authorities should promote and direct the development of the non-governmental labour regulation by improving the governance of rule of law as well as policy making and implementation. Some tentative proposals are raised for solution.     

“The Right to Self-determination”: Right and Laws Between Means of Oppression and Means of Liberation in the Discourse of the Indigenous Movement of Ecuador

The 1970s and 1980s meant an ethnic politicization of the indigenous movement in Ecuador, until this moment defined largely as a class-based movement of indigenous peasants. The indigenous organizations started to conceptualize indigenous peoples as nationalities with their own economic, social, cultural and legal structures and therefore with the right to autonomy and self-determination. Based on this conceptualization, the movement developed demands for a pluralist reform of state and society in order to install a plurinational state with wide degrees of autonomy and participation for indigenous nationalities. A part of those demands was the double strategy to fight for legal pluralism while already installing it at the local level. Even if some degrees of legal pluralism have been recognized in Ecuador since the mid-1990s, in practice, the local de facto practice prevails until today. Another central part of the demand for plurinationality is the representation of indigenous peoples in the legislative organs of the state, developing since their first appearance in the 1940s in a complex way. This article will analyze the development of right-based demands within the discourse of the indigenous movement in Ecuador, the visions of the implied state-reform and the organizational and political background and implication they have. Based on an analysis of the central texts of the indigenous organizations, conceptualizations of rights and laws and their appropriation within an autonomist discourse and a local practice will be highlighted.     

Studying the Past: the Nature and Development of Legal History as an Academic Discipline

This article pursues two themes. First, it argues that there is a commonality between the general interest in the past, the interest of historians, and the interest of legal historians. Second, it shows that several ideas about the past commonly appear in all three contexts. In pursuing these themes, the article begins by reviewing the initial study of the past and the emergence of history and legal history in academia. It explores the various reasons why the early historians and later academic historians and legal historians studied the past and the different ways in which they used it. The article then pursues in more detail the development of Anglo-American legal history as a scholarly tradition. It identifies three types of academic legal history: classical, liberal, and critical, and discusses their natures and different uses of the past. Finally, the article explores the substantial legal history scholarship and its relevance to scholars who are not legal historians. The article concludes by stressing the importance of studying the legal past.     

法律视野中的时间范畴

“时间”首先是自然科学和哲学的范畴 ,其运动规律在法律制度设计的技术化特征上也有体现。本文从分析法学与哲学、经济学的学科间影响 ;法律制度中与“时间”相关的概念、规则和原则 ;法律规范与客观规律的关系入手 ,阐述了“时间”范畴与法律制度、法律价值、法律程序、法律成本的密切联系 ,意在提醒人们 ,在研究法律制度的价值追求和伦理评价的基础上 ,法律中的时间问题或是以“时间”为重要范畴来分析法律制度的有关内容 ,具有重要的价值意义和工具意义 ,值得做思考的努力。