村庄法人理念的确立与中国宪政制度的创新

村民自治制度是新时期农村基层民主制度建设的重大突破,它是中国民主发展的“希望工程”,而村庄法人理念的确立,更是中国宪政制度发展的重大创新。阐述村民自治的发展与村庄法人理念导入的必然性;剖析村庄法人的概念、特征和架构模型;提出村庄法人理念的确立对中国宪政制度创新的重要性。     

Prospects and Limits of Democratic Governance in the EU

The EU Treaty contains for the first time a title on democratic principles. These provisions emphasise the importance of national parliaments and the EU parliament for the democratic legitimacy of the EU. The new chapter on democratic principles does not address the central challenge of the EU polity to the traditional understanding of democratic legitimacy, the disjunction of political and economic governance as expressed by the important role of independent institutions like the Commission, the European Central Bank and agencies in EU governance . This is a consequence of the fact that the status of independent regulatory institutions in a democratic polity has not been clarified—neither in the EU nor in the Member States. However, such independent institutions exist in diverse forms in several Member States and could hence be understood as a principle of democratic governance common to the Member States. Such an understanding has not yet evolved. The central theoretical problem is that regulatory theories which explain the legitimacy of independent institutions as an alternative to traditional representation remain outside the methodology of traditional democratic theory. Economic constitutional theory, based on social contract theory and widely neglected in the legal constitutional debate, offers a methodological approach to understanding independent regulatory institutions as part of representative democratic governance.     

Analysing and Assessing Accountability: A Conceptual Framework1

Abstract: It has been argued that the EU suffers from serious accountability deficits. But how can we establish the existence of accountability deficits? This article tries to get to grips with the appealing but elusive concept of accountability by asking three types of questions. First a conceptual one: what exactly is meant by accountability? In this article the concept of accountability is used in a rather narrow sense: a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences. The second question is analytical: what types of accountability are involved? A series of dimensions of accountability are discerned that can be used to describe the various accountability relations and arrangements that can be found in the different domains of European governance. The third question is evaluative: how should we assess these accountability arrangements? The article provides three evaluative perspectives: a democratic, a constitutional and a learning perspective. Each of these perspectives may produce different types of accountability deficits.     

The Self-Referential European Polity, its Legal Context and Systemic Differentiation: Theoretical Reflections on the Emergence of the EU's Political and Legal Autopoiesis

Abstract:  This article starts by summarising major theoretical debates regarding European polity and governance. It highlights the role of statehood in those debates and suggests moving beyond the constraints of institutionalist and constructivist perspectives by adopting specific notions from the theory of autopoietic social systems. The following part describes the EU political system as self-referential, functionally differentiated from the system of European law, and internally differentiated between European institutions and Member State governments. Although the Union transgresses its nation-state segmentation, the notions of statehood and democratic legitimacy continue to inform legal and political semantics of the EU and specific responses to the Union's systemic tensions, such as the policy of differentiated integration legislated by the flexibility clauses. The democratic deficit of instrumental legitimation justified by outcomes, the most recent example of which is the Lisbon Treaty, subsequently reveals the level of EU functional differentiation and the impossibility of fostering the ultimate construction of a normatively integrated and culturally united European polity. It shows a much more profound social dynamics of differentiation at the level of emerging European society—dynamics which do not adopt the concept of the European polity as an encompassing metaphor of this society, but makes it part of self-referential and self-limiting semantics of the functionally differentiated European political system.     

Holding (Quasi-)Autonomous EU Administrative Actors to Public Account

Abstract:  This article addresses problems of accountability in relation to two specific kinds of administrative actors in the EU system of multilevel governance, namely comitology committees and EU-level agencies. With regard to both sets of actors, the accountability issue is often framed in terms of delegation from a principal to an agent. This article explores the delegation of powers discourse and the question whether this framing adequately covers accountability forums and mechanisms that are emerging as a matter of legal and institutional practice. The latter sub-constitutional level is particularly relevant given the high degree of institutionalisation of both categories of administrative actors. Using these two categories of administrative actors as case studies, this article suggests that a delegation model of accountability in a democratic sense is not adequate and only captures part of emerging practice. A looser conceptual framing, understanding public accountability as a process in which power is checked and balanced by various actors, fits better within a more constitutional perspective on holding EU executive power to account.     

Constitutionalism and Dissonances: Has Europe Paid Off Its Debt to Functionalism?

Abstract The negative outcomes of the French and Dutch referenda on the Constitutional Treaty have opened a period of profound constitutional disenchantment in relation to the EU. This impression seems confirmed by the recent Presidency Conclusions of the European Council which, although salvaging many important solutions contained in the Constitutional Treaty, explicitly sanction that ‘the constitutional concept . . . is abandoned’. In the light of this context, what role could the constitutional scholarship play? How to make sense of a polity in which the claims of constitutionalism as a form of power are politically unappealing though legally plausible? This article tries to respond to these questions by reaffirming functionalism as a valid analytical and normative perspective in facing the current constitutional reality of European integration. The analytical value associated with functionalism is evidenced by testing against the current context of the EU legal framework the accounts for EU constitutionalism which postulate functional equivalence between the EU and the Member States. The normative potential of functionalism, then, is discussed by arguing that there may be a value worth preserving in a degree of functional discrepancy between the EU and state constitutionalism and, notably, that the transformative and civilising dividend inherent in functionalism could still be exploited, at least in certain areas of EU policy making. Finally, the article suggests that the difficulties in accounting for EU constitutionalism in the light of state‐centred constitutional theory could be regarded as symptoms of European integration marking a moment in the theoretical evolution of constitutionalism.     

Constitutional Referendums: A Theoretical Enquiry

In recent decades the use of referendums to settle major constitutional questions has increased dramatically. Addressing this phenomenon as a case study in the relationship between democracy and constitutional sovereignty, this article has two aims. The first is to argue that these constitutional referendums are categorically different from ordinary, legislative referendums, and that this has important implications for theories of constitutional sovereignty. Secondly, the article suggests that the power of these constitutional referendums to re-order sovereign relations raises significant normative questions surrounding the appropriateness of their use. The article engages with these normative questions, enquiring whether the recent turn in republican political theory towards deliberative democracy may offer a model through which sufficiently democratic referendum processes can be constructed.     

The European Democratic Challenge: The Forging of a Supranational Volonté Générale

This article explores in a systematic manner the different components of the democratic legitimacy of the Union from the standpoint of deliberative democratic theory. Contrary to standard accounts, it is claimed that the democratic deficit must be disaggregated, given that the Union has not only several shortcomings, but also some democratic surpluses. On the one hand, the Union was created to tackle the democratic deficit of nation states, and has been partially successful in mending the mismatch between the scope of application of their legal systems and the geographical reach of the consequences of legal decisions. Moreover, the European legal order is based on a synthetic constitutional law, which reflects the common constitutional traditions of the Member States, which lend democratic legitimacy to the whole European legal order. On the other hand, the lack of a democratically written and ratified constitution is a central part of the democratic challenge of the Union. But equally important is the structural bias in favour of certain material legal results, which stems from the interplay of the division of competences and the plurality of law-making procedures.     

The dangers of constitutional identity

This article purports to expose the dangers of the concept of constitutional identity – a doctrine shaped by apex state courts to shield areas of the national legal systems from the influence of European law. First, the article overviews the use of the concept of constitutional identity in the case law of national and supranational courts, mapping the growing expansion of this doctrine. Second, the article seeks to reconstruct the genealogy of the concept of constitutional identity, tracing its legal origins. Third, the article advances a normative criticism of the concept of constitutional identity, explaining how the doctrine suffers from an incurable lack of determinacy, which inevitably results in arbitrariness in its use. Moreover, the article points out how the practical use of a defensive concept such as constitutional identity is poised to weaken, if not undermine tout court, the process of European integration.     

The Future of Staatsrecht: Dominance,Demise or Demystification?

The relationship between the national and the European legal orders is affected by the way it is theorised by the national constitutional traditions. This article will explore the opposing constitutional assumptions in Germany that underlie two interpretations of what in Anglo-Saxon countries is known as constitutional law: Staatsrecht and Verfassungsrecht. The two contending visions are generated from different conceptions of the European Union and, especially, the state. The origins of the German constitutional traditions will be historically reconstructed. Although Staatsrecht has historically offered the dominant interpretation of public law, Verfassungsrecht has 'de-mystified' the state. To continue to offer a coherent interpretation Staatsrecht need not abandon the state as its central concept, but will need to re-examine the content of the concept in light of modern forms of constitutionalism and European integration.     

How Transparent are EU ‘Comitology’ Committees in Practice?

Much of the debate on transparency is normative in nature: more transparency is ‘good’ from the perspective of democratic accountability. After all, without information on what decisions are being taken and by whom, it will not be possible for various accountability forums to hold actors to account. This article goes beyond the rhetoric on the need for more transparency in the political system of the EU and examines, in practice as a matter of empirical research, how much transparency there really is. It also goes beyond a purely legal approach to access to information that depends upon the active participation of citizens and others in challenging refusals by specific institutions to grant access to specific documents. We are interested rather in the question as to what extent the institutions are systematically and pro‐actively providing access to their documents via the internet. We focus on the Register of Comitology of the European Commission as a relatively limited case study and, within this context, limit ourselves further to a study of all the documents published in the latest year for which a benchmark was available—2005. Are all comitology documents that exist in fact made available through this public register?     

From Protecting to Promoting: Evolving EU Sex Equality Norms in an Organisational Field

This paper builds on a process–oriented approach which examines constitutionalism with respect to both legislation and social practices. Drawing on the institutionalist concept of the organisational field it provides tools for explaining the emergence of the distinct connectedness and isomorphism of European sex equality norms. The paper elucidates the shifting meaning of sex equality in the field of employment on the one hand, as it demonstrates the close ties between sex equality law and the constitutional status of gender norms on the other. Contrary to both the intergovernmentalist and neo–functionalist approaches in European integration studies, the concept of 'institutionalist field' allows for explication of shifting institutional demands that work beyond the rational interests of the nation–state. The field approach thus emphasises the interrelation between legal and political actors and their respective shared cognition which defines what bears meaning.     

‘European Governance’ or Governmentality? The European Commission and the Future of Democratic Government

The word ‘governance’ has become an increasingly central policy motif in the European Union and elsewhere yet its meanings are ambiguous and often poorly understood. This article examines the genealogy of that concept focusing in particular on the European Commission's claim to have developed a new, more open and progressive model of ‘European governance’. The paper is set out in four steps. The first analyses the European Commission's claims for ‘governance’ as a concept integral to its new vision for Europe. The second interrogates some of the conflicting definitions and meanings inherent in the term and examines the highly selective paradigm of governance that has been developed in official Commission discourse. The third addresses two specific areas where the Commission's governance model has been applied: the Green paper on The Future of Parliamentary Democracy and the Open Method of Coordination. The fourth turns to analyse these findings using critical social theory. I conclude that far from laying the grounds for a more inclusive, participatory and democratic political order, the Commission's model to governance represents a form of neoliberal governmentality that is actually undermining democratic government and promoting a politics of exclusion.     

Governing Condominiums and Renters with Legal Knowledge Flows and External Institutions

This article explores the intertwined roles of legal knowledge and external institutions in condominium governance using a sociology of governance framework. Condominium legislation spread in North America in the 1960s. By the 1970s, renters had become the condominium's primary “other.” The article elaborates legal governance and strategies of property management and private insurance that converge on renters in condominiums. Through this analysis, the renter category is shown to be one point of convergence of mutually reinforcing institutional processes of juridification, commodification, and risk avoidance. Condominium governance is revealed as more complex, heterogeneous, and dependent upon legal knowledge flows through channels and “excerpting” practices beyond the courts, and upon external institutions beyond statute‐mandated condominium boards, than previously acknowledged. Implications for critical legal studies and condominium governance policy are discussed.     

Reforming Europe's Common Foreign and Security Policy

Abstract: The reform of the constitutional foundations of Europe's Common Foreign and Security Policy (CFSP) featured prominently on the agenda of the European Convention. To the great surprise of many observers the much lamented absence of a common European response to the war in Iraq did not prevent the Convention from agreeing upon an ambitious reform package in the foreign‐policy field. This article explores the legal implications of the new institutional balance for European foreign policy envisaged by the Convention against the background of the achievements and deficiencies of Europe's existing foreign policy regime. Thereby, we shall see in how far the Convention has met the original goal set by the Laeken European Council to consider reform steps to strengthen the Union's ability to ‘shoulder its responsibilities in the governance of globalisation.’ 1     

Directly-Deliberative Polyarchy

This essay by Joshua Cohen and Charles Sabel promotes visions of democracy, constitutionalism and institutional innovations which may help to open up new dimensions in the search for legitimate European governance structures and their constitutionalisation. Faced with Europe's legitimacy problems, proponents of the European project often react by pointing to the many institutional failings in the (national) constitutional state. These reactions, however, seem simplistic, offering no normatively convincing alternatives to the once undisputed legitimacy of a now eroding nation state. The essay by Cohen and Sabel forecloses such strategies. Summarising and endorsing critiques of both the unfettered market system and the manner of its regulatory and political correction, it concludes that the many efforts to establish new equilibria between well-functioning markets and well-ordered political institutions are doomed to fail, and opts instead for fundamental change: conservative in their strict defence of fundamental democratic ideals, such ideas are radical in their search for new institutional arrangements which bring democratic values directly to bear. How is the concept of directly-deliberative polyarchy complementary to and reconcilable with our notions of democratic constiutionalism? To this question the readers of the essay will find many fascinating answers. Equally, however, how might the debate on the normative and practical dilemmas of the European system of governance profit from these deliberations? Which European problem might be resolved with the aid of the emerging and new direct forms of democracy identified in this essay? How might direct democracy interact with the intergovernmentalist and the functionalist elements of the EU system? Although this essay contains no certain answers to these European questions, its challenging messages will be understood in European debates.     

Perils of Governance through Networks: The Case of Regulating Payday Lending in Canada

Much has been written in recent years about new modes of governance facilitated by discrete policy networks. While emphasis is usually placed on the functional attributes of such governance arrangements, there are occasional observations in the literature about their democratic credentials as well. Such discussions of the democratic potential of governance through networks tend mostly to focus on questions of the efficacy and fairness of these types of interest intermediations. My article seeks to explore the complex prior role that legitimation plays in the policy process associated with governance through networks by way of a case study detailing the recent construction of a new regulatory regime for payday lending in Canada.     

Acquiring a Community: The Acquis and the Institution of European Legal Order

Abstract: The theme ‘law and disorganised civil society’ raises the fundamental question concerning the junction between legal order and disorder, hence the passage from instituted legal order to the institution of legal order. The emblematic manifestation of this passage, in the framework of the European legal order, is the acquis communautaire: what is the nature of the process that leads from acquired community to acquiring a community? In a first, preparatory, step, it will be argued that determinate conceptions of truth, time and the giving and taking of reason underlie the process of acquiring a European community. These findings are confronted, in a second step, with Antonio Negri's theory of the multitude as a constituent power, which opposes revolutionary self‐determination to representation. Deconstructing this massive opposition, this paper explores three ways in which representation is at work in revolutionary self‐determination. As will become clear in the course of the debate, instituting (European) community turns on the interval linking and separating law ‘and’ disorganised civil society.