The Use of Unwritten Legal Principles by Courts*

Abstract. I argue that one can distinguish two types of unwritten legal principles as applied by courts (in Europe). On the one hand, what are called “structural principles,” which are induced, or at least pretended to be induced, from the written law. On the other hand, what are called “ideological principles,” which are not induced from the actual legal system, but refer to current dominant beliefs in society as to morals, politics or other non legal ideologies. It is argued that the distinction between structural legal principles and ideological legal principles could be an important element for the elaboration of a legal principle theory, as both these types of principles meet a different need and play a different role in legal practice. Structural legal principles primarily meet the need for a new ius commune, in order to achieve the coherence and the completeness of the legal system, whereas ideological legal principles, just like the human rights, meet a revived demand for an ethical framework for the law.     

Explaining the Decline of Macro-corporatist Political Bargaining Structures in Advanced Capitalist Societies

A growing consensus among many observers of Western European politics has developed in recent years that, in certain countries, national level, consensus-based political bargaining arrangements involving representatives of organized capital, trade unions, and the state are giving way to more sectorally-based, conflictual forms of relations. These developments suggest an overall decline in the efficacy of national-level corporatist institutional structures in the liberal democracies of Western Europe. This article contends that neither of the two general theoretical approaches to the study of corporatism - the liberal model of the "neocorporatist state" (which fails to acknowledge the potential for serious system-threatening instability within corporatism) nor the Marxist model of corporatist "political structures" (which incorrectly predicts labor-generated corporatist instability due to inevitable rank-and-file discontent with the policy outputs of corporatist forms) - can account for this current wave of macro-corporatist instability and decline. In response to this theoretical impasse, this article develops a capitalist-centered explanation for the declining significance of corporatist forms. Business interests, it is maintained, may no longer be viewing corporatist arrangements as beneficial due to certain domestic structural economic changes and to transformations in the global capitalist system.     

CYNICAL STREETS: NEIGHBORHOOD SOCIAL PROCESSES AND PERCEPTIONS OF CRIMINAL INJUSTICE*

Studies have found that African Americans are more likely to perceive racial biases in the criminal justice system than are those from other racial groups. There is a limited understanding of how neighborhood social processes affect variation in these perceptions. This study formulates a series of hypotheses focused on whether perceived racial biases in the criminal justice system or perceptions of injustice vary as a function of levels of moral and legal cynicism as well as of adverse police–citizen encounters. These hypotheses are tested with multilevel regression models applied to data from a sample of 689 African Americans located in 39 neighborhoods. Findings from the regression models indicate that the positive association between structural disadvantage and perceptions of injustice is accounted for by moral and legal cynicism. Furthermore, adverse police encounters significantly increase perceptions of injustice; controlling for these encounters reduces the strength of the association between cynicism and injustice perceptions. Finally, the findings reveal that cynicism intensifies the association between adverse police encounters and perceptions of criminal injustice. The results are discussed in terms of their implications for research regarding perceived biases in the criminal justice system and neighborhood social processes.     

Negotiating the Networks of Space,Time and Substance: A Geographical Perspective on the Sustainable Citizen

This paper provides a critical geographical analysis of the emerging ideals associated with sustainable citizenship. We argue that the principles behind sustainable citizenship force us to think through the full range of geographical factors which frame citizenship and yet which are routinely overlooked in both geographical and non-geographical work on the citizen. We take the sustainable citizen to be both an epistemological challenge to existing paradigms of citizenship and a contemporary national and international policy goal. As an epistemological category we claim that the very notion of a sustainable citizen destabilizes the spatial, temporal and material parameters upon which modern forms of citizenship are based. At the same time, however, we also consider the limitations associated with contemporary national and international attempts to create a more sustainable citizenry, arguing that such initiatives often belie the radical potential of thinking about citizenship in sustainable terms. We take as our empirical focus the recently implemented curriculum for global citizenship and sustainable development being enacted in Welsh schools. Drawing on interviews carried out with education officials, teachers and students, we explore what sustainable citizenship means and the opportunities and challenges it faces as a political project.     

Governance in Central Government: Reconciling Accountability and Capability

Governance structures in central government departments are poorly articulated. Departmental boards were imported from the private sector; in central government their remit and accountability are obscure, as is their role in relation to Permanent Secretaries and Ministers—whose leadership roles are also muddled. This brings costs for Ministers, departments and the public. Improvements have proved elusive, in part because an underlying confusion has been neglected—about how bodies subject to the almost unlimited democratic accountability of Ministers are to be governed. The confusion can be cleared up, principles of governance formulated, and concrete improvements proposed. These include: better articulation of Permanent Secretaries' presumptive leadership role; strengthened lines of external accountability; and more coherent provisions for the role and accountabilities of boards, and their relationship with Ministers, Permanent Secretaries, and the centre of government. Such changes should improve accountability, leadership, capability and delivery.     

LEGAL EUROPEANIZATION: COMPARATIVE PERSPECTIVES

By mid-2003, the legal orders (the entire bodies of legislation in force) of three EU member states – Austria , Denmark, and The Netherlands – contained between 10.5 and 14.2 per cent of rules devoted to the transposition of EU directives. Only a few ministerial jurisdictions contain more than 20 per cent of Europeanized rules. The member states show remarkable differences in the use of parliamentary versus delegated legislation as a means of transposition. The comparison of the three cases tentatively suggests that different legal traditions and the parliamentary involvement in EU affairs are important factors that account for cross-national differences.