Constitutionalism Without Constitution: Transnational Elites Between Political Mobilization and Legal Expertise in the Making of a Constitution for Europe (1940s−1960s)

By exploring how early political investments in favor of a European Constitution have been turned into a legal enterprise to constitutionalize the European treaties, this article analyzes the changing role of legal elites in the genesis of a European transnational order. At first, legal activities of constitution-making were closely linked to military issues and political mobilizations; later, the legal work of constitutionalization took a different path as a result of the process of differentiation of the European field of power and of the internal and contradictory logics of a newly created legal institution, the European Court of Justice (ECJ). By reconstructing the constitutionalization process, this article highlights the various types of elites then competing for the early definition of a European transnational order and, in particular, the capitals and representations of legal agents in the making of a Constitution for Europe.     

Are Monetary Unions Inevitable?

With the rapid growth of cross-border competition among currencies, informed observers predict that the new monetary unions are virtually inevitable in many parts of the world. In fact, predictions of such alliances are misleading and almost certainly wrong. Monetary unions necessarily imply a measure of collective action in the issue and management of money. An alliance requires allies—other states with similar preferences and a disposition to act cooperatively. A survey of proposed monetary unions shows that willing partners among sovereign states are just not all that plentiful. Conceivably some governments could be attracted to less demanding forms of monetary alliance, depending on bargaining context. But prospects for many full new monetary unions are dim at best.     

Legislative and educational alternatives to a judicial remedy for the transfer trauma dilemma

Transfer trauma is alleged to be an increase in morbidity and mortality in institutionally relocated chronically ill elderly. Efforts by the legal profession to persuade courts that transfer trauma should be a legally recognized phenomenon invoking judicial protections against transfer (the "transfer trauma argument") have been unproductive. In O'Bannon v. Town Court Nursing Center, Inc., the United States Supreme Court denied standing to elderly persons claiming a property interest in remaining in alleged substandard facilities. The Court rejected the argument that the possibility of transfer trauma constituted a deprivation of life or liberty that would have required due process protections of notice and hearing. Despite the Court's preclusion of transfer trauma litigation in a constitutional context and the general unwillingness of lower courts to recognize the phenomenon, attorneys continue to burden the judicial system with frivolous transfer trauma arguments. The unfruitful pursuit of a judicial remedy for the ethical and social problems that arise with relocation of the elderly continues, in part, because of a misguided belief that this distressing social phenomenon is best remedied by the courts. Judicial unwillingness to recognize the transfer trauma argument, however, does not preclude legislative consideration of the humanitarian issues concerning the institutional relocation of elderly persons. This Article examines gerontological research in order to understand the judicial rejection of the transfer trauma argument and argues in support of legislative and educational solutions for the ethical and social problems attending transfer.     

The hate that dare not speak its name: Pornography qua semi-political speech

In this essay we shall examine the contemporary jurisprudential thinking and legal precedents surrounding the issue of the sanctionability of pornography. We shall catalogue them by their logical presumptions, such as whether they view pornography as speech or act, whether they view pornography as obscenity, political hate-speech or anomalous other, whether they would scrutinize legislation governing pornography by a balancing of the harm of repression against the harm of permission, and who exactly they view as the victims.We shall take a special interest in the most recent, but unsuccessful, attempt by a subgroup of feminists to proscribe pornography by treating it as neither political speech nor sexual speech but speech which causes harm which is both political and sexual. They would like it to be considered as a special kind of odious propaganda undeserving of protection because it promulgates a mental state conducive to criminal activity, and hence is criminal in and of itself. However, the repression of propaganda, even odious propaganda, is not so easily accomplished in this country.Most anti-censors have emphasized the uncertainty of the causal connection between pornography and sexual violence. We shall contend that this is not the essential issue, and that, even if we agree with the allegations of pornography's prurient non-intellectual appeal and its tendency to excite criminal hostility, the current understanding of the Bill of Rights allows sanctioning only under the stringent requirement of the showing of a clear and present danger of specific and immediate acts.We raise the question of whether there should be a new standard for speech which is simultaneously political and sexual, and/or for speech whose harmful message is presented subliminally, on the grounds that such speech may not be adequately opposed by counter speech in the marketplace of ideas.     

B. Reviews: general

A HISTORY OF THE ARAB PEOPLES. By ALBERT HOURANI. London, Faber and Faber, 1991. xviii, 551pp. £25 (hb).

STUDIES IN ARAB HISTORY. Edited by DEREK HOPWOOD. (St.Antony's/Macmillan series.) London, Macmillan, 1990. 189pp. 5 plates and 3 figures.

A HISTORY OF THE SELJUKS: ?BRAHIM KAFESOGLU'S INTERPRETATION AND THE RESULTING CONTROVERSY. Translated and edited By GARY LEISER. Carbondale and Edwardsville, Southern Illinois University Press, 1988. 208pp. Genealogical charts, maps in end covers. $29.95.

THE HISTORY OF THE JEWS IN THE LATIN KINGDOM OF JERUSALEM. By JOSHUA PRAWER. Oxford, Clarendon Press, 1988. xv, 310pp. 5 maps.

ARAB HISTORY AND THE NATION STATE: A STUDY IN MODERN ARAB HISTORIOGRAPHY 1820–1980. By YOUSSEF M. CHOUEIRI. (Exeter Arabic and Islamic Series.) London & New York, Routledge, 1989. xix, 238pp. £35.00

THE END OF EMPIRE IN THE MIDDLE EAST: BRITAIN'S RELINQUISHMENT OF POWER IN HER LAST THREE ARAB DEPENDENCIES. By GLEN BALFOUR‐PAUL. Cambridge, Cambridge University Press, 1991. xxiv, 278pp. £30.00.

THE LETTERS OF T.E. LAWRENCE. Edited by MALCOLM BROWN. Oxford, Oxford University Press, 1991. xi, 564pp. £8.95 (pb).

A PRINCE OF OUR DISORDER: THE LIFE OF T.E. LAWRENCE. By JOHN H. MACK. Oxford, Oxford University Press, 1990. xxvi, 561pp. £9.95 (pb).

UN GRAND RABBIN SEPHARADE EN POLITIQUE 1892–1923. Presented and edited by ESTHER BENBASSA. Mesnil‐sur‐l'Estrée, CNRS, 1990. 263pp.

THE SUPREME MUSLIM COUNCIL: ISLAM UNDER THE BRITISH MANDATE FOR PALESTINE. By URI M. KUPFERSCHMIDT. Leiden, Brill, 1987.

AFTER THE EAGLES LANDED: THE YEMENITES OF ISRAEL. By HERBERT S. LEWIS. Boulder, Westview Press, 1989. xix, 277pp., photographs, glossary.

LAND BEFORE HONOUR: PALESTINIAN WOMEN IN THE OCCUPIED TERRITORIES. By KITTY WARNOCK. (Women in Society: A Feminist List.) London, Macmillan Educational Press, 1990. 199pp.

PEASANT POLITICS IN MODERN EGYPT: THE STRUGGLE AGAINST THE STATE. By NATHAN BROWN. New Haven and London, Yale University Press, 1990. 280pp. 2 maps. £25.00.

SOCIETY AND STATE IN THE GULF AND ARAB PENINSULA. By KHALDOUN HASAN AL‐NAQEEB. London and New York, Routledge, 1990. xvii, 206 pp. £35

THE TURBULENT GULF. By LIESL GRAZ. London, I.B. Tauris, 1990. xi, 312pp. £17.95.

IRAN: THE KHOMEINI REVOLUTION (COUNTRIES IN CRISIS). Edited by MARTIN WRIGHT. Contributors: Nick Danziger, Martin Howe, Baqer Moin, Reza Navabpour, Sir Anthony Parsons, Vahe Petrossian, Amit Roy and Martin Wright. London, Longman, 1989. 128pp. Maps, ills. £6.95.

ISRAEL AND THE PALESTINIANS (COUNTRIES IN CRISIS). Edited by MARTIN WRIGHT. Contributors: Paul Cossali, Roger Hardy, Lawrence Joffe, Noah Lucas, David McDowall, Elfi Pallis, Martin Wright. London, Longman, 1989. 131pp. Maps, ills. £6.95.

MAJOR POLITICAL EVENTS IN IRAN, IRAQ AND THE ARABIAN PENINSULA 1945–1990. By TREVOR MOSTYN. New York & London, Facts on File, 1991. xii, 308pp. £14.95.

WOMEN AT WORK IN THE GULF: A CASE STUDY OF BAHRAIN. By MUNIRA A. FAKHRO. London, Kegan Paul International. 184pp. £45.00

THE POLITICAL ECONOMY OF TURKEY: DEBT, ADJUSTMENT AND SUSTAINABILITY. Edited by TOSUN ARICANLI and DANI RODRIK. Basingstoke, Macmillan, 1990. 275pp. £40 (hb).

AFGHANISTAN: A COUNTRY LAW STUDY. By GHOLAM H. VAFAI. Washington, Library of Congress, 1988. 63pp.

RESISTANCE AND CONTROL IN PAKISTAN. By AKBAR S. AHMED. London & New York, Routledge, 1991. xxiii, 207pp. £12.99 (pb).

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FROM CODE‐SWITCHING TO BORROWING: A CASE STUDY OF MOROCCAN ARABIC. By JEFFREY HEATH. (Library of Arabic Linguistics, monograph 9.) London, Kegan Paul International, 1990. 328pp.

ARISTOTELIAN LOGIC AND THE ARABIC LANGUAGE IN ALFARABI. By SHUKRI B. ABED. Albany, State University of New York Press, 1991. xxv, 201pp.

OGHUSICA AUS IRAN. By GERHARD DOERFER, WOLFRAM HESCHE, JAMSHID RAVANYAR. Wiesbaden, Harrassowitz, 1990. ix, 146pp. DM 56.‐

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THE MEADOWS OF GOLD: THE ABBASIDS. By MAS'UDI. Tr. and ed. by PAUL LUNDE and CAROLINE STONE. London and New York, Kegan Paul International, 1989. x, 469pp. £30.00

POESlA ESTRÓFICA (CEJELES Y/O MUWA??AHAT) ATRIBUIDA AL MlSTICO GRANADINO A?‐?u?TARI (SIGLO XIII d.C.).(Preedición, traducción, estudio e índices.) By F. CORRIENTE. Madrid, CSIC, Instituto de Filología, Departamento de Estudios Árabes, 1988. [6], 379pp.

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IN A CALIPH'S KITCHEN: MEDIAEVAL ARABIC COOKING FOR THE MODERN GOURMET. By DAVID WAINES. London, Riad el‐Rayyes Books, 1989. 119pp. 44 colour plates. £14.00.