Christina Eckes
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199573769
- eISBN:
- 9780191722158
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199573769.003.0005
- Subject:
- Law, Human Rights and Immigration, EU Law
This chapter considers judicial protection from European sanctions based on UN lists of terrorist suspects. The structure of the chapter is as follows. Section 1 sets out the (potential) friction ...
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This chapter considers judicial protection from European sanctions based on UN lists of terrorist suspects. The structure of the chapter is as follows. Section 1 sets out the (potential) friction that the multi-layered adoption procedure of sanctions giving effect to UN lists creates between the European legal order and international law. Section 2 turns to the perspective of international law on the binding force and on the status of Security Council resolutions. Section 3 examines the perspective of European law. It demonstrates that neither the European Treaties nor the case-law of the European Court of Justice (ECJ) justify the Community itself being bound by decisions of the Security Council. Section 4 discusses alternatives to the positions of the Court of First Instance (CFI) and the ECJ Section 5 places the EU courts' decisions in context. It analyses the case-law of the European Court of Human Rights (ECtHR) and of a selection of national Supreme Courts concerning the review of domestic acts implementing Security Council resolutions.Less
This chapter considers judicial protection from European sanctions based on UN lists of terrorist suspects. The structure of the chapter is as follows. Section 1 sets out the (potential) friction that the multi-layered adoption procedure of sanctions giving effect to UN lists creates between the European legal order and international law. Section 2 turns to the perspective of international law on the binding force and on the status of Security Council resolutions. Section 3 examines the perspective of European law. It demonstrates that neither the European Treaties nor the case-law of the European Court of Justice (ECJ) justify the Community itself being bound by decisions of the Security Council. Section 4 discusses alternatives to the positions of the Court of First Instance (CFI) and the ECJ Section 5 places the EU courts' decisions in context. It analyses the case-law of the European Court of Human Rights (ECtHR) and of a selection of national Supreme Courts concerning the review of domestic acts implementing Security Council resolutions.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0003
- Subject:
- Political Science, European Union
The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about ...
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The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about European integration. This chapter provides a more detailed sectoral account of how the adjudication of one class of trading disputes gradually, but authoritatively, undermined the intergovernmental aspects of the EC, while enhancing the polity's supranational, or federal, character. Assesses the impact of adjudicating the freer movement of goods provisions of the Treaty of Rome on integration and supranational governance, focusing on the problem of non‐tariff barriers, as governed by Arts. 28–30 (EC). Proceeds as follows: first, the treaty rules on intra‐EC trade are examined, hypotheses derived about how the domain could be expected to evolve, and the argument advanced is contrasted with alternatives; second, in a section ‘Judicial Governance and Market‐Building’, the emergence is tracked of the basic doctrinal framework (the Dassonville framework) governing the domain, an analysis made of the aggregate data on adjudication in the sector, and the impact traced of the European Court of Justice's case law on the decision‐making of other actors, including the European Commission and Member State governments; third, the mutation of the framework that occurred in the 1990s is discussed – an event that was heavily conditioned by the endogenous development of the law itself; the chapter concludes with an assessment of the findings in light of the pertinent scholarly debates about the impact of the European legal system on the greater course of market‐building and political integration.Less
The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about European integration. This chapter provides a more detailed sectoral account of how the adjudication of one class of trading disputes gradually, but authoritatively, undermined the intergovernmental aspects of the EC, while enhancing the polity's supranational, or federal, character. Assesses the impact of adjudicating the freer movement of goods provisions of the Treaty of Rome on integration and supranational governance, focusing on the problem of non‐tariff barriers, as governed by Arts. 28–30 (EC). Proceeds as follows: first, the treaty rules on intra‐EC trade are examined, hypotheses derived about how the domain could be expected to evolve, and the argument advanced is contrasted with alternatives; second, in a section ‘Judicial Governance and Market‐Building’, the emergence is tracked of the basic doctrinal framework (the Dassonville framework) governing the domain, an analysis made of the aggregate data on adjudication in the sector, and the impact traced of the European Court of Justice's case law on the decision‐making of other actors, including the European Commission and Member State governments; third, the mutation of the framework that occurred in the 1990s is discussed – an event that was heavily conditioned by the endogenous development of the law itself; the chapter concludes with an assessment of the findings in light of the pertinent scholarly debates about the impact of the European legal system on the greater course of market‐building and political integration.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0004
- Subject:
- Political Science, European Union
The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of ...
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The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.Less
The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.
Michelle P. Egan
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199244058
- eISBN:
- 9780191599132
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199244057.003.0005
- Subject:
- Political Science, European Union
Focuses on the role of European case law in fostering an integrated market. Through a series of landmark cases, including Cassis De Dijon, Dassonville, and Keck, the European Court of Justice has ...
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Focuses on the role of European case law in fostering an integrated market. Through a series of landmark cases, including Cassis De Dijon, Dassonville, and Keck, the European Court of Justice has supported trade and commerce in determining whether national legislation is protectionist or serves a legitimate function in promoting health, safety, and other public policy objectives. Analogies with the US are also discussed, particularly in promoting interstate commerce by addressing trade discrimination, and in developing legal principles to balance sovereign state powers with the need for integrated markets. The central argument is that a common framework of market rules has been pursued within a setting of well‐defined legal and judicial mechanisms, which have also provided mechanisms of enforcement and compliance with treaty goals. Of central importance is that legal reasoning shifted the focus of market integration from harmonization to mutual recognition as a key trade strategy to integrate markets. The role of law has been critical in sustaining a market economy, and case law shapes both states and markets, determining the constitutional limits to state intervention in markets and the level of government at which regulation is most appropriate and legitimate through legal mechanisms of non‐discrimination, balancing standards, and proportionality.Less
Focuses on the role of European case law in fostering an integrated market. Through a series of landmark cases, including Cassis De Dijon, Dassonville, and Keck, the European Court of Justice has supported trade and commerce in determining whether national legislation is protectionist or serves a legitimate function in promoting health, safety, and other public policy objectives. Analogies with the US are also discussed, particularly in promoting interstate commerce by addressing trade discrimination, and in developing legal principles to balance sovereign state powers with the need for integrated markets. The central argument is that a common framework of market rules has been pursued within a setting of well‐defined legal and judicial mechanisms, which have also provided mechanisms of enforcement and compliance with treaty goals. Of central importance is that legal reasoning shifted the focus of market integration from harmonization to mutual recognition as a key trade strategy to integrate markets. The role of law has been critical in sustaining a market economy, and case law shapes both states and markets, determining the constitutional limits to state intervention in markets and the level of government at which regulation is most appropriate and legitimate through legal mechanisms of non‐discrimination, balancing standards, and proportionality.
Ronan McCrea
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199595358
- eISBN:
- 9780191595776
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199595358.001.0001
- Subject:
- Law, EU Law
This book offers a comprehensive account of the role of religion within the public order of the European Union. It examines the facilitation and protection of individual and institutional religious ...
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This book offers a comprehensive account of the role of religion within the public order of the European Union. It examines the facilitation and protection of individual and institutional religious freedom in EU law and the means through which the Union facilitates religious input and influence over law. In addition, the book identifies the limitations on religious influence over law and politics that have been identified by the Union as fundamental elements of its public order and prerequisites to EU membership. It demonstrates that the Union seeks to balance its predominantly Christian religious heritage with an equally strong secular and humanist movement by facilitating religion as a form of cultural identity while limiting its political influence. Such balancing takes place in the context of the Union's limited legitimacy and its commitment to respect for Member State cultural autonomy. Deference towards the cultural role of religion at Member State level enables culturally-entrenched religions to exercise a greater degree of influence within the Union's public order than ‘outsider’ faiths that lack a comparable cultural role. The book places the Union's approach to religion in the context of broader historical and sociological trends around religion in Europe and of contemporary debates around secularism, equal treatment, and the role of Islam in Europe.Less
This book offers a comprehensive account of the role of religion within the public order of the European Union. It examines the facilitation and protection of individual and institutional religious freedom in EU law and the means through which the Union facilitates religious input and influence over law. In addition, the book identifies the limitations on religious influence over law and politics that have been identified by the Union as fundamental elements of its public order and prerequisites to EU membership. It demonstrates that the Union seeks to balance its predominantly Christian religious heritage with an equally strong secular and humanist movement by facilitating religion as a form of cultural identity while limiting its political influence. Such balancing takes place in the context of the Union's limited legitimacy and its commitment to respect for Member State cultural autonomy. Deference towards the cultural role of religion at Member State level enables culturally-entrenched religions to exercise a greater degree of influence within the Union's public order than ‘outsider’ faiths that lack a comparable cultural role. The book places the Union's approach to religion in the context of broader historical and sociological trends around religion in Europe and of contemporary debates around secularism, equal treatment, and the role of Islam in Europe.
Paul P. Craig
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780199250158
- eISBN:
- 9780191599439
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199250154.003.0002
- Subject:
- Political Science, European Union
An examination is made of the way in which national courts have reacted to European Community law, in particular to the claim to supremacy over national law contained in the jurisprudence of the ...
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An examination is made of the way in which national courts have reacted to European Community law, in particular to the claim to supremacy over national law contained in the jurisprudence of the European Court of Justice. The discussion begins with a brief account of the Community’s supremacy doctrine. This is followed by an analysis of the reaction of national courts to this claim. The focus then shifts from positive law to the normative evaluation of a number of issues central to this topic. The chapter concludes with an overview of the political science literature that has considered the reasons for the reaction of national courts to the claims made by the Community’s judicial institutions.Less
An examination is made of the way in which national courts have reacted to European Community law, in particular to the claim to supremacy over national law contained in the jurisprudence of the European Court of Justice. The discussion begins with a brief account of the Community’s supremacy doctrine. This is followed by an analysis of the reaction of national courts to this claim. The focus then shifts from positive law to the normative evaluation of a number of issues central to this topic. The chapter concludes with an overview of the political science literature that has considered the reasons for the reaction of national courts to the claims made by the Community’s judicial institutions.
Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.003.0003
- Subject:
- Law, Philosophy of Law
The American Restatements of the law have become a major textual authority of the American common law. Today, large parts of the law have been restated, and the Restatements are taken by the ...
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The American Restatements of the law have become a major textual authority of the American common law. Today, large parts of the law have been restated, and the Restatements are taken by the participants to the legal discourse as a valid expression of the law. This chapter shows that the American restatement approach has also influenced the developments of transnational restatements of the law. The International Institute for the Unification of Private Law (UNIDROIT) has largely applied the terminology and formal style of the American Restatements for its Principles of International Commercial Contracts; and a similar approach was taken, on the European level, by the Lando Commission on European Contract Law. Today, the Restatements' formal style is used by the Study Group on a European Civil Code and by the Acquis Group, the main non-legislative actors in the current political process of unifying European private law.Less
The American Restatements of the law have become a major textual authority of the American common law. Today, large parts of the law have been restated, and the Restatements are taken by the participants to the legal discourse as a valid expression of the law. This chapter shows that the American restatement approach has also influenced the developments of transnational restatements of the law. The International Institute for the Unification of Private Law (UNIDROIT) has largely applied the terminology and formal style of the American Restatements for its Principles of International Commercial Contracts; and a similar approach was taken, on the European level, by the Lando Commission on European Contract Law. Today, the Restatements' formal style is used by the Study Group on a European Civil Code and by the Acquis Group, the main non-legislative actors in the current political process of unifying European private law.
Alexander Somek
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199542086
- eISBN:
- 9780191715518
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199542086.001.0001
- Subject:
- Law, Philosophy of Law, EU Law
This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are ...
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This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are deemed to be essentially separate from one another. They abandon larger society to itself and pursue their good in the private sphere. In lieu of trust and reliance in their own power to bring about change through common action, they hope to benefit from entrusting ‘problem-solving’ to international networks of expertise. Put bluntly, citizens of this kind exhibit a strong commitment to individualism. The book shows how individualism is reflected in the regulatory authority that the Union claims for itself, in particular as regards the regulation of the internal market. The paradigmatic case studied in this book affects the regulation of smoking and the marketing of tobacco products. Throughout this book, continuity is established with two of the historically most influential modes of constitutional reasoning: the constitutional theory of the French revolution, on the one hand, and the ancient tradition of linking different types of public power with the composition of the citizen's soul, on the other. The study is true and original — unclassifiable in its line and style of argument. It is at one and the same time an essay in the contemporary history of public culture and taste, a study of European Union competence, an exercise in pure normative political theory, and a study in constitutional method and culture with much comparative and historical material.Less
This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are deemed to be essentially separate from one another. They abandon larger society to itself and pursue their good in the private sphere. In lieu of trust and reliance in their own power to bring about change through common action, they hope to benefit from entrusting ‘problem-solving’ to international networks of expertise. Put bluntly, citizens of this kind exhibit a strong commitment to individualism. The book shows how individualism is reflected in the regulatory authority that the Union claims for itself, in particular as regards the regulation of the internal market. The paradigmatic case studied in this book affects the regulation of smoking and the marketing of tobacco products. Throughout this book, continuity is established with two of the historically most influential modes of constitutional reasoning: the constitutional theory of the French revolution, on the one hand, and the ancient tradition of linking different types of public power with the composition of the citizen's soul, on the other. The study is true and original — unclassifiable in its line and style of argument. It is at one and the same time an essay in the contemporary history of public culture and taste, a study of European Union competence, an exercise in pure normative political theory, and a study in constitutional method and culture with much comparative and historical material.
Lucinda Miller
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199606627
- eISBN:
- 9780191731716
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606627.001.0001
- Subject:
- Law, EU Law
The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of ...
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The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of legal study. European Contract Law: Exploring Europeanization examines the origins of the discipline and its subsequent evolution. It brings the discussion up-to-date with full analysis of the debate on the Common Frame of Reference and the future that this ambiguous instrument may have in the contemporary European legal framework. One of the central themes of the book is exploration of the multi-level, open architecture of the EU legal order and the implications of such governance arrangements for the EU’s private law programme. The book demonstrates that the key to understanding European contract law in the 21st century lies in adopting a perspective and mechanisms suitable for a legal order populated by multiple sources of private law. Legal pluralism is offered as a theoretical construct in relation to which the future of European private law might be shaped. Legal pluralism forces consideration of diversity’s normative appeal and readjusts the analytical spotlight beyond the traditional, centralised, legislative, ‘command and control’ means of regulation. In so doing, softer mechanisms are introduced for the governance of contract law; mechanisms that enable coordination between the different sites at which contract law operates. This reorientation in thinking about European contract law, indeed about Europeanization itself, enables the inevitable diversity and pluralism that is a feature of multi-level Europe to be captured within a framework that maximises the opportunities for mutual transformations and learning.Less
The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of legal study. European Contract Law: Exploring Europeanization examines the origins of the discipline and its subsequent evolution. It brings the discussion up-to-date with full analysis of the debate on the Common Frame of Reference and the future that this ambiguous instrument may have in the contemporary European legal framework. One of the central themes of the book is exploration of the multi-level, open architecture of the EU legal order and the implications of such governance arrangements for the EU’s private law programme. The book demonstrates that the key to understanding European contract law in the 21st century lies in adopting a perspective and mechanisms suitable for a legal order populated by multiple sources of private law. Legal pluralism is offered as a theoretical construct in relation to which the future of European private law might be shaped. Legal pluralism forces consideration of diversity’s normative appeal and readjusts the analytical spotlight beyond the traditional, centralised, legislative, ‘command and control’ means of regulation. In so doing, softer mechanisms are introduced for the governance of contract law; mechanisms that enable coordination between the different sites at which contract law operates. This reorientation in thinking about European contract law, indeed about Europeanization itself, enables the inevitable diversity and pluralism that is a feature of multi-level Europe to be captured within a framework that maximises the opportunities for mutual transformations and learning.
Alec Stone Sweet
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199257409
- eISBN:
- 9780191600951
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019925740X.003.0002
- Subject:
- Political Science, European Union
Assesses the interaction between developments in EU law and the politics of integration, and is primarily concerned with the impacts of the courts on the evolution of EU institutions (rules and ...
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Assesses the interaction between developments in EU law and the politics of integration, and is primarily concerned with the impacts of the courts on the evolution of EU institutions (rules and procedures). It gives a broad‐gauge overview of the development of the legal system and considers the impact of adjudicating European law on EU political developments. Stone Sweet then relates both European integration theory and methodology, identifying if, how, and why these theories can help understanding of the evolution of the EU legal system. Proceeds as follows: the first section, Integration and the Courts, examines the sources and consequences of the constitutionalization of the legal system; the second and third sections (The Evolution of the Treaty of Rome, and The Legislative Process) evaluate the role of the courts in the institutional evolution of the EU, and the impact of that evolution on the treaty revision and legislative processes; the Conclusion briefly considers the Europeanization of the law, an important phenomenon implicated in various ways throughout the chapter.Less
Assesses the interaction between developments in EU law and the politics of integration, and is primarily concerned with the impacts of the courts on the evolution of EU institutions (rules and procedures). It gives a broad‐gauge overview of the development of the legal system and considers the impact of adjudicating European law on EU political developments. Stone Sweet then relates both European integration theory and methodology, identifying if, how, and why these theories can help understanding of the evolution of the EU legal system. Proceeds as follows: the first section, Integration and the Courts, examines the sources and consequences of the constitutionalization of the legal system; the second and third sections (The Evolution of the Treaty of Rome, and The Legislative Process) evaluate the role of the courts in the institutional evolution of the EU, and the impact of that evolution on the treaty revision and legislative processes; the Conclusion briefly considers the Europeanization of the law, an important phenomenon implicated in various ways throughout the chapter.
Jack Hayward and Anand Menon (eds)
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780199250158
- eISBN:
- 9780191599439
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199250154.001.0001
- Subject:
- Political Science, European Union
This book is intended to be the leading advanced survey of politics in Western Europe. It examines in detail all aspects of political life in Western Europe, from public protest to core executives, ...
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This book is intended to be the leading advanced survey of politics in Western Europe. It examines in detail all aspects of political life in Western Europe, from public protest to core executives, and from social policy to Europe’s place in the world. It brings together a team of leading scholars from the United Kingdom, continental Europe and North America. The contributions provide not only a sophisticated introduction to the various issues covered, but also a detailed discussion of the major theoretical and empirical debates and developments in the field. The book thus combines the functions of providing a comprehensive overview and a series of original contributions to scholarly debate. It has 23 chapters, two of which are introductory, and look at institutions and the evolution of European democracy, and national courts and European Community Law. The focus of the remainder is on European core executives (4 chapters), public administration (4 chapters), parties and organized interests (3 chapters), democracy and popular participation (3 chapters), public policy (4 chapters) and the changing European state (3 chapters). The book is intended as a tribute to the late Vincent Wright of Nuffield College, Oxford University, to whom the Foreword and Preface are devoted.Less
This book is intended to be the leading advanced survey of politics in Western Europe. It examines in detail all aspects of political life in Western Europe, from public protest to core executives, and from social policy to Europe’s place in the world. It brings together a team of leading scholars from the United Kingdom, continental Europe and North America. The contributions provide not only a sophisticated introduction to the various issues covered, but also a detailed discussion of the major theoretical and empirical debates and developments in the field. The book thus combines the functions of providing a comprehensive overview and a series of original contributions to scholarly debate. It has 23 chapters, two of which are introductory, and look at institutions and the evolution of European democracy, and national courts and European Community Law. The focus of the remainder is on European core executives (4 chapters), public administration (4 chapters), parties and organized interests (3 chapters), democracy and popular participation (3 chapters), public policy (4 chapters) and the changing European state (3 chapters). The book is intended as a tribute to the late Vincent Wright of Nuffield College, Oxford University, to whom the Foreword and Preface are devoted.
Nico Krisch
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199228317
- eISBN:
- 9780191594793
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199228317.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
This book traces a fundamental transformation in law—the turn towards ‘postnational law’—which reflects the increasing enmeshment of national, regional, and international law and calls into question ...
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This book traces a fundamental transformation in law—the turn towards ‘postnational law’—which reflects the increasing enmeshment of national, regional, and international law and calls into question central legitimating principles of the different layers. Two fundamental approaches to the structure of this new legal order stand out and form the focus of this book: constitutionalism and pluralism. Postnational constitutionalism embodies the hope of integrating the order through an overarching legal framework that would tame politics by defining relations and institutionalizing key values. Yet such a constitutionalist order would require too massive a transformation of postnational institutions and society, and thinner approaches, widespread in the literature and more realistic, would sell the constitutionalist promise short. This book proposes instead to conceptualize and develop the postnational order in a pluralist vein, characterized by a multiplicity of legal sub-orders, not connected through an overarching frame but interacting in often political modes. Many areas of regional and global governance can be understood in such terms, as demonstrated here for the European human rights regime, the UN sanctions regime in its tension with human rights, and the regime complex of international trade, environment, and food safety. The pluralism on display in these examples also holds normative appeal. By reflecting diverging views on the right scope of the polity, it respects individuals’ autonomy and their right to shape their political order, thus furthering democratic values. By leaving relations between different layers of law unsettled, it allows for contestation and adaptation which helps to stabilize postnational governance and remedy power imbalances in its initial design. In the highly diverse and contested space of the postnational, breaking with domestic political traditions and going ‘beyond constitutionalism’ towards a pluralist order may be the better option.Less
This book traces a fundamental transformation in law—the turn towards ‘postnational law’—which reflects the increasing enmeshment of national, regional, and international law and calls into question central legitimating principles of the different layers. Two fundamental approaches to the structure of this new legal order stand out and form the focus of this book: constitutionalism and pluralism. Postnational constitutionalism embodies the hope of integrating the order through an overarching legal framework that would tame politics by defining relations and institutionalizing key values. Yet such a constitutionalist order would require too massive a transformation of postnational institutions and society, and thinner approaches, widespread in the literature and more realistic, would sell the constitutionalist promise short. This book proposes instead to conceptualize and develop the postnational order in a pluralist vein, characterized by a multiplicity of legal sub-orders, not connected through an overarching frame but interacting in often political modes. Many areas of regional and global governance can be understood in such terms, as demonstrated here for the European human rights regime, the UN sanctions regime in its tension with human rights, and the regime complex of international trade, environment, and food safety. The pluralism on display in these examples also holds normative appeal. By reflecting diverging views on the right scope of the polity, it respects individuals’ autonomy and their right to shape their political order, thus furthering democratic values. By leaving relations between different layers of law unsettled, it allows for contestation and adaptation which helps to stabilize postnational governance and remedy power imbalances in its initial design. In the highly diverse and contested space of the postnational, breaking with domestic political traditions and going ‘beyond constitutionalism’ towards a pluralist order may be the better option.
Patrick Le Galès
- Published in print:
- 2001
- Published Online:
- April 2004
- ISBN:
- 9780199247967
- eISBN:
- 9780191601088
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019924796X.003.0007
- Subject:
- Political Science, European Union
An examination is made of how tensions that develop between supranational and national governance structures are resolved, given the institutionalization taking place at the European level. The focus ...
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An examination is made of how tensions that develop between supranational and national governance structures are resolved, given the institutionalization taking place at the European level. The focus is on two national policy domains – state aids and regional development – and the author explains how, since the mid-1980s, European Union (EU) officials have succeeded in inducing their French counterparts to alter legislation and administrative practices once assumed to be fundamentally immune to external influence – a process that is increasingly referred to as the ‘Europeanization of the nation state’. The view taken is that Europeanization took place in a series of ‘rounds’ that have followed a common sequence: disagreement about the nature and scope of EU rules in national regimes; open contestation between supranational and national officials; the fixing of a new or clarified rule on the part of EU officials; and, finally, the grudging acceptance of the rule by the French. After each round, new patterns of French resistance emerged, but the rules of the game governing these interactions are fixed by the results of previous rounds, and come to be more or less taken for granted by actors at both levels; it is argued that the overall process tends to favour the expansion and diffusion of EU modes of governance, and the weakening of specifically national modes. The chapter is divided into three main sections: the first provides a summary overview of the development of EU competition policy and its intersections with state aids and regional policy; the second focuses on state aids in two sectors (French regional and industrial policy), which are analysed against the backdrop of the development of European competition law; and the third part discusses conflicts over the meaning of European rules in relation to the process of ‘endogenous’ institutional change.Less
An examination is made of how tensions that develop between supranational and national governance structures are resolved, given the institutionalization taking place at the European level. The focus is on two national policy domains – state aids and regional development – and the author explains how, since the mid-1980s, European Union (EU) officials have succeeded in inducing their French counterparts to alter legislation and administrative practices once assumed to be fundamentally immune to external influence – a process that is increasingly referred to as the ‘Europeanization of the nation state’. The view taken is that Europeanization took place in a series of ‘rounds’ that have followed a common sequence: disagreement about the nature and scope of EU rules in national regimes; open contestation between supranational and national officials; the fixing of a new or clarified rule on the part of EU officials; and, finally, the grudging acceptance of the rule by the French. After each round, new patterns of French resistance emerged, but the rules of the game governing these interactions are fixed by the results of previous rounds, and come to be more or less taken for granted by actors at both levels; it is argued that the overall process tends to favour the expansion and diffusion of EU modes of governance, and the weakening of specifically national modes. The chapter is divided into three main sections: the first provides a summary overview of the development of EU competition policy and its intersections with state aids and regional policy; the second focuses on state aids in two sectors (French regional and industrial policy), which are analysed against the backdrop of the development of European competition law; and the third part discusses conflicts over the meaning of European rules in relation to the process of ‘endogenous’ institutional change.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.001.0001
- Subject:
- Law, EU Law, Environmental and Energy Law
It is widely accepted that the future development of environmental law depends not on further legislation, but on more effective enforcement. Within the EC legal system, the conventional view is that ...
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It is widely accepted that the future development of environmental law depends not on further legislation, but on more effective enforcement. Within the EC legal system, the conventional view is that the enforcement deficit is due to the fact that the environment is distinct from other fields of Community law. EC environmental law does not normally confer rights on individuals and may therefore not be judicially enforced in the same manner as rules concerning the internal market, competition and gender discrimination. This book explores and challenges this assumption. Drawing from constitutional aspects of EC law, the book examines to what extent the general case law on procedures and remedies may be transposed to the field of environment, whilst at the same time taking stock of the existing environmental case law and the distinctive features of environmental legislation. In a critical exposition and assessment of 50 years of jurisprudence by the European Court of Justice as well as recent legislative developments, the book explores the potential of enforcement of environmental law through lawsuits by individuals as well as the European Commission. By demonstrating that the environment is not so different from other fields of law in terms of rights and remedies, the book provides not only new insights to the enforcement of EC environmental law but also to the central characteristics of Community constitutional law.Less
It is widely accepted that the future development of environmental law depends not on further legislation, but on more effective enforcement. Within the EC legal system, the conventional view is that the enforcement deficit is due to the fact that the environment is distinct from other fields of Community law. EC environmental law does not normally confer rights on individuals and may therefore not be judicially enforced in the same manner as rules concerning the internal market, competition and gender discrimination. This book explores and challenges this assumption. Drawing from constitutional aspects of EC law, the book examines to what extent the general case law on procedures and remedies may be transposed to the field of environment, whilst at the same time taking stock of the existing environmental case law and the distinctive features of environmental legislation. In a critical exposition and assessment of 50 years of jurisprudence by the European Court of Justice as well as recent legislative developments, the book explores the potential of enforcement of environmental law through lawsuits by individuals as well as the European Commission. By demonstrating that the environment is not so different from other fields of law in terms of rights and remedies, the book provides not only new insights to the enforcement of EC environmental law but also to the central characteristics of Community constitutional law.
Martin Shapiro
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0007
- Subject:
- Political Science, Comparative Politics
To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers ...
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To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers within it, discuss and use three strategies for building theory through testing and comparing. This first paper, which was originally published in the University of Chicago Law Forum in 1992, discusses a mode of testing that involves constructing causal hypotheses to explain a major change that has occurred in one particular part of one particular legal system, and testing these comparatively either by predicting future developments in the same legal system, or (as here) by predicting that another legal system now displaying the same hypothesized conditions will experience in the future those results that occurred in the first system. Shapiro examines the ‘giving reasons requirement’ in European Community (EC) law by deriving predictions about European law from the evolution of American judicial review of administrative acts. The first part of the paper examines the giving reasons requirement in relation to administrative discretion and judicial review of administrative action in the United States. The second part goes on to compare US and EC law, looking at whether the EC giving reasons requirement is substantive as well as procedural, and examining the experience of the European Court of Justice with substantive review.Less
To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers within it, discuss and use three strategies for building theory through testing and comparing. This first paper, which was originally published in the University of Chicago Law Forum in 1992, discusses a mode of testing that involves constructing causal hypotheses to explain a major change that has occurred in one particular part of one particular legal system, and testing these comparatively either by predicting future developments in the same legal system, or (as here) by predicting that another legal system now displaying the same hypothesized conditions will experience in the future those results that occurred in the first system. Shapiro examines the ‘giving reasons requirement’ in European Community (EC) law by deriving predictions about European law from the evolution of American judicial review of administrative acts. The first part of the paper examines the giving reasons requirement in relation to administrative discretion and judicial review of administrative action in the United States. The second part goes on to compare US and EC law, looking at whether the EC giving reasons requirement is substantive as well as procedural, and examining the experience of the European Court of Justice with substantive review.
Tim Hayward
- Published in print:
- 2004
- Published Online:
- July 2005
- ISBN:
- 9780199278688
- eISBN:
- 9780191602757
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199278687.003.0006
- Subject:
- Political Science, Political Theory
Addresses the doubt about whether, even if legitimately enforceable, a constitutional right to an adequate environment is necessary. The European Union (EU) is taken as a context in which that doubt ...
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Addresses the doubt about whether, even if legitimately enforceable, a constitutional right to an adequate environment is necessary. The European Union (EU) is taken as a context in which that doubt would seem particularly strongly motivated. For the range of existing environmental and human rights provisions which are binding on member states of the EU might already provide the protections that a formally declared right to an adequate environment would aim for. Shows that while those provisions offer significant protections, these nonetheless fall short of what a substantive environmental right with constitutional force would aim to achieve, and so the latter would not be nugatory.Less
Addresses the doubt about whether, even if legitimately enforceable, a constitutional right to an adequate environment is necessary. The European Union (EU) is taken as a context in which that doubt would seem particularly strongly motivated. For the range of existing environmental and human rights provisions which are binding on member states of the EU might already provide the protections that a formally declared right to an adequate environment would aim for. Shows that while those provisions offer significant protections, these nonetheless fall short of what a substantive environmental right with constitutional force would aim to achieve, and so the latter would not be nugatory.
Mads Andenas and Duncan Fairgrieve (eds)
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566181
- eISBN:
- 9780191705458
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566181.001.0001
- Subject:
- Law, Legal History
Tom Bingham is internationally recognised as one of the most influential judges of the 20th century. Having occupied in succession the most senior judicial offices in the United Kingdom, Master of ...
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Tom Bingham is internationally recognised as one of the most influential judges of the 20th century. Having occupied in succession the most senior judicial offices in the United Kingdom, Master of the Rolls, Lord Chief Justice, and Senior Law Lord, his judicial and academic work have deeply influenced the development of the law in a period of transformation. His argument for a new UK Supreme Court and incorporation of the European Human Rights Convention and his views on the rule of law and judicial independence have left a profound mark on UK constitutional law. He has also been instrumental in championing the academic and judicial use of comparative law. As a judge, Lord Bingham has given effect to the legislative incorporation of the ECHR and the protection of individual rights against anti-terror legislation, strengthened judicial independence, and gained an international influence reaching beyond the common law world. This book collects together more than fifty chapters from colleagues and those influenced by Lord Bingham, from across academia and legal practice. The chapters survey Lord Bingham's pivotal role in the transformations that have taken place in the legal system during his career, and in the protection and development of the rule of law.Less
Tom Bingham is internationally recognised as one of the most influential judges of the 20th century. Having occupied in succession the most senior judicial offices in the United Kingdom, Master of the Rolls, Lord Chief Justice, and Senior Law Lord, his judicial and academic work have deeply influenced the development of the law in a period of transformation. His argument for a new UK Supreme Court and incorporation of the European Human Rights Convention and his views on the rule of law and judicial independence have left a profound mark on UK constitutional law. He has also been instrumental in championing the academic and judicial use of comparative law. As a judge, Lord Bingham has given effect to the legislative incorporation of the ECHR and the protection of individual rights against anti-terror legislation, strengthened judicial independence, and gained an international influence reaching beyond the common law world. This book collects together more than fifty chapters from colleagues and those influenced by Lord Bingham, from across academia and legal practice. The chapters survey Lord Bingham's pivotal role in the transformations that have taken place in the legal system during his career, and in the protection and development of the rule of law.
Francis Jacobs and David Anderson
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199532711
- eISBN:
- 9780191705489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199532711.003.0033
- Subject:
- Law, Legal History
The laws of other European states were from time to time the subject of valuable comparative analysis by the House of Lords. However, the principal European influence on the work of the House of ...
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The laws of other European states were from time to time the subject of valuable comparative analysis by the House of Lords. However, the principal European influence on the work of the House of Lords came not so much from these comparative excursions as from the law of the supranational organisations successively known as the European Economic Community, European Community, and European Union. It is European law in that sense with which this chapter is concerned.Less
The laws of other European states were from time to time the subject of valuable comparative analysis by the House of Lords. However, the principal European influence on the work of the House of Lords came not so much from these comparative excursions as from the law of the supranational organisations successively known as the European Economic Community, European Community, and European Union. It is European law in that sense with which this chapter is concerned.
Mitchel De S.-O.-L'E. Lasser
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199570775
- eISBN:
- 9780191705557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199570775.003.0007
- Subject:
- Law, Comparative Law
This chapter focuses on the interpretive and normative pressures that the national judiciaries routinely exert on the European legal orders. These pressures are of interest for several reasons. ...
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This chapter focuses on the interpretive and normative pressures that the national judiciaries routinely exert on the European legal orders. These pressures are of interest for several reasons. First, although they constantly generate important effects on the two Europes, they function largely on the national judicial plane. As a result, we can keep our comparatists' eyes trained primarily on the French judicial system, even when discussing the pressures being exerted on the European one. Second, this focus allows us to observe the full extent to which national-legal and judicial actors now use the European system as a repository of particularly powerful arguments to be deployed as necessary within the national legal field. Third, this mushrooming use (and development) of European legal norms breaks down the artificial heuristic barrier between the French legal ‘inside’ and the European legal ‘outside’. The chapter concludes that the interpretive empowerment of national legal actors — including judges and litigants — generated by the operation of European law not only constructs at the national level a confluence of interests that reinforces the centrality of European law, but also creates a systemic demand for powerful and justiciable European legal norms.Less
This chapter focuses on the interpretive and normative pressures that the national judiciaries routinely exert on the European legal orders. These pressures are of interest for several reasons. First, although they constantly generate important effects on the two Europes, they function largely on the national judicial plane. As a result, we can keep our comparatists' eyes trained primarily on the French judicial system, even when discussing the pressures being exerted on the European one. Second, this focus allows us to observe the full extent to which national-legal and judicial actors now use the European system as a repository of particularly powerful arguments to be deployed as necessary within the national legal field. Third, this mushrooming use (and development) of European legal norms breaks down the artificial heuristic barrier between the French legal ‘inside’ and the European legal ‘outside’. The chapter concludes that the interpretive empowerment of national legal actors — including judges and litigants — generated by the operation of European law not only constructs at the national level a confluence of interests that reinforces the centrality of European law, but also creates a systemic demand for powerful and justiciable European legal norms.
Hugh Beale QC FBA
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199593880
- eISBN:
- 9780191745362
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199593880.001.0001
- Subject:
- Law, Law of Obligations
This book examines the case for reforming the law on mistake and non-disclosure of fact to bring English law closer to the law in much of continental Europe. There, and in common law countries like ...
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This book examines the case for reforming the law on mistake and non-disclosure of fact to bring English law closer to the law in much of continental Europe. There, and in common law countries like the US, a party may avoid a contract for mistake of fact on a more liberal basis, and a party who deliberately keeps silent knowing that the other party is making a mistake may be guilty of fraud. This is not necessarily the case in England and Wales. Developing a proposal for law reform, the book concedes that the English courts require a law that puts great emphasis on certainty and expects parties to look out for their own interests; but posits that this individualistic approach is not suitable for smaller businesses which are less sophisticated and which are likely to be making low value contracts, so that relative cost of taking advice will be high. The book argues that the solution may not be to reform English contract law generally, but to support the development of an optional instrument on contract law, along the lines of the Common European Sales Law recently proposed by the European Commission. This measure is aimed specifically at the needs of small and medium enterprises, and contains the protective rules found in the other jurisdictions. It is aimed primarily at cross-border sales, but Member States would be given the option of adopting it for domestic transactions too. This would give small businesses the choice of using the current ‘hard-nosed’ law or adopting the more protective optional instrument, recognizing that different parties require different things from the law governing their contract.Less
This book examines the case for reforming the law on mistake and non-disclosure of fact to bring English law closer to the law in much of continental Europe. There, and in common law countries like the US, a party may avoid a contract for mistake of fact on a more liberal basis, and a party who deliberately keeps silent knowing that the other party is making a mistake may be guilty of fraud. This is not necessarily the case in England and Wales. Developing a proposal for law reform, the book concedes that the English courts require a law that puts great emphasis on certainty and expects parties to look out for their own interests; but posits that this individualistic approach is not suitable for smaller businesses which are less sophisticated and which are likely to be making low value contracts, so that relative cost of taking advice will be high. The book argues that the solution may not be to reform English contract law generally, but to support the development of an optional instrument on contract law, along the lines of the Common European Sales Law recently proposed by the European Commission. This measure is aimed specifically at the needs of small and medium enterprises, and contains the protective rules found in the other jurisdictions. It is aimed primarily at cross-border sales, but Member States would be given the option of adopting it for domestic transactions too. This would give small businesses the choice of using the current ‘hard-nosed’ law or adopting the more protective optional instrument, recognizing that different parties require different things from the law governing their contract.
