Stefano Bartolini
- Published in print:
- 2005
- Published Online:
- February 2006
- ISBN:
- 9780199286430
- eISBN:
- 9780191603242
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199286434.003.0003
- Subject:
- Political Science, European Union
This chapter devotes attention to the specific features of the new centre at the European level, and focuses on the peculiarities of its institutional design. The typical centre-building features of ...
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This chapter devotes attention to the specific features of the new centre at the European level, and focuses on the peculiarities of its institutional design. The typical centre-building features of territorial expansion, legal centralization, integration of the national and supra-national techno-bureaucratic infrastructure, and competence accretion have developed together with a persisting weak territoriality, an unclear competence attribution in vertical and horizontal senses, a partial constitutional empowerment of the subjects qua economic agents, and uncertain legitimacy sources. This configuration points to an ‘elite consolidation’, resulting from an alliance between national rulers (the national governments, the MPs) and the supra-national techno-bureaucratic centre builders (in the Commission, the Court, the European Central Bank). It is argued that any attempt to separate the powers, distribute the competencies, and strengthen direct forms of legitimacy would upset the inter-elite form of control on which this consolidation has rested to date.Less
This chapter devotes attention to the specific features of the new centre at the European level, and focuses on the peculiarities of its institutional design. The typical centre-building features of territorial expansion, legal centralization, integration of the national and supra-national techno-bureaucratic infrastructure, and competence accretion have developed together with a persisting weak territoriality, an unclear competence attribution in vertical and horizontal senses, a partial constitutional empowerment of the subjects qua economic agents, and uncertain legitimacy sources. This configuration points to an ‘elite consolidation’, resulting from an alliance between national rulers (the national governments, the MPs) and the supra-national techno-bureaucratic centre builders (in the Commission, the Court, the European Central Bank). It is argued that any attempt to separate the powers, distribute the competencies, and strengthen direct forms of legitimacy would upset the inter-elite form of control on which this consolidation has rested to date.
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.003.0002
- Subject:
- Political Science, European Union
The evolution of the European Community (EC) towards a supranational constitution is charted by combining three different perspectives. First, an examination is made of the major features of the ...
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The evolution of the European Community (EC) towards a supranational constitution is charted by combining three different perspectives. First, an examination is made of the major features of the integration process since 1959, which argues that the European market and polity developed symbiotically, as the activities of economic actors, organized interests, litigators and judges, and the EC's legislative and regulatory organs became linked, to create a self‐sustaining, dynamic system. Second, the ‘constitutionalization’ of the treaty system is investigated, and the activities of the European Court of Justice (ECJ) surveyed; among other things, constitutionalization secured property rights for transnational market actors, expanded the discretionary powers of national judges, and reduced the EC's intergovernmental character. Third, the relationship between the ECJ and the national courts is considered, focusing on how intra‐judicial conflict and cooperation have shaped the production of specific constitutional doctrines; through these ‘constitutional dialogues’, the supremacy of EC law was gradually achieved, rendering it judicially enforceable. Overall, the chapter situates the development of the European legal system within the overall process of European integration.Less
The evolution of the European Community (EC) towards a supranational constitution is charted by combining three different perspectives. First, an examination is made of the major features of the integration process since 1959, which argues that the European market and polity developed symbiotically, as the activities of economic actors, organized interests, litigators and judges, and the EC's legislative and regulatory organs became linked, to create a self‐sustaining, dynamic system. Second, the ‘constitutionalization’ of the treaty system is investigated, and the activities of the European Court of Justice (ECJ) surveyed; among other things, constitutionalization secured property rights for transnational market actors, expanded the discretionary powers of national judges, and reduced the EC's intergovernmental character. Third, the relationship between the ECJ and the national courts is considered, focusing on how intra‐judicial conflict and cooperation have shaped the production of specific constitutional doctrines; through these ‘constitutional dialogues’, the supremacy of EC law was gradually achieved, rendering it judicially enforceable. Overall, the chapter situates the development of the European legal system within the overall process of European 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.
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.003.0006
- Subject:
- Political Science, European Union
The conclusion addresses certain major features of the overall course of European integration in light of the book's priorities and findings, indicating that the book has pursued two main objectives: ...
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The conclusion addresses certain major features of the overall course of European integration in light of the book's priorities and findings, indicating that the book has pursued two main objectives: the first, to demonstrate that the course of European integration has been profoundly shaped by a system of adjudication managed by the European Court of Justice (ECJ); the second, to test a range of propositions about how the legal system operates, and to trace the effects of the ECJ's case law on policy outcomes, and on the policy‐relevant behaviour of nonjudicial actors. In some areas, including free movement of goods and sex equality, judges – not governments or legislatures or the Member States – have broadly determined the paths along which institutions evolved. Judicial supremacy partly inheres in the ECJ's status as trustee, partly in the dynamics of the constitutionalization process provoked by the ECJ in the mid‐1960s, and partly by the propagation and diffusion of specific techniques of judicial governance, such as those associated with precedent‐based balancing standards. Every chapter of the book presents evidence refuting claims that the ECJ and the national courts operate as relatively perfect ‘agents’ of the Member States or national governments, and shows that the activities of supranational organizations such as the ECJ routinely produce ‘unintended consequences, from the perspective of those who have designed and redesigned the EC. The author concludes that he does not see how theories that make predictions about how integration has proceeded from institutional design can be rescued.Less
The conclusion addresses certain major features of the overall course of European integration in light of the book's priorities and findings, indicating that the book has pursued two main objectives: the first, to demonstrate that the course of European integration has been profoundly shaped by a system of adjudication managed by the European Court of Justice (ECJ); the second, to test a range of propositions about how the legal system operates, and to trace the effects of the ECJ's case law on policy outcomes, and on the policy‐relevant behaviour of nonjudicial actors. In some areas, including free movement of goods and sex equality, judges – not governments or legislatures or the Member States – have broadly determined the paths along which institutions evolved. Judicial supremacy partly inheres in the ECJ's status as trustee, partly in the dynamics of the constitutionalization process provoked by the ECJ in the mid‐1960s, and partly by the propagation and diffusion of specific techniques of judicial governance, such as those associated with precedent‐based balancing standards. Every chapter of the book presents evidence refuting claims that the ECJ and the national courts operate as relatively perfect ‘agents’ of the Member States or national governments, and shows that the activities of supranational organizations such as the ECJ routinely produce ‘unintended consequences, from the perspective of those who have designed and redesigned the EC. The author concludes that he does not see how theories that make predictions about how integration has proceeded from institutional design can be rescued.
António Costa Pinto
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199240906
- eISBN:
- 9780191598869
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199240906.003.0003
- Subject:
- Political Science, Democratization
The military coup of 25 April 1974 in Portugal initiated the ‘third wave’ of democratic transitions in southern Europe. The transition and subsequent process of democratic consolidation evolved in ...
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The military coup of 25 April 1974 in Portugal initiated the ‘third wave’ of democratic transitions in southern Europe. The transition and subsequent process of democratic consolidation evolved in various stages, each with a corresponding phase of ‘transitional truth and justice’ initiatives and counter-initiatives: the first stage, from 1974 to 1976, was the ‘revolutionary’ period, comprising the downfall of the regime and the crisis of state that followed; the second stage, between 1976 and 1982, was a period of ‘normalization’, constitutionalization and incipient democratic consolidation; during the third stage, from 1982 onwards, the process of democratic consolidation has proceeded apace. This chapter examines these stages in different sections: Introduction; A Portuguese Settling of Accounts; The Purge Process; The Dual Legacy Discourse and the Consolidation of Democracy; and Conclusion.Less
The military coup of 25 April 1974 in Portugal initiated the ‘third wave’ of democratic transitions in southern Europe. The transition and subsequent process of democratic consolidation evolved in various stages, each with a corresponding phase of ‘transitional truth and justice’ initiatives and counter-initiatives: the first stage, from 1974 to 1976, was the ‘revolutionary’ period, comprising the downfall of the regime and the crisis of state that followed; the second stage, between 1976 and 1982, was a period of ‘normalization’, constitutionalization and incipient democratic consolidation; during the third stage, from 1982 onwards, the process of democratic consolidation has proceeded apace. This chapter examines these stages in different sections: Introduction; A Portuguese Settling of Accounts; The Purge Process; The Dual Legacy Discourse and the Consolidation of Democracy; and Conclusion.
Elena A. Iankova and Peter J. Katzenstein
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199257409
- eISBN:
- 9780191600951
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019925740X.003.0013
- Subject:
- Political Science, European Union
Provides an account of the status of the enlargement process in the EU, both in the candidate countries and in terms of institutional changes at the EU level. In particular, it argues that European ...
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Provides an account of the status of the enlargement process in the EU, both in the candidate countries and in terms of institutional changes at the EU level. In particular, it argues that European enlargement is a combination of ‘institutional and political hypocrisy’. While political hypocrisy is the result of the purposeful strategy of specific actors that wilfully disobey EU law, institutional hypocrisy results from involuntary non‐compliance due to the lack of capacity or clarity; both have been a systemic feature of legal integration and a major driving force of the European constitutionalization process. However, as the heterogeneity of the EU member states increases, enlargement may well lead to a substantial erosion of the legal and policy coherence of the EU. The first section of the chapter discusses the problem of non‐compliance, the second characterizes the European polity as resulting from the enmeshment of the process of Europe's legal integration with different national legal systems, the third and fourth sections discuss the southern and eastern enlargements of the EU, and the fifth section concludes by pointing to differences in national legal traditions that make institutional and political hypocrisy a systemic outcome of the process of European enlargement.Less
Provides an account of the status of the enlargement process in the EU, both in the candidate countries and in terms of institutional changes at the EU level. In particular, it argues that European enlargement is a combination of ‘institutional and political hypocrisy’. While political hypocrisy is the result of the purposeful strategy of specific actors that wilfully disobey EU law, institutional hypocrisy results from involuntary non‐compliance due to the lack of capacity or clarity; both have been a systemic feature of legal integration and a major driving force of the European constitutionalization process. However, as the heterogeneity of the EU member states increases, enlargement may well lead to a substantial erosion of the legal and policy coherence of the EU. The first section of the chapter discusses the problem of non‐compliance, the second characterizes the European polity as resulting from the enmeshment of the process of Europe's legal integration with different national legal systems, the third and fourth sections discuss the southern and eastern enlargements of the EU, and the fifth section concludes by pointing to differences in national legal traditions that make institutional and political hypocrisy a systemic outcome of the process of European enlargement.
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.
Stephen Day and Jo Shaw
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199257409
- eISBN:
- 9780191600951
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019925740X.003.0007
- Subject:
- Political Science, European Union
Examines the constitutionalization of transnational political parties in the EU, with particular attention to the question of whether this new organizational form (federations of national parties) ...
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Examines the constitutionalization of transnational political parties in the EU, with particular attention to the question of whether this new organizational form (federations of national parties) brings openness to an EU that should be closer to the citizen. The discussion is with respect to the five existing Euro‐parties: The European People's Party; the Party of European Socialists; the European Liberal, Democrat, and Reform Party; the European Federation of Greens; and the Democratic Party of the Peoples of Europe/European Free Alliance. Explores both the emergence of Euro‐parties focussing on the inclusion of new political rights provisions in the 2003 Treaty of Nice and the internal and external identity of Euro‐parties. Day and Shaw link the normative aspirations embodied in the Treaty to the real‐world significance of transnational political parties, both as the key link for citizens to EU politics and for their role within the wider process of European integration and expansion. The four sections of the chapter are: Introduction; European Parties in an Era of European Citizenship—a review of the context for the development of the Euro‐party as an organizational form in the 1990s and early 2000s; The Identity and Nature of Euro‐Parties—types and self‐presentation, and the extent of the real‐world significance of Euro‐parties as potential representative entities of European citizens and their role within the wider process of future European integration; and Conclusion.Less
Examines the constitutionalization of transnational political parties in the EU, with particular attention to the question of whether this new organizational form (federations of national parties) brings openness to an EU that should be closer to the citizen. The discussion is with respect to the five existing Euro‐parties: The European People's Party; the Party of European Socialists; the European Liberal, Democrat, and Reform Party; the European Federation of Greens; and the Democratic Party of the Peoples of Europe/European Free Alliance. Explores both the emergence of Euro‐parties focussing on the inclusion of new political rights provisions in the 2003 Treaty of Nice and the internal and external identity of Euro‐parties. Day and Shaw link the normative aspirations embodied in the Treaty to the real‐world significance of transnational political parties, both as the key link for citizens to EU politics and for their role within the wider process of European integration and expansion. The four sections of the chapter are: Introduction; European Parties in an Era of European Citizenship—a review of the context for the development of the Euro‐party as an organizational form in the 1990s and early 2000s; The Identity and Nature of Euro‐Parties—types and self‐presentation, and the extent of the real‐world significance of Euro‐parties as potential representative entities of European citizens and their role within the wider process of future European integration; and Conclusion.
Alec Stone Sweet
- Published in print:
- 2000
- Published Online:
- April 2004
- ISBN:
- 9780198297710
- eISBN:
- 9780191601095
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297718.003.0004
- Subject:
- Political Science, Comparative Politics
Conceptualizing human rights protection as an extended social process highlights the centrality of constitutional decision‐making as a general mode of governance. Thus, a great range of outcomes can ...
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Conceptualizing human rights protection as an extended social process highlights the centrality of constitutional decision‐making as a general mode of governance. Thus, a great range of outcomes can only be understood by taking into account constitutional decision‐making by actors outside constitutional courts. At the same time, an increasing judicial capacity to reconstruct the meaning of legislative authority is revealed.Less
Conceptualizing human rights protection as an extended social process highlights the centrality of constitutional decision‐making as a general mode of governance. Thus, a great range of outcomes can only be understood by taking into account constitutional decision‐making by actors outside constitutional courts. At the same time, an increasing judicial capacity to reconstruct the meaning of legislative authority is revealed.
Erik O. Eriksen
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199572519
- eISBN:
- 9780191722400
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572519.003.0005
- Subject:
- Political Science, European Union, Democratization
The EU's Charter of Fundamental Rights is a means to secure the interests and the diverse values of the citizens of Europe. It denotes the EU as a union of citizens and not merely as a common market. ...
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The EU's Charter of Fundamental Rights is a means to secure the interests and the diverse values of the citizens of Europe. It denotes the EU as a union of citizens and not merely as a common market. It has been argued that rights are detrimental to social integration since the granting of individuals legal rights has atomistic—disintegrative—consequences. However, human rights are not merely abstract principles which, when positivated, secure negative freedom. When they are constitutionalized and turned into fundamental rights they contain a guarantee for equal freedom of all citizens. A charter of fundamental rights is needed to enhance the legal certainty of citizens, reduce arbitrariness, and to institutionalize the right to justification. However, as the principle of popular sovereignty points to a particular society, and human rights point to an ideal republic, only with a cosmopolitan order—democracy at a supranational level—can human rights be properly institutionalized.Less
The EU's Charter of Fundamental Rights is a means to secure the interests and the diverse values of the citizens of Europe. It denotes the EU as a union of citizens and not merely as a common market. It has been argued that rights are detrimental to social integration since the granting of individuals legal rights has atomistic—disintegrative—consequences. However, human rights are not merely abstract principles which, when positivated, secure negative freedom. When they are constitutionalized and turned into fundamental rights they contain a guarantee for equal freedom of all citizens. A charter of fundamental rights is needed to enhance the legal certainty of citizens, reduce arbitrariness, and to institutionalize the right to justification. However, as the principle of popular sovereignty points to a particular society, and human rights point to an ideal republic, only with a cosmopolitan order—democracy at a supranational level—can human rights be properly institutionalized.
Shawn Donnelly
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199579402
- eISBN:
- 9780191723087
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579402.003.0001
- Subject:
- Political Science, European Union, International Relations and Politics
This chapter introduces the reader to the development of policy‐specific regimes as small‐c constitutionalization of the EU by policy area. It sets out the initial assumptions that norms and ...
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This chapter introduces the reader to the development of policy‐specific regimes as small‐c constitutionalization of the EU by policy area. It sets out the initial assumptions that norms and archetypal narratives at the national level play a key role in determining the possibility of constructing regime norms of governance at the EU level.Less
This chapter introduces the reader to the development of policy‐specific regimes as small‐c constitutionalization of the EU by policy area. It sets out the initial assumptions that norms and archetypal narratives at the national level play a key role in determining the possibility of constructing regime norms of governance at the EU level.
David Erdos
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199557769
- eISBN:
- 9780191594380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199557769.003.0003
- Subject:
- Political Science, Comparative Politics
The first part of this chapter explores in detail the Postmaterialist Trigger Thesis (PTT) explanation of bill of rights genesis in internally stable, advanced democracies. It argues that, as a ...
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The first part of this chapter explores in detail the Postmaterialist Trigger Thesis (PTT) explanation of bill of rights genesis in internally stable, advanced democracies. It argues that, as a result of postmaterialist socio‐economic change, background pressure for a bill of rights has increased. Nevertheless, by enhancing judicial power, the bill of rights genesis continues to conflict with the prima facie positional interests of the political elite. Therefore, the supply of a bill of rights also requires a contingent political trigger which provides actors with an immediate rationale for change. Two such triggers – the ‘aversive’ and the ‘threat to political stability’ – are outlined. The second part of the chapter explores existing theories in the literature which relate to, but may also conflict with, the PTT. Specific theories discussed include, in relation to the background pressure aspect of the PTT, constructivist theory, institutionalist theory, transnational diffusion theory, and the Knowledge Class Thesis, and, in relation to the contingent trigger or supply‐side aspects, neo‐marxist theory, Political Insurance Thesis, and the Hegemonic Preservation Thesis.Less
The first part of this chapter explores in detail the Postmaterialist Trigger Thesis (PTT) explanation of bill of rights genesis in internally stable, advanced democracies. It argues that, as a result of postmaterialist socio‐economic change, background pressure for a bill of rights has increased. Nevertheless, by enhancing judicial power, the bill of rights genesis continues to conflict with the prima facie positional interests of the political elite. Therefore, the supply of a bill of rights also requires a contingent political trigger which provides actors with an immediate rationale for change. Two such triggers – the ‘aversive’ and the ‘threat to political stability’ – are outlined. The second part of the chapter explores existing theories in the literature which relate to, but may also conflict with, the PTT. Specific theories discussed include, in relation to the background pressure aspect of the PTT, constructivist theory, institutionalist theory, transnational diffusion theory, and the Knowledge Class Thesis, and, in relation to the contingent trigger or supply‐side aspects, neo‐marxist theory, Political Insurance Thesis, and the Hegemonic Preservation Thesis.
Grahame F. Thompson
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199594832
- eISBN:
- 9780191746079
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199594832.001.0001
- Subject:
- Business and Management, International Business, Political Economy
Modern constitutions are relatively recent instruments of rule and are closely associated with the formation of national states from the eighteenth century onwards. So what is this term doing in ...
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Modern constitutions are relatively recent instruments of rule and are closely associated with the formation of national states from the eighteenth century onwards. So what is this term doing in respect to global business practices and corporate affairs? This question is the one the book sets out to explore. The argument is that with the advent of globalization — where corporate organizations and the commercial relations that accompany them are argued to have become increasingly transnational — the locus of powers, authorities, and responsibilities has shifted to the global level. The nation-state arena is losing its capacity to regulate and control commercial processes and practices as a transformational logic kicks-in, associated with new forms of global rule making and governance. And it is this new arena of global rule making can be considered as a surrogate form of global constitutionalization, or ‘quasi-constitutionalization’. But as might be expected, this surrogate process of constitutionalization is not a coherent program or a set of rounded outcomes but is full of contradictory half-finished currents and projects: an ‘assemblage’ of many disparate advances and often directionless moves — almost an accidental coming together of elements. Thus, the book is about governance, law, and constitutional matters. these are discussed in the context of international corporate constitutional governance. So, the emphasis is upon how and why the business world, commercial relations, and particularly company activities have increasingly become subject to legal and constitutional forms of regulation and governance at the international level. The questions asked is how to characterize the process that has seen the international corporate sphere increasingly subject to juridical and constitutional-like regulatory initiatives and interventions. Does this amount to a new attempt to subject international commercial relations to the ‘rule by law’ and, indeed, to rule the world through these very means?Less
Modern constitutions are relatively recent instruments of rule and are closely associated with the formation of national states from the eighteenth century onwards. So what is this term doing in respect to global business practices and corporate affairs? This question is the one the book sets out to explore. The argument is that with the advent of globalization — where corporate organizations and the commercial relations that accompany them are argued to have become increasingly transnational — the locus of powers, authorities, and responsibilities has shifted to the global level. The nation-state arena is losing its capacity to regulate and control commercial processes and practices as a transformational logic kicks-in, associated with new forms of global rule making and governance. And it is this new arena of global rule making can be considered as a surrogate form of global constitutionalization, or ‘quasi-constitutionalization’. But as might be expected, this surrogate process of constitutionalization is not a coherent program or a set of rounded outcomes but is full of contradictory half-finished currents and projects: an ‘assemblage’ of many disparate advances and often directionless moves — almost an accidental coming together of elements. Thus, the book is about governance, law, and constitutional matters. these are discussed in the context of international corporate constitutional governance. So, the emphasis is upon how and why the business world, commercial relations, and particularly company activities have increasingly become subject to legal and constitutional forms of regulation and governance at the international level. The questions asked is how to characterize the process that has seen the international corporate sphere increasingly subject to juridical and constitutional-like regulatory initiatives and interventions. Does this amount to a new attempt to subject international commercial relations to the ‘rule by law’ and, indeed, to rule the world through these very means?
Laura S. Underkuffler
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780199254187
- eISBN:
- 9780191698224
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199254187.003.0015
- Subject:
- Law, Law of Obligations
This chapter argues that the attempt to constitutionalize property rights seems inappropriate in view of the special need to question and change the physical resource allocations that property rights ...
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This chapter argues that the attempt to constitutionalize property rights seems inappropriate in view of the special need to question and change the physical resource allocations that property rights often involve. It can be argued that property — not being, in truth, a negative right but rather a positive right involving state distributional decisions — should not be placed, by deliberative design, beyond the questionings and revisions of ordinary political life.Less
This chapter argues that the attempt to constitutionalize property rights seems inappropriate in view of the special need to question and change the physical resource allocations that property rights often involve. It can be argued that property — not being, in truth, a negative right but rather a positive right involving state distributional decisions — should not be placed, by deliberative design, beyond the questionings and revisions of ordinary political life.
Jan Klabbers, Anne Peters, and Geir Ulfstein
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199543427
- eISBN:
- 9780191720475
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199543427.001.0001
- Subject:
- Law, Public International Law
Constitutional issues have century-long traditions at the national level. The relevance of constitutional questions at the international level has, however, been the subject of much debate in recent ...
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Constitutional issues have century-long traditions at the national level. The relevance of constitutional questions at the international level has, however, been the subject of much debate in recent years. This book investigates what should be characterized as constitutional features of the current international order, in what way the challenges differ from those at the national level, what could be a proper interaction between different international arrangements as well as between the international and national constitutional level. Finally, it sketches the outlines of what a constitutionalized world order could and should imply. The book provides a critical appraisal of constitutionalist ideas and of their critique. It postulates that the reconstruction of the current evolution of international law as a process of constitutionalization (against a background of, and partly in competition with, the verticalization of substantive law and the deformalization and fragmentation of international law) has some explanatory power, permits new insights and allows for new arguments. The book does not undertake extensive empirical studies of the degree of constitutionalization in international cooperation. It rather identifies constitutional trends and challenges in establishing international organizational structures, and designs procedures for standard-setting, implementation and judicial functions.Less
Constitutional issues have century-long traditions at the national level. The relevance of constitutional questions at the international level has, however, been the subject of much debate in recent years. This book investigates what should be characterized as constitutional features of the current international order, in what way the challenges differ from those at the national level, what could be a proper interaction between different international arrangements as well as between the international and national constitutional level. Finally, it sketches the outlines of what a constitutionalized world order could and should imply. The book provides a critical appraisal of constitutionalist ideas and of their critique. It postulates that the reconstruction of the current evolution of international law as a process of constitutionalization (against a background of, and partly in competition with, the verticalization of substantive law and the deformalization and fragmentation of international law) has some explanatory power, permits new insights and allows for new arguments. The book does not undertake extensive empirical studies of the degree of constitutionalization in international cooperation. It rather identifies constitutional trends and challenges in establishing international organizational structures, and designs procedures for standard-setting, implementation and judicial functions.
R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros (eds)
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199673872
- eISBN:
- 9780191752032
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199673872.001.0001
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This third book in the Criminalization series examines the constitutionalization of criminal law. It considers how the criminal law is constituted through the political processes of the state; how ...
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This third book in the Criminalization series examines the constitutionalization of criminal law. It considers how the criminal law is constituted through the political processes of the state; how the agents of the criminal law can be answerable to it themselves; and finally, how the criminal law can be constituted as part of the international order. Addressing the ways in which and the grounds on which types of conduct can be justifiably criminalized, the first four chapters of this volume focus on the questions that arise from a consideration of the political constitution of the criminal law. The chapters then turn their attention to the role of the state, its institutions and officials, and their role not only as creators, enactors, interpreters, and enforcers of the criminal law, but also as subjects of it. How can the agents of the criminal law also be answerable to it? Finally, the discussion turns to how the criminal law can be constituted as part of an international order. Examining the relationships between domestic laws of different nation-states, and between domestic criminal law and international or transnational law, the chapters also look at the authority and jurisdiction of international criminal law itself, and its relationship to other dimensions of the international order.Less
This third book in the Criminalization series examines the constitutionalization of criminal law. It considers how the criminal law is constituted through the political processes of the state; how the agents of the criminal law can be answerable to it themselves; and finally, how the criminal law can be constituted as part of the international order. Addressing the ways in which and the grounds on which types of conduct can be justifiably criminalized, the first four chapters of this volume focus on the questions that arise from a consideration of the political constitution of the criminal law. The chapters then turn their attention to the role of the state, its institutions and officials, and their role not only as creators, enactors, interpreters, and enforcers of the criminal law, but also as subjects of it. How can the agents of the criminal law also be answerable to it? Finally, the discussion turns to how the criminal law can be constituted as part of an international order. Examining the relationships between domestic laws of different nation-states, and between domestic criminal law and international or transnational law, the chapters also look at the authority and jurisdiction of international criminal law itself, and its relationship to other dimensions of the international order.
Nico Krisch
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199228317
- eISBN:
- 9780191594793
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199228317.003.0002
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Chapter 2 analyses the legacy of constitutionalism for politics and law beyond the state. It retraces the different modes in which constitutionalism has been conceptualized in regional and global ...
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Chapter 2 analyses the legacy of constitutionalism for politics and law beyond the state. It retraces the different modes in which constitutionalism has been conceptualized in regional and global contexts, asks what it means to ‘translate’ such a concept into another sphere, and investigates the historical and normative pedigree of its main strands—power-limiting and foundational constitutionalism. Foundational constitutionalism has been the dominant tradition in Western politics over the last two centuries, but if we take the experience of divided societies as a measure, it is unlikely fully to redeem its promise of framing (and taming) politics through law in the highly diverse and contested postnational space. Yet lowering ambitions and retreating to a power-limiting form of constitutionalism—a frequent move in current debates—would sell the constitutionalist project short: it would fail to live up to the more radical promise connected with it historically.Less
Chapter 2 analyses the legacy of constitutionalism for politics and law beyond the state. It retraces the different modes in which constitutionalism has been conceptualized in regional and global contexts, asks what it means to ‘translate’ such a concept into another sphere, and investigates the historical and normative pedigree of its main strands—power-limiting and foundational constitutionalism. Foundational constitutionalism has been the dominant tradition in Western politics over the last two centuries, but if we take the experience of divided societies as a measure, it is unlikely fully to redeem its promise of framing (and taming) politics through law in the highly diverse and contested postnational space. Yet lowering ambitions and retreating to a power-limiting form of constitutionalism—a frequent move in current debates—would sell the constitutionalist project short: it would fail to live up to the more radical promise connected with it historically.
Imelda Maher and Oana Ştefan
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199593170
- eISBN:
- 9780191595660
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199593170.003.0009
- Subject:
- Law, Constitutional and Administrative Law
In the late 1990s the European Commission set out on the most radical transformation of the enforcement of European competition law in forty years. The highly centralized enforcement regime where ...
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In the late 1990s the European Commission set out on the most radical transformation of the enforcement of European competition law in forty years. The highly centralized enforcement regime where competition law was seen as a key tool in market integration was replaced with a decentralized, self-regulatory model with an emphasis on economic principles. The creation of a network of national competition authorities (NCAs) and the European Commission Directorate General for Competition (DGComp) was a key element in this reform. The European Competition Network (ECN) is the institutional form under which the efficient and smooth enforcement of European competition norms by all NCAs and the Commission is to be achieved, enforcement having been (re)delegated downwards to the national level as part of the modernization process. This chapter reflects on the constitutional implications of the modernization of European competition law with particular reference to the ECN, which as a form of network governance creates a number of constitutional challenges, notably relating to the questions of consistency and accountability. The chapter first addresses the constitutionalization of the EU before moving on to discuss the architecture of competition law enforcement in the EU. It then sets out how, primarily in functional terms, the ECN is seen as successful. The particular constitutional challenges posed by the operation of the network, notably consistency and accountability, are analysed. It then discusses the role the courts have played in endorsing and challenging the competition law enforcement governance structures before concluding.Less
In the late 1990s the European Commission set out on the most radical transformation of the enforcement of European competition law in forty years. The highly centralized enforcement regime where competition law was seen as a key tool in market integration was replaced with a decentralized, self-regulatory model with an emphasis on economic principles. The creation of a network of national competition authorities (NCAs) and the European Commission Directorate General for Competition (DGComp) was a key element in this reform. The European Competition Network (ECN) is the institutional form under which the efficient and smooth enforcement of European competition norms by all NCAs and the Commission is to be achieved, enforcement having been (re)delegated downwards to the national level as part of the modernization process. This chapter reflects on the constitutional implications of the modernization of European competition law with particular reference to the ECN, which as a form of network governance creates a number of constitutional challenges, notably relating to the questions of consistency and accountability. The chapter first addresses the constitutionalization of the EU before moving on to discuss the architecture of competition law enforcement in the EU. It then sets out how, primarily in functional terms, the ECN is seen as successful. The particular constitutional challenges posed by the operation of the network, notably consistency and accountability, are analysed. It then discusses the role the courts have played in endorsing and challenging the competition law enforcement governance structures before concluding.
Anne Peters
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199543427
- eISBN:
- 9780191720475
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199543427.003.0007
- Subject:
- Law, Public International Law
This chapter discusses the pros and cons of the constitutionalist paradigm. Critics of global constitutionalism doubt the empirical reality of the phenomenon called constitutionalization, call into ...
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This chapter discusses the pros and cons of the constitutionalist paradigm. Critics of global constitutionalism doubt the empirical reality of the phenomenon called constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is in normative terms dangerous because it is anti-pluralist, artificially creates a false legitimacy, or promises an unrealistic end of politics. The chapter counters these objections and argues that global constitutionalization is apt to compensate for globalization-induced constitutionalist deficits on the national level; that a constitutionalist reading of international law can serve as a hermeneutic device; and that the constitutionalist vocabulary allows to unveil legitimacy deficits of international law and to suggest remedies. Global constitutionalism therefore has a responsibilizing and much needed critical potential.Less
This chapter discusses the pros and cons of the constitutionalist paradigm. Critics of global constitutionalism doubt the empirical reality of the phenomenon called constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is in normative terms dangerous because it is anti-pluralist, artificially creates a false legitimacy, or promises an unrealistic end of politics. The chapter counters these objections and argues that global constitutionalization is apt to compensate for globalization-induced constitutionalist deficits on the national level; that a constitutionalist reading of international law can serve as a hermeneutic device; and that the constitutionalist vocabulary allows to unveil legitimacy deficits of international law and to suggest remedies. Global constitutionalism therefore has a responsibilizing and much needed critical potential.
Marcus Klamert
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199683123
- eISBN:
- 9780191763182
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199683123.001.0001
- Subject:
- Law, EU Law, Constitutional and Administrative Law
The book offers the first treatment in English to provide a thorough examination of the legal duties falling under the principle of loyalty in EU public law. Despite its seemingly innocuous wording, ...
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The book offers the first treatment in English to provide a thorough examination of the legal duties falling under the principle of loyalty in EU public law. Despite its seemingly innocuous wording, in what is now Article 4 (3) TEU, the principle of sincere cooperation has had a significant impact in deepening the reach of EU law within the Member States. The principle has been central to the development of Union law since the 1960s, and is still being relied on by the European Court of Justice to often-controversial effect. Providing a thorough discussion of the principle of loyalty in EU law, this book introduces a novel classification of the very diverse roles loyalty plays in the EU. It distinguishes between the effects loyalty prescribes for interlocking the legal orders of the Member States with Union law (cohesion), its application in preventing and resolving conflicts between the Union and the Member States (cooperation), and the loyalty principle’s role in the shaping of EU law (construction). It addresses important and yet unresolved questions pertaining to loyalty, such as its relation to the principles of solidarity, effectiveness, fidelity, pre-emption, the Union interest, institutional balance, and the unity of international representation. The book explains why the principle of loyalty has been neglected in the prevailing narratives about the constitutionalization of EU law, places it in its international context, examining how it has influenced EU law and the comparisons that can be drawn with national and international principles of law.Less
The book offers the first treatment in English to provide a thorough examination of the legal duties falling under the principle of loyalty in EU public law. Despite its seemingly innocuous wording, in what is now Article 4 (3) TEU, the principle of sincere cooperation has had a significant impact in deepening the reach of EU law within the Member States. The principle has been central to the development of Union law since the 1960s, and is still being relied on by the European Court of Justice to often-controversial effect. Providing a thorough discussion of the principle of loyalty in EU law, this book introduces a novel classification of the very diverse roles loyalty plays in the EU. It distinguishes between the effects loyalty prescribes for interlocking the legal orders of the Member States with Union law (cohesion), its application in preventing and resolving conflicts between the Union and the Member States (cooperation), and the loyalty principle’s role in the shaping of EU law (construction). It addresses important and yet unresolved questions pertaining to loyalty, such as its relation to the principles of solidarity, effectiveness, fidelity, pre-emption, the Union interest, institutional balance, and the unity of international representation. The book explains why the principle of loyalty has been neglected in the prevailing narratives about the constitutionalization of EU law, places it in its international context, examining how it has influenced EU law and the comparisons that can be drawn with national and international principles of law.
