Jueves, 12 Septiembre 2013
12:00 hrs. Sala María Moliner 1F
Por Natalia Caceido Camacho (Universidad de Barcelona)
Organiza: Proyecto "Mujeres en Tránsito”, financiado
por el Instituto de la Mujer
y el FSE
mercoledì 24 luglio 2013
Global Legislation and its Discontents
Gianluigi Palombella
University of Parma - Faculty of Law; Robert Schuman Center, European University Institute
july 23, 2013
EUI Working Paper RSCAS 2013/60
Abstract:
‘Legislation’ is flourishing in the global sphere from a large number of sources, in the lack of a unified system. Current redefinitions of legality/validity, or attempts at a global constitution deserve some scrutiny and should cope with a global sphere legislation bearing unprecedented features: issued from deracinated sources, bearing new scope and functions, developing ‘managerial’/regulatory modes, cancelling the distinction vis-à-vis 'administration', electing functional rationalities with 'limited responsibility', loosing connection to the comprehensive well being of social communities. Despite the search for devices of accountability ‘global’ legislation remains a source of discontents.
The promises of legal form are at stake in keeping alive the distinction between global decision making and universalizability. The future of global legislation (and its legitimacy) shall depend not only on shared criteria of legality, but also on how it shall interfere against the autonomy of less-than-global orders: that is, on the justice-related, legal quality of the relationships between the plurality of orders.
Number of Pages in PDF File: 23
Keywords: legality/validity, global governance, legitimacy, pluralism, justice
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297222
Kadi and the Role of the CJEU in the International Legal Order
Veronika Fikfak
University of Cambridge - Homerton College; University of Cambridge - Lauterpacht Centre for International Law
July 10, 2013
Cambridge Yearbook of European Legal Studies 2012-2013 (Forthcoming)
Abstract:
This article investigates the role of the Court of Justice of the European Union in the international legal order in light of its decision in Kadi and the forthcoming Kadi II. It focuses on establishing how the Court perceives its relationship with the Security Council and its position in the international legal order. The CJEU’s approach is analysed by identifying the characteristics of review adopted by the Court as a ‘constitutional court of a municipal legal order’. In this context, the article reveals how the CJEU’s review resembles that employed by domestic courts seeking to give force to the same or similar actions of international institutions and shows which motives may have led the CJEU to follow the practice of national courts in constructing its relationship with the international organs. This practice is contrasted with Advocate General Bot’s desire to depart from the image of an all-powerful but isolated CJEU, a court ignorant of other legal orders. Instead, he insists that what the CJEU ought to do in Kadi II is adopt both a more modest, deferential role in reviewing international sanctions and a rather more active role as a participant in the international legal order.
Number of Pages in PDF File: 20
Keywords: Kadi, Court of Justice of the European Union, Security Council, domestic courts, international law
Full text available at:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297256
Revolutionary Lawyering? On Lawyers’ Social Responsibilities and Roles during a Democratic Revolution
Yaniv Roznai
London School of Economics - Law Department
July 22, 2013
Southern California Interdisciplinary Law Journal, Vol. 22, No. 2, 2013
Abstract:
Do lawyers have any social responsibilities during a revolution? If so, what are they? Does the lawyer hold any special roles in revolutionary times? This article discusses these questions, which raise thorny theoretical and practical dilemmas. According to the article, revolutions in the Western world and the legal profession are linked. Therefore, the article describes the historical role lawyers have played in the great revolutions which have created stable liberal traditions based on the idea of “rights”: The Glorious English Revolution of 1688-1689 and the American and French Revolutions of the end of the 18th century. Moreover, the article deliberates on the characteristics of lawyers which support conservatism and oppose revolutions and vice versa. It then presents the conflicting duties which are imposed upon lawyers during revolutions. On the one hand, the lawyer has an obligation to preserve the legal order and the rule of law. This obligation may entail a duty to act in a counter-revolutionary manner. On the other hand, the lawyer has obligations to improve the legal system and to promote the rule of law. These may entail actions which support the revolutionary values or goals, especially in a democratic revolution. Lastly, the article considers the practical role of lawyers during a revolution, inter alia, in public speaking and assisting in drafting the basic documents of the new legal order. Even in times of revolutions that seek to collapse the existing legal order, the legal milieu is of great importance. The revolutionary lawyer plays a significant role in preserving and creating the temporary, transitional and new legal orders. According to the article, the participation of lawyers in a revolution strongly influences the legitimacy of the existing legal order and necessarily the legitimacy of the revolution itself.
Number of Pages in PDF File: 32
Keywords: lawyers, revolutions
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296905
martedì 23 luglio 2013
Erasmus Law Review: new issue
full text available here: http://www.erasmuslawreview.nl/current_issue/complete-issue.pdf
Two Models of General Jurisprudence
Dan Priel
York University - Osgoode Hall Law School
July 18, 2013
Transnational Legal Theory, Vol. 4, no. 3
Abstract:
The essay is a comment on William Twining’s recent book Globalisation and Legal Scholarship (2011), to be published as part of a symposium issue on the book. The aim of my comment is to present and contrast two models of general (or universal) jurisprudence: the one favoured by Twining and the other adopted by Jeremy Bentham. Twining’s model aims to be general by capturing the great variety of laws as they exist in the world; by contrast, Bentham argued that it is mostly prescriptive claims about law that can be universal. I argue that the descriptive model suffers from serious flaws: it either has to posit arbitrary boundaries between law and non-law (this is the problem from which HLA Hart’s version of descriptive jurisprudence suffers) or it does away with all boundaries, resulting in a shapeless barrage of data (this is the problem with Twining’s version of this model). By contrast, I argue, the Benthamite version of general jurisprudence is free from these problems. I then argue that Twining’s descriptive approach is subtly tied to various prescriptive recommendations he makes in his book, which I believe are unattractive.
Number of Pages in PDF File: 11
Keywords: general jurisprudence, William Twining, Jeremy Bentham, H.L.A. Hart, legal pluralism
Accepted Paper Series Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2295236
The Polysemy of Privacy
Ronald J. Krotoszynski Jr.
University of Alabama - School of Law
2013
Indiana Law Journal, Vol. 88, 2013
U of Alabama Legal Studies Research Paper No. 2294511
Abstract:
“The Polysemy of Privacy” considers the highly protean nature of the concept of “privacy,” which extends to myriad disparate legal interests, including non-disclosure, generalized autonomy interests, and even human dignity. For a concept of such central importance to many systems of protecting fundamental rights, its precise contours are surprisingly ill-defined. This lack of determinate meaning is not limited to the concept of “privacy” in the United States; virtually all legal systems that utilize “privacy” (or its first cousin “dignity”) have experienced difficulty reducing the concept into specific, carefully delineated legal interests. In some respects, privacy means everything – and nothing – at the same time. Moreover, even in those contexts where one can identify privacy at a relatively choate, rather than highly abstract, level of jurisprudential analysis, the right of privacy often comes into direct conflict with other fundamental rights. For example, commitments to freedom of speech and to a free press often conflict with privacy interests; these conflicts, in turn, force courts to secure one interest only at the price of undermining another. In the United States, unlike in the wider world, protecting privacy interests through tort law generally will give way to advancing concerns associated with securing expressive freedoms. This Article considers some of the causes and effects of the privileging of expressive freedom over privacy/dignity in U.S. constitutional law and suggests that comparative legal analysis of the concept of privacy might help us to better understand both what privacy does mean and also what it should mean.
Number of Pages in PDF File: 39
Keywords: constitutional law, comparative law, privacy, dignity, Germany, United States, autonomy, free speech, hate speech, distrust, democracy, dissent, low value speech, democratic deliberation, first amendment, expressive freedom, free press, reputation, libel, defamation
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2294511
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