(Judicial) Love is Not a One-Way Street: The EU Preliminary Reference Procedure as a Model for ECtHR Advisory Opinions Under Draft Protocol No. 16

Paul Gragl 

City University London - City Law School
August 1, 2013

(2013) European Law Review, No. 2 (April) 
Abstract:      
Owing to the overwhelming number of applications before the European Court of Human Rights (ECtHR), Draft Protocol No.16 proposes the introduction of a new advisory opinion procedure. This procedure aims at alleviating Strasbourg’s judicial workload by enabling the domestic courts of the contracting parties to request advisory opinions on alleged human rights violations, which could in turn serve as precedents for future applications. The principal purpose of this article is to present the most important provisions and legal consequences of the newly proposed advisory opinion procedure; but also, as this procedure draws certain inspirations from the European Union’s preliminary reference procedure, the article aims to contrast these provisions with their respective counterparts in EU law (with respect to both the implications and legal effects of art.267 TFEU (ex art.234 EC) and Court of Justice case law); to examine the similarities and differences between those two mechanisms; to show legal difficulties that may arise owing to the proposed advisory opinion procedure; and to explore the extent to which Strasbourg could use Court of Justice case law to develop its advisory opinion jurisdiction further.

Number of Pages in PDF File: 24

Keywords: European Convention on Human Rights, Court Reform, Court of Justice of the European Union, Advisory opinions, Preliminary reference procedure, Draft Protocol No. 16 to the Convention

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2305803

Unpacking the Principle of Openness in EU Law: Transparency, Participation and Democracy

Alberto Alemanno 

HEC Paris - Law Department
July 30, 2013

European Law Review (2014, Forthcoming) 
Abstract:      
The purpose of this article is to shed some light on the emerging, yet largely undefined, principle of openness in EU law. After addressing the semantic confusion existing between openness and transparency, it attempts – through a textual and systemic interpretation of their respective legal basis – to identify the normative content of the EU turn to openness. It then moves to explore the principle’s potential for attaining its declared Treaty-sanctioned objectives: promoting good governance and ensuring the participation of civil society in the democratic life of the Union. It illustrates that, although openness largely maintains an instrumental rationale – aimed at enhancing the quality of the regulatory outcome rather than at promoting a more inclusive process –, the institutional, substantive and societal landscapes surrounding its operation have changed in recent times. It demonstrates that these alterations may help to shift the understanding of openness in the EU away from a specific, unidirectional, bottom-up right of access to information to a much broader, proactive and top-down duty of the EU administration to genuinely open its vault of information to the public and create new avenues of participation for civil societies and other organised interests. The changing nature of the openness rights accompanied by the growing demand for more active participation inherent to our times is set to reinvigorate civic life and, more importantly, to ensure political legitimacy grounded in democratic values.

Number of Pages in PDF File: 22

Keywords: Open government, Transparency, Participation, Civic empowerment, Legitimacy, Accountability, Civil society, European Union, Good governance

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2303644

The New Originalism and the Uses of History

Jack M. Balkin 

Yale University - Law School
August 1, 2013

Fordham Law Review, Forthcoming 
Abstract:      
Central to the New Originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to figure out the Constitution's original communicative content, while construction builds out doctrines, institutions and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction.

The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history.

First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone.

Second, although people often associate historical argument with originalist argument, the actual practices of lawyers and judges demonstrate that non-adoption history is as important as adoption history to constitutional construction.

Third, there is no single modality of “historical argument.” Instead, history is relevant to many different kinds of constitutional argument. One important task of this article is to rethink the familiar model of modalities of argument offered by Philip Bobbitt and Richard Fallon; and to offer a different version that better reflects the multiple ways that lawyers and judges actually use history in constitutional argument.

Fourth, according to the New Originalism, arguments about adoption history can offer mandatory answers only with respect to questions of interpretation; they cannot do so for questions of constitutional construction. That is, New Originalists accept an originalist model of authority only with respect to questions of interpretation, not construction. Yet New Originalists, like most lawyers, often make appeals to adoption history in constitutional construction. This raises the obvious question why American judges and lawyers should use or accept arguments from adoption history in constitutional construction and only sometimes find them persuasive. The originalist model of authority by itself cannot answer this question.

Fifth, we can solve this puzzle by paying careful attention to how lawyers and judges actually use adoption history. In constitutional construction, “originalist” argument is not a single form of argument. It involves many different kinds of argument, and it often appeals to ethos, tradition or "culture heroes" -- honored authorities who are treated as objects of respect, wisdom and emulation.

In fact, in constitutional construction, arguments from adoption history are often hybrid; they appeal to multiple modalities of argument simultaneously. Most arguments about the founding period usually also make implicit appeals to one of three modes of argument: national ethos, political tradition, or honored authority.

This hybrid nature gives arguments from adoption history their distinctive character in constitutional construction. Despite the dominance of original public meaning originalism in originalist theory, lawyers actually use adoption history quite differently than academic theory prescribes.

Sixth, precisely because originalist arguments (in constitutional construction) generally appeal to ethos and tradition, they will normally not be persuasive unless the audience can plausibly accept the values of the adopters as their own or can re-characterize them so that they can plausibly accept them as their own. When these values appear too alien or irrelevant, lawyers generally avoid making originalist arguments. Thus, lawyers do not feel an obligation to consult adoption history in every case; and when they do, they do not accept the results of adoption history as binding on them if there are other considerations.

Seventh, in constitutional construction, adoption history is a valuable resource available to originalists and non-originalists alike. Indeed, once they understand how originalist-style arguments actually operate in the construction zone, non-originalists and living constitutionalists should have no qualms about appealing to adoption history and making originalist arguments. Using such arguments does not undermine living constitutionalist theories of construction in the least. Refusing to employ adoption history serves no important theoretical principle and has no significant rhetorical advantages; indeed, all it does is limit lawyers’ ability to persuade their fellow citizens through calling on shared traditions and invoking powerful symbols of cultural memory.

Number of Pages in PDF File: 91

Keywords: Constitutional Interpretation, Construction, History, Originalism, Constitutional Argument, Tradition, Ethos, Cultural Memory

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2303980

Unmasking Juridical Humanity

Nimer Sultany 

Harvard University - Law School - Alumni
July 31, 2013

Transnational Legal Theory, 4(1), pp. 157-166, 2013 
Abstract:      
Taking the British colonial occupation of Egypt as her case study, Samera Esmeir shows in her outstanding book "Juridical Humanity" how the law was implicated in producing the ‘human’ and constructing ‘humane’ practices. Through a genealogy of the colonial career of the construction of the ‘human’, Esmeir convincingly argues that the production of the ‘human’ was intertwined with violence, discipline and dis- possession. For that purpose Esmeir assembles an impressive range of historical data, which she analyses through the lens of sophisticated theoretical tools.

This essay offers one possible reading — my reading — of this rich book. Parts I and II summarise the book’s main arguments. Part I presents the descriptive background to the concept of ‘juridical humanity’. Part II shows how the book challenges both liberal and anti-colonial accounts of law since they both presuppose ‘juridical humanity’. Parts III and IV situate the book within critical traditions and critically examine some of its primary themes. In particular, Part III argues that the book can be read as a contribution to the scholarly strand that seeks "liberation of nature" rather than "liberation from nature", i.e. that which seeks empowerment rather than the imposition of an artificial order and the fabrication of "human nature". Part IV focuses on the book's notions of indeterminacy and coercion.

Whereas the book locates law's indeterminacy in the split between the factual and the ideal, the Legal Realists and Critical Legal Studies find indeterminacy more pervasive and hence is located in the ideals of humanity themselves. A legal left perspective cannot be satisfied by demanding openness to a plurality of conceptions of the "human", because openness may admit conceptions of the human that are no less coercive than juridical humanity, and are inconsistent with the goals of the liberation of nature. The need to demarcate the acceptable limits of openness and plurality is inescapable. Esmeir’s book provides us with a first remarkable step towards envisaging such a project by clarifying the conceptual field and illustrating the potential negative normative effects of juridical humanity.

Number of Pages in PDF File: 10

Keywords: law, colonialism, Egypt, coercion, indeterminacy, liberalism, anti-colonialism

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2304187

Standards in European Private Law: A Model for European Private Law Pluralism

Vanessa Mak 

Tilburg Law School
July 29, 2013

Tilburg Law School Research Paper, TISCO Working Paper Series on Access to Justice, Dispute Resolution & Conflict System Design 
Abstract:      
The input from various law-creating actors in European private law can lead to unpredictability, or legal uncertainty. Strategies for lawmaking in Europe in recent decades have sought to tackle this problem by pursuing a decrease in divergence between Member States’ private laws in two ways: through top-down legislation and bottom-up through ‘spontaneous harmonization.’ However, both strategies appear to be unsuccessful. Efforts at harmonization or even just convergence of laws have been hampered by the EU Member States’ divergence in sociological, political, economic and cultural outlook. The multicultural and otherwise multi-faceted nature of the EU can therefore get in the way of the integration of the internal market through law. Moreover, since the main strategies for conceptualizing pluralism in European private law have focused on formalised law rather than on non-State law, the interplay of self-regulation with State law is insufficiently transparent to private parties and to lawmakers. This can contribute to legal uncertainty.

Acknowledging these problems, this article proposes a new strategy for lawmaking in European private law with two main aims. First, that it can accommodate legal, cultural and socio-economic differences between EU Member States whilst at the same time actively enabling the further integration of the internal market through law. Second, that it can facilitate private law transactions by increasing legal certainty for private parties.

The proposed model focuses on standards in European private law. Standards – which in this context are defined as ‘open’ norms to which more concrete legal rules can be attached – can function as reference points for lawmaking and for the application of norms. Examples are norms such as the ‘average consumer’ of EU law, or ‘responsible lending’. Although differentiation of rules may be justified, such as greater consumer protection with complex products, or differentiation between local markets, the use of standards can provide greater clarity on the interrelation of norms. It can so enhance transparency in lawmaking, and thereby legal certainty.

Number of Pages in PDF File: 30

Keywords: legal pluralism, postnational lawmaking, European private law, private law theory, standards v. rules

working papers series 


Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2302562

Institutional Actors in International Energy Law

Sijbren De Jong 

The Hague Centre for Strategic Studies

Jan Wouters 

Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies 
July 31, 2013

Leuven Centre for Global Governance Studies Working Paper No. 115 
Abstract:      
The rise of large emerging economies such as Brazil, Russia, India, China, South Africa – or the ‘BRICS’ – increasingly dominates global energy demand. Whereas these countries experience a steady growth of their middle class and increase their population’s access to energy, other parts of the world are still characterised by rampant energy poverty. At the same time climate change remains one of the world’s greatest unaddressed challenges. Throughout the 20th and early 21st century a wide array of international institutions and bodies were set up to deal with energy related questions, including energy security (both from a demand and supply point of view), the promotion of energy efficiency and renewable energy, as well as many other issues. Whether the existing institutional frameworks are up to the task is the central topic of this Working Paper.

Today’s international institutional energy architecture can hardly be labelled as ‘inclusive’ up front. Indeed, some international organisations such as the International Energy Agency (IEA) are exclusive ‘consumer’ clubs where many of the world’s leading energy consumers of today are not even included as full members. By the same token, organisations such as the Organization of the Petroleum Exporting Countries (OPEC) only have only producer countries as members. Most problematic perhaps is the absence of large emerging economies such as the BRICS and others. The bulk of global energy demand is no longer concentrated in countries belonging to the Organisation for Economic Co-operation and Development (OECD) as it did throughout a large part of the 20th century. The absence of countries whose energy demand should ideally be a cornerstone of global energy flows thus represents a fundamental governance challenge. Adequately dealing with their absence is no easy task, in particular also due to the fact that not all international organisations and bodies in the field of global energy governance have a formal compliance structure and adequate dispute resolution mechanisms. Enforcing decisions thus remains a noteworthy challenge. Similarly, information about energy markets and flows is not evenly shared throughout the world and reliable data about reserves, stocks and production thus proves difficult to acquire. Furthermore, this lack of trustworthy data on energy trade and energy resources (who are often directly owned by governments) also breeds corruption within countries that are poor and have weakly developed governance structures.

This paper analyses the above mentioned issues in detail and critically assesses the various international organisations present within the energy field for their relative merits and shortcomings.

Number of Pages in PDF File: 28

Keywords: Energy, Global Energy Governance, BRICS, IEA, OPEC, G8, G20, EITI

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2304327

Semantic Constitutionalism at the Fin De Siècle: What If Constitutional Ordering is Simply a Reflection of Constitutional Episteme?

Ming-Sung Kuo 

University of Warwick School of Law
August 1, 2013

Transnational Legal Theory, 2013 (Forthcoming)
Warwick School of Law Research Paper No. 2013-21 
Abstract:      
Facing the post-Cold War new situation, the underpinnings of our epistemic framework for constitutional ordering are being contested. Against this intellectual backdrop, Gunther Teubner’s ‘societal constitutionalism’, which he elaborates in 'Constitutional Fragments: Societal Constitutionalism and Globalization', stands out from the numerous reworked conceptions of Constitution, all of which aim to account for the new political and socio-economic world in the global era in constitutional terms. This essay aims to put Teubner’s epistemic innovation in constitutional theory in perspective, suggesting that his version of global constitutionalism reminisces a semantic constitutionalism as his envisaged world order comprising ‘constitutional fragments’ is dis-embedded from political, discursive communities of self-determination. With functional autonomisation in the place of political self-determination, Teubner’s constitutional wonderland appears to be steeped in an endless process of constitutionalisation without the Constitution as we know it, raising the question of whether we can build a political ordering simply on a constitutional episteme.

Number of Pages in PDF File: 33

Keywords: constitutionalisation, societal constitutionalism, global constitutionalism, Gunther Teubner, semantic constitutionalism, constitutional semantics, constitutional sociology, global governance, world society, constitutional episteme, Karl Loewenstein

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2304731