NOW AVAILABLE IN PAPERBACK: http://www.amazon.co.uk/Constitutional-Dilemmas-Conflicts-Fundamental-Rights/dp/0199552185/ref=sr_1_1?ie=UTF8&s=books&qid=1203439587&sr=1-1
Showing posts with label Constitutional Theory. Show all posts
Showing posts with label Constitutional Theory. Show all posts
Thursday, January 31, 2008
Constitutional Dilemmas: NOW available in paperback
NOW AVAILABLE IN PAPERBACK: http://www.amazon.co.uk/Constitutional-Dilemmas-Conflicts-Fundamental-Rights/dp/0199552185/ref=sr_1_1?ie=UTF8&s=books&qid=1203439587&sr=1-1
Wednesday, October 10, 2007
Saturday, July 14, 2007
Friday, May 04, 2007
Scottish elections/ Does the UK need a "genuine" constitution?
The actual results for the Scottish election are as follows: the Scottish Nationalists won 20 seats to take their total to 47, and to become, for the first time ever, the largest party in scotland, ending 50 years of Labour domination; Labour lost 4 seats, moving down to 46; the Tories and Lib Dems lost one each, to move down to 17 and 16 respectively; and, in many ways the biggest losers of the night, "others" (such as Greens and Socialists) lost 14 seats - only two greens and one independent remain. There is already a lengthy wikipedia page on the results.
Not huge losses for Labour, then, but significant enough to see them lose the symbolic status of largest party in Scotland, and, more importantly, to make it likely that SNP leader Alec Salmond will be the next First Minister. There was a significant swing from Labour to SNP; this was bolstered significantly, however, by the fact that most of the supporters of the Scottish Socialist Party seem to have opted to vote for the Nationalists after the fairly spectacular, if grindingly inevitable, implosion of their first-choice party; and it is this that largely accounts for the fact that labour are only 4 MSPs down, despite the Nats gaining 20.
We are, it seems, set for some interesting times in Scotland; and this, at least, is to be welcomed. Indeed, it may be that the devolution arrangements, so clearly designed with Labour governments both sides of the border in mind, will be tested in the next few years by an SNP-led executive in Edinburgh dealing with the Tories in Westminster. The inevitably messy politics of coalition are also playing out in Scotland now, with minority government a real possibility as the Liberal Democrats have stated fairly publicly and clearly that the largest party has the "moral authority" to govern, and that a unionist coalition to stop a nationalist government was thus not on the cards (although it remains to be seen whether they will hold firm to this, or perform a laughable u-turn to match that of their 1999 "pledge" on university tuition fees - the jury is out on this one).
The biggest issue, however, has, as one commentator put it fairly early on last night, is "not the count but rather the counting". Lorenzo is correct to note, in his post immediately below, that the Scottish elections turned out to be a shambolic, shameful embarrassment in many ways: hundreds of postal votes not issued in time through nothing other than ineptitude; numerous counts postponed until the next day through teething problems with the new computer systems; and, most importantly, over one hundred thousand spoilt or rejected ballot papers. To try to put that last figure in perspective: let's assume a possible electorate of something like 4 million voters, and a turnout of around the 50% mark (unfortunately, I haven't been able to find accurate figures for these; any info on this would be welcome). That gives us around 2 million people actually casting their votes, of whom 100,000 - or a massive 5% - have been effectively disenfranchised (excepting, of course, the few that will have spoilt their papers on purpose). The reason for this seems clear enough - the decision to switch to a single transferable vote system in the local elections which took place at the same time, and which, for the first time, required not simply putting a cross beside a candidate's name, but providing a set of numbered preferences. There seems to have been clear confusion over which ballot paper requried which marks, with one election officer suggesting that around 60% of those voting were less than sure of exactly how to do so when entering the polling stations.
This much is clear. What is significantly less clear, however, is the extent to which this in any way reflects on the absence of what Lorenzo refers to as a "genuine" constitution - by which, I suppose he means a clear, written document, laying out systematically the "nature of devolution, the place of the House of Lords, and the status of the Human Rights Act". Firstly, it seems clear that none of the difficulties encountered last night would have been in any way reduced by such a move. We do not have to look to ancient history to find that serious electoral difficulties have arisen in states that have provided models for the whole world as to what a "genuine constitution" looks like; and attempts to introduce the constitutional question in these terms and at this time begins to look a little like disingenuous back-door constitutionalism.
Secondly, and at a more general level, it is far from clear that the heirarchy and pre-commitment involved in constitutional entrenchment of the sort that Lorenzo envisages is always entirely desirable; that very often, the attempt to formalise and systematise everything leaves no space for the common sense that has long been a part of the British, and particularly the Scottish, political, social and philosophical mindset (indeed, this is one of the source of one of the most commonly criticised caricatures of the EU in the UK).
Put simply, there is, in the UK, a genuine sense that we don't need a "genuine" constitution; that, for all of their formal imperfections and lack of clear conceptual divisions, the UK political institutions generally function in a largely satisfactory manner. And, in defence of such a viewpoint - which, I think, is the unspoken - perhaps even unconscious - starting position of many of my compatriots - we have in the UK a history of functional political stability, and liberal democratic credentials, that stand up to comparison with even the most heavily constitutionalised of European or American states.
Considerations such as these are not, of course, conclusive one way or the other; they do, however, call for serious engagment from those for whom the UK's lack of a written, or "genuine", constitution is major ethico-political issue. Perhaps we must, in exploring these issues, revisit the classical debate on the French Revolution between Edmund Burke and Thomas Paine; in any event, I hope it is a call that Lorenzo will take up in more detail here...
Not huge losses for Labour, then, but significant enough to see them lose the symbolic status of largest party in Scotland, and, more importantly, to make it likely that SNP leader Alec Salmond will be the next First Minister. There was a significant swing from Labour to SNP; this was bolstered significantly, however, by the fact that most of the supporters of the Scottish Socialist Party seem to have opted to vote for the Nationalists after the fairly spectacular, if grindingly inevitable, implosion of their first-choice party; and it is this that largely accounts for the fact that labour are only 4 MSPs down, despite the Nats gaining 20.
We are, it seems, set for some interesting times in Scotland; and this, at least, is to be welcomed. Indeed, it may be that the devolution arrangements, so clearly designed with Labour governments both sides of the border in mind, will be tested in the next few years by an SNP-led executive in Edinburgh dealing with the Tories in Westminster. The inevitably messy politics of coalition are also playing out in Scotland now, with minority government a real possibility as the Liberal Democrats have stated fairly publicly and clearly that the largest party has the "moral authority" to govern, and that a unionist coalition to stop a nationalist government was thus not on the cards (although it remains to be seen whether they will hold firm to this, or perform a laughable u-turn to match that of their 1999 "pledge" on university tuition fees - the jury is out on this one).
The biggest issue, however, has, as one commentator put it fairly early on last night, is "not the count but rather the counting". Lorenzo is correct to note, in his post immediately below, that the Scottish elections turned out to be a shambolic, shameful embarrassment in many ways: hundreds of postal votes not issued in time through nothing other than ineptitude; numerous counts postponed until the next day through teething problems with the new computer systems; and, most importantly, over one hundred thousand spoilt or rejected ballot papers. To try to put that last figure in perspective: let's assume a possible electorate of something like 4 million voters, and a turnout of around the 50% mark (unfortunately, I haven't been able to find accurate figures for these; any info on this would be welcome). That gives us around 2 million people actually casting their votes, of whom 100,000 - or a massive 5% - have been effectively disenfranchised (excepting, of course, the few that will have spoilt their papers on purpose). The reason for this seems clear enough - the decision to switch to a single transferable vote system in the local elections which took place at the same time, and which, for the first time, required not simply putting a cross beside a candidate's name, but providing a set of numbered preferences. There seems to have been clear confusion over which ballot paper requried which marks, with one election officer suggesting that around 60% of those voting were less than sure of exactly how to do so when entering the polling stations.
This much is clear. What is significantly less clear, however, is the extent to which this in any way reflects on the absence of what Lorenzo refers to as a "genuine" constitution - by which, I suppose he means a clear, written document, laying out systematically the "nature of devolution, the place of the House of Lords, and the status of the Human Rights Act". Firstly, it seems clear that none of the difficulties encountered last night would have been in any way reduced by such a move. We do not have to look to ancient history to find that serious electoral difficulties have arisen in states that have provided models for the whole world as to what a "genuine constitution" looks like; and attempts to introduce the constitutional question in these terms and at this time begins to look a little like disingenuous back-door constitutionalism.
Secondly, and at a more general level, it is far from clear that the heirarchy and pre-commitment involved in constitutional entrenchment of the sort that Lorenzo envisages is always entirely desirable; that very often, the attempt to formalise and systematise everything leaves no space for the common sense that has long been a part of the British, and particularly the Scottish, political, social and philosophical mindset (indeed, this is one of the source of one of the most commonly criticised caricatures of the EU in the UK).
Put simply, there is, in the UK, a genuine sense that we don't need a "genuine" constitution; that, for all of their formal imperfections and lack of clear conceptual divisions, the UK political institutions generally function in a largely satisfactory manner. And, in defence of such a viewpoint - which, I think, is the unspoken - perhaps even unconscious - starting position of many of my compatriots - we have in the UK a history of functional political stability, and liberal democratic credentials, that stand up to comparison with even the most heavily constitutionalised of European or American states.
Considerations such as these are not, of course, conclusive one way or the other; they do, however, call for serious engagment from those for whom the UK's lack of a written, or "genuine", constitution is major ethico-political issue. Perhaps we must, in exploring these issues, revisit the classical debate on the French Revolution between Edmund Burke and Thomas Paine; in any event, I hope it is a call that Lorenzo will take up in more detail here...
Tuesday, April 03, 2007
GAL at NYU
A quick post to flag a project that I have recently become involved with: the emerging field of Global Administrative Law, a research project involving a wide network of scholars, based at New York University. The project is driven by two basic insights: firstly, that much of the global or transnational regulation currently viewed under the rubric of "governance" can be properly seen as regulatory administration; and secondly that a body of administrative law is emerging that seeks to regulate that regulation. There is, however, both a descriptive and a prescriptive element to the research agenda: not merely what are the principles of an administrative law character that are shaping global governance, but also what should they be. The website provides the following working definition of the project (which is fleshed out in much more detail in a couple of conceptual papers on the issue):
Much of global governance can be understood as regulatory administration. Such regulatory administration is often organized and shaped by principles of an administrative law character. Building on these twin ideas, we argue that a body of global administrative law is emerging. This is the law of transparency, participation, review, and above all accountability in global governance. We posit an increasingly discernible “global administrative space”, in which the strict dichotomy between domestic and international has broken down, administrative functions are performed in complex relations between officials and institutions not organized in a single hierarchy, and regulation using non-binding forms often proves highly effective in practice. Exercises of public power in the global administrative space are increasingly channeled, and controlled, by mechanisms of an administrative law type. These include rules requiring greater transparency, adoption of notice-and-comment procedures in rule-making, and the opening of new or strengthened avenues of judicial and administrative review. We thus regard global administrative law as encompassing the legal mechanisms, principles, and practices, along with supporting social understandings, that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring these bodies meet adequate standards of transparency, consultation, participation, rationality, and legality, and by providing effective review of the rules and decisions these bodies make. We describe this field of law as “global” rather than “international” to encompass the enmeshment of national and intergovernmental regulation, the increasing roles of private regulators and public-private hybrid bodies, the wide array of informal institutional arrangements that now operate alongside formal institutions, and the foundations of the field in normative practices, and normative sources, that extend beyond international law sources.
The Project distinguished among, but seeks to encompass each of, five main types of globalized administrative regulation. These are: (1) International Administration, by formal international organizations (such as United Nations Security Council individual sanctions programs, or UN administration of territory); (2) Network Administration, based on collective action by transnational networks of cooperative arrangements between national regulatory officials (such as the Basel Committee of national bank regulators); (3) Distributed Administration conducted by national regulators under treaty, network, or other cooperative regimes (such as the Basel Convention on transboundary movement of hazardous wastes); (4) Hybrid Administration, by hybrid intergovernmental-private arrangements (such as ICANN, the Internet Corporation for Assigned Names and Numbers); and (5) Private Administration, by private institutions with regulatory functions (such as the ISO, the International Organization for Standardization).
New systems of administrative procedures, review mechanisms, and decisional principles have arisen to promote greater accountability in decision-making by this rapidly proliferating variety of global regulatory administrative bodies. The subjects of such global regulatory systems include individuals, firms and other economic actors, states, and non-governmental organizations. Global Administrative Law is an emerging field of law and practice addressing both the new structures of administrative law and international law that have arisen in these different institutional contexts, and their normative dimensions, including regime integrity, protection of subjects' rights and promotion of democratic values.
It seems to me that, from this useful and provocative working definition, a number of interesting questions immediately arise at an abstract, general level: in what sense can these administrative law principles be justifiably characterised as "global" (in that the negative justification offered, in contradistinction to the "international", may be necessary but insufficient to justify this rhetoric)? Does it really make sense to talk of one unified global administrative space, rather than a plurality of spaces? What is the relationship of global administrative law to the emerging, if at least equally vague, sphere of "global/international constitutionalism"? And how do the administrative law ends of transparency, participation, review and accountability relate, if at all, to notions of democratic governance?
Such issues are only a small, if important, part of the research agenda. Much focus otherwise is on empirical studies of actual administrative regimes, in order to discern what the principles and norms guiding there function are, and what elements, if any, seem to be common among them. The website provides access to a large number of articles and working papers on the issue. As I mentioned, it is a project that I have recently become (heavily) involved with, so any and all comments on it are welcome!
Friday, February 09, 2007
Toward a Theory of Human Rights by Michael J Perry
This book does exactly what it claims: it attempts to develop a theory of human rights. Perry suggests that a theory of human rights should deal with three basic issues. First, the moral foundation of human rights. Second, the normative relationship between the morality and the law of human rights. Third, the institutional arrangements that best protect human rights.
To each of these three issues Perry offers very stimulating, and conspicuously controversial, treatment. He argues that the moral foundation of human rights can be defined in terms of the principle of dignity and inviolability of each human being. The trouble is, Perry argues, that secular people cannot offer a proper justification of dignity and inviolability. The only sound rationale is religious.
Once the foundation established, the following step is to explain in what way the morality of human rights influences the law of human rights. This is inextricably linked to the two claims of inherent dignity and inviolabililty. In legal terms, it means that those who commit to that morality will have to do all they can to enact laws that do not violate human beings, and refrain from relying on laws that do violate human beings.
Perry takes three areas to illustrate his claims. Death penalty, Abortion, and Same sex unions. Not afraid of challenging conventional understanding, he argues that his morality of human rights requires that death penalty be abolished. It requires that the pre-viability abortions be banned; and that same sex unions be recognised.
All this, however, is not as straightforward as it looks in normative terms. For, the institutional perspective nuances the general picture in many ways. The main question is to know what role should the courts play. Perry argues that the US system of judicial review coupled with judicial supremacy, gives excessive powers to courts. In other words, he disapproves of judicial ‘ultimacy,’ the fact that the US supreme court has the last word on the most controversial issues. Instead, he favours something close to the Canadian system, that he deems a system of judicial ‘penultimacy.’ The Supreme Court expresses itself on controversial issues, but the parliament can, if it wants, overrule the court’s decision thanks to the Canadian ‘notwithstanding clause.’ Perry presents this solution as an elegant compromise that conciliate judicial review with democratic participation. He says the same for the UK HRA 1998.
In the US, judicial ultimacy is not likely to be removed. To mitigate its effect, Perry suggests that court should adopt a deferential attitude along the lines proposed by James Bradley Thayer. Roughly, thayerian deference requires courts to apply the rule of the clear mistake—that is, interference only when the statute is clearly wrong. Thayerian deference is not grounded on the belief that the legislative or the executive are better equipped to take hard decisions. Thayer believes instead that a non-deferential system of judicial ultimacy would render citizens less politically and morally awake. Institutions may make mistakes and the way to redress them is to fight political battles not to devolve all the power to review those decisions to courts.
How does this affect the treatment of the relevant issues from the US point of view? Death penalty violates the constitution, but the court should so rule only if it believes that the legislator has made a clear mistake. Pre-viability Abortion violates the constitution, but the same caveat applies. Finally, the ban on same sex unions is unconstititutional, but court should be deferential along the same lines.
Perry’s book is very welcome. He is right to insist from the beginning to the conclusion that the work on theories of human rights has just begun. His contribution will no doubt advance the debate because it focuses on central issues without seeking approval. His theses are clearly exposed and highly controversial. The debate can begin.
It should begin and take place globally. And here’s my first criticism to Perry’s book. As many Anglo-American scholars, he ignores almost entirely the debates in non-english speaking countries. Most of European countries have produced fine scholarship on these issues, and a lot of this material is also available in English. One example above all is Robert Alexy’s Theory of Constitutional Rights, translated in English and published by OUP.
This leads to a second point. One may argue that Perry draws a distinction between Human Rights and Constitutional Rights. He may then claim that theories have been produced on the latter but not on the former. Indeed, at the beginning he seems to concentrate on international human rights as opposed to domestic constitutional rights. But by the end of the book it is clear, that the morality of human rights he finds in the international arena should also apply domestically, say at the level of the US Supreme Court.
I would find such a distinction helpful as it could underline another major difference between international human rights and domestic constitutional rights. The latter are nowadays well protected precisely because of judicial review, while the former are far away from being effectively protected. This may also point to the fact that Perry’s criticism to judicial review is exaggerated. One may suggest, not so foolishly, that liberal democracies came to protect constitutional rights so robustly precisely because of judicial review. If anything, the UK example shows that during Thatcher’s government rights were not respected and judges had little weapons to fight back. Moreover, parliament was incapable to stand alone for the rights of the citizens. It is such an abuse that led the labour government to entrench rights and to protect them through judicial review.
Now Perry could say that the HRA does not introduce a system of judicial ultimacy, but only an elegant compromise between parliamentary sovereignty and judicial review. Whether that is an elegant compromise, I have many doubts. Whether it will work in the long run, it is another open issue. The HRA is in the eyes of many either too much or too little. It is too much in the very eyes of those who have entrenched it and then complained that it bound excessively the executive in its war against terrorism. Its too little in the eyes of many advocates who fought for a bill of rights, Lord Lester for example, and thought that the HRA could be a first step toward a fully entrenched and fully reviewable bill of rights.
The most controversial of all issue, however, is that of the foundation of rights. Many liberal philosophers, starting from Rawls and Habermas, have amply shown that our secular democracies have borrowed a lot from religious concepts. Dignity and inviolability of human beings may well be concepts of Christian origins, but our societies have translated those concepts to our secular frameworks. This is not to deny their Christian root, to the contrary. But liberal democracies, beyond translation, also made possible the effective protection of dignity and inviolability of human beings. This was not true of the period preceding the establishment of liberal democracies, which we could deem the age of the Res Publica Christiana. During those ages, dignity and inviolability of human beings might have been already strong Christian principles, but their violation in practice also was very common. We may say, therefore, that liberal democracies brought to a totally different stage those principles, and to a certain extent the Church is catching up with the recognition of the importance of the consequences that we may want those principles to have.
Thus, liberal democracies not only translated those principles, but they also transformed them into tools for the improvement of the society. Religion can claim part of merit, but it also has to acknowledge the intrinsic merits of liberalism, as far as the redefinition and concrete protection of those principles is concerned.
To engage with Perry’s book does not detract anything to its quality. To the contrary, the quest for a proper theory of human rights should probably start there.
To each of these three issues Perry offers very stimulating, and conspicuously controversial, treatment. He argues that the moral foundation of human rights can be defined in terms of the principle of dignity and inviolability of each human being. The trouble is, Perry argues, that secular people cannot offer a proper justification of dignity and inviolability. The only sound rationale is religious.
Once the foundation established, the following step is to explain in what way the morality of human rights influences the law of human rights. This is inextricably linked to the two claims of inherent dignity and inviolabililty. In legal terms, it means that those who commit to that morality will have to do all they can to enact laws that do not violate human beings, and refrain from relying on laws that do violate human beings.
Perry takes three areas to illustrate his claims. Death penalty, Abortion, and Same sex unions. Not afraid of challenging conventional understanding, he argues that his morality of human rights requires that death penalty be abolished. It requires that the pre-viability abortions be banned; and that same sex unions be recognised.
All this, however, is not as straightforward as it looks in normative terms. For, the institutional perspective nuances the general picture in many ways. The main question is to know what role should the courts play. Perry argues that the US system of judicial review coupled with judicial supremacy, gives excessive powers to courts. In other words, he disapproves of judicial ‘ultimacy,’ the fact that the US supreme court has the last word on the most controversial issues. Instead, he favours something close to the Canadian system, that he deems a system of judicial ‘penultimacy.’ The Supreme Court expresses itself on controversial issues, but the parliament can, if it wants, overrule the court’s decision thanks to the Canadian ‘notwithstanding clause.’ Perry presents this solution as an elegant compromise that conciliate judicial review with democratic participation. He says the same for the UK HRA 1998.
In the US, judicial ultimacy is not likely to be removed. To mitigate its effect, Perry suggests that court should adopt a deferential attitude along the lines proposed by James Bradley Thayer. Roughly, thayerian deference requires courts to apply the rule of the clear mistake—that is, interference only when the statute is clearly wrong. Thayerian deference is not grounded on the belief that the legislative or the executive are better equipped to take hard decisions. Thayer believes instead that a non-deferential system of judicial ultimacy would render citizens less politically and morally awake. Institutions may make mistakes and the way to redress them is to fight political battles not to devolve all the power to review those decisions to courts.
How does this affect the treatment of the relevant issues from the US point of view? Death penalty violates the constitution, but the court should so rule only if it believes that the legislator has made a clear mistake. Pre-viability Abortion violates the constitution, but the same caveat applies. Finally, the ban on same sex unions is unconstititutional, but court should be deferential along the same lines.
Perry’s book is very welcome. He is right to insist from the beginning to the conclusion that the work on theories of human rights has just begun. His contribution will no doubt advance the debate because it focuses on central issues without seeking approval. His theses are clearly exposed and highly controversial. The debate can begin.
It should begin and take place globally. And here’s my first criticism to Perry’s book. As many Anglo-American scholars, he ignores almost entirely the debates in non-english speaking countries. Most of European countries have produced fine scholarship on these issues, and a lot of this material is also available in English. One example above all is Robert Alexy’s Theory of Constitutional Rights, translated in English and published by OUP.
This leads to a second point. One may argue that Perry draws a distinction between Human Rights and Constitutional Rights. He may then claim that theories have been produced on the latter but not on the former. Indeed, at the beginning he seems to concentrate on international human rights as opposed to domestic constitutional rights. But by the end of the book it is clear, that the morality of human rights he finds in the international arena should also apply domestically, say at the level of the US Supreme Court.
I would find such a distinction helpful as it could underline another major difference between international human rights and domestic constitutional rights. The latter are nowadays well protected precisely because of judicial review, while the former are far away from being effectively protected. This may also point to the fact that Perry’s criticism to judicial review is exaggerated. One may suggest, not so foolishly, that liberal democracies came to protect constitutional rights so robustly precisely because of judicial review. If anything, the UK example shows that during Thatcher’s government rights were not respected and judges had little weapons to fight back. Moreover, parliament was incapable to stand alone for the rights of the citizens. It is such an abuse that led the labour government to entrench rights and to protect them through judicial review.
Now Perry could say that the HRA does not introduce a system of judicial ultimacy, but only an elegant compromise between parliamentary sovereignty and judicial review. Whether that is an elegant compromise, I have many doubts. Whether it will work in the long run, it is another open issue. The HRA is in the eyes of many either too much or too little. It is too much in the very eyes of those who have entrenched it and then complained that it bound excessively the executive in its war against terrorism. Its too little in the eyes of many advocates who fought for a bill of rights, Lord Lester for example, and thought that the HRA could be a first step toward a fully entrenched and fully reviewable bill of rights.
The most controversial of all issue, however, is that of the foundation of rights. Many liberal philosophers, starting from Rawls and Habermas, have amply shown that our secular democracies have borrowed a lot from religious concepts. Dignity and inviolability of human beings may well be concepts of Christian origins, but our societies have translated those concepts to our secular frameworks. This is not to deny their Christian root, to the contrary. But liberal democracies, beyond translation, also made possible the effective protection of dignity and inviolability of human beings. This was not true of the period preceding the establishment of liberal democracies, which we could deem the age of the Res Publica Christiana. During those ages, dignity and inviolability of human beings might have been already strong Christian principles, but their violation in practice also was very common. We may say, therefore, that liberal democracies brought to a totally different stage those principles, and to a certain extent the Church is catching up with the recognition of the importance of the consequences that we may want those principles to have.
Thus, liberal democracies not only translated those principles, but they also transformed them into tools for the improvement of the society. Religion can claim part of merit, but it also has to acknowledge the intrinsic merits of liberalism, as far as the redefinition and concrete protection of those principles is concerned.
To engage with Perry’s book does not detract anything to its quality. To the contrary, the quest for a proper theory of human rights should probably start there.
Tuesday, January 09, 2007
Constitutional Dilemmas for 2007 (and beyond)
Euthanasia, Same sex unions, the legal status of embryos; these are few of the most daunting ethical issues that are debated in Europe and America.
The risk of polarisation of societies on these issues is great. In short, many believe that you simply can't regulate life at its beginning or at its end. In reality, part of the society believes that god gives and takes life so human cannot decide at his place. Half of the society disagrees and believes that humans must intervene in order to say what is permissible and what is not.
Given that the substantive issue is so difficult to settle, many argue that we should agree on a procedure on how to decide. Again, there's a party that trust supreme courts to do this job, and another faction that believes that representative instituions (i.e. parliaments) should take the lead.
I think that both majority rule and judicial adjudication are unfit for the job. Both would produce more polarisation than reduce it. Courts cannot escape the problem: the scene is always set as a confrontation between two claims, and the court must decide between those two claims. There is little margin for mediation and reasonable compromise. Parliaments, on the other hand, cannot possibly hope to settle these issues by voting. This process would have the result to trigger a neverending parliamentary battle, where opposing parties would try to impose their preferred view anytime they come to power.
Perhaps a better compromise on how to deal with those problems could be a special procedure whereby MPs and various other specialists are brought together to work out a compromise (it would inevitably involve a sacrifice). No simple majority would be allowed, at best a qualified majority (say 2/3) in extreme cases where unrelenting disagreement cannot be placated in any other way.
This is the gist of my new book, Constitutional Dilemmas, forthcoming in June 2007.
The risk of polarisation of societies on these issues is great. In short, many believe that you simply can't regulate life at its beginning or at its end. In reality, part of the society believes that god gives and takes life so human cannot decide at his place. Half of the society disagrees and believes that humans must intervene in order to say what is permissible and what is not.
Given that the substantive issue is so difficult to settle, many argue that we should agree on a procedure on how to decide. Again, there's a party that trust supreme courts to do this job, and another faction that believes that representative instituions (i.e. parliaments) should take the lead.
I think that both majority rule and judicial adjudication are unfit for the job. Both would produce more polarisation than reduce it. Courts cannot escape the problem: the scene is always set as a confrontation between two claims, and the court must decide between those two claims. There is little margin for mediation and reasonable compromise. Parliaments, on the other hand, cannot possibly hope to settle these issues by voting. This process would have the result to trigger a neverending parliamentary battle, where opposing parties would try to impose their preferred view anytime they come to power.
Perhaps a better compromise on how to deal with those problems could be a special procedure whereby MPs and various other specialists are brought together to work out a compromise (it would inevitably involve a sacrifice). No simple majority would be allowed, at best a qualified majority (say 2/3) in extreme cases where unrelenting disagreement cannot be placated in any other way.
This is the gist of my new book, Constitutional Dilemmas, forthcoming in June 2007.
Friday, November 17, 2006
Justice for Hedgehogs
I am a fox, I don't like that (See I. Berlin, the Fox and the Hedgehog).
But for those of you who feel close to Hedgehogs, here is Dworkin's recent paper presented at the NYU Colloquium of Legal Philosophy.
This is likely to be the basis of Dworkin's next book, so have a happy preview!
But for those of you who feel close to Hedgehogs, here is Dworkin's recent paper presented at the NYU Colloquium of Legal Philosophy.
This is likely to be the basis of Dworkin's next book, so have a happy preview!
Monday, June 05, 2006
Constitutional Dilemmas
Law is meant to solve conflicts between competing claims. Constitutional Rights are normally considered to be a very efficient tool to achieve that aim.
What if, however, constitutional rights conflict one against another and it is impossible to compare their strength, or to rank them?
This is the object of my forthcoming book with OUP titled Constitutional Dilemmas. Conflict of Fundamental Legal Rights in Europe and the USA. You can learn more about it here
What if, however, constitutional rights conflict one against another and it is impossible to compare their strength, or to rank them?
This is the object of my forthcoming book with OUP titled Constitutional Dilemmas. Conflict of Fundamental Legal Rights in Europe and the USA. You can learn more about it here
Monday, February 06, 2006
Justice is served!
Almost exactly a year ago, I posted a short blog entitled "On the arbitrariness of rules and denials of natural justice", which focused upon the injustice of certain referreeing decisions in the France v. Scotland match in the Six Nations rugby union tournament.
I am delighted to be able to report that the rerun of this annual fixture, played yesterday, was officiated impeccably...
I am delighted to be able to report that the rerun of this annual fixture, played yesterday, was officiated impeccably...
Wednesday, December 14, 2005
European Legal Theory!
European Legal Theiry and Constitutionalism is probably the most exciting intellectual discipline nowadays. The many dilemmas revolving around European integration and European future have sparked an icredible mass of high quality literature.
To have an overview of this literature, have a look at the new issue of the Oxford Journal of Legal Studies. That issue published on-line today, contains a good review of Legal Theory and the European Union by Neil Walker. This issue, by the way, celebrates the 25th anniversary of the Oxford Journal.
This is a good occasion to reiterate the committment of this Blog to follow the most exciting legal and philosophical issues in America, in Europe and Beyond!!
To have an overview of this literature, have a look at the new issue of the Oxford Journal of Legal Studies. That issue published on-line today, contains a good review of Legal Theory and the European Union by Neil Walker. This issue, by the way, celebrates the 25th anniversary of the Oxford Journal.
This is a good occasion to reiterate the committment of this Blog to follow the most exciting legal and philosophical issues in America, in Europe and Beyond!!
Thursday, June 09, 2005
Some brief reflections on the ESIL Research Forum 2005
Having had a week or so to reflect and digest, I wanted to post something, as promised, on the recent ESIL conference in Geneva, Switzerland. The European Society of International Law is, of course, a very new one - it was created just last year - but it seems an important one nonetheless, as evidenced by the quality of speakers and commentators attending this year's event. Add to this some magnificant weather and a generally stunning location on the shores of Lac Lemain, at the Graduate Institute for International Studies (HEI), and the scene was set for a memorable occasion.
The conference itself lasted from Thursday afternoon until Saturday evening; it kicked off and finished with plenary sessions, but Friday and Saturday mornings were devoted to more specialised, parallel workshops. The conference organisers made the decision to favour younger, up-and-coming scholars in these workshops, with the standard form being four such papers, and then a comment from a more established academic; this idea, it seemed to me, was a success, and meant that the quality and innovation presented in many of the workshops was high. It often seems at conferences that the quality of a paper is inversely proportional to the reputation of the presenter; the potential gains and losses for younger academics are simply much higher than for their more established colleagues. Between the plenary sessions, then, and the workshops, the conference organisers managed to strike an effective balance between younger and older scholars.
Another noteworthy point was the genuinely bilingual character of the proceedings. Often in supposedly bilingual organisations, one language is paid lip-service, and the other (usualy English) in fact dominates the proceedings. Not so here; although English was more commonly used, I don't think that there was one session in which a full paper was not presented in French; and those more comfortable in the latter language were also encouraged to use it in formulating questions to the panelists, regardless of which language the initial paper was presented in.
The first plenary session, although boasting an impressive panel, was perhaps a little disappointing; this, however, was the fault of the topic, "Are the rumours of the death of the Westphalian System exaggerated?". Understandably, the organisers wanted to open the forum with a topic sufficiently broad to be of interest to everyone; however, this one was so vague and open as to provide little or no coherence to the presentations or theme for the discussion. This is not to say that the individual papers were not enjoyable to listen to (those by Ian Brownlie and Brigitte Stern being the pick of the bunch for me), but there was perhaps little of real academic worth in them.
The keynote speech was given by Hisashi Owada, judge at the ICJ, focusing on the reform proposals for various UN institutions. He also ranged fairly widely over a broad set of issues, focusing on the Security Council and the ICJ. Always interesting to hear a judge discussing potential reforms of his own Court, even if most of those he suggested, such as opening up access to the Court to non-state parties or increased use of the advisory opinion function, are not new ideas. In terms of the Security Council, he signalled reform of the veto system as a priority.
Saturday morning's workshop on international legal theory was the one that I was most interested in, and it was, for me, the best session of the forum. Again, the topic itself was vague - "revisiting contemporary international legal theory", but the papers given were all interesting and innovative, even if dealing with at times completely different subject matters (not to mention struggling with the profound injustice of being asked to talk on legal theory at 8.45 on a Saturday morning...). Although there did seem to be an overall attempt to deal, in most papers at least, with critical approaches to international law, it did this from perspectives as varied as feminism, cultural relativism, or Nietzschean epistemology, then rounded off with a more positivistic attempt to "purify Kelsen". It fell to Koskenniemi to sum up and attempt to draw together the various threads; this he did by means of a memorable plea for the recognition for a norm of jus cogens against ever asking the question "how can this theory be applied in practice".
Other workshops that morning dealt with other "hot" international legal issues; treats to human rights in the war on terror, international protection of the environment, cultural heritage law, migrants and refugees, international administrations, and private actors in he international legal system. The last of these was another very interesting, if slightly schizophrenic, workshop, focusing both on the increasing (or otherwise) role of NGOs, and on the responsibilities of multinational corporations. This thus was really two panels rolled into one, and this impression was confirmed by the fact that there was little time for discussion of either section once the panelists and discussant had all had their say.
Friday afternoon was spent at the Palais des Nations, the UN buildings, in an extended International Law Commission session with Giorgio Gaja, the special rapporteur on the responsibility of international organisations. An interesting topic, and a great opportunity for participants to see inside the Palais; however, as there had been, at the time of the session, only 7 or so recommendations adopted, the two and a half hours dedicated to this single issue may have seemed a little excessive; perhaps, given that the entire ILC was present, the floor could have been opened at some point to a more generally discussion of the work of the Commission.
The closing plenaries fortunately managed to avoid the pitfalls of the opening one; a topic was chosen that was of interest to most if not all, but that was sufficiently well circumscribed to give the panels a sense of coherence and purpose. In effect, all of Saturday afternoon was devoted to a discussion of the recent ICJ adivsory opinion on the wall in the occupied Palestinian territory; firstly with some detailed discussion of the judgment itself, followed by a round table on the wider implications of the decision for international law more generally. Naturally, having a number of ICJ judges present lent a particular force to the critiques and calls for clarification that were peppered throughout the contributions.
In conclusion, a couple of gripes; one fairly minor, and one, linked, fairly major. The first is that each speaker was given only ten minutes in which to present their papers. This was a double-edged sword. On the one hand, it did mean that, more often than not and despite the fact that most panels had four speakers, a chair, a convener and a discussant to speak, there was a significant amount of time left over for questioning at the end. On the other hand, ten minutes is not at all long to develop an argument in any great depth or detail - a shortcoming that must be felt all the more clearly when panel topics are so broadly framed. This, however, was compounded even further by the more major failing: namely, that the papers and presentations were not made available to those attending the sessions in advance. This meant that not only did the presentation have to be fast, but it had to be performed to an audience who were coming to it absolutely "cold", so to speak. Both the complexity of the arguments advanced and the worth and detail of the subsequent discussions were hampered as a result.
All in all, then, my overwhelming impression is that the forum was a thoroughly worthwhile experience, on many levels: academically, intellectually and socially. A real pity then that, in terms of the intellectual points at least, it must remain only an impression; the lack of a more detailed p-ackage of materials circulated significantly in advance has prevented it from crystallising into anything more substantive. Nonetheless, it bodes well for the future of the European Society of International Law; a society that seems to be maturing at a remarkable rate. Gone, this time, were the self-conscious attempts to fashion anything like a rigorously "European" sense of international law, and the anti-American posturing that can often accompany it, that seems to have characterised, to some extent at least, the inaugural conference in Florence last year. A European Society, as judge Bruno Simma noted right at the outset, that seeks not to challenge but rather complement the American Society strikes me as thoroughly desirable and well on the way to being realised. I'm already looking forward to Paris 2006...
The conference itself lasted from Thursday afternoon until Saturday evening; it kicked off and finished with plenary sessions, but Friday and Saturday mornings were devoted to more specialised, parallel workshops. The conference organisers made the decision to favour younger, up-and-coming scholars in these workshops, with the standard form being four such papers, and then a comment from a more established academic; this idea, it seemed to me, was a success, and meant that the quality and innovation presented in many of the workshops was high. It often seems at conferences that the quality of a paper is inversely proportional to the reputation of the presenter; the potential gains and losses for younger academics are simply much higher than for their more established colleagues. Between the plenary sessions, then, and the workshops, the conference organisers managed to strike an effective balance between younger and older scholars.
Another noteworthy point was the genuinely bilingual character of the proceedings. Often in supposedly bilingual organisations, one language is paid lip-service, and the other (usualy English) in fact dominates the proceedings. Not so here; although English was more commonly used, I don't think that there was one session in which a full paper was not presented in French; and those more comfortable in the latter language were also encouraged to use it in formulating questions to the panelists, regardless of which language the initial paper was presented in.
The first plenary session, although boasting an impressive panel, was perhaps a little disappointing; this, however, was the fault of the topic, "Are the rumours of the death of the Westphalian System exaggerated?". Understandably, the organisers wanted to open the forum with a topic sufficiently broad to be of interest to everyone; however, this one was so vague and open as to provide little or no coherence to the presentations or theme for the discussion. This is not to say that the individual papers were not enjoyable to listen to (those by Ian Brownlie and Brigitte Stern being the pick of the bunch for me), but there was perhaps little of real academic worth in them.
The keynote speech was given by Hisashi Owada, judge at the ICJ, focusing on the reform proposals for various UN institutions. He also ranged fairly widely over a broad set of issues, focusing on the Security Council and the ICJ. Always interesting to hear a judge discussing potential reforms of his own Court, even if most of those he suggested, such as opening up access to the Court to non-state parties or increased use of the advisory opinion function, are not new ideas. In terms of the Security Council, he signalled reform of the veto system as a priority.
Saturday morning's workshop on international legal theory was the one that I was most interested in, and it was, for me, the best session of the forum. Again, the topic itself was vague - "revisiting contemporary international legal theory", but the papers given were all interesting and innovative, even if dealing with at times completely different subject matters (not to mention struggling with the profound injustice of being asked to talk on legal theory at 8.45 on a Saturday morning...). Although there did seem to be an overall attempt to deal, in most papers at least, with critical approaches to international law, it did this from perspectives as varied as feminism, cultural relativism, or Nietzschean epistemology, then rounded off with a more positivistic attempt to "purify Kelsen". It fell to Koskenniemi to sum up and attempt to draw together the various threads; this he did by means of a memorable plea for the recognition for a norm of jus cogens against ever asking the question "how can this theory be applied in practice".
Other workshops that morning dealt with other "hot" international legal issues; treats to human rights in the war on terror, international protection of the environment, cultural heritage law, migrants and refugees, international administrations, and private actors in he international legal system. The last of these was another very interesting, if slightly schizophrenic, workshop, focusing both on the increasing (or otherwise) role of NGOs, and on the responsibilities of multinational corporations. This thus was really two panels rolled into one, and this impression was confirmed by the fact that there was little time for discussion of either section once the panelists and discussant had all had their say.
Friday afternoon was spent at the Palais des Nations, the UN buildings, in an extended International Law Commission session with Giorgio Gaja, the special rapporteur on the responsibility of international organisations. An interesting topic, and a great opportunity for participants to see inside the Palais; however, as there had been, at the time of the session, only 7 or so recommendations adopted, the two and a half hours dedicated to this single issue may have seemed a little excessive; perhaps, given that the entire ILC was present, the floor could have been opened at some point to a more generally discussion of the work of the Commission.
The closing plenaries fortunately managed to avoid the pitfalls of the opening one; a topic was chosen that was of interest to most if not all, but that was sufficiently well circumscribed to give the panels a sense of coherence and purpose. In effect, all of Saturday afternoon was devoted to a discussion of the recent ICJ adivsory opinion on the wall in the occupied Palestinian territory; firstly with some detailed discussion of the judgment itself, followed by a round table on the wider implications of the decision for international law more generally. Naturally, having a number of ICJ judges present lent a particular force to the critiques and calls for clarification that were peppered throughout the contributions.
In conclusion, a couple of gripes; one fairly minor, and one, linked, fairly major. The first is that each speaker was given only ten minutes in which to present their papers. This was a double-edged sword. On the one hand, it did mean that, more often than not and despite the fact that most panels had four speakers, a chair, a convener and a discussant to speak, there was a significant amount of time left over for questioning at the end. On the other hand, ten minutes is not at all long to develop an argument in any great depth or detail - a shortcoming that must be felt all the more clearly when panel topics are so broadly framed. This, however, was compounded even further by the more major failing: namely, that the papers and presentations were not made available to those attending the sessions in advance. This meant that not only did the presentation have to be fast, but it had to be performed to an audience who were coming to it absolutely "cold", so to speak. Both the complexity of the arguments advanced and the worth and detail of the subsequent discussions were hampered as a result.
All in all, then, my overwhelming impression is that the forum was a thoroughly worthwhile experience, on many levels: academically, intellectually and socially. A real pity then that, in terms of the intellectual points at least, it must remain only an impression; the lack of a more detailed p-ackage of materials circulated significantly in advance has prevented it from crystallising into anything more substantive. Nonetheless, it bodes well for the future of the European Society of International Law; a society that seems to be maturing at a remarkable rate. Gone, this time, were the self-conscious attempts to fashion anything like a rigorously "European" sense of international law, and the anti-American posturing that can often accompany it, that seems to have characterised, to some extent at least, the inaugural conference in Florence last year. A European Society, as judge Bruno Simma noted right at the outset, that seeks not to challenge but rather complement the American Society strikes me as thoroughly desirable and well on the way to being realised. I'm already looking forward to Paris 2006...
Saturday, June 04, 2005
Europe's Foundational Ambiguity
So, two referendums into the ratification process, and two fairly resounding "no"s, with the very real prospect of a kind of "domino" effect on those still to hold ballots on the subject, if, as seems increasingly unlikely, they actually go ahead. Even more worrying, perhaps, is the recent controversy over the Euro, expressed most dramatically by the calls from the Italian Social Security Minister for an improbable reintroduction of the Lira. Schroder and Chirac attempt to call together a meeting of the original 6 countries, presumably to try to push ahead with with deeper integration amongst themselves, but the Dutch and Italian leaders refuse to attend. More generally, the Union seems set to be split down the middle in what looks like being an acrimonious row over the future economic direction it should take, with France and Germany on one side, and the UK and a number of new accession countries on the other. Add to this already potent mix a healthy dose of uncertainty - it is quite possible that none of Schroder, Chirac, Blair or Berlusconi will be in office two years' hence - and the scene seems set for the final implosion of the entire European project.
Such runs one, we might call it "pessimistic", narrative of the current and future events. That it exists should not be surprising, given that it is precisely this doomsday scenario that was painted by "yes" campaigners in the referenda in order to scare people into voting for the Constitution. There is, of course, another way of telling the story. This one seems to be favoured by more moderate voices (on both sides of the yes/no divide), who see in this apparent failure the reassertion of democratic control over the European project. A recurring theme here is that now, finally, we get the chance to have a mature debate on the issue, and decide on the kind of Europe that we, the European public, want to live in.
Both of these narratives strike me as potentially disastrous for the European project. The first, if allowed to dominate, may well allow a critical mass of (quite unwarranted) criticism to build up that may, as the prophets of doom suggest, derail the entire endeavour. This would indeed be a tragedy; anyone denying the remarkable achievements that the European Union can boast is quite simply taking them for granted. It is too easy for those of us lucky to be born in the latter period of the 20th century, for example, to overlook the significance of the fact that armed conflict between the members of the Union now strikes us as unthinkable. In this, then, those preferring the second, more optimistic version of events have my support. This remarkable and exciting European project must continue.
It is, however, the idea that we now need to decide "which direction Europe should take" that I want to take issue with. Firstly, pragmatically, it strikes me as seriously naive for anyone to believe that a debate, no matter how mature and reasonable, can provide an answer to this most vexed of questions at this most vexed of times. A brief look at the events of the last few days should be sufficient to illustrate this. Internally, the French "no" relied for success upon the combined votes of two diametrically opposed sectors of the political spectrum; externally, the Dutch have (and the Brits would have) voted no for a completely different set of reasons than those of the French socialists who now trumpet the likelihood of a "social Europe". It seems clear that any attempt to debate our way to a clear, unambiguous and homogenous "vision" for the future of our supra-national polity will be more divisive than unifying; indeed, it may be the very thing that preticipates the doomsday scenario that its advocates seek to play down.
This idea of formulating such a vision of Europe's future also, however, seems to me to be flawed on a more theoretical level. Europe was founded, and has progressed, not on certainties about the future but rather on creative ambiguities. Even its early formulations, as peace through economic interdependence, is not without obvious conceptual tensions; these have become even more evident, not to mention complex, as the Union has transformed itself into the fully-fledged, yet sui generis, polity in which we now live. The dichotomies of neo-liberal/social welfarism, or, more broadly, economic/political union are perhaps the most evident examples of this; and yet, the Union has been able to become what it has not in spite of these controversies, but rather precisely because they are, and remain, controversial. A Union that had settled these issues long ago would simply not have been able to command the level of public support that it has taken to get to where we are now; and indeed, correctly or otherwise, it seems to me that it was a perception, correct or otherwise, that these issues would no longer remain controversial upon adoption of the new Constitution, that drove many on the French left to reject it. The success of the Union is premised, in part, upon its ability to be most things to most people.
And nor is this indeterminacy one of its many weaknesses; rather, it should be viewed as one of its greatest strengths. For it represents the possibility, the promise, of the political; a promise that many feel has been all but removed from the domestic arena. Any attempt to push through a homogenous vision of the future of Europe, even if it did not bring the whole edifice crashing down, would nonetheless represent the reification of a partisan and inevitably shaky "consensus", an essentially arbitrary snapshot of public opinion taken at an essentially arbitrary time, into a timeless "path" for future generations to follow. Any attempted constitutionalisation of this process, moreover, would symbolically "precommit" us to this path; "We the People" would have spoken in a miraculously unified voice, in order to remove from the scope of the political certain questions that must remain up for grabs if Europe is to be in any meaningful sense "democratic". It is not my intention to suggest that such as strategic depoliticisation of key issues is what the Constitution was intended to effect; however, it was undoubtedly perceived as such by large portions of the French left. As Slavoj Zizek has noted in a recent article in The Guardian, the tactics employed by the "yes" campaginers, which often resembled the experts lecturing (and now chastising) the ignorant, can only have served to increase this impression.
Any "decision" on what Europe is or should become would be a tragedy for, indeed antithetical to, the European project. Without this creative ambiguity, this fundamental indeterminacy, the promise of democratic politics must always remain one of empty and strategic rhetoric rather than the emancipatory ideal that it claims to represent. Europe's future can be and must remain sketched only with the lightest of brushes if our "post-national" polity - something to be celebrated - is not to be governed by "post-political" doctrines - something to be deplored. Any decision on the future of Europe is thus, by definition, the wrong one.
Such runs one, we might call it "pessimistic", narrative of the current and future events. That it exists should not be surprising, given that it is precisely this doomsday scenario that was painted by "yes" campaigners in the referenda in order to scare people into voting for the Constitution. There is, of course, another way of telling the story. This one seems to be favoured by more moderate voices (on both sides of the yes/no divide), who see in this apparent failure the reassertion of democratic control over the European project. A recurring theme here is that now, finally, we get the chance to have a mature debate on the issue, and decide on the kind of Europe that we, the European public, want to live in.
Both of these narratives strike me as potentially disastrous for the European project. The first, if allowed to dominate, may well allow a critical mass of (quite unwarranted) criticism to build up that may, as the prophets of doom suggest, derail the entire endeavour. This would indeed be a tragedy; anyone denying the remarkable achievements that the European Union can boast is quite simply taking them for granted. It is too easy for those of us lucky to be born in the latter period of the 20th century, for example, to overlook the significance of the fact that armed conflict between the members of the Union now strikes us as unthinkable. In this, then, those preferring the second, more optimistic version of events have my support. This remarkable and exciting European project must continue.
It is, however, the idea that we now need to decide "which direction Europe should take" that I want to take issue with. Firstly, pragmatically, it strikes me as seriously naive for anyone to believe that a debate, no matter how mature and reasonable, can provide an answer to this most vexed of questions at this most vexed of times. A brief look at the events of the last few days should be sufficient to illustrate this. Internally, the French "no" relied for success upon the combined votes of two diametrically opposed sectors of the political spectrum; externally, the Dutch have (and the Brits would have) voted no for a completely different set of reasons than those of the French socialists who now trumpet the likelihood of a "social Europe". It seems clear that any attempt to debate our way to a clear, unambiguous and homogenous "vision" for the future of our supra-national polity will be more divisive than unifying; indeed, it may be the very thing that preticipates the doomsday scenario that its advocates seek to play down.
This idea of formulating such a vision of Europe's future also, however, seems to me to be flawed on a more theoretical level. Europe was founded, and has progressed, not on certainties about the future but rather on creative ambiguities. Even its early formulations, as peace through economic interdependence, is not without obvious conceptual tensions; these have become even more evident, not to mention complex, as the Union has transformed itself into the fully-fledged, yet sui generis, polity in which we now live. The dichotomies of neo-liberal/social welfarism, or, more broadly, economic/political union are perhaps the most evident examples of this; and yet, the Union has been able to become what it has not in spite of these controversies, but rather precisely because they are, and remain, controversial. A Union that had settled these issues long ago would simply not have been able to command the level of public support that it has taken to get to where we are now; and indeed, correctly or otherwise, it seems to me that it was a perception, correct or otherwise, that these issues would no longer remain controversial upon adoption of the new Constitution, that drove many on the French left to reject it. The success of the Union is premised, in part, upon its ability to be most things to most people.
And nor is this indeterminacy one of its many weaknesses; rather, it should be viewed as one of its greatest strengths. For it represents the possibility, the promise, of the political; a promise that many feel has been all but removed from the domestic arena. Any attempt to push through a homogenous vision of the future of Europe, even if it did not bring the whole edifice crashing down, would nonetheless represent the reification of a partisan and inevitably shaky "consensus", an essentially arbitrary snapshot of public opinion taken at an essentially arbitrary time, into a timeless "path" for future generations to follow. Any attempted constitutionalisation of this process, moreover, would symbolically "precommit" us to this path; "We the People" would have spoken in a miraculously unified voice, in order to remove from the scope of the political certain questions that must remain up for grabs if Europe is to be in any meaningful sense "democratic". It is not my intention to suggest that such as strategic depoliticisation of key issues is what the Constitution was intended to effect; however, it was undoubtedly perceived as such by large portions of the French left. As Slavoj Zizek has noted in a recent article in The Guardian, the tactics employed by the "yes" campaginers, which often resembled the experts lecturing (and now chastising) the ignorant, can only have served to increase this impression.
Any "decision" on what Europe is or should become would be a tragedy for, indeed antithetical to, the European project. Without this creative ambiguity, this fundamental indeterminacy, the promise of democratic politics must always remain one of empty and strategic rhetoric rather than the emancipatory ideal that it claims to represent. Europe's future can be and must remain sketched only with the lightest of brushes if our "post-national" polity - something to be celebrated - is not to be governed by "post-political" doctrines - something to be deplored. Any decision on the future of Europe is thus, by definition, the wrong one.
Tuesday, May 31, 2005
Comment to Lorenzo's article just below
For some reason I can't write comments any more and maybe others can't either. This is the only explanation I can find for the absence of comments on some af the posts below. Lorenzo has a point, and so does Srdjan (Euan on the subject is posing important questions), although I think that they are exagerating a lot and have a certain sense of drama which brings them to take the news of the rejection of the constitution by the French tragically (they should know however that the newspapers are saying the same to sell more copies, drama is good for buisness, is it good for our blog ? Probably...). I think that they say important things. Some things however are just too big an exageration: I state my roomate and extraordinary friend Lorenzo : "France is terrorized: Polish workers, africans, muslims, turkish.. They are all perceived as threats. The threats Mr LePen has talked about for so very long; the threats that have seduced all those who voted for the no to the European constitution." This is just wrong and please do take it as the result of Lorenzo's disappointment. It's okay to think that many people voted for the No because they were scared of how things are turning, that they were scared of being stuck with a liberal Europe, that many were scared of foreign workers taking their jobs for lower salaries, that many were scared of them just as racist people are scared of foreigners but please, PLEASE, do not reduce the left-wing No to that !!!!! You have to be fair, it is not reduceable to that, one can have political conceptions about how a constitution for Europe should be without being seduced by Le Pen. Srdjan was talking about the populist aspects of the left-wing no in France and I know that Lorenzo and him raise questions but they are not ones that can be answered in the fashion that they did. I voted Yes on referendum day but I don't see the negative result as a catastrophy... Lorenzo is right, Europe starts today, at last people were able to disagree with a European text, isn't that a great thing? Isn't that a new thing ? (It has happened before of course but since we're all exagerating...) And don't go think that it's a French thing because reducing this whole thing to some kind of frenchism would be like reducing the frenche left-wing vote to a Le Pen victory. It's got not much to do with the country ; no one knows how Germany and Italy for example would have voted. It's not reduceable to the French economical system as if England was going to vote yes as if Spain's vote had been massive, it has to do with things that people are entirely legitimate to disagree upon like economical and political choices. Is that really hard to believe, that people voted in regard to the constitution ? Of cpourse Le Monde will tell you that people voted in that way because they do't like Raffarin and because they fear that unemployment is bad. But doesn't Le Monde have an interest in saying that ? They argued for the Yes during the whole campaign and failed to convince people that they are right; now they will explain it by saying that people are just plain stupid. Don't do the same boys, keep your cool and accept that in a democracy, people can disagree with you for good reasons.
The Truth behind (the French) Tragedy
France is dead, Europe begins today.
The nation state par excellence, has decreed its suicide on 29th of May by voting No to the European Constitution. The French people expressed a strong degree of dissatisfaction towards its political class, the high level of unemployment, the French Constitution, and many other things. It is difficult to disentangle them all, but I will at least point to a few of them.
Chirac is the great loser. He threw all his political weight behind the Constitution. He appeared on television several times. Nevertheless, he suffered a great defeat. His putative father, Charles de Gaulle, would have resigned after acknowledging such a defeat. Chirac is there to stay, it is the only thing he can do if he wants to avoid being jailed. By voting No, however, the French people do not get rid of Jacques Chirac.
The French ruling class. It is fragmented and weak, it is not able to agree on fundamental issues such as the european constitution. France is broken into two halves. The elite who preaches modernity and grandeur. The people who rejects everthing coming from the top. Communication is impossible. By voting no, the French people has just confirmed the conviction of the elite that the people should not decide. Sad, but french.
French unemployment. The French economic model does not work. France has the highest unemployment rate, and it is very natural that unemployed people wanted to sanction their government. The plain fact of high unemployment raises the question whether the french welfare system is viable. I think it is not. It is much more in line with the principle of equality to have less unemployment with less social privileges, than more unemployed with more social privileges. By voting No, the French people entrenched the status quo of unemployment and stagnation. Good for them.
The French Constitution. Yes indeed, the French Constitution of 1958 is equally under fire. The presidential systems with an untouchable president is not desirable. The french people said No to Chirac primarily. They only get rid of Raffarin, the prime minister. This, of course, is not sufficient. By voting no, french people only get what they deserve: a new, weak, right wing government.
The end of Solidarity . France is terrorized: Polish workers, africans, muslims, turkish.. They are all perceived as threats. The threats Mr LePen has talked about for so very long; the threats that have seduced all those who voted for the no to the European constitution.
In conclusion, Egalite', Liberte', and Fraternite' do not live in France anymore. They leave in Europe, in the hopes of those who want to construe a courageous Europe. One that does not fear modern challenges. The call for more justice is coming from central and eastern europe. They want to disenfranchise themselves from the dark communist past. Ukraine was one instance of the call for freedom and justice. There are more to come. And all the courageous Europeans will be there to welcome this call for freedom and justice, and support it through our solidarity. France can rest for today, because tomorrow it will have to face the burden of the darkest decadence since the French revolution.
The nation state par excellence, has decreed its suicide on 29th of May by voting No to the European Constitution. The French people expressed a strong degree of dissatisfaction towards its political class, the high level of unemployment, the French Constitution, and many other things. It is difficult to disentangle them all, but I will at least point to a few of them.
Chirac is the great loser. He threw all his political weight behind the Constitution. He appeared on television several times. Nevertheless, he suffered a great defeat. His putative father, Charles de Gaulle, would have resigned after acknowledging such a defeat. Chirac is there to stay, it is the only thing he can do if he wants to avoid being jailed. By voting No, however, the French people do not get rid of Jacques Chirac.
The French ruling class. It is fragmented and weak, it is not able to agree on fundamental issues such as the european constitution. France is broken into two halves. The elite who preaches modernity and grandeur. The people who rejects everthing coming from the top. Communication is impossible. By voting no, the French people has just confirmed the conviction of the elite that the people should not decide. Sad, but french.
French unemployment. The French economic model does not work. France has the highest unemployment rate, and it is very natural that unemployed people wanted to sanction their government. The plain fact of high unemployment raises the question whether the french welfare system is viable. I think it is not. It is much more in line with the principle of equality to have less unemployment with less social privileges, than more unemployed with more social privileges. By voting No, the French people entrenched the status quo of unemployment and stagnation. Good for them.
The French Constitution. Yes indeed, the French Constitution of 1958 is equally under fire. The presidential systems with an untouchable president is not desirable. The french people said No to Chirac primarily. They only get rid of Raffarin, the prime minister. This, of course, is not sufficient. By voting no, french people only get what they deserve: a new, weak, right wing government.
The end of Solidarity . France is terrorized: Polish workers, africans, muslims, turkish.. They are all perceived as threats. The threats Mr LePen has talked about for so very long; the threats that have seduced all those who voted for the no to the European constitution.
In conclusion, Egalite', Liberte', and Fraternite' do not live in France anymore. They leave in Europe, in the hopes of those who want to construe a courageous Europe. One that does not fear modern challenges. The call for more justice is coming from central and eastern europe. They want to disenfranchise themselves from the dark communist past. Ukraine was one instance of the call for freedom and justice. There are more to come. And all the courageous Europeans will be there to welcome this call for freedom and justice, and support it through our solidarity. France can rest for today, because tomorrow it will have to face the burden of the darkest decadence since the French revolution.
Thursday, May 26, 2005
ESIL-SEDI Forum 2005
The 2005 Forum of the European Society of International Law kicked off today at the HEI (Institute of Graduate Studies) in Geneva. It promises to be quite an event: today saw contributions from ICJ judges Bruno Simma and Hisashi Owada (the latter on the proposals for UN reforms), and such leading scholars as Georges Abi-Saab, Ian Brownlie and Brigitte Stern, amongst others. The first panel, on the death (or otherwise) of the Westphalian System, was genuinely bilingual, as, indeed, the rest of the conference promises to be. I will post a report of the event in more detail when I get back.
Monday, May 23, 2005
Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in Europe and in the USA
The following is an abstract of my Ph.D. Thesis, which I will defend on 23 May 2005 at the European University Institute, Florence.
When Fundamental Legal Rights conflict with one another, as for example free speech v privacy or life v autonomy, we are left with no guidance as to what to do. I call these cases constitutional dilemmas. These are characterised by deep disagreement as to who is best placed to decide them and as to how such issues should be decided. Moreover, constitutional dilemmas involve a deadlock: there is agreement that a solution cannot be found without sacrificing one or the other fundamental legal right at stake.
Constitutional dilemmas are a potential threat to the unity and cohesion of a society and of a legal system. The sxistence of persistent disagreement, coupled with the existence of a deadlock, may provoke a breakdown in communication between two opposing parties. The opposition between pro-life and pro-choice parties in abortion cases provides but one illustration of a failure to succesfully resolve arguments over a pressing social issue.
An ideal society would not allow for the proliferation of conflicts. In other words, the overall objective of the constitution of any society, as much as the constitution of the human body, is to find harmony between all of its constitutive parts. In an ideal situation, we could perhaps all agree on what we take to be an harmonious society. However, in a liberal, pluralistic, society, the challenge of any given conception of harmony is a necessary feature of any evolving community. And that is probably the very core of liberty, and its paradox.
When Fundamental Legal Rights conflict with one another, as for example free speech v privacy or life v autonomy, we are left with no guidance as to what to do. I call these cases constitutional dilemmas. These are characterised by deep disagreement as to who is best placed to decide them and as to how such issues should be decided. Moreover, constitutional dilemmas involve a deadlock: there is agreement that a solution cannot be found without sacrificing one or the other fundamental legal right at stake.
Constitutional dilemmas are a potential threat to the unity and cohesion of a society and of a legal system. The sxistence of persistent disagreement, coupled with the existence of a deadlock, may provoke a breakdown in communication between two opposing parties. The opposition between pro-life and pro-choice parties in abortion cases provides but one illustration of a failure to succesfully resolve arguments over a pressing social issue.
An ideal society would not allow for the proliferation of conflicts. In other words, the overall objective of the constitution of any society, as much as the constitution of the human body, is to find harmony between all of its constitutive parts. In an ideal situation, we could perhaps all agree on what we take to be an harmonious society. However, in a liberal, pluralistic, society, the challenge of any given conception of harmony is a necessary feature of any evolving community. And that is probably the very core of liberty, and its paradox.
Friday, May 20, 2005
European Constitutional Law Review
The second issue ever of the European Constitutional Law Review, published by Cambridge University Press, has just been published on the web. This is a very timely journal, launched at the very same time as the signature of the European Constitution in Rome, on 29 October 2004. The subject area, however, is much broader than the simple analysis of the constitutional treaty. In fact, it covers a wide range of constitutional matters going from theory to practice within and beyond Europe. Please have a look here
Thursday, May 19, 2005
A little more on the EU Constitution
With their referendum only ten days away, and with the "no" campaign sustaining a narrow lead in the opinion polls, the French government has been wheeling out some international big guns in order to boost the "yes" vote. Leading left-wing politicians from around half a dozen countries were enlisted to speak in favour of the constitution, with the German Chancellor Gerhard Schröder begging the French "from the bottom of my heart" not to reject it, and calling on them to face up to their "responsibilities" (I wonder how many voters this kind of rhetoric will swing - given, after all, that the idea that a no vote is irresponsible is one of the arguments that people seem to have objected to). Interestingly, Tony Blair was not invited to give his opinion - he is seen by the French left as a vote-loser; a position to which many on the UK left seem to be moving towards.
Also interesting - if not particularly surprising - is the apparently widespread belief amongst Europe's leaders that a French "no" will kill the treaty altogether - to the point at which few if any of the scheduled referenda will go ahead if France rejects the constitution. This casts a little doubt on Blair's previous insistence that the UK would go to the people on this issue regardless of what happened abroad - although he has already begun to nuance this position, stating recently that there would be a referendum "if there was still a treaty". The European consensus seems to be that a French "no" would effectively mean no treaty, thus no UK referendum.
One other noteworthy point is that the debate over the UK's budget rebate from the EU has surfaced again, with many foreign leaders calling for it to be reduced or scrapped altogether. Chirac has been at the forefront of such calls. This does not seem to me to be the most opportune moment politically to be making such claims; for, if France does vote yes in ten days time, the UK referendum will go ahead - and the last thing that Blair needs is an apparently strong, multinational consensus against the retention of the rebate, which is a matter of considerable political significance in Britain. Chirac's stance on this may help sway some voters in France, but, if he maintains it after a vote in favour of the constitution, it will not play well in the UK referendum campaign to say the least. And this is one vote in which Blair will need all the help he can get, as he will require significantly more than the 35% of the vote that he managed to secure in the recent election if he is to have any chance of success...
Also interesting - if not particularly surprising - is the apparently widespread belief amongst Europe's leaders that a French "no" will kill the treaty altogether - to the point at which few if any of the scheduled referenda will go ahead if France rejects the constitution. This casts a little doubt on Blair's previous insistence that the UK would go to the people on this issue regardless of what happened abroad - although he has already begun to nuance this position, stating recently that there would be a referendum "if there was still a treaty". The European consensus seems to be that a French "no" would effectively mean no treaty, thus no UK referendum.
One other noteworthy point is that the debate over the UK's budget rebate from the EU has surfaced again, with many foreign leaders calling for it to be reduced or scrapped altogether. Chirac has been at the forefront of such calls. This does not seem to me to be the most opportune moment politically to be making such claims; for, if France does vote yes in ten days time, the UK referendum will go ahead - and the last thing that Blair needs is an apparently strong, multinational consensus against the retention of the rebate, which is a matter of considerable political significance in Britain. Chirac's stance on this may help sway some voters in France, but, if he maintains it after a vote in favour of the constitution, it will not play well in the UK referendum campaign to say the least. And this is one vote in which Blair will need all the help he can get, as he will require significantly more than the 35% of the vote that he managed to secure in the recent election if he is to have any chance of success...
Wednesday, May 18, 2005
A Reply on the Constitutional Status of Embryos
This is a reply by Nathan Gibbs, a lecturer in law at the university of Limerick, to my post on the Constitutional Dilemma of Embryos.
In an earlier piece, Lorenzo Zucca explains the problem of ‘compromise legislation’ on contested issues. He exemplifies this problem with reference to Italian regulation of stem cell research.
I would like to add a rejoinder to the effect that such ‘compromise legislation’ may represent a viable ‘second-best’. I would argue that the lack of direct regulation does not necessarily imply that the legal system does not have to make adjustments in the face of such controversial issues. Litigation and even prosecutions may create a stimulus in favour of legal solutions to contestations over novel and controverted social practices like stem cell research. The provision of a solution may well have subtle effects on the overall scheme of concepts, categories and norms employed by the legal system.
There could also be unpredictable consequences for other social practices in the light of such changes in the overall ‘software’ of the legal system. Arguably specific legislation can be a way of ‘sealing off’ these problems in such a manner as to constrain their disruptive effects.
In an earlier piece, Lorenzo Zucca explains the problem of ‘compromise legislation’ on contested issues. He exemplifies this problem with reference to Italian regulation of stem cell research.
I would like to add a rejoinder to the effect that such ‘compromise legislation’ may represent a viable ‘second-best’. I would argue that the lack of direct regulation does not necessarily imply that the legal system does not have to make adjustments in the face of such controversial issues. Litigation and even prosecutions may create a stimulus in favour of legal solutions to contestations over novel and controverted social practices like stem cell research. The provision of a solution may well have subtle effects on the overall scheme of concepts, categories and norms employed by the legal system.
There could also be unpredictable consequences for other social practices in the light of such changes in the overall ‘software’ of the legal system. Arguably specific legislation can be a way of ‘sealing off’ these problems in such a manner as to constrain their disruptive effects.
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