Transnational Judicial Dialogue and Evolving Jurisprudence in the Process of European Legal Integration

European legal integration can be envisioned as containing two dimensions of legal integration: vertical and horizontal. Vertical legal integration is a top down process where the establishment of a hierarchical legal order of courts and laws causes national courts to make more similar decisions over time as they increasingly come under the formal authority of a higher court. The European legal integration literature speaks mainly to vertical, formal, legal integration where the ECJ and EU law have asserted themselves as a formal authority over the national courts of the member states and compel the integration of the national courts. Horizontal legal integration involves national courts making more similar decisions over time because the national courts interact, borrow, and imitate each other informally. Vertical legal integration can compel national courts to take into account EU law and ECJ precedent, but it cannot control for variances in interpretation. The focus of this paper is not just on how the power dynamics of courts and laws have changed in Europe, but also how the legal realm of Europe has shifted to a greater frequency of shared legal outcomes. There have been hints in the European integration literature about horizontal legal integration in many vertical integration studies (See Jupille and Caporaso 2009; Burley and Mattli 1993; Mattli and Slaughter 1995). This paper will pursue further the notion that there are distinct dynamics of horizontal and informal legal integration and that horizontal legal integration in conjunction with vertical legal integration can contribute to a more complete understanding of the process of European legal integration. In this paper I argue that the historical progression of increasingly autonomous and powerful national courts (court empowerment) in Western Europe has allowed a process of transnational judicial dialogue to occur. Transnational judicial dialogue is composed of horizontal, transnational interactions between national high courts judges, where judges across countries voluntarily draw upon each other‟s rulings, logics, and academic writings and incorporate them into their own logics and rulings. I argue that this process of transnational judicial dialogue has furthered legal integration through the transmission of jurisprudence and legal concepts between different member state national judiciaries through informal, horizontal legal integration

A bully in the playground : examining the role of neoliberal economic globalisation in children’s struggle to become ‘fully human’

This article begins by exploring the Western historical progression of the conceptual place of children along a Property-Welfare-Rights continuum. It applies Baxi’s “logics of exclusion and inclusion” to the complex dynamic of children’s advancement in becoming ‘fully human’ through their achievement of internationally recognised human rights. It critically considers the comprehensive vulnerability of children based both on their evolving levels of development and on the multifaceted challenges of the application and enforcement of their rights. The ideological and practical realities influencing this evolution exist in an increasingly globalised world in which international economic dynamics play a particularly influential role. The character and substance of these are explored. This follows with an examination of the influence of these dynamics on both the environment in which the struggle for children’s rights to be recognised takes place, and on the ideological concepts of these rights themselves. It is proposed that the dominant form of globalisation, NEG, perpetuates ideological exclusionary criteria which thwart children’s achievement of becoming “fully human”. This is most evident in the neoliberal views on the paramount importance of the individual, and on the limited role for the state. It is the NEG perception of the child, in locating her/him within an individualistic framework and dismissing the wider societal context, which justifies at best a welfare-entitlement agenda and denies children rights. Further, this results in a justification of the effects of poverty, in particular for children of the South. This exclusion of children from bearing rights is achieved globally through NEG systems and processes which handicap the autonomy of states. The NEG maintains this exclusion of children through its deemed legitimate and commonsensical hegemony. Through these mechanisms, NEG bullies states into advancing a new form of colonialism that discriminates against children. The related way in which human rights discourse has itself been influenced by NEG ideology is also explored. The article concludes with the proposal that the effective recognition of children’s rights necessitates an understanding of the exclusionary criteria imposed by NEG. A fundamental modification of the terms and mechanisms within which NEG functions is essential to compensate for children’s unique and disproportionate vulnerabilities

Kite-marks, standards and privileged legal structures; artefacts of constraint disciplining structure choices

As different countries and regions continue to develop policy and legal frameworks for social enterprises this paper offers new insights into the dynamics of legal structure choice by social entrepreneurs. The potential nodes of conflict between exogenous prescriptions and social entrepreneur’s own orientation to certain aspects of organization and what social entrepreneurs actually do in the face of such conflict is explicated. Kite-marks, standards and legal structures privileged by powerful actors are cast as political artefacts that serve to discipline the choices of legal structure by social entrepreneurs as they prescribe desirable characteristics, behaviours and structures for social enterprises. This paper argues that social enterprises should not be understood as the homogenous organisational category that is portrayed in government policy documents, kite-marks and privileged legal structures but as organisations facing a proliferation of structural forms which are increasingly rendered a governable domain (Nickel & Eikenberry, 2016; Scott, 1998) through the development of kite marks, funder / investor requirements and government policy initiatives. Further, that these developments act to prioritise and marginalise particular forms of social enterprises as they exert coercive, mimetic and normative pressures (DiMaggio & Powell, 1983) that act to facilitate the categorising of social enterprises in a way that strengthens institutional coherence and serves to drive the structural isomorphism (Boxenbaum & Jonsson, 2017; DiMaggio & Powell, 1983) of social enterprise activity. Whilst the actions of powerful actors work to maintain (Greenwood & Suddaby, 2006) the social enterprise category the embedded agency of social entrepreneurs acts to transform it (Battilana, Leca, & Boxenbaum, 2009). The prevailing Institutional logics (Ocasio, Thornton, & Lounsbury, 2017; Zhao & Lounsbury, 2016) that serve to both marginalise and prioritise those legal structures are used to present argument that the choice of legal structure for a social enterprise is often in conflict with the social entrepreneur's orientation to certain aspects of how they wish to organise. Where the chosen legal structure for a social enterprise is in conflict with the social entrepreneur's own organising principles as to how they wish to organise then this can result in the social entrepreneur decoupling (Battilana, Leca, & Boxenbaum, 2009) their business and/or governance practices from their chosen legal structure in order to resolve the tensions that they experience. Social entrepreneurs also experiencing the same tension enact a different response in that they begin to create and legitimate new legal structures on the margins of the social enterprise category through a process of institutional entrepreneurship (Battilana, Leca, & Boxenbaum, 2009; Hardy & Maguire, 2017)

Crossing the borders of governance

La gobernanza es presentada por áreas confusas e indefinidas que tienden a expandirse de una manera más o menos arbitraria en ausencia de estándares normativos estables y confiables. Todo esto pone en cuestión conceptos y categorías monolíticas recompositivas de moderna racionalidad política-legal y en primer lugar de la soberanía. Al mismo tiempo, la estructura neogubernamental actual no se sostiene como una tecnología de poder excluyente o alternativa a otras racionalidades, sino que tiende a llevar a cabo todas las contradicciones y ambigüedades del tiempo presente.Governance is presented by undefined and confused areas that tend to expand in a more or less arbitrary way in the absence of stable and reliable normative standards. All this calls into question concepts and recompositive monolithic categories of modern political-legal rationality and in the first place sovereignty. At the same time the current neo-governmental structure does not stand as a technology of power, exclusionary or alternative to other rationalities, but rather it tends to bring out all the contradictions and ambiguities of the present time

The state may want to keep its poker face but Brussels and Luxembourg will require more than a peek at its hand: Competence and transparency in the gambling sector

European legal integration can be envisioned as containing two dimensions of legal integration: vertical and horizontal. Vertical legal integration is a top down process where the establishment of a hierarchical legal order of courts and laws causes national courts to make more similar decisions over time as they increasingly come under the formal authority of a higher court. The European legal integration literature speaks mainly to vertical, formal, legal integration where the ECJ and EU law have asserted themselves as a formal authority over the national courts of the member states and compel the integration of the national courts. Horizontal legal integration involves national courts making more similar decisions over time because the national courts interact, borrow, and imitate each other informally. Vertical legal integration can compel national courts to take into account EU law and ECJ precedent, but it cannot control for variances in interpretation. The focus of this paper is not just on how the power dynamics of courts and laws have changed in Europe, but also how the legal realm of Europe has shifted to a greater frequency of shared legal outcomes. There have been hints in the European integration literature about horizontal legal integration in many vertical integration studies (See Jupille and Caporaso 2009; Burley and Mattli 1993; Mattli and Slaughter 1995). This paper will pursue further the notion that there are distinct dynamics of horizontal and informal legal integration and that horizontal legal integration in conjunction with vertical legal integration can contribute to a more complete understanding of the process of European legal integration. In this paper I argue that the historical progression of increasingly autonomous and powerful national courts (court empowerment) in Western Europe has allowed a process of transnational judicial dialogue to occur. Transnational judicial dialogue is composed of horizontal, transnational interactions between national high courts judges, where judges across countries voluntarily draw upon each other‟s rulings, logics, and academic writings and incorporate them into their own logics and rulings. I argue that this process of transnational judicial dialogue has furthered legal integration through the transmission of jurisprudence and legal concepts between different member state national judiciaries through informal, horizontal legal integration

Internal representation and factional faultlines as antecedents for board performance in social enterprises

There is an increasing scholarly interest in how social enterprises manage their hybrid nature. As hybrid organizational forms, social enterprises combine mission-driven social goals and revenue generating activities in a variety of organizational constellations and in diverse institutional contexts. Acknowledging the potentially conflicting demands that institutional environments impose on social enterprises there is an increasing research interest in the existence and proliferation of these conflicting demands at the organizational level. Some researchers have pointed to the importance of particular management practices and governance characteristics – such as authority relations and internal representation – as mechanisms to deal with the conflicting demands at the organizational level. This paper adds to this stream of literature by taking into account the organizational level dynamics of internal representation and the proliferation of factional groups in the boards of directors of hybrid organizational forms and their impact on board performance, ultimately influencing the organizational performance

Practicing Capitals Across Fields: Extending Bourdieu to Study Inter-Field Dynamics

This essay extends a Bourdieusian perspective on the microfoundations of institutions. Drawing on this perspective, we argue that the recursive dynamics of institutions and action orient actors towards the maintenance of distinct and contradictory practices within, rather than bridging across, different fields. We corroborate our argument with an illustration of how corporate executives strategize within the tax field compared to the philanthropy field. Specifically, we show how actors are simultaneously oriented by different capitals towards apparently contradictory strategies. Our essay provides promising avenues for future research on the microfoundations of institutions, inter-field dynamics, and critical accounting and business ethics studies

Institutional logics, blended and suspended

This paper examines how a new institution, a code of conduct, arises and develops over time. It shows how the process of debate airs competing logics, questions and fails to question assumptions taken for granted, and yet achieves a large degree of legitimacy without having resolved certain core issues. The UK code of corporate governance has been emulated around the world as a model of good practice. By examining in detail one aspect of the debate – the issue over unitary or two-tier boards – the paper shows how the contest of logics leads not just to new, blended or hybrid logics, but also to suspended logics. The process of consultation brings together actors from differing organizational fields and institutional orders, offering an opportunity to create a new field in a different order, with specific lessons for the practice of corporate governance and general lessons for institution-building

Inside the hybrid organization: An organizational level view of responses to conflicting institutional demands

This paper explores organizational responses to conflicting institutional demands. An inductive comparative case study of four social enterprises that scaled their organization while embedded in competing social welfare and commercial logics suggests that, when facing competing organizational templates imposed by their institutional environment, organizations attempt to strike a balance at the organizational level by adopting a combination of intact practices from both logics instead of balancing at the practice level by resorting to strategies such as decoupling. In addition, we find an important legitimating effect of founding origins: in a sector where the social welfare logic is ultimately predominant, organizations originating from the social sector benefited from an a priori legitimacy capital, which allowed them to borrow freely from both social and commercial practices. In contrast, organizations emanating from the commercial sector, suffering from an a priori legitimacy deficit, had to display their conformity with social templates in order to secure their acceptance in the field and therefore adopted predominantly social practices. Our findings contribute to a better understanding of hybrid organizations and point to the founding origins of organizations as an important determinant of the pattern of hybridization strategies.