The EU's Schizophrenic Constitutional Debate: Vertical and Horizontal Decentralism in European Governance

Normative discourses on the European institutional set-up have paid attention to both vertical and horizontal decentralism. Decentralism refers to the respect of the autonomy of lower or smaller decision-making levels, the procedures privileging these decision-making levels (subsidiarity), and the involvement of these decision-making units in the case that policy-making is (partially) defined (and implemented) at a more central level. Vertical decentralism indicates these processes with regard to territorial decision-making levels and actors. Horizontal decentralism consists in these processes with regard to functional levels and actors, in particular civil society organisations and private organisations.This paper argues that the vertical and horizontal dimension of decentralism have always been dealt with separately within the European constitutional debate. For long, the debate has focused on issues of territorial representation, and as far as it has paid attention to decentralism this has been interpreted in vertical terms. It is only by the end of the 1990s that the normative discourse on the European construction starts also to pay attention to horizontal decentralism. However, normative arguments on vertical decentralism meet hardly ever with those on horizontal decentralism, as can still be illustrated by the current constitutional debate, with the Convention-Constitutional Treaty debate on the one hand, and the (follow-up to the) White Paper on European Governance on the other hand. Institutional interests may explain this separation of discourses. However, in practice European governance is characterised by interactions between public and private actors at multiple territorial levels. Therefore, the vertical and the horizontal dimensions of decentralism are intertwined. As a consequence, the normative debate on the future of the European polity should not deal with these issues in complete isolation from one another.governance; constitution building; decentralisation

Substantive Representation of Women (and improving it). What is and should it be about?

More and more countries implement quotas and install women’s policy agencies as an answer to the under-representation of women and gender related interests in politics and policy. The main argument is that more women MPs and the structural presence of attention for women’s interests not only contribute to just and democratic politics, but also enhance the quality of democratic decision and policy-making on a substantive level. Women MPs and women’s policy agencies would foster the inclusion of women’s interests and gendered perspectives. However, it remains unclear what ‘substantive representation of women’ and improving it actually mean. This article first deals with the ‘what’ of substantive representation of women in terms of the acts and contents involved: what is it about? Next, it focuses on the improvement of the substantive representation of women: what is better substantive representation and how can it be reached? My answer to this question refers to quantitative improvements (e.g. more support for women’s interests) and qualitative improvements (e.g. support for more women). ‘Good’ substantive representation implies recognizing diversity and ideological conflict regarding women’s interests and gendered perspectives

Legal theory and epistemic values: against authoritarian interpretivism

In his new book, R. Dworkin advocates the unity of values thesis. He wants to circumscribe morality as a proper epistemological domain which is methodologically different from scientific inquiry. The epistemological independence of morality is supposed to be a consequence of the irreducible fact/value dichotomy. This paper sustains that unity of values thesis is methodologically correct; all moral reasoning must be a constructive interpretation of its meaning. However, that author fails to recognize that not every axiological interpretation implies moral consequences. From H. Putnam’s pragmatic realism, this paper intends to demonstrate that much of scientific inquiry relies on values interpretation, and that this kind of reasoning is morally neutral. Finally, it should be clear that epistemological choices in legal positivism – e.g. the decision on which aspects of social interaction are theoretically relevant – should not disturb the soundness of its argument nor should it be read as if it had moral implications. This paper concludes that positivist theories cannot be ruled out. Since the choice between descriptive and interpretative models requires a circular justification, legal theory is itself an activity governed by epistemic values interpretation. Likewise natural sciences, it can only be understood from an internal perspective. Accordingly, inclusive positivism holds the advantage of being more consilient than interpretivism, which is arguably parochial

Sexual citizenship, nationalism and biopolitics in Putin’s Russia

The chapter explores the articulation between sexuality and nationalism in Russia, where sexual and reproductive rights have become increasingly politicised, as evidenced by legislation restricting access to abortion (2011) and forbidding ‘gay propaganda’ to minors (2013). Media and academic analysis has typically focussed on the ‘gay propaganda’ laws. However, an exclusive focus on LGBT rights overlooks the fact that recent restrictions on sexual and reproductive rights affect other social groups (particularly women). The chapter considers how restrictions on citizens’ sexual and reproductive rights are justified in the name of the national interest, and how family and demographic policies are deployed in the construction of ideals of nation and national belonging which are both sexualised and gendered. We draw on Foucault’s concept of biopower as a technology of power concerned with the control of social and biological processes at the level of the population. The chapter is based on a discourse analysis of legal and media texts. Theoretically, it offers an alternative perspective to debates about sexuality and nationalism (Puar 2007, Fassin 2010), which have typically emphasised liberal sexual values as a marker of national identities in the US and western Europe

Why We Have No Theory of European Private Law Pluralism

The recent popularity of legal pluralism has now reached the area of European private law. In this paper Michaels scrutinizes the concepts of legal pluralism used by three of its most prominent proponents: Pierre Legrand, Jan Smits, and Thomas Wilhelmsson. He does not offer fully-fledged criticism of their theories (each of which are among the most fascinating and helpful in the European private law debate) but only address their use of ideas of legal pluralism, and the relation of these ideas with the legal pluralism debate. His analysis shows not only that these three use sharply different concepts of legal pluralism, but also, that none of these three concepts is in accordance with traditional definitions of pluralism. Further, it turns out that several points of criticism can be raised against their theories that stem from the legal pluralism debate. Michaels does not, here, take the second step of determining whether an actual concept of European private law pluralism can be established – and whether such a concept can withstand the criticism that has been voiced against the idea of legal pluralism

Why We Have No Theory of European Private Law Pluralism

The recent popularity of legal pluralism has now reached the area of European private law. In this paper Michaels scrutinizes the concepts of legal pluralism used by three of its most prominent proponents: Pierre Legrand, Jan Smits, and Thomas Wilhelmsson. He does not offer fully-fledged criticism of their theories (each of which are among the most fascinating and helpful in the European private law debate) but only address their use of ideas of legal pluralism, and the relation of these ideas with the legal pluralism debate. His analysis shows not only that these three use sharply different concepts of legal pluralism, but also, that none of these three concepts is in accordance with traditional definitions of pluralism. Further, it turns out that several points of criticism can be raised against their theories that stem from the legal pluralism debate. Michaels does not, here, take the second step of determining whether an actual concept of European private law pluralism can be established – and whether such a concept can withstand the criticism that has been voiced against the idea of legal pluralism

Alienating justice: on the social surplus value of the twelfth camel

Deutsche Fassung: Rechtsentfremdungen: Zum gesellschaftlichen Mehrwert des zwölften Kamels. Zeitschrift für Rechtssoziologie 21, 2000, 189-215 und in Gunther Teubner (Hg.) Die Rückgabe des zwölften Kamels: Niklas Luhmann in der Diskussion über Gerechtigkeit. Lucius & Lucius, Stuttgart 2000, 189-215. Französische Fassung: Les multiples aliénations du droit : Sur la plus-value sociale du douzième chameau. Droit et Société 47, 2001, 75-100. Polnische Fassung: Sprawiedliwosc alienujaca : O dodatkowej wartosci dwunastego wielblada. Ius et Lex 1, 2002, 109-132. Italienische Fassung: Le molteplici alienazioni del diritto : Sul plusvalore sociale del dodicesimo camello. In: Annamaria Rufino und Gunther Teubner, Il diritto possibile: Funzioni e prospettive del medium giuridico. Guerini, Milano, 2005, 93-130

Adults only: disability, social policy and the life course

This article examines the relationship between disability, generation and social policy. The moral and legislative framework for the post-war welfare settlement was grounded in a long-standing cultural construction of ‘normal’ life course progression. Disability and age (along with gender) were the key components in this construction, defining broad categories of welfare dependency and labour force exemption. However, social changes and the emergence of new policy discourses have brought into question the way in which we think about dependency and welfare at the end of the twentieth century. The article suggests that, as policy-makers pursue their millennial settlement with mothers, children and older people, they also may be forced to reconstruct the relationship between disabled people and the welfare state

Public hearings as proceduralization of popular sovereignty policies in supreme courts : an intersubjective approach

This paper aims to discuss in which sense public hearings in supreme courts of democratic rules of law can be seen as proceduralization of popular sovereignty policies. These policies constitute expressions of a normative claim for a wider “publicization of law” by democratic states’ institutional powers and organs; a claim that becomes evident when one undertakes an intersubjective interpretation of law. This theoretical argument will be presented in the first section of the paper through a new articulation of Jürgen Habermas’ discursive theory of law and his most recent studies on the concept of political public sphere. The theoretical section gives normative and procedural criteria for the second section of the paper, which consists on a critical analysis of the procedures and practical cases of public hearings held at the Brazilian Supreme Court, constituting the first scientific study to date on the Court’s use of this legal instrument