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Reflections on the ‘Administrative, Not Constitutional’ Character of EU Law in Times of Crisis

Abstract

As is broadly recognized, the realm of administrative power greatly expanded over the course the twentieth century (particularly after 1945). This essay argues that this expansion, along with differential conceptions of legitimacy deeply bound up with it, are crucial to understanding not just the modern administrative state but also the nature of EU governance and the law governing its operation. Despite a dominant paradigm that seeks to understand EU governance in autonomously democratic and constitutional terms, the legitimacy of integration as a whole has remained primarily ‘administrative, not constitutional’. The EU’s normative power, like all power of an ultimately administrative character, finds its legitimacy primarily in legal, technocratic and functional claims. This is not to deny that European integration involves ‘politics’ or has profound ‘constitutional’ implications for its member states or citizens. The ‘administrative, not constitutional’ paradigm is meant only to stress that the ultimate grounding of EU rulemaking, enforcement, and adjudication comes closer to the sort of administrative legitimacy that is mediated through national executives, national courts, and national parliaments to a much greater extent than the dominant paradigm supposes. This is the reality that the ‘administrative, not constitutional’ paradigm on EU law has always sought to emphasize, and it is one that is particularly pertinent to the integration process in times of crisis. It is unsurprising, in these circumstances, that the public law of European integration has continually resorted to mechanisms of nationally mediated legitimacy in order to ‘borrow’ legitimacy from the national level. Unless and until Europeans begin to experience democracy and constitutionalism in supranational terms, the ‘administrative, not constitutional’ paradigm suggests that the EU’s judicial doctrines must be adjusted. The purpose should be to address the persistent disconnect between supranational regulatory power and its robust sources of democratic and constitutional legitimacy on the national level.

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The Single Market and Synchronized Mechanisms for the Exercise of Administrative Functions: Converging Pathways or New Pathways for Integration? The Case of the European Banking Union

Abstract

The EBU represents a clear investment in administrative integration with clear implications for the constitutional features of the EU. This paper aims to give an analysis of the administrative arrangements, through which the functions of supervision and resolution are affecting the single financial market. This case study is very interesting because these functions represent a genuine novelty in the history of financial integration since they are pre-ordained to a specific public interest: financial stability. Particularly, they cause a shift in the decision gradient from the technical to the political, as market integrity is less and less the key interest compared to financial stability. However, this wider discretionary power is not adequately counteracted by checks and balances in favour of accountability. As a result, the EBU makes a new contribution to the well-known ‘fragmentation of the executive power’ of the EU by introducing a new governance tool positioned between the Communitarian and Intergovernmental Method, but its development is still full of uncertainties given that constitutional equilibrium is far from being definitively reached.

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The Theory of EU Constitutional Pluralism: A Crisis in a Crisis?

Abstract

The paper deals with the validity of constitutional pluralism as a constitutional theory for the European Union and a paradigm for the understanding of EU law in the current times of crisis. It reconstructs the way in which constitutional pluralism came to the fore, the different ways in which the theory was presented, and considers historical criticism it has faced. It then looks at the anomalies that, allegedly, cannot be explained today by constitutional pluralism as a paradigm, linked to the current economic and political crises in the Union. The reconstruction of the debate is complemented with reflections on both the descriptive and normative validity of EU constitutional pluralism’s claims.

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“Top-down” vs. “Bottom-up”: A Dichotomy of Paradigms for the Legitimation of Public Power in the EU

Abstract

Public power has been justified by resorting to two different kinds of legitimation: one coming from above, the other emerging from the governed. While legitimation “from above” implies that those who are vested with executive power are qualified in their function because of their allegedly higher competences, “bottom-up” legitimacy always presupposes that only citizens can properly decide on their destiny. After giving a brief account of how both legitimation strategies have developed in the history of political ideas, attention is focused on the theories regarding the legitimacy of public power in the European Union. Indeed, both strands of legitimation of public power are represented here with original proposals, according to the specificity of the supranational condition. But even more interesting is that the research into the characteristics of supranational integration has been one of the most significant fields in which the legitimation “from above” has reappeared in Western thought after a rather long period of marginality, now taking the shape of a technocratic justification. In the main section of the article, the reasons in favour of a democratic “bottom-up” legitimation of the European public power are analyzed first, then those which recur to the so-called “output legitimacy” – in other words to technocratic arguments. The last section of the contribution is dedicated to an overall assessment of the different positions.

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The “ASEAN Way”. A decolonial path beyond “Asian values”?

Abstract

The difference between ASEAN and EU in the political and economic realm has an interesting parallel in the system of values and “rights” that are sustained by the two organisations. In effect if we look to ASEAN Human Rights Declaration (2012) or general political principles adopted inside ASEAN we will find several value-oriented peculiarities that distinguish it from EU political and juridical fundamental principles. At the same time such a system of values does not fit with the “Asian Values approach”. Thus the ASEAN Sonderweg results as an original hybrid of western and local values that goes beyond the “Orientalist” mask of Asia, defining an identity that assumes a singular inclination that could be defined as a difficult and problematic effort towards a “decolonial” option.

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Celebrating nine years together

Abstract

Perspectives on Federalism starts off its ninth year with this issue which gathers, as usual, a series of multi-disciplinary pieces. Almost two years have passed since we started our collaboration with De Gruyter, and our journal has since then enjoyed continued growth and has been acquiring international visibility. 2017 is going to be rich in surprises for our readers, with a wealth of interesting projects and special issues which will increase the already high standard of the journal. 2016 was also a very challenging year for scholars interested in federalism; the start of the Trump Presidency and the results of the referendum on Brexit held on 23 June 2016 are just two examples.

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Commanders-in-chief beyond the border: analysing the powers of heads of state in Northern American federalism

Abstract

Canada and the United States of America are examples of how two constitutional systems in the same region may adopt substantially different solutions in respect of the powers of the head of state. While the United States Founding Fathers opted to follow a republican and presidential path, the Canadian constitutional system developed a framework under the British monarchic background, in part as a rejection of their neighbour country’s federal and constitutional choices. This article proceeds with a comparison between both systems of Northern America, demonstrating that the powers of heads of state may vary, even between countries which were historically influenced by the same constitutional and democratic traditions, but, as a result of a multitude of historical and cultural influences, decided to follow different constitutional pathways.

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