Browse

You are looking at 101 - 110 of 251 items for :

  • Political Thought x
  • Business and Economics x
Clear All
Open access

Martin Belov

Abstract

This article provides an analysis of the functions performed by constitutional identity in constitutional discourses of both the EU and its Member States, in the context of emerging post-Westphalian and supranational constitutionalism. The analysis tries to demonstrate that constitutional identity may serve as one of the key normative ideologies, legitimation strategies and ordering schemes of EU constitutionalism. It reasserts through functional analysis the suitability of constitutional identity for organizing and explaining multiple constitutional orders in a non-hierarchical and inclusive way.

The article is based on a socio-legal approach, deliberately avoiding the predominant legal realist and legal positivist discourses. This is due to the fact that a functional analysis presupposes admitting the existence of ideal, legal and socio-legal dimensions of constitutional concepts and institutions and the taking into account of social implications produced by their functioning. The article deliberately takes a constitutionalist stance on the EU and the EU integration. It is focused on the contribution of constitutional identity for the further constitutionalization of the EU from a socio-political and constitutionalist perspective.

Open access

Pola Cebulak

Abstract

This article explores the particular tensions surrounding judicial review in EU external relations. The tensions are classified using a two-dimensional framework. Firstly, a distinction based on policy domains of high and low politics, which is derived from constitutional theory, and external to the CJEU; and secondly a distinction based on legitimizing paradigms of administrative (EU as effective global actor) or constitutional (judicial review as guarantee of fundamental rights) in character and determined by the Court itself. Even though one would expect a dominance of the administrative paradigm in the domain of high politics, the Court uses both the administrative and the constitutional paradigm in its external relations case-law. The decision on which of these becomes the guiding frame seems to depend more on the policy domain, and be made case by case, which suggests politically sensitive adjudication, rather than a coherent approach to legitimizing the nascent judicial review in EU external relations.

Open access

Nicole Scicluna

Abstract

The robustness of the EU’s constitutional framework – and its ability to accommodate democratic politics – is challenged as never before. The growing disconnect between formally democratic procedures and substantive choice is well illustrated by the Greek crisis. Since its first bailout in May 2010, Greece has held four general elections and a referendum. Yet, the anti-austerity preferences of the Greek electorate have not been effectively translated into policy.

This article uses the Greek crisis to analyse the EU’s democratic deficit, and the related issue of the locus of legal and political sovereignty in the EU. It argues that the EU’s constitutional framework is not sufficiently responsive to changing material conditions or to the changing preferences of Europeans. Thus, EU constitutionalism needs to be refashioned in order to strike a better balance between democratic and technocratic governance, as well as between the needs of individual citizens, national citizenries, and states.

Open access

Ming-Sung Kuo

Abstract

In this article, I compare constitutional and administrative models in terms of their implications for the EU legal order’s interaction with other legal regimes. I aim to make a twofold argument on the implications of the EU’s constitutional self-image to the world political order. First, as the CJEU adopts an identity-centred strong constitutionalist position on the Union’s external relations, it implicitly frames the EU legal order’s interaction with other legal regimes as in a federated order. Yet the strong political implications of federation are likely to bring about more inter-regime conflicts and provoke reactions from Member States. Second, I provide a critique of the administrative model in the light of GAL’s intervention in inter-regime relations, suggesting a post-identity constitutional alternative in times of crisis. Freed from the value-laden concept of constitutional identity, but without de-constitutionalizing itself, the EU can have the benefits of both the constitutional and administrative models by moving towards a weak-form constitutional order. In the event, the debate, as to whether to conduct the EU’s external relations according to the constitutional or the administrative model, is misconceived.

Open access

William M. Myers and Davia Cox Downey

Abstract

Party capability theory assumes that governments, due to their immense resources and status as repeat players, hold a great advantage over individuals and organizations pursuing litigation in courts. Less known is whether all levels of government enjoy this advantage, how they fare against one another and how an institutional arrangement such as federalism complicates such relationships. These questions are investigated using decisions made by the high courts of Australia, Canada, and the United States. The descriptive findings indicate that institutional arrangements, such as federalism, in some ways, confirm and in others confound traditional notions of which governments come out ahead, which yields important implications for party capability theory, specifically, and federalism, generally.

Open access

Antonia Baraggia and Maria Elena Gennusa

Abstract

International and constitutional law, originally distinct realms with limited areas of intersection, are getting closer and closer, particularly in the European landscape within the human rights protection field, where these mere contacts between the two systems have become intersections and overlaps. The present article will try to shed light on the still unsolved and problematic issues to which overlapping human rights protection systems give rise, by focusing on an analysis of the heterologous in vitro fertilization case, where both the Strasbourg Court and the Italian Constitutional Court delivered relevant judgments on very similar matters (ECtHR’s S.H. Judgment; Judgment No. 162/2014 from the Italian CC). Such analysis revealed useful in highlighting connections and disconnections between the different levels of protection of rights, and led us to argue that the development of a multilevel protection of rights is also, at least partially, a tale of Courts, each competing to have the last word on human rights adjudication.

Open access

Orlando Scarcello

Abstract

In this essay the question of what kind of conflicts are at stake in the context of European pluralism will be considered, with special focus on the shift from “conflicts by divergence” to “conflicts by convergence” and on attempts to conceptualise these issues by means of the concept of “complex antinomy”. It will be argued that this analysis needs some refinement and the concept of “levels of disagreements” will be introduced as an alternative. A specific focus will be maintained on the impact of different interpretive methodologies: in this way it is possible to underline the structure of “deep” and “superficial” disagreements in the context of European law. In order to illustrate this point, some notes on the recent Taricco saga will be developed. Finally, the relevance for European constitutionalism of deep disagreements on interpretive methodologies will be underlined.