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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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Conflicts by Convergence and Deep Disagreements in European Constitutional Law

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.

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Intertwined but Different. The Heterologous In Vitro Fertilization Case before the European Court of Human Rights and the Italian Constitutional Court

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.

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Which Governments Come Out Ahead?

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.

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Austerity on the loose in Portugal: European judicial restraint in times of crisis

Abstract

The international bailout granted to Portugal between 2011 and 2014 was conditional on the adoption by the Portuguese State of austerity measures included in a memorandum of understanding (MoU) signed by the European Commission on behalf of the European Union (EU) and the Member States. The MoU was never published in an official journal or even translated into the Portuguese language. Its implementation caused a significant decrease in the level of protection of social rights.

The compatibility of the MoU with core principles of the rule of law and with the EU’s social Constitution was never tested in court. A systemic failure in the jurisdictional system of the EU immunized the MoU to any judicial challenge. At the apex of the system, the Court of Justice of the EU declined to answer preliminary references submitted by Portuguese lower courts that questioned the compatibility with the Charter of Fundamental Rights of the EU of national budgetary measures that implemented the MoU. At the bottom, Portuguese courts either failed to properly identify the EU law acts that were the source of national austerity measures or disregarded their role as common EU law courts of ordinary jurisdiction when they bypassed the opportunity to refer a question for a preliminary ruling of the Court of Justice challenging the validity of the MoU.

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Constitutional Politics in East Germany and the Grand Coalition State

Abstract

Constitutional politics seemingly corroborate the assumption that Germany is a Grand Coalition state. In this perspective German cooperative federalism and the supermajority required for any amendment to the constitution privilege bargaining and intertwined policy-making as modes of conflict resolution and thus support grand coalitions. In this paper I will explore whether this theory can explain constitutional politics in the German Länder. Firstly, I examine how far sub-national constitutional politics match the functioning of cooperative federalism that is a defining feature of the Grand Coalition state. Secondly, I examine sub-national constitutional politics in the five new Länder and bring the role parties played in this policy field to the fore. Overall, I conclude that cooperative federalism did not impact on constitutional politics in East Germany and that the features of consensus democracy are only partly able to explain law-making in this sector.

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The Establishment of Metropolitan Cities in Italy: An Advance or a Setback for Italian Regionalism?

Abstract

This paper aims to provide a brief assessment of the legal framework of the newly established metropolitan cities in the Italian domestic legal order. After an historical overview of previous attempts to set up metropolitan cities in Italy (1), it summarizes the main statutory provisions of the Delrio Law (No. 56/2014) through which metropolitan cities finally came into operation (2) and it provides an analysis of its implementation, thereby attempting to make clear whether increased institutional pluralism and differentiation in the local government system will strengthen or weaken Italian regionalism (3). The conclusion will argue that, while the enactment of local government reforms combined with the entering into force of a significant constitutional amendment will increasingly diminish the role of the Regions, metropolitan cities, due to their ambivalent nature, still lack any propulsive thrust and face the risk of being marginalized until a consistent legal framework for their proper funding is laid down (4).

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