New Governance and the EU Courts : The Experimentalist Architecture of Judicial Decision-Making

The dissertation examines the role of the EU courts in new governance. New governance has raised unprecedented interest in the EU in recent years. This is manifested in a plethora of instruments and actors at various levels that challenge more traditional forms of command-and-control regulation. New governance and political experimentation more generally is thought to sap the ability of the EU judiciary to monitor and review these experiments. The exclusion of the courts is then seen to add to the legitimacy problem of new governance. The starting point of this dissertation is the observation that the marginalised role of the courts is based on theoretical and empirical assumptions which invite scrutiny. The theoretical framework of the dissertation is deliberative democracy and democratic experimentalism. The analysis of deliberative democracy is sustained by an attempt to apply theoretical concepts to three distinctive examples of governance in the EU. These are the EU Sustainable Development Strategy, the European Chemicals Agency, and the Common Implementation Strategy for the Water Framework Directive. The case studies show numerous disincentives and barriers to judicial review. Among these are questions of the role of courts in shaping governance frameworks, the reviewability of science-based measures, the standing of individuals before the courts, and the justiciability of soft law. The dissertation analyses the conditions of judicial review in each governance environment and proposes improvements. From a more theoretical standpoint it could be said that each case study presents a governance regime which builds on legislation that lays out major (guide)lines but leaves details to be filled out at a later stage. Specification of detailed standards takes place through collaborative networks comprising members from national administrations, NGOs, and the Commission. Viewed this way, deliberative problem-solving is needed to bring people together to clarify, elaborate, and revise largely abstract and general norms in order to resolve concrete and specific problems and to make law applicable and enforceable. The dissertation draws attention to the potential of peer review included there and its profound consequences for judicial accountability structures. It is argued that without this kind of ongoing and dynamic peer review of accountability in governance frameworks, judicial review of new governance is difficult and in some cases impossible. This claim has implications for how we understand the concept of soft law, the role of the courts, participation rights, and the legitimacy of governance measures more generally. The experimentalist architecture of judicial decision-making relies upon a wide variety of actors to provide conditions for legitimate and efficient review.

The Reception of the Maccabean Martyrs : Their Historiographical and Paradigmatic Functions in Antique and Late-antique Jewish and Christian Sources

The study attempts a reception-historical analysis of the Maccabean martyrs. The concept of reception has fundamentally to do with the re-use and interpretation of a text within new texts. In a religious tradition, certain elements become re-circulated and thus their reception may reflect the development of that particular tradition. The Maccabean martyrs first appear in 2 Maccabees. In my study, it is the Maccabean martyr figures who count as the received text; the focus is shifted from the interrelations between texts onto how the figures have been exploited in early Christian and Rabbinic sources. I have divided my sources into two categories and my analysis is in two parts. First, I analyze the reception of the Maccabean martyrs within Jewish and Christian historiographical sources, focusing on the role given to them in the depictions of the Maccabean Revolt (Chapter 3). I conclude that, within Jewish historiography, the martyrs are given roles, which vary between ultimate efficacy and marginal position with regard to making a historical difference. In Christian historiographical sources, the martyrs role grows in importance by time: however, it is not before a Christian cult of the Maccabean martyrs has been established, that the Christian historiographies consider them historically effective. After the first part, I move on to analyze the reception in sources, which make use of the Maccabean martyrs as paradigmatic figures (Chapter 4). I have suggested that the martyrs are paradigmatic in the context of martyrdom, persecution and destruction, on one hand, and in a homiletic context, inspiring religious celebration, on the other. I conclude that, as the figures are considered pre-Christian and biblical martyrs, they function well in terms of Christian martyrdom and have contributed to the development of its ideals. Furthermore, the presentation of the martyr figures in Rabbinic sources demonstrates how the notion of Jewish martyrdom arises from experiences of destruction and despair, not so much from heroic confession of faith in the face of persecution. Before the emergence of a Christian cult of the Maccabean martyrs, their identity is derived namely from their biblical position. Later on, in the homiletic context, their Jewish identity is debated and sometimes reconstructed as fundamentally Christian , despite of their Jewish origins. Similar debate about their identity is not found in the Rabbinic versions of their martyrdom and nothing there indicates a mutual debate between early Christians and Jews. A thematic comparison shows that the Rabbinic and Christian cases of reception are non-reliant on each other but also that they link to one another. Especially the scriptural connections, often made to the Maccabean mother, reveal the similarities. The results of the analyses confirm that the early history of Christianity and Rabbinic Judaism share, at least partly, the same religious environment and intertwining traditions, not only during the first century or two but until Late Antiquity and beyond. More likely, the reception of the Maccabean martyrs demonstrates that these religious traditions never ceased to influence one another.