The Equalization of Effective Communicative Freedom: Democratic Justice in the Constitutional State and Beyond

Jurgen Habermas takes the realization of rights through the democratic self-organization of legal communities to be the normative core of emancipatory politics. In this article I explore the implications of this claim in relation to the requirements of justice. I argue that Habermas's discourse theory of democratic legitimacy presupposes a substantive principle of justice that demands the equalization of effective communicative freedom for all structurally constituted social groups in any constitutional state. This involves the elimination of a range of structural injustices rooted in the complex interrelationships between political, economic and cultural orders. In the final section I sketch briefly the implications of this analysis in the context of ongoing globalization processes. It is suggested that the most effective way to establish a just system of global governance is to equalize effective communicative freedom among nation-states.

Managing for Legitimacy: Agency Governance in its “Deep” Constitutional Context

Recent literature on bureaucratic structure has gone further than studying discretions given to bureaucrats in policy making, and much attention is now paid to understanding how bureaucratic agencies are managed. This article proposes that the way in which executive governments manage their agencies varies according to their constitutional setting and that this relationship is driven by considerations of the executive’s governing legitimacy. Inspired by Tilly (1984), we compare patterns of agency governance in Hong Kong and Ireland, in particular configurations of assigned decision-making autonomies and control mechanisms. This comparison shows that in governing their agencies the elected government of Ireland’s parliamentary democracy pays more attention to input (i.e. democratic) legitimacy while the executive government of Hong Kong’s administrative state favors output (i.e. performance) legitimacy. These different forms of autonomy and control mechanism reflect different constitutional models of how political executives acquire and sustain their governing legitimacy.

Sharing Power: The Case for Public Consultations in Trade

Since the 1960s, public consultation has emerged as an important democratic tool, allowing governments to inform, debate, and learn from the general public. Since the 1980s, international trade agreements have wielded significant influence over domestic law making, as an ever more ‘comprehensive’ set of topics are regulated via treaty. In Canada, these two trends have yet to meet. Neither public nor Parliament is involved in trade policy making raising concerns about the democratic legitimacy of expansive trade agreements. Through the lens of the recent Canada-EU CETA, this article examines whether trade law’s consultation practices can be aligned with those of other federal government departments. We identify five key values that make consultations successful—diversity, education, commitment, accountability, and transparency—and consider the viability of their inclusion in trade consultations.

The EU Deep Trade Agenda: Law and Policy

Providing the first comprehensive examination of the key regulatory disciplines included in the new generation of EU free trade agreements (FTAs), this book investigates the EU's supposed deep trade agenda through a legal analysis of these FTAs. In doing so, Billy A. Melo Araujo determines whether there is any substance behind the EU's foreign policy rhetoric regarding the need to introduce regulatory issues within the remit of international trade law.

At a time when the EU is busily negotiating so-called 'mega-FTAs', such as the Transatlantic Trade and Investment Partnership (TTIP) and the plurilateral Trade in Services Agreement (TISA), Melo Araujo offers a timely insight into the important questions raised by such FTAs, in particular concerning the future of the multilateral trade system, the loss of policy autonomy, and the democratic legitimacy of regulating through treaty-making. The book provides a detailed analysis of the regulatory disciplines included in the more recent EU FTAs and explores the possible implications of such disciplines. Offering a significant contribution to a wider debate, this is a must read for those interested in the legal dimension of the EU's deep trade agenda.

The European Convention on Human Rights after Enlargement

The Council of Europe has dramatically enlarged its membership over the past decade, encompassing the vast majority of the formerly Communist states of Central and Eastern Europe. With this dramatic enlargement, the Council has sought to secure its place in the complex institutional architecture of post-Cold War Europe, building on its traditional strengths in the promotion of democratic governance and human rights. Yet, both inside and outside the organisation, voices have been raised to suggest that the Council has lowered its admission standards in a manner which risks compromising the legitimacy of the European Convention on Human Rights. Against the background of these ongoing controversies, this article assesses the impact of enlargement on the European human rights system. Focusing on the composition of the European Court of Human Rights and the initial pattern of cases from the Central and East European member states, it is demonstrated that the short-term impact of enlargement has been quite limited. Nevertheless, it is clear that the Court will face major new challenges over the coming years. In part, the Court will have to assume the role of an adjudicator of transition. More generally, there will also be mounting pressures for it to (re)cast itself more clearly as a European constitutional court.