Recalcitrant pluralism

Here I argue that the best form of deontology is an ethic of prima facie duties, and that this form of deontology is especially resistant to any form of reduction to a single principle.

The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action

Global legal pluralism is concerned, inter alia, with the growing multiplicity of normative legal orders and the ways in which these different orders intersect and are accommodated with one another. The different means used for accommodation will have a critical bearing on how individuals fare within them. This article examines the recent environmental jurisprudence of the European Court of Human Rights to explore some of the means of reaching an accommodation between national legal orders and the European Convention. Certain types of accommodation – such as the margin of appreciation given to states by the Court – are well known. In essence, such mechanisms of legal pluralism raise a presumptive barrier which generally works for the state and against the individual rights-bearer. However, the principal focus of the current article is on a less well-known, recent set of pluralistic devices employed by the Court, which typically operate presumptively in the other direction, in favour of the individual. First, the Court looks to instances of breaches of domestic environmental law (albeit not in isolation); and second, it places an emphasis on whether domestic courts have ruled against the relevant activity. Where domestic standards have been breached or national courts have ruled against the state, then, presumptive weight is typically shifted towards the individual.

EU membership of the WTO: international trade disputes and judicial protection of individuals by EU Courts

The European Union (EU) is embedded in a pluralistic legal context because of the EU and its Member States’ treaty memberships and domestic laws. Where EU conduct has implications for both the EU’s international trade relations and the legal position of individual traders, it possibly affects EU and its Member States’ obligations under the law of the World Trade Organization (WTO law) as well as the Union’s own multi-layered constitutional legal order. The present paper analyses the way in which the European Court of Justice (ECJ) accommodates WTO and EU law in the context of international trade disputes triggered by the EU. Given the ECJ’s denial of direct effect of WTO law in principle, the paper focuses on the protection of rights and remedies conferred by EU law. It assesses the implications of the WTO Dispute Settlement Understanding (DSU) – which tolerates the acceptance of retaliatory measures constraining traders’ activities in sectors different from those subject to the original trade dispute (Bananas and Hormones cases) – for the protection of ‘retaliation victims’. The paper concludes that governmental discretion conferred by WTO law has not affected the applicability of EU constitutional law but possibly shapes the actual scope of EU rights and remedies where such discretion is exercised in the EU’s general interest.

Whatever works: proportionality as a constitutional doctrine

In The Global Model of Constitutional Rights Kai Möller claims that the proportionality test is underlain by an expansive moral right to autonomy. This putative right protects everything that advances one’s self-conception. It may of course be limited when balanced against other considerations such as the rights of others. But it always creates a duty on the state to justify the limitation. Möller further contends that the practice of proportionality can best be understood as protecting the right to autonomy. This review article summarizes the main tenets of Möller’s theory and criticizes them on two counts. First, it disputes the existence of a general right to autonomy; such a right places an unacceptably heavy burden on others. Second, it argues that we do not need to invoke a right to autonomy to explain and justify the main features of the practice of proportionality. Like other constitutional doctrines, proportionality is defensible, if it is grounded in pragmatic –mainly epistemic and institutional- considerations about how to increase overall rights compliance. These considerations are independent of any substantive theory of rights.

Relational pluralism: organizational foresight in practice

This paper examines organizational foresight from a relational perspective. In doing this, we present relational incumbency as a transient conceptual framework to explore how the organizing social relationships and interactions of lower participants may influence organizational foresightfulness. The research employed an exploratory case-based approach with three software organisations and their four new product innovation projects serving as the empirical research sites. Drawing on the case evidence, we provide an account on how normative organizing structures, rights and authority relationships constitutively influence the creative emergence of organizational foresight in practice. We conclude the paper with a discussion of the managerial implications and some directions for future research.

After the referendum: options for a constitutional convention

Whatever the result of Scotland’s independence referendum, careful constitutional thinking will be needed. If Scots vote Yes, Scotland will need a new constitution and the rest of the UK will have to rethink its governing structures. Even in the event of a No vote, everyone agrees that the shape of the Union will need to change over the coming years. This paper examines how such constitution-making should take place. It sets out the options, gathers evidence from around the world on how those options might work, and weighs the advantages and disadvantages of each alternative. It concludes that constitutional proposals in the UK should best be developed by a convention comprising a mixture of ordinary members of the public and politicians; these proposals should be put to a referendum. This approach, the paper argues, offers the best route to high-quality debate, stronger democratic engagement, and, ultimately, deeper legitimacy for our governing structures.