The European Court of Justice and process-oriented review. Research Paper in Law, 01/2012

Structuralism is a theory of U.S. constitutional adjudication according to which courts should seek to improve the decision-making process of the political branches of government so as to render it more democratic.1 In words of John Hart Ely, courts should exercise their judicial-review powers as a ‘representation-reinforcing’ mechanism.2 Structuralism advocates that courts must eliminate the elements of the political decision-making process that are at odds with the structure set out by the authors of the U.S. Constitution. The advantage of this approach, U.S. scholars posit, lies in the fact that it does not require courts to second-guess the policy decisions adopted by the political branches of government. Instead, they limit themselves to enforcing the constitutional structure within which those decisions must be adopted. Of course, this theory of constitutional adjudication, like all theories, has its shortcomings. For example, detractors of structuralism argue that it is difficult, if not impossible, to draw the dividing line between ‘substantive’ and ‘structural’ matters.3 In particular, they claim that, when identifying the ‘structure’ set out by the authors of the U.S. Constitution, courts necessarily base their determinations not on purely structural principles, but on a set of substantive values, evaluating concepts such as democracy, liberty and equality. 4 Without claiming that structuralism should be embraced by the ECJ as the leading theory of judicial review, the purpose of my contribution is to explore how recent case-law reveals that the ECJ has also striven to develop guiding principles which aim to improve the way in which the political institutions of the EU adopt their decisions. In those cases, the ECJ decided not to second-guess the appropriateness of the policy choices made by the EU legislator. Instead, it preferred to examine whether, in reaching an outcome, the EU political institutions had followed the procedural steps mandated by the authors of the Treaties. Stated simply, I argue that judicial deference in relation to ‘substantive outcomes’ has been counterbalanced by a strict ‘process review’. To that effect, I would like to discuss three recent rulings of the ECJ, delivered after the entry into force of the Treaty of Lisbon, where an EU policy measure was challenged indirectly, i.e. via the preliminary reference procedure, namely Vodafone, Volker und Markus Schecke and Test-Achats.5 Whilst in the former case the ECJ ruled that the questions raised by the referring court disclosed no factor of such a kind as to affect the validity of the challenged act, in the latter cases the challenged provisions of an EU act were declared invalid.

The politics of Australian society: Political issues for the new century

The aim of this book is to assist those who want to understand and analyse social, political and economic issues. In this project we have drawn upon the resources of political science, which typically examines the interaction between political ideas, institutions and policies in its attempt to make sense of the society in which we live. The perspectives offered by political science are evident in the structure of contributions to the volume. The organising framework we have adopted emphasises the importance of political ideas in shaping the way we comprehend political issues; the centrality of political institutions in influencing the possibilities for and limits on politics; and how present and past policies determine the context and direction of the solutions to political problems. This second edition expands upon out original brief. Where we have retained certain topics, the chapters have all been revised and updated. There are also a number of new chapters in each section that deal with significant political doctrines, institutions and policies.

Imagined relationships: political leadership in contemporary democracies

The image and style of political leaders are important elements of leadership, and of politics generally. They are related to both political culture and institutions, and are framed in ritual and ceremony. In democratic policies, where there is choice rather than coercion, the mediation of leadership/people relations creates imagined relationships between imagined leaders and their equally imagined interlocutors, the people or the electorate (who also, of course, actually exist). These relationships form part of the political process. By identifying, and adapting, classical Aristotelian distinctions in rhetorical studies, we can better understand this element or moment of the process, in particular the creation of an imagined intimacy in contemporary politics between leaders and followers. Political science should draw upon other disciplines and subdisciplines such as political psychology, cultural studies, rhetorical analysis, and social anthropology in order to understand how mediated relationships are inscribed into political institutions and exchange.

Political representation in France: a crisis of democracy?

The past two decades have witnessed growing political disaffection and a widening mass/elite disjuncture in France, reflected in opinion polls, rising abstentionism, electoral volatility and fragmentation, with sustained voting against incumbent governments. Though the electoral system has preserved the duopoly of the mainstream coalitions, they have suffered loss of public confidence and swings in electoral support. Stable parliamentary majorities conceal a political landscape of assorted anti-system parties and growing support for far right and far left. The picture is paradoxical: the French express alienation from political parties yet relate positively to their political institutions; they berate national politicians but retain strong bonds with those elected locally; they appear increasingly disengaged from politics yet forms of ‘direct democracy’ are finding new vigour. While the electoral, attitudinal and systemic factors reviewed here may not signal a crisis of democracy, they point to serious problems of political representation in contemporary France.

A mérsékelt iszlamista mozgalmak szerepe az "arab tavaszt" követő politikai átmenetben (The Role of Moderate Islamist Movements in the Political Transition Following the Arab Spring)

Up to January 2011 authoritarian political regimes in the Middle East had widely been considered stable due to the armed forces, the underdeveloped political institutions, the economic embeddedness of the regimes, the neo-patrimonial structure of the Arab societies and, eventually the characteristics of Islam. Middle Eastern political systems are often considered to belong to a special sub-group of non-democratic regimes called “liberalized autocracies”. The 2011 events show that there is a new, as yet non-defined political structure emerging. Although there are different interpretations of the developments, there is a consensus on the determinant role of the Islamist organizations in the development of the new political structure. The results of the Egyptian and Tunisian parliamentary elections show that the secular political parties could not attract the public, while in Tunisia the long forbidden Hizb an-Nahda could form a government. In Egypt Hizb al-Hurriya established by the Muslim Brotherhood in 2011 won almost half of the parliamentary mandates, and to a great surprise, the Salafi Hizb an-Nour also received 24.3% of the votes. On the basis of the above developments the thesis of the Islamist re-organization of the Middle East, i.e. of a new wave of Islamism was elaborated, according to which the main political winners of the revolts in the Arab countries are the Islamist organizations, which could step in and fill in the political vacuum. While some speak of an Islamist autumn or Islamist winter as the result of the Arab Spring, others prefer the term Islamic revolutions.

Hungary's U-Turn

For two decades Hungary, like the other Eastern European countries, followed a general policy of establishing and strengthening the institutions of democracy, rule of law, and a market economy based on private property. However, since the elections of 2010, when Viktor Orbán's Fidesz party came to power, Hungary has made a dramatic U-turn. This article investigates the different spheres of society: political institutions, the rule of law, and the influence of state and market on one another, as well as the world of ideology (education, science and art), and describes the U-turn’s implications for these fields and the effect it has on the life of people. It argues against the frequent misunderstandings in the interpretation and evaluation of the Hungarian situation, pointing out some typical intellectual fallacies. It draws attention to the dangers of strengthening nationalism, and to the ambivalence evident in Hungarian foreign policy, and looks into the relationship between Hungary and the Western world, particularly the European Union. Finally, it outlines the possible scenarios resulting from future developments in the Hungarian situation.

Hungary's U-Turn

For two decades Hungary, like the other Eastern European countries, followed a general policy of establishing and strengthening the institutions of democracy, rule of law, and a market economy based on private property. However, since the elections of 2010, when Viktor Orbán's Fidesz party came to power, Hungary has made a dramatic U-turn. This article investigates the different spheres of society: political institutions, the rule of law, and the influence of state and market on one another, as well as the world of ideology (education, science and art), and describes the U-turn's implications for these fields and the effect it has on the life of people. It argues against the frequent misunderstandings in the interpretation and evaluation of the Hungarian situation, pointing out some typical intellectual fallacies. It draws attention to the dangers of strengthening nationalism, and to the ambivalence evident in Hungarian foreign policy, and looks into the relationship between Hungary and the Western world, particularly the European Union. Finally, it outlines the possible scenarios resulting from future developments in the Hungarian situation.

Hungary's U-Turn

For two decades Hungary, like the other Eastern European countries, followed a general policy of establishing and strengthening the institutions of democracy, rule of law, and a market economy based on private property. However, since the elections of 2010, when Viktor Orbán's Fidesz party came to power, Hungary has made a dramatic U-turn. This article investigates the different spheres of society: political institutions, the rule of law, and the influence of state and market on one another, as well as the world of ideology (education, science and art), and describes the U-turn’s implications for these fields and the effect it has on the life of people. It argues against the frequent misunderstandings in the interpretation and evaluation of the Hungarian situation, pointing out some typical intellectual fallacies. It draws attention to the dangers of strengthening nationalism, and to the ambivalence evident in Hungarian foreign policy, and looks into the relationship between Hungary and the Western world, particularly the European Union. Finally, it outlines the possible scenarios resulting from future developments in the Hungarian situation.

The use of presidential executive orders to control the management and administration of the federal government

As long as governmental institutions have existed, efforts have been undertaken to reform them. This research examines a particular strategy, coercive controls, exercised through a particular instrument, executive orders, by a singular reformer, the president of the United States. The presidents studied-- Johnson, Nixon, Ford, Carter, Reagan, Bush, and Clinton--are those whose campaigns for office were characterized to varying degrees as against Washington bureaucracy and for executive reform. Executive order issuance is assessed through an examination of key factors for each president including political party affiliation, levels of political capital, and legislative experience. A classification typology is used to identify the topical dimensions and levels of coerciveness. The portrayal of the federal government is analyzed through examination of public, media, and presidential attention. The results show that executive orders are significant management tools for the president. Executive orders also represent an important component of the transition plans for incoming administrations. The findings indicate that overall, while executive orders have not increased in the aggregate, they are more intrusive and significant. When the factors of political party affiliation, political capital, and legislative experience are examined, it reveals a strong relationship between executive orders and previous executive experience, specifically presidents who served as a state governor prior to winning national election as president. Presidents Carter, Reagan, and Clinton (all former governors) have the highest percent of executive orders focusing on the federal bureaucracy. Additionally, the highest percent of forceful orders were issued by former governors (41.0%) as compared to their presidential counterparts who have not served as governors (19.9%). Secondly, political party affiliation is an important, but not significant, predictor for the use of executive orders. Thirdly, management strategies that provide the president with the greatest level of autonomy--executive orders--redefine the concept of presidential power and autonomous action. Interviews of elite government officials and political observers support the idea that executive orders can provide the president with a successful management strategy, requiring less expenditure of political resources, less risk to political capital, and a way of achieving objectives without depending on an unresponsive Congress. ^

Political economy of Caribbean drug trafficking: The case of the Dominican Republic

The purpose of this dissertation was to examine the relationship between narcotics trafficking and the processes of economic liberalization and democratization in the Caribbean. The salient social, political and economic processes were explored at each juncture of the drug trafficking chain to determine why certain groups and locales became integrated in the global narcotics economy. It also considered the national security implications of the global narcotics economy. ^ The Global Commodity Chain framework allowed the study to examine the social, political and economic processes that determine how a commodity is produced, transported, distributed and consumed in the global economy. A case study method was used to specify the commodity (cocaine) and locations (U.S. and Dominican Republic) where these processes were examined. ^ The important contributing factors in the study included: a liberalizing global economy, the social processes of migration, the formation of enclaves in the U.S., the opening of the political process and institutional weakness in the country of origin. All of these factors contributed to the Dominican Republic and Dominican migrants becoming key players in the cocaine commodity chain. It concluded that narcotics trafficking as a national security issue remains a fluid concept, contingent on specific cultural and historic antecedents. ^

Essays on the political economy of the Dominican reform process

This dissertation provides an analytical framework to study the political economy of policy reform in the Dominican Republic during the nineties. Based on a country study, I develop two theoretical models that replicate the mechanisms of policy approval in developing countries with weak democracies. The first model considers a pro-reform President who submits a tariff bill to an anti-reform Congress dominated by the opposition party. In between, two opposing lobbies try to get their favored policy approved. Lobbies act as Stackelberg leaders vis a vis a weak President. The behavior of the Congress is determined exogenously while the lobbies act strategically pursuing the approval of the reform bill and indirectly affecting the President's decision. I show that in such a setting external agents like the Press play an important role in the decision-making process of the political actors. ^ The second model presents a similar framework. However, the President, who is a Stackelberg leader, is allowed only two choices, total reform or status-quo. I show how a lobby reacts to an increase in its rival's or its own size. These reactions depend on the President's level of commitment to the reform. Finally, I discuss the effect of variations in the size of the lobbies on the President's choice. The model suitably explains real events that took place in the Dominican Republic in the mid-nineties. ^

The recruitment process of the Shining Path and MRTA guerrilla groups: A political psychological perspective

This thesis is an analysis of the recruitment process of the Shining Path -SP- and Revolutionary Movement “Túpac Amaru” -MRTA- guerrilla groups. Although SP was considered more aggressive, it gained more followers than MRTA. This thesis tries to explain why. Social Revolution Theory and Social Movement Theory provide explanations based on issues of “poverty”, disregarding the specific characteristics of the guerrilla groups and their supporters, as well as the influence of specific persuasive processes between the leaders of the groups and their followers. Integrative complexity theory, on the contrary, provides a consistent method to analyze cognitive processes: because people tend to reject complex and sophisticated explanations that require mental efforts, simplicity was the key for success. To prove which guerrilla group provided a simpler worldview, a sample of official documents of SP and MRTA are compared. Finally, content analysis is applied through the Paragraph Completion Test (P.C.T.). ^

Political corruption in the Caribbean Basin: A comparative analysis of Jamaica and Costa Rica

Political corruption in the Caribbean Basin retards state economic growth and development, undermines government legitimacy, and threatens state security. In spite of recent anti-corruption efforts of intergovernmental and nongovernmental organizations (IGO/NGOs), Caribbean political corruption problems appear to be worsening in the post-Cold War period. This dissertation discovers why IGO/NGO efforts to arrest corruption are failing by investigating the domestic and international causes of political corruption in the Caribbean. The dissertation's theoretical framework centers on an interdisciplinary model of the causes of political corruption built within the rule-oriented constructivist approach to social science. The model first employs a rational choice analysis that broadly explains the varying levels of political corruption found across the region. The constructivist theory of social rules is then used to develop the structural mechanisms that further explain the region's levels of political corruption. The dissertation advances its theory of the causes of political corruption through qualitative disciplined-configurative case studies of political corruption in Jamaica and Costa Rica. The dissertation finds that IGO/NGO sponsored anti-corruption programs are failing because they employ only technical measures (issuing anti-corruption laws and regulations, providing transparency in accounting procedures, improving freedom of the press, establishing electoral reforms, etc.). While these IGO/NGO technical measures are necessary, they are not sufficient to arrest the Caribbean's political corruption problems. This dissertation concludes that to be successful, IGO/NGO anti-corruption programs must also include social measures, e.g., building civil societies and modernizing political cultures, for there to be any hope of lowering political corruption levels and improving Caribbean social conditions. The dissertation also highlights the key role of Caribbean governing elite in constructing the political and economic structures that cause their states' political corruption problems. ^

Essays on the determinants of private investment: The effects of relative price uncertainty and political instability

The objective of this study was to provide empirical evidence on the effects of relative price uncertainty and political instability on private investment. My effort is expressed in a single-equation model using macroeconomic and socio-political data from eight Latin American countries for the period 1970–1996. Relative price uncertainty is measured by the implied volatility of the exchange rate and political instability is measured by using indicators of social unrest and political violence. ^ I found that, after controlling for other variables, relative price uncertainty and political instability are negatively associated with private investment. Macroeconomic and political stability are key ingredients for the achievement of a strong investment response. This highlights the need to develop the state and build a civil society in which citizens can participate in decision-making and express consent without generating social turmoil. At the same time the government needs to implement structural policies along with relative price adjustments to eliminate excess volatility in price movements in order to provide a stable environment for investment. ^

The advantage of Spanish multinational enterprises in Latin America

Multinational enterprises (MNEs) from Spain made large foreign direct investments (FDIs) in Latin America between 1990 and 2002, making Spain the second largest direct investor in this region since 1998, behind the United States. This dissertation explains the reasons that led Spanish firms to make these FDIs, as well as their operations in Latin America. Seven Spanish MNEs were included in this study, BBVA and SCH (banking), Telefónica (telecommunications), Endesa, Iberdrola and Unión Fenosa (public utilities), and Repsol-YPF (oil and natural gas). Quantitative and qualitative data were used. Data were collected from the firms' annual reports, from their archives and from personal interviews with senior executives, as well as from academic and specialized publications. ^ Results indicate that the large Spanish FDIs in Latin America were highly concentrated in a few firms from five sectors. The FDIs of these firms alone accounted for 70 percent of total Spanish FDI in Latin America in this period. The reasons for these investments were firm-specific and sector specific. A series of institutional conditions existed in Spain between the 1970s and the 1990s that allowed the employees of the firms to develop the knowledge and devise strategies to adjust to that set of conditions. First, the policies of the Spanish state favored the creation of large firms in these sectors, operating under conditions of monopoly sometimes. Secondly, the consumers put pressure on the firms to provide better and cheaper products as the Spanish economy grew and modernized. Thirdly, the employees of the firms had to adjust their services and products to the demands of the consumers and to the constraints of the state and the market. They adjusted the internal organization of the firm to be able to produce the goods and services that the market demanded. Externally, they also adopted patterns of interaction with outside agents and institutions. This patterned behavior was the “corporate culture” of each firm and the “normative framework” in which their employees operated. When the managers of the firms perceived that there were similar conditions in Latin America, they decided to operate there as well by making FDIs. ^