An Exercise in Legal Honesty: Re-writing the Court of Justice and the Bundesverfassungsgericht. IHS Political Science Series No. 136, February 2014

At a time of crisis – a true state of emergency – both the Court of Justice of the European Union and the German Federal Constitutional Court have failed the rule of law in Europe. Worse still, in their evaluation of the ersatz crisis law, which has been developed in response to financial and sovereign debt crises, both courts have undermined constitutionality throughout Europe. Each jurisdiction has been implicated within the techocratisation of democratic process. Each Court has contributed to an incremental process of the undermining of the political subjectivity of European Citizens. The results are depressing for lawyers who are still attached to notions of constitutionality. Yet, we must also ask whether the Courts could have acted otherwise. Given the original flaws in the construction of Economic and Monetary Union, as well as the politically pre-emptive constraints imposed by global financial markets, each Court might thus be argued to have been forced to suspend immediate legality in a longer term effort to secure the character of the legal jurisdiction as a whole. Crisis can and does defeat the law. Nevertheless, what continues to disturb is the failure of law in Europe to open up any perspective for a return to normal constitutionality post crisis, as well as its apparent inability to give proper and honest consideration to the hardship now being experienced by millions of Europeans within crisis. This contribution accordingly seeks to reimagine each Judgment in a language of legal honesty. Above all, this contribution seeks to suggest a new form of post-national constitutional language; a language which takes as its primary function, proper protection of democratic process against the ever encroaching powers of a post-national executive power. This contribution forms a part of an on-going effort to identify a new basis for the legitimacy of European Law, conducted jointly and severally with Christian Joerges, University of Bremen and Hertie School of Government, Berlin. Differences do remain in our theoretical positions; hence this individual essay. Nevertheless, the congruence between pluralist and conflict of law approaches to the topic are also readily apparent. See, for example, Everson & Joerges (2013).

The Court of Justice of the European Union. College of Europe Research Paper in Law 02/2014

The Court of Justice of the European Union is one of the institutions of the Union. Praised by some as the relentless and steady motor of European integration and attacked by others as an example of a clearly biased institution, more ink has perhaps been spilled over the years on discussing the (de)merits of the Court of Justice than any other Union institution. In face of such considerable literature coming from legal, political science, sociological, and more recently also historical quarters, this chapter cannot but scratch the surface of the vast topic by providing a concise introduction into selected institutional themes in a legal1 and, where possible, diachronic perspective: the structure of the Union courts located in Luxembourg; basic information about the type of judicial business the Court of Justice carries out; the composition of the Court of Justice, including the recent changes made to the way in which judges and advocates-general are selected; the often discussed style and structure of the judgments; and, finally, the even more frequently discussed and recurring question of the legitimacy of the Court of Justice.

How European Integration Impacts on National Legislatures: The Europeanization of The German Bundestag. CES Germany and Europe Working Papers, No. 06.2, 2006

In looking at the Europeanization of the German Bundestag, the paper brings together two different debates: the well-established debate on the democratic legitimacy of the European Union sees national Parliaments as guarantor of one branch of a "dual" legitimacy. The more recent debate on "Europeanization" addresses the impacts that European integration has had on its Member States. Analyzing the Europeanization of the German Bundestag, the paper identifies and analyzes three dimensions: legislative Europeanization – the extent to which legislative decision making by the German Bundestag has been influenced by European stipulations over the last twenty years; institutional Europeanization – how the Bundestag as an institution reacted to this loss of function by establishing institutional and procedural provisions for influencing the government's Euro-politics; and strategic Europeanization – the ways in which individual MPs started more recently to develop euro-political strategies that go beyond controlling the national government. The paper shows that the Bundestag only hesitantly reacted to the increasing loss of functions through legislative Europeanization by establishing effective institutional and procedural provisions for controlling the government's Euro-political activities. What is more, the establishment of institutions does not guarantee their effective use. All in all, Euro- politics continues to remain the activity of few MPs. These few, however, have more recently started to europeanize their strategies. The empirical findings support the claim that the traditional concept of chains of legitimacy is inadequate, both in conceptual and in empirical terms. With regard to the democ- ratic legitimacy of EU governance, this indicates that, apart from major reform projects, especially with regard to everyday legislation, not too great a burden should be placed on national Parliaments.

The Limited Influence of the European Union in Armenia and Azerbaijan: A Domestic Explanation. EU Diplomacy Paper 9/2015

This paper seeks to explain why the European Union (EU) has had limited influence in Armenia and Azerbaijan in the framework of the European Neighbourhood Policy (ENP). Combining approaches from external governance, norm diffusion and structural foreign policy, it offers an explanation based on domestic factors in the two countries: the political regime, state capacity, political structures, domestic incentives and the perceived legitimacy of EU rules. Although willingness to reform appears to exist in Armenia, such willingness remains constrained by the country’s vulnerable geopolitical location and high dependence on Russia. By contrast, none of the domestic preconditions for EU influence identified by the analytical framework were found in Azerbaijan. The author argues that the Eastern Partnership has not properly addressed the extent to which the clan structures feed into informal political practices and enforce the sustainability of an existing regime in both countries, and that, in addition, the EU has underestimated the multipolar environment which the two countries have to operate in, making it unlikely that the current policy can reach its objectives in Armenia and Azerbaijan.

The revision of the Posted Workers Directive: towards a sufficient policy adjustment? EPC Discussion Paper, 20 April 2016

Labour mobility within the European Union continues to be a limited phenomenon. This concerns both long-term intra-EU mobility and more temporary forms of mobility such as posting of workers, i.e. workers posted to another member state in the framework of cross-border service provision. Yet, despite the limited nature of posting, this topic is far from being absent from the public and political debates. Several factors contribute to this. Firstly, a surge in the number of posted workers has been noticed over the recent years and increased attention has therefore been paid to this issue. Quite a few economic sectors, including construction, manufacturing, and social work, are very concerned by this trend. Secondly, several types of abuses have been recorded such as letter-box companies, bogus self-employment and exploitation of the posted workers' vulnerable situation. Thirdly, questions have been raised as to whether the balance struck by the EU legislator in 1996 (when adopting the Posted Workers Directive) between the freedom to provide crossborder services and the workers' social rights is still valid today. These elements highlight the need for a policy adjustment in order to preserve the legitimacy of the citizens' and workers' freedom to move and, to a certain extent, of the social dimension of the European project. In this context, the European Commission published a proposal to revise the 1996 Directive in order to strike a better balance between economic and social rights. But is this proposal sufficient to ensure a level playing field between economic actors and equal treatment between workers? How will this proposal affect the implementation of other EU initiatives aiming to tackle fraud and abuse? What else is needed to address the tensions between the Single Market principles and the EU's social objectives? This discussion paper, published in the context of the Dutch Presidency and the ongoing negotiations of a revised Directive on posted workers, focuses on these questions while proposing some concrete solutions for a fairer policy framework.

The role of the G20 in WTO governance

Report by Professor Sungjoon Cho, Associate Professor of Law, Chicago-Kent College of Law (Chair), and Charlotte Sieber-Gasser, Doctoral Research Fellow, World Trade Institute, University of Bern, Session 27, WTO Public Forum 2010: The Forces Shapping World Trade, pp.29-33. In the course of the financial crisis, the global geography of power has shifted from G8 to G20. The latter, although representing roughly two thirds of global trade, consists of relatively a small number of global players and is consequently excluding many others from decision-making at the international stage. Nevertheless, the G20 has been successful in its reaction to the financial crisis and became therewith an important new player within the international community. When highlighting how the G20 might interfere with the WTO, the panel voiced concerns over the political legitimacy of the G20, given the limited number of members and the global impact of its decisions. It agreed on the impression that although the G20 intends to extend its debates from the financial sector to world economy in general, it has so far little achieved in this direction, particularly when it comes to moving the Doha agenda forward. It remains, thus, open how the G20 will evolve in the coming few years, and what mandates it will shed or adopt. So far, the G20 has complemented the WTO and international financial institutions in handling the financial crisis. Yet, even if there is little evidence pointing towards a less cooperative role in the future, the desirability of a G20 commitment in WTO trade negotiations has yet to be debated. The panel concluded by providing ideas on how the potential of the G20 might be used to serve global interests even better in the future. In their concluding remarks, the panellists agreed that it remains to be seen whether or not the G20 will further broaden its agenda. Given the ebbing away of the financial crisis there is even the question whether the G20 will remain an important international forum for financial collaboration, or whether it has already served its cause and will eventually disappear from the international stage. The Chair concluded the well attended and lively panel with voicing the hope that the two international bodies – the G20 and the WTO – will work in a positive way together in the future and face the challenges and opportunities in their collaboration to the benefit of everyone.

Are Media ‘Watchdogs’ of Illegal State Practices in Post-Cold War Liberal Democracies?: A Case-Study of the Coke Extradition

Thesis (Master's)--University of Washington, 2016-06

Ethics and intervention: The 'humanitarian exception' and the problem of abuse in the case of Iraq

This article investigates the ethics of intervention and explores the decision to invade Iraq. It begins by arguing that while positive international law provides an important framework for understanding and debating the legitimacy of war, it does not cover the full spectrum of moral reasoning on issues of war and peace. To that end, after briefly discussing the two primary legal justifications for war (implied UN authorization and pre-emptive self-defence), and finding them wanting, it asks whether there is a moral 'humanitarian exceptions to this rule grounded in the 'just war' tradition. The article argues that two aspects of the broad tradition could be used to make a humanitarian case for war: the 'holy war' tradition and classical just war thinking based on natural law. The former it finds problematic, while the latter it argues provides a moral space to justify the use of force to halt gross breaches of natural law. Although such an approach may provide a moral justification for war, it also opens the door to abuse. It was this very problem that legal positivism from Vattel onwards was designed to address. As a result, the article argues that natural law and legal positivist arguments should be understood as complementary sets of ideas whose sometimes competing claims must be balanced in relation to particular cases. Therefore, although natural law may open a space for justifying the invasion of Iraq on humanitarian terms, legal positivism strictly limits that right. Ignoring this latter fact, as happened in the Iraq case, opens the door to abuse.

Predictors of cultural adjustment: Intergroup status relations and boundary permeability

We examined intergroup predictors of cultural adjustment among Asian international students in Australia. Sociostructural beliefs (status, legitimacy, and permeability) and initial adjustment were assessed (N = 113) at Time 1, and measures of adjustment were obtained (N = 80) at Time 2 eight weeks later. International students who perceived their cultural group to be relatively low in status experienced lower levels of psychological adjustment. Also, as expected, the effects of status were moderated by perceptions of both the permeability of intergroup boundaries and the legitimacy of the status differential. At high levels of legitimacy, perceptions of permeable group boundaries were associated with better psychological, sociocultural, and academic adjustment among international students perceiving their group to be low in status, but lower levels of adjustment among students who perceived their group to be high in status. At low levels of legitimacy, irrespective of group status position, perceived permeability was not related to adjustment.

The spacing and timing of [a chic] critique

This rejoinder reflects an important step, for me, in a preoccupation with methodology that has provided me with many hours of enjoyable reading, not to mention anxiety. For me the ‘reality’ of the incommensurable nature of paradigms and acceptance of the legitimacy of a range of conceptual and philosophical traditions came late. As a constructionist I find myself on the ‘anything goes’ end of methodology choice. This paper and my main paper ought not to be read as a critique of ‘middle range’ theory, but as a critique of an important and necessary aspect of the way we all seek to inscribe facts and structure our writing. What follows is a reflection of the influence Bruno Latour’s writings have had on my ways of seeing and perhaps an unhealthy emphasis on the small things that combine to produce convincing arguments and ‘facts’.

The Legitimation of authority in the European Union

The founding Treaties of the European Union (EU) provide the Commission with bureaucratic structures and functions, and the authority to take a political leadership role in the integration process. However, the legitimacy of the Commission's authority to act either as a bureaucracy or as a political institution is periodically contested, as is the authority and leadership of its President. Max Weber's theory of the legitimation of authority suggests itself in this context as a working tool for assessing the nature of institutional and individual authority and leadership in the Commission and the broader EU context. Weber's typology of authority offers both an understanding of the changes in the Commission's fortunes within the 'would-be polity' of the European institutions, and an appraisal of claims to authority at the individual level by the Commission President. When applied to two contrasting moments in the Commission's life during the presidency of Jacques Delors (the generating of the White Papers of 1985 and 1993), Weber's typology provides an explanation for the evolution of the legitimation of these forms of authority in terms of, first, the Union's imperfect provisions for legitimate claims to leadership authority on 'charismatic' grounds and, second, the absence in the Union of resources for leadership legitimacy based on 'traditional'-type authority, such as explicit, popular, or party political European-wide support for the project of European union. These are resources which, if present in the EU, would legitimise calls to reform the EU's institutions in the direction of more integration and a more federal polity. The case studies offer an appraisal of the functioning and malfunctioning of authority within the Union, as well as a critical assessment of the applicability of the Weberian model to the legitimation of authority in the EU.

Reluctant donors? The Europeanization of international development policies in the New Member States

The European Union (EU) played an instrumental role in re-starting the international development policies in central and eastern European Member States, but questions remain about how far this policy area has been Europeanized since accession. Focusing on the Czech Republic, Hungary, Poland and Slovakia, this article investigates why the new donors have been reluctant to adopt the EU's development acquis more fully. The article traces the socialization processes offered by the EU's development policy rule-making and subsequent national rule implementation. The conclusions reveal three reasons why socialization has been weak: perceptions among the new Member States on the procedural legitimacy of the development acquis; low domestic resonance with the development acquis; and inconsistencies in the activities of norm entrepreneurs. The article contributes to our understanding of development policy in the EU – particularly how decision-making takes place within the Council and its working groups post-enlargement.

The new institutionalism in the context of Kosovo's transition:regulatory institutions in contested states

This article explores the new institutionalist literature in political economy in the context of Kosovo's contested statehood, focusing on institutional arbitrage and legitimacy. This article considers both the consequences of institutions for actors' behaviour and the norms that shape this, as well as the factors determining the legitimacy of institutions. In doing so, it combines the new institutionalist theory with documentary and interview material collected during research on energy regulation in one contested state, Kosovo. Rather than singling out one particular variety of "new institutionalism", the article attempts to blend insights from historical (or "political"), rational choice, and sociological institutionalism. © 2014 © 2014 Taylor & Francis.

The Bankruptcy of Liberalism and Social Democracy in the Neoliberal Age

The increasing similarity between the economic policies of center-left and center-right political parties has effectively diminished the legitimacy of governments in relationship to their citizenry in Western Europe and the U.S. Capitalist democracies during the period of managed capitalism gained legitimacy by the appearance of the separation of capitalist ownership rights in the marketplace from the political institutions that govern capitalism. During this period, Social Democratic parties in Western Europe, and to a lesser extent the Democratic Party in the U.S., paid some amount of attention to labor unions and mass constituents in formulating their policy agendas. The era of neoliberalism (late 1970s to the present) has broken any such appearances, with the dominant political parties, regardless of party label, moving rightward to embrace many of the same economic policy agendas.

End-of-life care: identifying an appropriate legal framework for specialist palliative care in Ireland

This thesis argues that the legal framework in Ireland for specialist palliative care is inadequate and consequently a more appropriate legal framework must be identified. This research is guided by three central research questions. The first central research question examines the legitimacy of the distinction between specialist palliative care and euthanasia. The second central research question asks what legal framework currently exists in Ireland for specialist palliative care. The third central research question examines an alternative legal framework for specialist palliative. This thesis is composed of seven chapters. The first Chapter is an introduction to the thesis and defines the terminology and the central research questions. Chapter Two explores the development and practice of palliative care in Ireland. Chapter Three examines the distinction in criminal law between specialist palliative care practices and euthanasia. Chapter Four examines the human rights framework for specialist palliative care. Chapter Five critiques the regulatory framework in Ireland for specialist palliative care. Having gained a thorough understanding of palliative care and the related legal framework, this thesis then engages in comparative analysis of the Netherlands which is used as a source of ideas for reform in Ireland. Chapter Seven is the concluding chapter and, in it, the main findings of this thesis are summarised. The main findings being that: the distinction between specialist palliative care and euthanasia is not sufficiently supported by justifications such as a double effect or the acts and omissions distinction, there is no clear decision-making framework in Ireland for specialist palliative care, and the current legal framework lacks clarity and does not promote consistency between providers of specialist palliative care. This Chapter also proposes that detailed professional standards and guidelines are likely to be the most appropriate way to effect individual and institutional change in the provision of specialist palliative care.