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Article

Sabine Saurugger and Fabien Terpan

Considered an unusually powerful actor that has furthered European integration, the Court of Justice of the European Union (CJEU) has attracted considerable interest from both scholars and the public. Legal scholars and political scientists, as well as historians, have studied the Court in the context of it being one of the main actors in the integration process. Those that saw European integration as “integration through law” originally considered the Court to be the core element driving this process. The Court’s case law has influenced market integration, the balance of power among the EU’s institutions, and the “constitutional” boundaries between supranational and national competences. The pathbreaking rulings Costa vs. Enel and van Gend en Loos introduced new legal principles of direct effect and primacy in the 1960s; the 2007 Laval and Viking rulings triggered criticism of the Court’s decision, which was said to put the rights of companies above those of workers; whereas the Mangold ruling in 2005 on age discrimination was widely welcomed in spite of some negative reactions in Germany. Hence, while “integration through law” remains a powerful narrative in the academic field of European studies, the Court’s decisions and its role in the EU system have not remained unchallenged. This view of the Court as being less central to European integration is based on two developments in this field of study. On the one hand, research findings based on various analytical approaches—from rational choice to post-positivist—suggest that “integration through law” since the beginning of European integration has been a far less straightforward process than we have otherwise been led to believe. Scholars assert that the Court has been constrained by political, administrative, and constitutional counteractions since its establishment in 1952. On the other hand, scholars have identified a number of developments in the integration process from the early 1990s and the Maastricht Treaty, such as the increase in new modes of governance and intergovernmental decision-making, that explain why the Court’s role has come into question. Understanding these debates is crucial to grasping the broader institutional as well as political and legal developments of European integration.

Article

Judicial control over the bureaucracy is a means to defend the rule of law and important principles of democratic governance. It refers to the power of the courts to consider whether the actions of public authorities respect the limits prescribed by law. Regimes of judicial control vary in legal and administrative systems. Two major traditions can be mainly distinguished. The first characterizes continental Europe. It assigns judicial review to specialized administrative courts and involves a special branch of law, that is, administrative law. The second relies on ordinary courts and characterizes the Anglo-American system of common law. The two traditions also differ regarding the role of the courts and particularly their possibility to shape rules (common law tradition) or to apply rules (continental tradition). The expansion of state activities, including economic and social regulation and welfare service provision, has blurred the old politics–administration distinction since more and more decisions are delegated by parliaments to the administration, endowing it with wide discretionary powers. These developments have added a new meaning to the implementation of the rule of law. When the content of decisions is bound by a legal rule, legal compliance is more straightforward than when there is a margin of appreciation and choice. Circumscribing administrative discretion passes first and foremost from regulating the process of decision-making. Procedural standards have indeed been an area of primary concern for courts. Increasingly, nevertheless, substantive aspects of the administrative decision-making process and even service provision come under judicial scrutiny. Its extent inevitably differs from one legal system to another. The intensity of judicial review and its impact on (a) administrative operation and (b) policy decisions raise critical questions: how is it possible to achieve a balance between managerial flexibility, efficiency, and responsibility on the one hand and legal accountability on the other? To what extent may the courts substitute their own judgment for that of policymakers and the administrative or expert opinion underlying the decision under examination? How far do they go in scrutinizing policymaking and implementation? Judicial control involves constraining as well as constructive effects on the administration. It may contribute to an institution-building process (e.g., strengthening of Weberian-type features, increasing formalization, etc.) and to the agenda-building process, and it may influence policymaking. In certain contexts, courts even tend to become political actors. The reverse side is that they may step into matters of management and policymaking for which they are not prepared or institutionally responsible. This points to potential tensions between the administration (the executive) and the judiciary but also underlines the limitations of judicial control. Delicate issues regarding the separation of powers may emerge. Furthermore, cost, delays, the degree of administrative compliance with judicial decisions, and the ability of courts to integrate into their reasoning issues of efficiency and effectiveness constitute growing challenges to judicial control.

Article

One reason why dictatorships flourished in Africa until the 1990s was that constitutions concentrated excessive powers in presidents. The democratic revival of the 1990s led to the introduction of new or substantially revised constitutions in a number of countries that for the first time sought to promote constitutionalism, good governance, and respect for the rule of law. A key innovation was the introduction of provisions providing for separation of powers. However, in many cases the reintroduction of multipartyism did not lead to thorough constitutional reform, setting the scene for a subsequent struggle between opposition parties, civil society, and the government, over the rule of law. This reflects the complex politics of constitutionalism in Africa over the last 60 years. In this context, it is important to note that most of the constitutions introduced at independence had provided for some degree of separation of powers, but the provisions relating to this were often vaguely worded and quickly undermined. Despite this, the doctrine of separation of powers has a long history, and the abundant literature on it shows that there is no general agreement on what it means or what its contemporary relevance is. Of the three main models of separation of powers, the American one, which comes closest to a “pure” system of separation of powers, and the British, which involves an extensive fusion of powers, have influenced developments in anglophone Africa. The French model, which combines elements of the British and American models but in which the executive predominates over the other two branches, has influenced developments in all civilian jurisdictions in Africa, particularly those in francophone Africa. The common denominator among the models is the desire to prevent tyrannical and arbitrary government by separating powers but doing so in a manner that allows for limited interference through checks and balances on the principle that le pouvoir arrête le pouvoir. The combined Anglo-American (common law) and French (civil law) models received during the colonial period remain applicable today, but despite its adoption in the 1990s, the effectiveness of the doctrine of separation of powers in limiting governmental abuse has been curtailed by the excessive powers African presidents still enjoy and the control they exercise over dominant parties in legislatures. South Africa in its 1996 Constitution, followed by Kenya in 2010 and Zimbabwe in 2013, entrenched a number of hybrid institutions of accountability that have the potential not only to complement the checks and balances provided by the traditional triad but also to act where it is unable or unwilling to do so. The advent of these institutions has given the doctrine of separation of powers renewed potency and relevance in advancing Africa’s faltering constitutionalism project.

Article

In a liberal conception of democracy, courts play an important role in facilitating the rule of law by controlling the abidance to rules and by holding the political branches of government accountable. The power of constitutional review is a crucial element for exercising horizontal accountability. Courts across Africa are vested with the power of constitutional review, and, generally speaking, their independence has substantially increased since the beginning of the 1990s—although African courts enjoy overall less independence than the global average for courts’ independence. Within the African region, the level of judicial independence varies widely, between contexts that rarely allow judicial independence and contexts where courts have more power to challenge the government. Furthermore, across the continent, African courts experience undue interference—which frequently takes place informally. Informal interference can occur through the biased appointments of judges, verbal and physical threats, violent attacks, the payment of bribes, or the ouster of sitting judges. Informal networks—held together by ties based on shared educational trajectories, common leisure activities, religion, kinship relations, or political affiliations—are the channels through which such pressure can be transmitted. Yet judges also can actively build informal networks: namely, with the legal community, civil society, and international donors, so as to insulate themselves against undue interference and to increase institutional legitimacy. Research has shown that the agency of judges and courts in signaling impartial decision-making, as well as in reaching out to society, is crucial to constructing legitimacy in the African context. In contrast, the explanatory power of electoral competition as an incentive for power holders to support judicial independence is not straightforward in the context of Africa’s political regimes, where the prospect of losing office is associated with financial, and in some cases even physical, insecurity. However, research on judicial politics in Africa is still only preliminary, because the field requires more comparative studies in order to fully reveal the political repercussions on Africa’s judiciaries as well as to delineate the scope conditions of the prominent theories explaining judicial independence.

Article

The rise of consumer policy is inextricably linked to the emergence of the consumer society after the Second World War. From the mid-1970s the EU became engaged in the issue. It used first and foremost legal means, directives, and regulations. The actors were no longer nation-states, governments, national parliaments, national courts, and national consumer organizations; they became the European Commission, the European Parliament, the Council of the European Union, the European Court of Justice, European organizations, research institutions, and consultancy firms, which interact in a multilevel economy and society.

Article

Hungary became a member of the European Union (EU) alongside nine other, mainly East-Central European (ECE) countries in 2004. Although Hungary was one of the leading candidates from the former Soviet bloc to join the EU after the transition in 1989–1990, this positive view and the advantage that the country enjoyed seemed to gradually disappear by the mid-2000s. Hungarian experience with the EU is quite ambivalent. Economically speaking, on the one hand there is a slow but steady convergence to the EU average, which is largely due to the net beneficiary status of the country within the Community, and employment levels have increased considerably. On the other hand, the Country-Specific Recommendations (CSRs) point to shortcomings related to competitiveness, and labor productivity, which indicate some missed opportunities. Similarly, although budgetary deficit and public debt have been under control lately, sustainability concerns still remain. Additionally, even though the country’s prospects to join the common currency area are quite promising, political willingness is still lacking to make a lasting commitment to the Euro. While the socio-economic expectations of EU membership before accession were quite high and rather unrealistic, although economic growth decreased the level of overall poverty, socioeconomic inequalities have increased lately because of government policies. As far as politics is concerned, even the consensus of the political elite to support liberal democracy as a political system and further integration of the EU as a policy strategy have been questioned by the main governing party lately. Instead, a more Eurosceptic tone and an incremental democratic decline characterizes everyday politics, which has led to recurring criticism within the Community, and the eventual triggering of an Article 7 Procedure.

Article

Ireneusz Paweł Karolewski and Maciej Wilga

Multifaceted in its character, the relationship between Poland and the European Union is now more than a quarter of a century old. After the breakdown of the Eastern bloc, Poland signed the Association Agreement with the then European Communities in December 1991, which led up to an EU membership application three years later. Not yet a member, the country had some impact on the Union in the Nice Treaty negotiations (2000–2001), as well as on the European Constitutional Convention proceedings (2001–2003). After a successful EU membership referendum in 2003, reflecting a great deal of societal support, Poland, along with nine other newcomers, became a fully-fledged member of the EU. Once within the bloc, Warsaw was at pains to develop a more coherent EU policy, as it often changed its positions between more collaborative approaches and veto threats, but also absolving a successful rotating EU Council presidency in 2011. The country collaborated with other member states in Central and Eastern Europe—in the Visegrád framework and with the older member states—through the Weimar Triangle, for example, however with sometimes mixed results. Poland has prioritized a number of issues in the EU such as the energy sector, security and defense, and the Eastern partnership, the latter focusing on the EU Eastern neighbors, including Ukraine and Belarus. In particular, during the Ukraine-Russia conflict of 2014–2015, Poland was one of most active actors in the EU foreign policy. However, since 2015 Poland has become a subject of controversy within the EU, regarding the rule of law standards that were criticized by the European Commission and Warsaw’s rejection of a relocation scheme in the EU refugee and migrant policy.

Article

Axel Tschentscher

Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system. Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.

Article

Opposition to same-sex marriage in the United States is frequently based on the religious belief that marriage should be reserved for a man and a woman. With most of the attention focused on wedding vendors, the clash between religious liberty and marriage equality has largely manifested itself in efforts by business owners, such as photographers, florists, caterers, and bakers, to deny their services to same-sex couples celebrating their marriages. Citing state antidiscrimination laws, the couples demand the owners treat them as they do their other customers. Owners of public accommodations (privately owned business open to the public) who object to facilitating the weddings of same-sex couples do so typically by asserting their personal religious beliefs as defenses when charged with violating such laws; they argue that they would view their participation (albeit indirect) in wedding ceremonies as endorsing same-sex marriage. As the lawsuits against them began to proliferate, the business owners asked the courts to shield them from liability for violating the laws prohibiting discrimination because of sexual orientation in places of public accommodation. They cited their First Amendment right to the free exercise of their religion and their right not to be compelled to speak, that is, to express a positive message about same-sex marriage. With conflicts between same-sex couples and owners of business establishments arising in a number of states, the focus of the nation’s attention was on a New Mexico photographer, a Washington State florist, and a Colorado baker, each of whom sought an exemption from their state’s antidiscrimination law to enable them to exercise their religious tenets against marriage equality. In these cases, the state human rights commissions and the state appellate courts ruled that the antidiscrimination laws outweighed the rights of the business owners to exercise their religious beliefs against marriage equality by refusing to play a role, no matter how limited, in a same-sex marriage ceremony. In June 2018, in Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, the U.S. Supreme Court affirmed the state’s antidiscrimination law that guaranteed equal treatment for same-sex couples in places of public accommodations but reversed the Commission’s ruling against the Colorado baker. In a narrow decision, the Court held that the Commission infringed on the baker’s First Amendment right to free exercise by uttering comments that, in the Court’s view, demonstrated hostility to his sincerely held religious beliefs. The ruling affirmed that society has a strong interest in protecting gay men and lesbians from harm as they engage in the marketplace as well as in respecting sincerely held religious beliefs.

Article

Dennis Dijkzeul and Diana Griesinger

The term “humanitarian crisis” combines two words of controversial meaning and definitions that are often used in very different situations. For example, there is no official definition of “humanitarian crisis” in international humanitarian law. Although some academic disciplines have developed ways of collecting and analyzing data on (potential) crises, all of them have difficulties understanding, defining, and even identifying humanitarian crises. Following an overview of the use of the compound noun “humanitarian crisis,” three perspectives from respectively the disciplines International Humanitarian Law, Public Health, and Humanitarian Studies are discussed in order to explore their different but partly overlapping approaches to (incompletely) defining, representing, and negotiating humanitarian crises. These disciplinary perspectives often paint an incomplete and technocratic picture of crises that is rarely contextualized and, thus, fails to reflect adequately the political causes of crises and the roles of local actors. They center more on defining humanitarian action than on humanitarian crises. They also show four different types of humanitarian action, namely radical, traditional Dunantist, multimandate, and resilience humanitarianism. These humanitarianisms have different strengths and weaknesses in different types of crisis, but none comprehensively and successfully defines humanitarian crises. Finally, a multiperspective and power-sensitive definition of crises, and a more fine-grained language for comprehending the diversity of crises will do more justice to the complexity and longevity of crises and the persons who are surviving—or attempting to survive—them.

Article

Since the 1980s, the law of the European Union (EU) has become a substantial transnational source of political empowerment for LGBT actors in Europe. The Rome Treaty (1957), which established the European Economic Community, contained a gender equality clause. In the 1990s, this provision was used to protect employment rights of intersex individuals via litigation schemes based on EU law. Yet the subsequent attempts to push forward a similar legal protection for gay and lesbian equality at the Court of Justice of the European Union (CJEU), based on the EU sex-equality clause, failed. Since then, the position of the LGBT community in EU legislative politics has evolved significantly through two dimensions. First, the Amsterdam Treaty (1997) extended the number of grounds protected against discrimination in EU law, adding sexual orientation, among others, to this palette. The Amsterdam Treaty permitted the EU Council to adopt the Framework Equality Directive 2000/78/EC, an instrument of secondary Union law that has safeguarded minimum standards of protection against homophobia in relation to matters of employment in all member states. This framework EU legislation has been used by LGBT litigants in their fight for equal working opportunities and pension rights at the CJEU. Second, the introduction of EU citizenship by virtue of the Maastricht Treaty (1992) and the respective secondary law (the EU Citizenship Directive 2004/38/EC) have paved the way for status recognition of same-sex spouses in the member states that have not previously recognized same-sex partnership or marriage. The future of LGBT legislative politics and the LGBT community in Europe will largely depend on whether EU law is able to extend protection beyond the current confines of the employment area, broaden its scope to cover social dimensions such as health and education, and fully recognize same-sex marriages and partnerships throughout the EU.

Article

Most African countries are characterized by parallel institutions, one representing the formal laws of the state and the other representing the traditional institutions that are adhered to more commonly in rural areas. The parallel institutional systems often complement each other in the continent’s contemporary governance. Oftentimes, however, they contradict each other, creating problems associated with institutional incoherence. Why the traditional systems endure, how the institutional dichotomy impacts the process of building democratic governance, and how the problems of institutional incoherence might be mitigated are issues that have not yet received adequate attention in African studies. The evidence suggests that traditional institutions have continued to metamorphose under the postcolonial state, as Africa’s socioeconomic systems continue to evolve. Despite such changes, these institutions are referred to as traditional not because they continue to exist in an unadulterated form as they did in Africa’s precolonial past but because they are largely born of the precolonial political systems and are adhered to principally, although not exclusively, by the population in the traditional (subsistent) sectors of the economy. Subsequent to the colonial experience, traditional institutions may be considered to be informal institutions in the sense that they are often not sanctioned by the state. However, they are not merely customs and norms; rather they are systems of governance, which were formal in precolonial times and continue to exist in a semiformal manner in some countries and in an informal manner in others. Another issue that needs some clarification is the neglect by the literature of the traditional institutions of the political systems without centralized authority structures. In general, decentralized political systems, which are often elder-based with group leadership, have received little attention, even though these systems are widespread and have the institutions of judicial systems and mechanisms of conflict resolution and allocation of resources, like the institutions of the centralized systems. Careful analysis suggests that African traditional institutions lie in a continuum between the highly decentralized to the centralized systems and they all have resource allocation practices, conflict resolution, judicial systems, and decision-making practices, which are distinct from those of the state.

Article

Judith M. Anderson and Patricia Gomes

Africans and Afro-descendants in Argentina have a long tradition of organizing to resist all forms of oppression. This can be traced back to the 17th century with various forms of organizations including cofradias (religious brotherhoods or fraternal organizations), naciones (Afro-descendant social and cultural organizations), mutual aid societies, and military-based organizations in Río de la Plata, the region that would become Argentina and Uruguay. From the mid-19th to the early 20th centuries, as a part of the construction of the Argentine nation as European, white, and “civilized,” the myth of black disappearance was reified through discursive elimination and the cessation of collecting data on race or color in official records. The rise of Peronism in the 1940s would cause the return of race to public discourse, as large internal migrations of nonwhites from the interior of the country descended on major cities like Buenos Aires. The opponents of Perón, and his policies that embraced these poor migrants, mocked these individuals as cabecitas negras (derogatory term meaning “little black heads”), but they would open the possibility for a new reworking of a more inclusive Argentina. The new migrants represented a merging of categories of race and class, as these negros included Afro-Argentines who formed part of Perón’s constituency. The late 20th century would bring more direct challenges to black invisibility, with multiple new organizations and events centered on the experiences of the African diaspora in Argentina. One of the first organizations created after the return to democracy in Argentina was the Comité Argentino Latinoamericano contra el Apartheid (The Argentine Committee against Apartheid) in 1984. The example set by this organization, alongside inspiration from black liberation movements in the United States, Brazil, and on the African continent, would be a catalyst for the creation of numerous new black organizations for decades to come. Black organizing in Argentina found support in activist networks across the globe as well as across international organizations, which was reflected by the multicultural turn in Latin America during the 1990s. The era sparked the creation of significant legislation and activities due to pressure from local activists and the international community through organizations like the Inter-American Development Bank and the World Bank. One of the earliest conferences organized by Argentine black activists was the first Jornada de Cultura Negra (Black Culture Conference) in 1991. The National Institute Against Discrimination, Xenophobia, and Racism (INADI) was created in 1995 by the Argentine state to address the needs of marginalized populations in Argentine society. The late 1990s and early 2000s saw increased immigration of highly visible Africans and Afro-descendants from Latin America and Caribbean countries, which led to the creation of novel organizations to serve their specific needs. New conferences and events that provided opportunities for these diasporas to organize and interact, like the Semana de África (Africa Week), were also created. Along with the existing black communities in Argentina, these organizations contributed to new legislation officially recognizing Afro-descendant populations and condemning racism. Many of these legislative acts were passed under the Fernández de Kirchner administration (2007–2015), like the 2015 Law No. 5.261 Against Discrimination, which provided a more comprehensive antidiscrimination policy, and the historic 2010 Argentine census which restored the possibility of identifying as Afro-descendant. The reappearance of the category in the 2010 census after over a 120-year absence had been prompted by the World Bank’s landmark census 5 years prior. Though these gains were primarily symbolic, they helped fortify black activism. Grassroots organizing and political mobilization has remained steadfast in spite of shifts in national politics, continuous economic instability, and increased antiblack racism at both the systemic and individual levels. As black activism increased incrementally over the decades, it inspired an upsurge of academic studies that in turn provided knowledge which helped propel activist efforts. The 21st century has been a particularly fruitful time in the Argentine academy as anthropological studies on Africans and Afro-descendants have proliferated. This time period has also marked a much-needed expansion of black organizing into more rural areas of the country, especially the northwest, which has historically had a large population of African descent. By holding more activities in the provinces and outside of the City of Buenos Aires, the decentralization of black activism has helped increase consciousness across the nation.