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Abstract: Abstract The transformation of international law has provoked a burgeoning literature on various conceptual and normative questions, such as the nature and legitimacy of international authorities. Constitutional and international scholars have so far been attracted to domestic normative theories such as constitutionalism, democratic legitimacy, and the rule of law. This attraction often comes at the expense of a more fundamental and prior question: How best to carry out this normative investigation and which normative theory to put into use in assessing the moral value of international authorities' This “meta-theoretical question” invites us to investigate the methodology of transnational constitutional theorizing by prompting discussions on which normative theory is more suitable for application at the international level. This review article brings into dialogue two recently published books (Sadurski’s Constitutional Public Reason and Mac Amhlaigh’s New Constitutional Horizons) that partially address this meta-theoretical question by prompting us to reflect on how best to conduct transnational constitutional theorizing. PubDate: 2024-07-22
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Abstract: Abstract This contribution delves into the concept of ‘corporate sovereignty’, where companies, akin to states, function not only as economic entities but also as political actors exercising a novel form of sovereignty. Although business ethics typically approaches corporate power from ethical, legal, and economic perspectives, these viewpoints prove inadequate in conceptually grasping the specific form of power, namely sovereignty. In an era of escalating corporate influence and contested state authority, political theology becomes indispensable. The political theology of Carl Schmitt, though not prominently featured in business ethics, provides valuable insights into how corporate power manifests in contemporary reality, particularly as ‘corporate sovereignty’. Schmitt contends that sovereignty reveals itself in exceptional circumstances, a concept paralleled by companies exercising sovereignty. Political theology unveils the political concepts and power dynamics behind corporate sovereignty, necessitating a broader approach in business ethics where political philosophy and theology play a crucial role. PubDate: 2024-07-17
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Abstract: Abstract Extraterritorial border controls prevent migrants from arriving at the territory of the state and effectively undermine rights to apply for asylum and protections against non-refoulement. As a result, a wealth of scholarship argues that external border controls are illegitimate exercises of state power. This paper challenges two versions of this argument, first, the claim that carrier-sanctions are illegitimate because they subject migrants to morally impermissible forms of coercion and, second, the claim that carrier-sanctions are illegitimate because they subject migrants to illegitimate claims to authority. Against coercion-based accounts of legitimacy, this paper defends the view that while carrier-sanctions are coercive, the coerciveness of a policy is not relevant to its legitimacy. What is relevant is instead whether the authority claimed by the state is legitimate. Against authority-based accounts, this paper argues that states are unable to claim authority in the relevant sense over migrants that are present in the territories of other states. The paper concludes by suggesting that the charge that carrier-sanctions are illegitimate should shift towards the state that allows carriers to enforce these policies on their territories. No state has the legitimate authority to permit other states to pressure carriers to prevent migrants in need of protection from travelling. The state that introduces carrier-sanction legislation, on the other hand, is not exercising illegitimate authority though they may act contrary to demands of justice. PubDate: 2024-06-24
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Abstract: Abstract The German Aufklärung was only one of at least three distinct Eighteenth Century Movements we now call ‘the Enlightenment’. But what is enlightenment' This question was posed in a Berlin journal in 1783 and answered in the same journal a year later by two of the movement’s leading representatives: Moses Mendelssohn and Immanuel Kant. Kant’s answer, which is expounded in this essay, changed the understanding of the movement. Kant sees enlightenment not as only a development of intellect but a liberation of mind and character from the authority of others that keeps us all, at least to some extent, from thinking for ourselves. But Kant holds that thinking for oneself requires communication with others and searching for an intellectual standpoint that is valid for all. It is a process that is never completed. We are all to some degree in need of enlightenment. And Kant’s call for enlightenment is as urgent today as it was in his own age. PubDate: 2024-06-03 DOI: 10.1007/s42439-024-00091-6
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Abstract: Abstract Complex moral and political problems like climate change have the capacity to make wrongful (in)actions appear reasonable. This has significance for the central questions of jurisprudence. If we cannot plan rationally for the future, or acts now thought to be rational and blameless become progressively more blameworthy, central elements in our understanding of law – planning, reasonableness, and authority – may diminish in their ability to explain the function and normativity of law. If this is the case, legal positivism and legal non-positivism appear to be confronted with significant, but different, challenges depending on the extent that they conceive of law as future-orientated planning or as a form of practical reasonableness. PubDate: 2024-03-14 DOI: 10.1007/s42439-024-00090-7
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Abstract: Abstract AI-based algorithms are used extensively by public institutions. Thus, for instance, AI algorithms have been used in making decisions concerning punishment providing welfare payments, making decisions concerning parole, and many other tasks which have traditionally been assigned to public officials and/or public entities. We develop a novel argument against the use of AI algorithms, in particular with respect to decisions made by public officials and public entities. We argue that decisions made by AI algorithms cannot count as public decisions, namely decisions that are made in the name of citizens and that this fact should be taken into consideration when utilizing AI to replace public officials. PubDate: 2024-01-03 DOI: 10.1007/s42439-023-00088-7
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Abstract: Abstract If the state outsources a responsibility to private actors to plant trees, is that necessarily a bad thing' Surely, one would think not. Still, in constitutional theory, there are many forceful arguments against privatisation. One of the core arguments against privatisation is the question of who ought to do what and what it means for a policy area to be inherently public. In this paper, I am interested in varieties of privatisation and in particular what privatisation means in the context of climate change. The aim of the paper is to show that precisely because there is a variety of privatisation, in some areas, such as the environment and regarding climate change, we may discuss the question of ‘duty’ rather than privatisation as such. PubDate: 2023-11-27 DOI: 10.1007/s42439-023-00087-8
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Abstract: Abstract Climate change harmfully affects social and natural systems. These outcomes adversely affect the human and natural systems, resulting in adopting related-response measures whose implementation yields similar outcomes, especially when poorly designed. Climate-related projects, actions, and policies cause harmful environmental impacts, even though the United Nations Convention on Climate Change and its subsequent instruments urge parties, when dealing with climate change, to employ methods that preserve the quality of the environment. Few studies have established the effects of these environmentally, economically, culturally, and socially unsound mechanisms on public participation, although research usually proves that ecological and environmental citizenship can enhance climate action. The study also highlights gaps in the common understanding of public participation in climate action. This reflection analyses the relationships between public participation and climate response measures and concludes that uncertainty related to response measures could affect the perception of climate action by the public. The reflection, therefore, shows that many international environmental law legal instruments, policies, and scholarships attempt to address the issue. PubDate: 2023-11-27 DOI: 10.1007/s42439-023-00086-9
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Abstract: Abstract Hobbes’ natural law theory has been discussed far and wide. Some interpreters ended up defining Hobbes as a natural law theorist, some others as a legal positivist. In this paper, I analyse the work of two important scholars, Howard Warrender and Norberto Bobbio, whose insights have stimulated an interesting debate about Hobbes’ political theory. Warrender gives God a central function in Hobbes’ political science. On his account, God is a lawmaker, his will is the source of a universal obligation, and civil order is necessary to give force to the natural law that is the expression of divine will. In Bobbio’s interpretation, Hobbes is the first legal positivist of Modern age, as natural law is only ever given content by the sovereign’s will. Finally, I ask which is natural law and God’s function in Hobbes’ political thought, questioning some contemporary scholars in order to clarify Hobbes’ modernity. PubDate: 2023-11-14 DOI: 10.1007/s42439-023-00085-w
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Abstract: Abstract The objective of this article is to introduce a new concept for grouping all countermajoritarian instruments which became the true casualties of polity design during the New Latin American Constitutionalism (NLAC). This theoretical endeavor, which has not been undertaken until now, will be discussed on the basis of the constitutional upheavals that occurred between 1999 and 2009 in Venezuela, Ecuador, and Bolivia. By addressing a specific theme of this experience, namely its implications for the relationship between democracy and countermajoritarian devices, this article shows why an aggregating concept such as state ataraxy is needed. This concept fills the gap that hinders understanding of what has been institutionally dismantled in the course of these reforms. The article then challenges the claim that with the collapse of countermajoritarian institutions, democracy necessarily collapses. It concludes with a new assessment of the novelty that the NLAC may have brought concerning the tension between democracy and countermajoritarian institutions. The findings contribute to understand one of the most enduring concerns of state theory in general, the tension between democracy and the rule of law. PubDate: 2023-11-06 DOI: 10.1007/s42439-023-00083-y
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Abstract: Abstract The purpose of this contribution is to analyse climate change litigation in an innovative way, considering it as an example of “privatisation” of international law, and unravelling the “ecological” side of conflict-of-laws climate change litigation. The paper will first explain the concept of privatisation of law as applied to international law and what it means in the context of climate change litigation, before moving to a landmark case, whose appeal is still pending in front of a domestic court in Europe: Milieudefensie et al. v. Royal Dutch Shell plc. The focus of the analysis of the cases will be limited to the use of the conflict-of-laws mechanism present in the Rome II Regulation, namely Article 7. The paper critically assesses the principle of ubiquity included in this provision, by looking at the concept of “event giving rise to the damage” as applied in CO2 reduction claims in the existing legal scholarship and using an underexplored ecofeminist perspective. Inspired by the work “A relational feminist approach to conflict of laws” by Roxana Banu (2017), the paper argues for a relational understanding of the concept of “event” and goes further to consider in an ecofeminist perspective the environment as composed of human, non-human beings and natural objects, and of their relations with each other. The article is meant to be a starting point for further research, which for the first time applies ecofeminist theories to private international law. PubDate: 2023-11-06 DOI: 10.1007/s42439-023-00084-x
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Abstract: Abstract The 1930s–1940s underwent profound structural economic and political turmoil following the collapse of the nineteenth century liberal market economies. The intellectual debates of the time were dominated by the question of whether Marx’s theory of the tendency of rate of profit to fall was true, or what consequence could be imagined in the survival of capitalist societies. Placed in the middle of such debates was also the reorganization of national productions into war economies. By means of reconstructive analysis, the paper provides a critical overview of the debates that took place within the circle of the Frankfurt School during those years. It also advances an interpretive thesis suggesting that remedies to capitalist crises of the time turned state powers into privatized, illiberal coercive entities. Coercion and privatization reinforced each other. This general tendency is well illustrated by the famous Pollock-Neumann debate. These intellectuals expressed views not only intended to shed light on the historical period of time, but also to formulate long-term considerations on the authoritarian trends embedded in our contemporary democracies. Through historical reconstruction, the paper’s aim is to identify a long-term structural thread of transformation starting from the transformation of the German economy in 1930s and touching upon post Second World War problems of states’ restructuring along privatization/coercion divides. PubDate: 2023-10-26 DOI: 10.1007/s42439-023-00081-0
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Abstract: Abstract This article seeks to show the importance of Cicero for Kant by pointing out the systematic relationship between their respective views on ethics and law. Cicero was important to Kant because Cicero had already elaborated an imperative, “quasi-jural” conception of duty or obligation. Cicero had also already prefigured the distinction between ethical duties and duties of justice. The article does not establish any direct historical influence, but points out interesting systematic overlaps. The most important in the realm of ethics are a universal rationalism; a rule-based normative framework of duty; and skepticism about (Cicero), or rejection of (Kant), eudaimonism. In the realm of political theory, it is the centrality of law and of property that unites both thinkers; both reject voluntarism in thinking that consensus flows from the right external laws, not the other way around, and thus creates a juridical community; and lastly, both Cicero and Kant believe that transparence, or publicity, is a key ideal that might be presupposed by both the ethical and the juridical domain. The article thus shows that both Cicero and Kant separate ethics from law, but there are indications that neither has given up the aspiration to bridge the two realms on a higher plane. This reading of Kant yields both a more Ciceronian Kant and allows us to perceive Kantian aspects of Cicero. PubDate: 2023-10-24 DOI: 10.1007/s42439-023-00082-z
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Abstract: Abstract Several critics have argued that private prisons are not only problematic because of their worse effects but also intrinsically wrong. This article analyzes two prominent arguments for this claim: the representation argument and the condemnation argument. The conclusion is that these arguments fail to show that there is something intrinsically wrong about private prisons. This is especially true if the arguments are extended to non-profit private prisons under social injustice contexts that states are responsible for. In such cases, non-profit private prisons might not only be on a par with public prisons but be preferable to them. However, the arguments are also insufficient to oppose every conceivable for-profit private prison. PubDate: 2023-10-24 DOI: 10.1007/s42439-023-00080-1
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Abstract: Abstract Courts are often criticised as undemocratic. The backlash against international courts in the last decade is also partly driven by this concern. Human rights courts’ legitimacy is particularly challenged because they aim to protect human rights against the very states that need to comply with and implement the courts’ judgements. Therefore, several international courts have developed mechanisms of deference to states. One especially interesting tool is the European Court of Human Rights’ margin of appreciation doctrine. This paper proposes that the margin of appreciation can ensure the conditions of personal autonomy by protecting human rights while respecting the democratic decisions of states. Yet, states’ decisions should only be respected insofar as they realise political autonomy. Understanding the margin in this way allows us to critically evaluate arguments made under this label. The paper reviews developments in the ECtHR practice with regard to (a) different cases that use the margin of appreciation doctrine, (b) appeals to a European consensus, and (c) the procedural turn in its review and assesses whether and how they can be justified in the light of considerations about personal and political autonomy. PubDate: 2023-08-31 DOI: 10.1007/s42439-023-00079-8
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Abstract: Abstract The principle of sustainability is generally taken as a good, but what does sustainability really mean' The notion of sustainability has been at the center of global governance debates for more than a decade and many countries across the world include sustainability in their constitutions. This paper argues that in order to understand the concept of sustainability in a constitutional context, we need to turn to the notion of dignity. The paper explores the concepts of sustainability and dignity and their meanings in the framework of climate justice and related questions and by discussing them in the context of Kantian and republican theory. In addition, the paper looks at intriguing court cases on the importance of nation states meeting their climate law duties. The paper concludes by exploring new uses of the sustainability concept. EU constitutional law will serve as a laboratory in testing these questions. PubDate: 2023-07-10 DOI: 10.1007/s42439-023-00078-9
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Abstract: Abstract Modern jurisprudence has typically been presented as a debate between legal positivism and natural law. Though the demise of legal positivism has been touted despite its pre-eminence in past decades, it is clear that there remains a vigorous debate surrounding this theory. It is noteworthy that Hans J. Morgenthau’s legal thought and critique of legal positivism have remained unexplored in the context of this debate. Largely forgotten, his legal thought answers questions that lie at the heart of the natural law and legal positivist debate. It showcases his deeply nuanced understanding of legal and political theory and contains a powerful and insightful commentary on the fundamental problems faced by international law. Building on existing literature, this paper unearths Morgenthau’s critique of legal positivism. It does this by re-examining his works, which address the question of whether moral considerations are relevant to determining the content of the law in force. It brings his legal thought to light, which highlights the artificiality of the division between law and morality and offers a nuanced analysis of problems inherent in international law. Ultimately, the paper challenges the claim that the law can be determined without resorting to moral judgement and shows how Morgenthau’s insights remain relevant to legal positivism and natural law debates today. PubDate: 2023-03-30 DOI: 10.1007/s42439-023-00076-x
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Abstract: Abstract State derecognition, defined as the withdrawal of recognition from a putative state, has been more impactful as a diplomatic subculture in the last decades than is often assumed. Recent practice suggests that when states engage in derecognition, they do not mechanically assess whether a state no longer fulfils the traditional criteria for statehood, but rather employ derecognition as a tool of foreign policy, tailored to enhance their own economic and geopolitical interests. The bargaining dynamics of derecognition and “rental recognition” policies adopted by a range of smaller states create a precarious hostage-like situation for the targeted entities who helplessly watch their international status being traded in a recognition market. As the success of some claims to statehood risks beings reduced to a matter of pricing, a process of commodification emerges: state recognition is granted to the “highest bidder” regardless of factual reality or legal considerations. With this backdrop, the present paper seeks to clarify how international law conceptualizes derecognition and its hypotheses of legality, offering an overview of contemporary events of derecognition and expedient shifts in recognition to clarify the role and deficiencies of international law as it stands before the emerging phenomenon of “statehood commodification” PubDate: 2023-03-23 DOI: 10.1007/s42439-023-00075-y
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Abstract: Abstract In the Anthropocene, humans are drastically impacting the Earth system. Though the numbers are disputed, millions of climate refugees might soon appear worldwide due to, for example, rising sea levels. To better tackle these intertwined ecological and migrational crises, I expand on Seyla Benhabib’s theoretical legacy by discerning within it a multidimensional framework containing mutually intersecting moral, legal, and political dimensions. Within this framework, I argue, Benhabib approaches the issue of climate refugees from three different yet supplementary discourses. From her engagement with discourses on cosmopolitanism and global justice, she endorses reforming the Refugee Convention to include climate refugees. From her contribution to discourses on human rights and human dignity, Benhabib opens the door for a human right to the environment to better protect climate refugees. Against the backdrop of her longstanding work to reformulate a feminist and critical-theoretical discourse ethics, I argue, Benhabib puts forward an ecocentric planetary ethics that embraces climate refugees and the rest of nature. In all, I conclude that Benhabib’s legacy demonstrates the need for a multidimensional approach to climate refugees in times of ecocrisis. PubDate: 2023-01-30 DOI: 10.1007/s42439-022-00071-8