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Journal Cover European Law Journal
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   Hybrid Journal Hybrid journal (It can contain Open Access articles)
   ISSN (Print) 1351-5993 - ISSN (Online) 1468-0386
   Published by John Wiley and Sons Homepage  [1597 journals]
  • Economic freedom and economic rights: Direction, significance and ideology
    • Authors: Christopher Harding
      Abstract: The discussion here takes stock of and analyses the way in which ideas of economic freedom and basic economic rights have evolved during the last half century to generate legal discourse and legal action, and with what effect, with particular reference to Europe as a site for such developments. It is necessary to probe the understanding and purpose of such ‘rights talk’ and also to set the discourse in relevant ideological contexts. For the purpose of this exercise, a broad distinction is drawn between two major categories of economic right. The first category may be broadly described as ‘integration rights’—entrepreneurial in character, forward-looking and opportunistic in a historical context of supranational integration and trade liberalisation. The second category, in contrast, may be termed ‘vulnerability rights’; these are more protective in character, and serve to enhance the opportunities of the economically disadvantaged, those sections of the population at risk of social exclusion and poverty. An assessment is made, on the one hand, of the achievement of the movement to exploit integration rights, and on the other hand, the prospect for the mobilisation and assertion of vulnerability rights in the wake of governmental policies of austerity.
      PubDate: 2018-02-13T23:31:05.248289-05:
      DOI: 10.1111/eulj.12238
  • Negative governmentality through fundamental rights: The far side of the
           European Convention on Human Rights
    • Authors: Muhammad Ali Nasir
      Abstract: This essay analyses those statements that mention legal norms in negative terms. Specifically, it analyses those statements that define a legal system by mentioning how legal protection does not work and where legal protection ends, and those statements that identify what rights-holders do not have to with their legally protected free capacities. This essay argues that these statements address a systemic question. It calls such a dynamic as negative governmentality. The argument proceeds in four steps. It introduces the concept of negative governmentality by arguing that the idea of freedom requires both the positive affirmation of moral agency and the constraining of moral agency (Section 2). It then explores how rights constitute freedom by limiting rights or making exceptions to them (Section 3). Later, it analyses how rights-based norms prevent abuse of rights by holders of rights (Section 4). Finally, it sees how rights-based norms constrain the legal guarantor of rights, i.e., a state (Section 5). The essay concludes by mentioning the importance of negative governmentality (Section 6).
      PubDate: 2018-02-13T23:30:52.491471-05:
      DOI: 10.1111/eulj.12242
  • The political morality of convergence in contract
    • Authors: Aditi Bagchi
      Abstract: One of the most interesting recent developments in contract law has been an academic and political effort to integrate private law. The proposed Common European Sales Law was ultimately withdrawn, and a series of setbacks, including the British referendum to exit the EU, has recast the politics of convergence. But it remains an objective for many European scholars. This essay considers the wisdom of convergence on a single law of transactions from the perspective of philosophical contract theory.The essay proceeds by disaggregating the rights at stake in contract law. It characterises the formal right to contract and describes its moral impetus as one that should underwrite contract law in all states, especially liberal states. But the essay argues that the legitimate contours of the formal right are contingent on tenets of political culture that vary across Member States. Similarly, substantive regulation of contract is morally compulsory and serves universal interests; the essay takes regulation of permissible work and remuneration for work as examples. But the rules and standards that best advance those moral interests depend on economic facts specific to individual political communities. The essay concludes by arguing that contract law is a poor tool by which to accelerate political and economic convergence.
      PubDate: 2018-02-13T23:30:42.817448-05:
      DOI: 10.1111/eulj.12228
  • The rise and fall of EU labour law
    • Authors: Stefano Giubboni
      Abstract: EU labour law—namely that heterogeneous, unstable combination of interventions, tools, measures, sources through which the EU directly or indirectly impacts on the normative and functional frameworks of individual and collective labour law systems of the Member States in a relationship of mutual interference and interaction–is experiencing a progressive loss of relevance, with an unprecedented decline of its normative rationales, functions, regulatory techniques, and constitutional hierarchies. This article offers a critical reflection on the reasons behind such a regressive path in the context of the EU crisis.
      PubDate: 2018-02-13T23:30:37.233354-05:
      DOI: 10.1111/eulj.12239
  • Internal market rationality: In the way of re-imagining the future
    • Authors: Marija Bartl
      PubDate: 2018-02-11T23:00:30.217767-05:
      DOI: 10.1111/eulj.12263
  • The policy origins of the European economic constitution
    • Authors: Brigitte Leucht
      Abstract: This article traces the origins of the European economic constitution in the debate on Article 30 of the EC Treaty (general rule on the free movement of goods) between 1966 and 1969, which resulted in Directive 70/50. In this, the first archive-based analysis of the policy origins of the Court's Dassonville (1974) decision, the article demonstrates that there was a strong continuity in the investment by a number of key actors in focusing on Article 30 to create the single market from the mid-1960s. These civil servants and lawyers provided the backbone for the Commission's transformation of the Cassis de Dijon judgment (1979) into a powerful tool, driving back the need for legislative harmonisation and making it a cornerstone of the Single European Act of 1986. The article therefore analyses one of the key moments in the transformation of European law.
      PubDate: 2018-02-09T00:30:29.00417-05:0
      DOI: 10.1111/eulj.12255
  • Let's talk about trust, baby! Theorizing trust and mutual recognition in
           the EU's area of freedom, security and justice
    • Authors: Michael Schwarz
      Abstract: If mutual recognition is to be the ‘cornerstone of judicial co-operation’ in the area of freedom, security and justice, mutual trust, on the other hand, must take a lead role as the normative glue that grounds and facilitates legal practices of recognition. Despite its topicality and practical relevance, the theoretical underpinnings of trust have been largely left untouched by legal scholarship. This article seeks to fill that void by unpacking trust's conceptual premises to prepare a critique of the legal principle of mutual trust and its underlying ideology as it emerged in the jurisprudence of the CJEU. It presents an enriched conceptualization of recognition trust, inquires into the potential and risks of trust-based judicial cooperation and sheds light on the interplay of trust, distrust and the law. In drawing policy conclusions from the theoretical discussion, it also points to a new normative dimension of trust asking whether trust could feature as a form of mutual recognition.
      PubDate: 2018-02-07T23:40:22.584544-05:
      DOI: 10.1111/eulj.12268
  • Democratic accountability and the changing European political order
    • Authors: Johan P. Olsen
      Abstract: This article is about democratic accountability and a Europe struggling to find viable answers to the questions of who and what shall constitute “Europe” and how to develop legitimate political institutions for governing it. The article is, nevertheless, first and foremost about political order and change, rules for living together, the role of democratic politics in society and the relations between political organization and civilized coexistence, and the study of the political. Modern democracies live with unresolved conflict, and accountability regimes are part of an institutional arrangement for preserving order and continuity and also for creating dynamics and change. Accountability processes take place within settled and unsettled orders, and they affect and are affected by existing orders. Without denying the importance of contending interests, power struggles, strategic behaviour, non-cooperative games, and (re)distributional battles, attention is directed towards the search for unity, political cohesion and solidarity based upon the informed voluntary consent of the people through reflection and reasoned deliberation among individuals with different values, interests, understandings and resources.
      PubDate: 2018-01-15T23:55:25.290459-05:
      DOI: 10.1111/eulj.12261
  • Issue information
    • Pages: 431 - 431
      Abstract: No abstract is available for this article.
      PubDate: 2018-02-21T03:06:12.923071-05:
      DOI: 10.1111/eulj.12191
  • We the people(s) of Europe: Polity-making and democracy in the EU
    • Authors: Jan Pieter Beetz; Luigi Corrias, Ben Crum
      Pages: 432 - 440
      PubDate: 2018-02-21T03:06:13.011464-05:
      DOI: 10.1111/eulj.12269
  • A systematic justification for the EU's pouvoir constituant mixte:
           Principles of constitutional politics in supranational polities
    • Authors: Markus Patberg
      Pages: 441 - 453
      Abstract: This article presents a rational reconstruction of the practice of constitutional politics in supranational polities. In doing so, it seeks to refocus the ongoing debate about constituent power in the EU on the question of who, under what conditions, is entitled to decide on the EU constitutional order. The analysis leads to a number of principles of democratic legitimacy, which include the political autonomy of the members of the state demoi as well as the political autonomy of the members of a cross-border demos. In explicating these parallel entitlements to political autonomy, I provide a systematic justification for the notion of a pouvoir constituant mixte, according to which the citizens should take control of EU constitutional politics in two roles: as European citizens and as Member State citizens.
      PubDate: 2018-02-21T03:06:12.187937-05:
      DOI: 10.1111/eulj.12262
  • Principles of economic union: An extension of John Rawls's theory of
    • Authors: Bertjan Wolthuis
      Pages: 454 - 466
      Abstract: In this article I identify the principles of justice by which an economic union is to be constituted. For this purpose, I extend John Rawls's constructivist theory of justice to economically integrated societies. With regard to the principles identified, I defend a twofold claim. First, the principles of economic union generated by this extended procedure of construction can serve as common points of reference for the subjects of an economic union. Second, these principles cannot come into conflict with similarly constructed prior principles of social justice and international justice.
      PubDate: 2018-02-21T03:06:11.23656-05:0
      DOI: 10.1111/eulj.12265
  • A two-tier conception of European Union peoplehood: A realist study of
           European citizens’ bonds of collectivity
    • Authors: Jan Pieter Beetz
      Pages: 467 - 481
      Abstract: The European Union (EU) struggles to legitimate its rule. This realist study develops a conception of peoplehood in the EU polity, because, in contemporary Europe, ‘the people’ remains the sole source of political legitimacy. From a realist perspective, a conception of peoplehood should yield a coherent story why EU citizens should accept, or at least acquiesce, to EU rule. This study explores the possibility of a pluralistic conception being either multi-layered, multi-faceted or both. Taking a practice-dependent approach, I first analyse the institutional systems that structure relationships between EU citizens. I secondly propose conceptions of EU citizens’ bonds of collectivity. Thirdly, I develop a novel two-tier conception of EU peoplehood in which individuals remain bound together as national peoples, while these peoples are in turn united by commercial and liberal bonds. I submit that this conception can lay the foundation for a convincing story to legitimate EU rule.
      PubDate: 2018-02-21T03:06:10.875847-05:
      DOI: 10.1111/eulj.12270
  • The empty place of European power: Contested democracy and the
           technocratic threat
    • Authors: Luigi Corrias
      Pages: 482 - 494
      Abstract: In this article, I analyse the European Union (EU) in the light of the Lefortian question: What place does power have in a democracy' Claude Lefort has argued that modern democracy is a regime where the place of power is empty. In this article, I investigate what this entails for the EU. I take the current situation of democracy in the EU as being marked by two developments: the contestation of democracy by citizens on the one hand and the hollowing out of democracy at the EU level on the other. Exemplary for the first development are the popular protest movements known as the indignados. The second feature is exemplified by governance and technocracy. My argument suggests that the critical response of the former to the latter can in fact be read as the claim that what should have been the empty place of power in European democracy has come to be occupied by the establishment of an authoritarian regime of expert rule.
      PubDate: 2018-02-21T03:06:12.523165-05:
      DOI: 10.1111/eulj.12271
  • Representation in multilateral democracy: How to represent individuals in
           the EU while guaranteeing the mutual recognition of peoples
    • Authors: Antoinette Scherz
      Pages: 495 - 508
      Abstract: The democratic criteria for representation in the European Union are complex since its representation involves several delegation mechanisms and institutions. This paper develops institutional design principles for the representation of peoples and individuals and suggests reform options of the European Union on the basis of the theory of multilateral democracy. In particular, it addresses how the equality of individuals can be realised in EU representation while guaranteeing the mutual recognition of peoples. Unlike strict intergovernmental institutions, the EU requires an additional and independent legislative chamber in which individuals are directly represented. However, strict equality of individuals cannot be the guiding principle for this chamber. In order to avoid the overruling of peoples through supranational majorities, it is necessary to bind the chamber's composition by a principle of degressive proportionality. The representation of peoples, on the other hand, needs to be connected to their domestic democratic institutions.
      PubDate: 2018-02-21T03:06:10.526825-05:
      DOI: 10.1111/eulj.12267
  • Democratising the separation of powers in EU government: The case for
    • Authors: Jared Sonnicksen
      Pages: 509 - 522
      Abstract: The EU, while not a state, can be conceived as a mixed or compound political system. Capturing its character of separation of powers has implications for understanding what the EU polity is, but also should be, not least from a democratic standpoint. Hence, the article addresses the EU as system of government in order to identify one appropriate path of democratisation. It first revisits separation of powers and the typology of parliamentary and presidential government to delineate criteria for categorising horizontal (i.e. between branches) division-of-powers arrangements. To this end, it elaborates in particular the criteria proposed by Steffani which allow for a more parsimonious differentiation between types of governments. Subsequently, the EU polity (e.g. its structure and functioning of separation of powers and “checks and balances”) is assessed regarding its conformity to a government type. Finally, I discuss implications for identifying a more certain point of reference for an approach to democratise EU government that is not only institutionally compatible, but also ‘demos enabling’.
      PubDate: 2018-02-21T03:06:11.853294-05:
      DOI: 10.1111/eulj.12264
  • National autonomy and democratic standardization: Should popular votes on
           European integration be regulated by the European Union'
    • Authors: Joseph Lacey
      Pages: 523 - 535
      Abstract: Given the increasing use of direct democratic devices on questions of European integration, this paper explores whether or not Member States may have good reason to agree on common regulations for popular votes of this nature. Conceiving of the European Union as a political system designed to serve the interests of states and citizens, it is argued that where direct votes have the potential to undermine the territorial, functional, normative or existential integrity of the EU, then states may have good reason to sacrifice a degree of national autonomy to adopt common regulations for certain uses of direct democracy. This leads to a case for democratic standardization across Member States when it comes to withdrawal, accession, Treaty ratification and opt-in decisions.
      PubDate: 2018-02-21T03:06:11.530918-05:
      DOI: 10.1111/eulj.12272
  • The evolution of the political criteria for accession to the European
           Community, 1957–1973
    • Authors: Ronald Janse
      Abstract: This article describes the evolution of political conditions for accession to the European Community from 1957 to 1973 on the basis of the responses of the Community and national parliaments to applications for association (Article 238 EC Treaty) and membership (Article 237 EC Treaty) and to a US foreign policy initiative. It challenges the thesis that the European Community was originally uninterested in the political nature of its members as long as they were non-communist and that the Community made a volte face in 1962 in reaction to a request for an association agreement by Franco's Spain. It argues that the Copenhagen political criteria, except minority protection, were firmly established by 1973 after a series of pronouncements and decisions by the European Parliament, national parliaments (both 1962), the Commission (1967) and the Council (1973). The article aims to contribute to the early history of the constitutionalization of the Union and discusses how demands from outsiders prompted the Six to define the constitutional requirements for (candidate) members. It is partly based on new archival research.
      PubDate: 2017-10-18T04:45:28.19083-05:0
      DOI: 10.1111/eulj.12253
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