Hesselink on Private Law and the European Constitutionalization of Values

Martijn W. Hesselink, University of Amsterdam, Centre for the Study of European Contract Law (CSECL), has published Private Law and the European Constitutionalisation of Values as Amsterdam Law School Research Paper No. 2016-26 and Centre for the Study of European Contract Law Working Paper Series No,. 2016-07. Here is the abstract.

According to the CFREU, the EU is founded on the general values such as values of human dignity, freedom, equality and solidarity. In addition, the TEU refers to a more political set of foundational values, ie respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. These references could be understood as purely ornamental, or as irrelevant in any case for private law. Indeed, it is true that the Court of Justice so far has never made any references to these values in private law cases. Still, the Court already has shown boldness before in the context of the interpretation and review of secondary EU law in private law cases, when it discovered general principles of EU law and general principles of civil law. Therefore, it should not be excluded that the Court may be tempted one day to follow the example of the German constitutional court that famously understands its national constitution as expressing an objective system of constitutional values. This paper explores what such an understanding of private law as an instrument for furthering common European values would entail and examines whether such an ethical reading of European private law would be desirable. It argues that the promotion by the EU of a set of official values through its laws is not compatible we the respect we owe each other in a society characterised by reasonable pluralism. In addition, it points to further difficulties, both of a moral and a practical nature, of the idea of advancing ethical values through private law. It concludes that although it is very well thinkable that the values to which the TEU and the Charter refer will one day be interpreted as an objective value system with (indirect) horizontal effects, the Court of Justice nevertheless should refrain from going down that road.

Download the article from SSRN at the link.

"What Have the Romans Ever Done For Us?" Monty Python and the Brexit Debate

Sarah Lyall of the New York Times unearths a funny and prescient  parallel to the Brexit debate from, of all places, Monty Python's Life of Brian. But of course, we should have known that the Pythons would have been there first.

Gies On Media Images of Human Rights

Lieve Gies, University of Leicester, has published Mediating Human Rights: Media, Culture and Human Rights Law (Routledge, 2015). Here is a description of the book's contents from the publisher's website.

Drawing on social-legal, cultural and media theory, this book is one of the first to examine the media politics of human rights. It examines how the media construct the story of human rights, investigating what lies behind the apparent media hostility to human rights and what has become of the original ambition to establish a human rights culture. The human rights regime has been high on the political agenda ever since the Human Rights Act 1998 was enacted. Often maligned in sections of the press, the legislation has entered popular folklore as shorthand for an overbearing government, an overzealous judiciary and exploitative claimants. This book examines a range of significant factors in the mediation of human rights, including: Euroscepticism, the war on terror, the digital reordering of the media landscape, , press concerns about an emerging privacy law and civil liberties. Mediating Human Rights is a timely exploration of the relationship between law, politics and media. It will be of immense interest to those studying and researching across Law, Media Studies, Human Rights, and Politics.

More information about the book here from the publisher's website.

Neil Walker On UK Constitutional Practice and the Future of Scotland

Neil Walker, University of Edinburgh School of Law, is publishing The Territorial Constitution and the Future of Scotland in The Scottish Independence Referendum: Constitutional and Political Implciations (A. McHarg, T. Mullen, A. Page, and N. Walker, eds.; OUP, 2016). Here is the abstract.

This paper considers the ways in which constitutional thought and practice continue to shape the distinctiveness of Scotland as a political community in the post-independence referendum period. The emphasis is not just on the immediate future, nor on some ideal ‘deep future’, but on the foreseeable future. What are the candidate models and plausible pathways by which the future development of the territorial constitution might be pursued? What benefits and drawbacks are associated with different approaches and what are their prospects of success? In particular, what are the limits of accommodation of Scottish self-government within the framework of the UK state, and how, if at all, might such an accommodation be maintained in the face of continuing strong support for independence? The headline notion of the 'territorial constitution' provides a useful angle of approach to these questions. The territorial constitution could signify one of three things. It might refer to the overall constitutional order as conventionally understood. Here we use the ‘territorial’ part as mere shorthand to refer to the (geographically located) state as a constitutional whole. Yet, however familiar, this usage is of limited utility in unpacking Scottish constitutional distinctiveness. In its tendency to reduce constitutional authority to the sovereign state alone, this 'Westphalian' version of the territorial constitution obstructs an adequate appreciation of Scotland's situation and prospects in a more complex regulatory environment. Instead, the article introduces two applications of the idea of a territorial constitution that are less familiar but more promising for our purposes. One usage, which has recently gained ground in mainstream constitutional debate, treats the ‘territorial’ adjective as referring to just one discrete dimension and focus of treatment within a broader constitutional order, albeit an order that may still be understood in terms of the paramount authority of the sovereign state. That dimension involves the vertical distribution of authority within the polity. This is the usage with which we are mainly concerned in the present paper. The other possible application to which we refer departs more radically from our conventional constitutional frame of reference. More than a matter of adjectival stress, instead it treats ‘territorial constitution' as a compound noun -- a distinct and separate species within the constitutional genus, and so as only one of a variety of 'constitutional' orders (including functionally defined orders such as the EU, or the 'security constitution' of the UN) applicable to any particular population. From these broader perspectives, many of the positions on the Scottish constitutional future under review in these turbulent post-referendum times, from the traditional unitary state with limited devolution of powers, through the new brand of asymmetrical Unionism and a broader framework of multilateral federalism to the option of sovereign independence, look like positions along a spectrum rather than categorically distinct choices.

Download the essay from SSRN at the link.

The United Kingdom and the Protection of Human Rights

New from Hart Publishing: The UK and European Human Rights: A Strained Relationship? (Katja S. Ziegler, Elizabeth Wicks, and Loveday Hodson, Hart Publishing, 2015). Here is a description of the contents from the publisher's website.

The UK’s engagement with the legal protection of human rights at a European level has been, at varying stages, pioneering, sceptical and antagonistic. The UK government, media and public opinion have all at times expressed concerns about the growing influence of European human rights law, particularly in the controversial contexts of prisoner voting and deportation of suspected terrorists as well as in the context of British military action abroad. British politicians and judges have also, however, played important roles in drafting, implementing and interpreting the European Convention on Human Rights. Its incorporation into domestic law in the Human Rights Act 1998 intensified the ongoing debate about the UK’s international and regional human rights commitments. Furthermore, the increasing importance of the European Union in the human rights sphere has added another layer to the relationship and highlights the complex relationship(s) between the UK government, the Westminster Parliament and judges in the UK, Strasbourg and Luxembourg. The book analyses the topical and contentious issue of the relationship between the UK and the European systems for the protection of human rights from doctrinal, contextual and comparative perspectives and explores factors that influence the relationship of the UK and European human rights.

European Union Member States and Blasphemy Laws

Mauro Gatti, University of Bologna, has published Blasphemy in European Law in On Blasphemy 49-64 (M. Diez Bosch and J. Sànchez Torrents, eds., Blanquerna, 2015). Here is the abstract.

European countries have been punishing blasphemy since time immemorial. Several members of the European Union maintain blasphemy laws in their books to this day and some States implement them. These laws are problematic even when they are not applied, since they curtail criticism of religious doctrines and encourage censorship and self-censorship. In the past, the European Court of Human Rights affirmed that blasphemy laws were compatible with human rights law, since there was not sufficient common ground in the legal and social orders of European States to conclude that the repression of blasphemy was unnecessary in a democratic society. This paper intends to demonstrate that such ‘common ground’ now exists, especially within the European Union. Several EU countries have scrapped blasphemy laws from their penal codes, or have ceased to implement them. What is more, the governments of all EU Member States have repeatedly declared that blasphemy laws are incompatible with universal human rights standards. The existence of such a ‘common ground’ between EU Members suggests that the European Court of Human Rights should revise its jurisprudence. It also indicates that EU States should abolish their blasphemy laws, if they have not done so already. In a Union based on freedom and human rights, the most appropriate way to combat a perceived offense from the exercise of freedom of expression is not censorship, but the use of freedom of expression itself.

Download the essay from SSRN at the link.

Law, Architecture, and the EU Preliminary Ruling Procedure

Marc de Werd, Professor of European law (Maastricht University) and judge in the Amsterdam Court of Appeal in the Netherlands, uses an architectural analogy to dissect the EU preliminary ruling procedure. Link here to the essay, published at 22 Maastricht Journal of European and Comparative Law 1 (2015), which is a must-read.

Constitutional Review In Europe

Now available in paperback from Hart Publishing:

Maartje de Visser, Constitutional Review in Europe: A Comparative Analysis (hardcover, 2013, paperback 2015). 

Here is a description of the contents from the publisher's website.

Constitutions serve to delineate State powers and enshrine basic rights. Such matters are hardly uncontroversial, but perhaps even more controversial are the questions of: Who should uphold the Constitution? How should constitutional review be organized? These two questions are the subject of this book, which offers a comprehensive comparative analysis of how eleven representative European countries answer these questions, as well as a critical appraisal of the EU legal order in light of these national experiences. Where possible, the book endeavors to identify Europe's common and diverse constitutional traditions of constitutional review. The raison d'etre, jurisdiction, and composition of constitutional courts are explored and, so too, are core features of the constitutional adjudicatory process. Yet, this book also deliberately draws attention to the role of non-judicial actors in upholding the Constitution, as well as the complex interplay among constitutional courts and other actors at the national and European level. The Member States featured are Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland, and the UK. The book will be of interest to practitioners, academics, and students in constitutional law. (Series: European and National Constitutional Law - Vol. 1)

 

A Workshop On the Role of Language, Linguistics, and Translation In Developing Precedent In EU Law

From Karen McAuliffe, University of Exeter, news of a one-day workshop on "Precedent in EU Law: The Linguistic Aspect," to be held at the Dun Library, Dublin, Ireland on December 5, 2015. Register online here.

Here's more.

Call For Panelists: 23rd International Conference of Europeanists

From James R. Martel:

23^rd International Conference of Europeanists

Philadelphia, Pennsylvania, USA

April 14-16, 2016

Call for Panelists

Despite having lost their public significance in the contemporary moment, trials have played a vital role in the (re)construction of European nation-states and national identity at various historical turning points. One may suspect, however, that trials are no longer an important part of European identity making in the current moment, especially with the institutionalization of legal matters through the mediation of the European Union (EU). The official cadres of the EU, while holding the rule of law as one of the primary tenets of the Union, seem to almost take for granted the existence of the rule of law in EU-member states. One can argue that such legal processes (and work on the rule of law) have perhaps been assigned to nations that are not quite yet fully “European,” supported by special EU funds for judicial reforms and regulations developed for candidate nations to “catch up with” member states. Yet, there is something amiss in this assumption in that it presumes that law ceases to require attention once an institutional threshold has been reached. This panel argues otherwise, and aims to open to discussion trials in Europe, focusing on both historical and contemporary legal cases. The panel is open to analyzing a variety of trials, which could range from trials of extraordinary nature like war crimes, human rights violations, or terrorism charges (recently sparked by ISIS members returning to their home countries in Europe) to the more “ordinary” prosecutions like corruption, murder, or domestic violence cases. Ultimately, we aim to open to discussion such notions as political trials, show trials, and the various understandings of the notion of the rule of law. 

We currently have a paper on the show trials of communist dissidents in the Spanish Civil War and a paper on the treason trials of military officers in contemporary Turkey. We are seeking to expand the breadth of the presentations with work from a variety of time periods and places, helping us to achieve the comparative focus we are seeking for this panel. We are open to papers that employ a broad range of methods (archival, ethnographic etc.) while we also espouse a broad understanding of the boundaries of Europe.

More information about the conference is available at this link: http://councilforeuropeanstudies.org/conferences/2016-ces-conference

If you are interested in presenting on this panel, please submit an abstract of no more than 250 words to skaptan@rutgers.edu by September 28, 2015. 

The Right to Participate in Cultural Life Under EU Law

Céline Romainville, Catholic University of Louvain & National Fund for Scientific Research (FRC-FNRS), has published The Right to Participate in Cultural Life Under 2015 European Union Law at European Journal of Human Rights/Journal Européen des droits de l'homme 145. Here is the abstract.

Taking the increasing importance of the EU in cultural matters as a starting point, this article attempts to assess to what extent the right to participate in cultural life (as defined based on various human rights instruments) is protected under EU law. Second it discusses the impact of EU law and policies on the enjoyment of this right. It highlights that the respect, protection and promotion of the right to participate in cultural life within EU law are obstructed by the asymmetry that exists at the European level and which favors on the one hand, non-political decision-making over political processes, and, on the other hand, negative on positive integration. This asymmetry indeed weakens national cultural policies without allowing space for specific European policies for positive integration. Third, it explores avenues for a better protection of the right to participate in cultural life under EU law.

Download the article from SSRN at the link.

Sovereign Debt States and Constitutional Inquiry In Europe

Claire Kilpatrick, European University Institute Department of Law, has published Constitutions, Social Rights and Sovereign Debt States in Europe: A Challenging New Area of Constitutional Inquiry as EUI Department of Law Research Paper No. 2015/34. Here is the abstract.

Constitutions, social rights and sovereign debt states in Europe is a rich new seam of constitutional inquiry that challenges existing constitutional scholarship in various ways. I make five claims about how it expands and challenges existing constitutional and EU scholarship. 1. It is new terrain for constitutional social scholarship. 2. Middle-class and public sector entitlements are a deeply problematic area for constitutional social scholarship. 3. Juristocracy charges cannot be the same in times of EU sovereign debt. 4. It contributes in distinctive ways to questions of the existence of a structured EU, and a shared European, constitutional space. 5. Linking constitutional crisis with euro-crisis and social rights is an important project: Hungary under Orbán as an example.

Download the article from SSRN at the link.

The French Social Justice Movement Over Time and Current Advocacy For Islam

Riaz Tejani, University of Illinois, Springfield, Department of Legal Studies, is publishing 'A Logic of Camps': French Antiracism as Competitive Nationalism in volume 38 of the Political and Legal Anthropology Review (2015). Here is the abstract.

As the Charlie Hebdo and Copenhagen attacks starkly remind us, European multicultural policy continues to falter over the growth of public Islam. But long before these events, tension between competing visions of citizenship and nationhood had weakened the very civil society organizations that could shape such policy. In France, where non-governmental organizations had labored against discrimination for over a century, this conflict led to profound disaffection within the nation’s powerful antiracism movement. Drawing from more than two years of ethnographic fieldwork among French antiracist NGOs, this article examines that disaffection among activists whose work in the name of cultural outsiders simultaneously served to rememorialize historic national traumas from the Dreyfus Affair to Algeria. Revealing a new despondency over sociolegal advocacy for Islam, some decried "infiltration" of communitarian voices into their erstwhile republican movement while others, under increasing pressure to adopt an emergent pluralist vision, equated this new model with foreignness itself. The resulting "crisis of antiracism" saw competitive reassertions of nationhood in the face of countervailing state discourses of European postnationalism. If writings on French multiculturalism to date have focused on Islamic piety and urban youth deviance, this article examines the significant impact these have had on France’s preeminent social justice movement. 

Download the text of the Article from SSRN at the link.

Law, Language, and Culture In the European Union

New from Ashgate: Language and Culture in EU Law: Multidisciplinary Perspectives (Susan Sarcevic, ed.; 2015) (Law, Language, and Communication). Here is a description of the contents from the publisher's website.

Written by distinguished legal and linguistic scholars and practitioners from the EU institutions, the contributions in this volume provide multidisciplinary perspectives on the vital role of language and culture as key forces shaping the dynamics of EU law. The broad spectrum of topics sheds light on major Europeanization processes at work: the gradual creation of a neutralized EU legal language with uniform concepts, for example, in the DCFR and CESL, and the emergence of a European legal culture. The main focus is on EU multilingual lawmaking, with special emphasis on problems of legal translation and term formation in the multilingual and multicultural European context, including comparative law aspects and an analysis of the advantages and disadvantages of translating from a lingua franca. Of equal importance are issues relating to the multilingual interpretation of EU legislation and case law by the national courts and interpretative techniques of the CJEU, as well as the viability of the autonomy of EU legal concepts and the need for the professionalization of court interpreters Union-wide in response to Directive 2010/64/EU. Offering a good mix of theory and practice, this book is intended for scholars, practitioners and students with a special interest in the legal-linguistic aspects of EU law and their impact on old and new Member States and candidate countries as well.

Multilingualism and Statutory Interpretation

Lawrence M. Solan, Brooklyn Law School, has published Multilingualism and Morality in Statutory Interpretation, at Language & Law/Linguagem e Direito, Vol. 1, Issue 1 (2014). Here is the abstract. 

This article discusses some of the costs and benefits of multilingual legislation, focusing largely on Canada and the European Union. Courts interpreting these laws must take into account the different language versions, since each version is equally authoritative. Fidelity to the legislature’s will comes with very high stakes in this context, because multilingual legislative systems are most typically a means for recognizing the autonomy of minority groups, which, in exchange, cede some of that autonomy to a higher legal order. Thus, there is a special moral duty to ensure that the laws are construed faithfully at the same time that language barriers make it appear, at least on the surface, that it is more difficult to do so. Moreover, the risk of judges substituting their own values for those of the legislature when there is no single, definitive legal text, appears to become magnified in multilingual settings, creating the risk of decision making that would not stand up to moral scrutiny even in monolingual systems.

This article argues that despite the apparent difficulties inherent in multilingual legislation, it actually reduces uncertainty in meaning by creating additional data points for statutory interpreters to consider. Multilingualism does, however, lead to certain additional problems of ambiguity. These, for the most part, however, are generally resolved fairly easily. It is further argued that the European approach to interpretation, which I call Augustinian Interpretation, is likely to lead to results more faithful to the legislature’s intent than is the standard Canadian approach, called the Shared Meaning Rule. Arguments from the case law, from linguistics and from the philosophy of language are adduced to support these conclusions.

Download the article from SSRN at the link. 

Beethoven, Unity, and a Flash Mob in a Fish Market

Hobart Earle, the Odessa Philharmonic, and the Odessa Opera Chorus performed Beethoven's "Ode to Joy" (which is also the EU's anthem), via flash mob at the very busy Privoz Fish Market this week. It was both a musical and a political statement. See the impressive result and the crowd's enthusiastic reaction in the video here (coverage from WQXR-FM).