DOCSLIB.ORG

Global Constitutionalism Without Global Democracy (?)

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Global Constitutionalism Without Global Democracy (?) LAW 2016/21 Department of Law Global Constitutionalism without Global Democracy (?) Edited by Claudio Corradetti and Giovanni Sartor European University Institute Department of Law GLOBAL CONSTITUTIONALISM WITHOUT GLOBAL DEMOCRACY (?) Edited by Claudio Corradetti and Giovanni Sartor EUI Working Paper LAW 2016/21 This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the editors. If cited or quoted, reference should be made to the full name of the editors, the title, the working paper or other series, the year, and the publisher. ISSN 1725-6739 © Claudio Corradetti and Giovanni Sartor, 2016 Printed in Italy European University Institute Badia Fiesolana I-50014 San Domenico di Fiesole (FI) Italy www.eui.eu cadmus.eui.eu Editors' contact details Claudio Corradetti Associate Professor of Political Philosophy of Human Rights University of Rome “Tor Vergata” Rome, Italy [email protected] Giovanni Sartor Professor of Legal Informatics and Legal Theory European University Institute Florence, Italy [email protected] Abstract The contributions in this volume investigate interconnected aspects of the democratic deficit in global constitutionalism. The commonly shared question is the following: to what extent, if any, a global (or cosmopolitan) shift of international law can proceed absent a transnational democratic check? Some scholars are convinced that this is a real problem since that a ‘division of labour’ is to be recognized between national and regional/international legal levels, only the first needing a democratic legitimacy. The contributors to this volume, on the contrary tend to share the view that detaching the production of international law from constituent will, as well as from a democratic framework, can indeed undermine constitutional legitimacy. Furthermore, this may open the way to forms of domination that affect also state’s democratic institutions from within. What is the way out from this deadlock? How is it possible to tame global constitutionalism in order to avoid a global Leviathan? The collection of essays here presented attempts to conceptualize some of the central challenges affecting contemporary patterns of legal dispersion and fragmentation. They follow a conceptual-historical thread which starts with a modern Kantian understanding of the problem, and unfolds into the discussion of issues of constitutional pluralism, institutional legitimacy and the risk of tyranny. The volume includes analyses of the role of China and the EU, two of the most important actors, even though perhaps at the opposite pole of the global constitutional project. Keywords Cosmopolitanism, global constitutionalism, legitimacy, sovereignty, democratic deficit Table of contents Claudio Corradetti and Giovanni Sartor INTRODUCTION: GLOBAL CONSTITUTIONALISM WITHOUT GLOBAL DEMOCRACY (?) .................................................... 1 SECTION I. HISTORICAL ROOTS AND CONTEMPORARY TRENDS IN GLOBAL CONSTITUTIONALISM ................................ 3 Claudio Corradetti CONSTRUCTIVISM IN COSMOPOLITAN LAW: KANT’S RIGHT TO VISIT ............................................................................. 3 Introduction ........................................................................................................................................................................... 3 Starting points for the justification of the cosmopolitan right: on the inherent connection between (external) freedom and possession within the original community ..................................................................................................................... 7 The right to visit as a constructivist principle of cosmopolitan law .................................................................................... 10 Thinking cosmopolitan through the ‘critical’ public use of reason ..................................................................................... 15 Conclusion .......................................................................................................................................................................... 20 Claudio Corradetti THINKING WITH KANT “BEYOND” KANT: ACTUALIZING SOVEREIGNTY AND CITIZENSHIP IN THE TRANSNATIONAL SPHERE ............................................................................................................................................... 23 Kant’s sovereignty dilemma ............................................................................................................................................... 23 “Constitutional mindset” and the progression towards cosmopolitan peace ....................................................................... 26 The “general united will” as a transcendental constituent power for the cosmopolitan rule of law .................................... 33 Double sovereignties and plural citizenries: a rejoinder to a (virtual) ‘family quarrel’ between Kant and Habermas?....... 35 Conclusion .......................................................................................................................................................................... 38 Dimitri Van den Meerssche EXPLORING CONSTITUTIONAL PLURALISM(S): AN ONTOLOGICAL ROADMAP ............................................................... 39 Introduction ......................................................................................................................................................................... 39 MacCormick and the pluralization of constitutionalism ..................................................................................................... 41 The Hartian origins of constitutional pluralism ............................................................................................................. 42 From legal to constitutional pluralism ........................................................................................................................... 43 The end of sovereignty .................................................................................................................................................. 44 MacCormick’s constitutional paradigm in the light of constitutional theory ................................................................. 45 Conclusion ..................................................................................................................................................................... 47 The constitutionalization of pluralism ................................................................................................................................. 48 Constitutionalism as hermeneutic for conflict-resolution .............................................................................................. 48 The rationalist approach: cosmopolitan constitutionalism ............................................................................................. 52 Framing the democratic deficit of Constitutional Pluralism ................................................................................................ 55 Conclusion .......................................................................................................................................................................... 57 SECTION II. DEMOCRATIC OR CONSTITUTIONAL LEGITIMACY? .................................................................................... 61 Aoife O'Donoghue TYRANNY AND THE ANXIETIES OF LAW BEYOND THE STATE ........................................................................................ 61 Classical Greek tyranny ...................................................................................................................................................... 63 Arendt and tyranny ............................................................................................................................................................. 67 Understanding tyranny? ...................................................................................................................................................... 70 Rule of law and global constitutionalism ............................................................................................................................ 71 Tyranny, international rule of law ....................................................................................................................................... 76 Conclusion .......................................................................................................................................................................... 77 Pavlos Eleftheriadis INTERNATIONAL INSTITUTIONS AND LEGITIMACY ........................................................................................................ 79 Global justice ...................................................................................................................................................................... 79 Illegitimacy as injustice ...................................................................................................................................................... 82 Cosmopolitan legitimacy .................................................................................................................................................... 85 Legitimacy and international law .......................................................................................................................................
Load more

Recommended publications
  • A Global Alliance for Open Society
    INTRODUCTION A Global Alliance for Open Society The goal of the Soros foundations network throughout the world is to transform closed societies into open ones and to protect and expand the values of existing open societies. In pursuit of this mission, the Open Society Institute (OSI) and the foundations established and supported by George Soros seek to strengthen open society principles and practices against authoritarian regimes and the negative consequences of globalization. The Soros network supports efforts in civil society, education, media, public health, and human and women’s rights, as well as social, legal, and economic reform. 6 SOROS FOUNDATIONS NETWORK | 2001 REPORT Our foundations and programs operate in more than ࡯ national government aid agencies, including the 50 countries in Central and Eastern Europe, the former United States Agency for International Soviet Union, Africa, Southeast Asia, Latin America, and Development (USAID), Britain’s Department for the United States. International Development (DFID), the Swedish The Soros foundations network supports the concept International Development Cooperation Agency of open society, which, at its most fundamental level, is (SIDA), the Canadian International Development based on the recognition that people act on imperfect Agency (CIDA), the Dutch MATRA program, the knowledge and that no one is in possession of the ultimate Swiss Agency for Development and Cooperation truth. In practice, an open society is characterized by the (SDC), the German Foreign Ministry, and a num- rule of law; respect for human rights, minorities, and ber of Austrian government agencies, including minority opinions; democratically elected governments; a the ministries of education and foreign affairs, market economy in which business and government are that operate bilaterally; separate; and a thriving civil society.
    [Show full text]
  • INSOL WORLD the Quarterly Journal of INSOL Internationa L
    INSOL WORLD The Quarterly Journal of INSOL Internationa l Fourth Quarter 2012 US$25 Whether serving as trusted business advisors or in interim management roles, Alvarez & Marsal delivers results when you need them most. Operational and Financial Performance Improvement Your Turnaround and Restructuring Interim and Crisis Management Next Business Advisory Services Move Specialized Industry Expertise Matters » 1,900 professionals worldwide » 40 global locations » Ranked among the top crisis managers by The Deal » Frequent award recipient from TMA » Ranked Among the “Best Firms to Work For” by Consulting magazine and Vault LEADERSHIP. PROBLEM SOLVING. VALUE CREATION. www.alvarezandmarsal.comwwww.alvarezandmarsal.com.alvarezandmars.alvarezandmarsal.com Editors’ Column Anyone receiving £1 for each occasion on which he has heard a commentator speculating whether the British economy was entering or leaving a double dip recession would earn a tidy sum. The same would go for the lucky recipient of US$ 1 for each reference made by Joe Bannister Jay Carfagnini the 2012 US presidential candidates to whether or not the US Hogan Lovells Goodmans LLP economy was about to fall off a fiscal cliff. Yet anyone able to predict with certainty the future development of the Chinese economy could International LLP (UK) (Canada) stand to become a millionaire many times over. Day by day, we hear references to difficult economic times in China. The Chinese market continues to produce a number of the most complex fundholder restructurings, Sino Forest being a high profile example. Yet everything is relative. Economists acknowledge that Chinese output has fallen for the past seven quarters and they predict worse to come.
    [Show full text]
  • Secrecy in an Open Society Nicholas A
    Union College Union | Digital Works Honors Theses Student Work 6-2011 Secrecy in an Open Society Nicholas A. Poli Union College - Schenectady, NY Follow this and additional works at: https://digitalworks.union.edu/theses Part of the Political Science Commons Recommended Citation Poli, Nicholas A., "Secrecy in an Open Society" (2011). Honors Theses. 1045. https://digitalworks.union.edu/theses/1045 This Open Access is brought to you for free and open access by the Student Work at Union | Digital Works. It has been accepted for inclusion in Honors Theses by an authorized administrator of Union | Digital Works. For more information, please contact [email protected]. Secrecy in an Open Society By Nick Poli ********* Submitted in partial fulfillment Of the requirements for Honors in the Departments of Political Science and Philosophy UNION COLLEGE June, 2011 i Abstract POLI, NICK Secrecy in an Open Society. Departments of Political Science and Philosophy, June 2011 Advisors: Tom Lobe and Leo Zaibert This thesis explores the difficult task of finding a balance of secrecy and openness in America. The common notion is that America is an open society; however, with an intelligence community predicated upon secrecy, an imbalance of power between the Executive and Congress, a media which does not always report objective news, and a complacent American public, openness ultimately becomes more difficult to maintain. To find a balance, I propose a hypothetical spectrum of openness in which there is a straight line with two endpoints- one endpoint representing complete secrecy, the other complete openness. I argue that both ends of the spectrum are extreme and undesirable and that America’s goal should be to err on the side of more openness while maintaining responsible secrecy.
    [Show full text]
  • 4.3 Presidential Government
    11 MM VENKATESHWARA COMPARATIVE POLITICAL OPEN UNIVERSITY SYSTEMS www.vou.ac.in COMPARATIVE POLITICAL SYSTEMS POLITICAL COMPARATIVE COMPARATIVE POLITICAL SYSTEMS MA [POLITICAL SCIENCE] [MAPS-105] VENKATESHWARA OPEN UNIVERSITYwww.vou.ac.in COMPARATIVE POLITICAL SYSTEMS MA [Political Science] MAPS 105 BOARD OF STUDIES Prof Lalit Kumar Sagar Vice Chancellor Dr. S. Raman Iyer Director Directorate of Distance Education SUBJECT EXPERT Ms. Puppy Gyadi Assistant Professor CO-ORDINATOR Mr. Tauha Khan Registrar Authors Dr Biswaranjan Mohanty: Units (3.3, 6.2, 7.2-7.3) © Dr Biswaranjan Mohanty, 2019 Vikas Publishing House: Units (1, 2, 3.0-3.2, 3.4-3.10, 4, 5, 6.0-6.1, 6.3-6.9, 7.0-7.1, 7.4-7.9, 8, 9, 10) © Reserved, 2019 All rights reserved. No part of this publication which is material protected by this copyright notice may be reproduced or transmitted or utilized or stored in any form or by any means now known or hereinafter invented, electronic, digital or mechanical, including photocopying, scanning, recording or by any information storage or retrieval system, without prior written permission from the Publisher. Information contained in this book has been published by VIKAS® Publishing House Pvt. Ltd. and has been obtained by its Authors from sources believed to be reliable and are correct to the best of their knowledge. However, the Publisher and its Authors shall in no event be liable for any errors, omissions or damages arising out of use of this information and specifically disclaim any implied warranties or merchantability or fitness for any particular use. Vikas® is the registered trademark of Vikas® Publishing House Pvt.
    [Show full text]
  • Singapore Convention Series –
    Is Investor-State Mediation An Emerging Practice? A Practitioner’s Perspective Kluwer Mediation Blog October 16, 2019 Ting-Kwok IU (Kwok, Ng & Chan, Solicitors & Notaries) Please refer to this post as: Ting-Kwok IU, ‘Is Investor-State Mediation An Emerging Practice? A Practitioner’s Perspective’, Kluwer Mediation Blog, October 16 2019, http://mediationblog.kluwerarbitration.com/2019/10/16/is-investor-state-mediation-an-emerging-practice-a-pr actitioners-perspective/ I have recently been approached to enrol myself in an investor-state mediation training programme and also to speak at one of the sessions. That triggers off my deeper thoughts on the topic of investor-state mediation and related issues. This blog is an attempt to share my thoughts so that fellow mediation practitioners may consider whether or not investor-state mediation is an area on which they should embark. It is also my hope that my sharing below will also make readers become more aware of the practice of investor-state mediation. While there may not be a universally acceptable definition, investor-state mediation entails the resolution of investment disputes through the process of mediation between one party (or more than one party) being private, and the other party being a sovereign state. Investor-state mediation often includes but is not limited to the following public law dimensions: Changes in investment incentive measures; Termination or interference of a contract by the state; Revocation of licences or permits; and Unexpected tariffs or taxation. Investor-state mediation also involves international investment law issues such as, Expropriation; Alleged breach of the “fair and equitable” provision in the contract between the investor and the state; and Interpretation of investment treaties.
    [Show full text]
  • Moral Learning in the Open Society: the Theory and Practice of Natural Liberty
    Moral Learning in the Open Society: The Theory and Practice of Natural Liberty Gerald Gaus and Shaun Nichols I. LIBERTY AS A DEFAULT? Many liberal political philosophers have claimed that moral and political life rests on a principle of “natural liberty” — a general presumption in favor of freedom of action. As Joel Feinberg puts it, “liberty should be the norm, coercion always needs some special justification.”1 John Rawls advances a wider specification, identifying “restrictions” (rather than only “coercion”) as requiring justification: “there is a general presumption against imposing legal and other restrictions on conduct without sufficient reason.”2 Some of Mill’s specifications are even less focused on the law: “in practical matters, the burthen of proof is supposed to be with those who are against liberty” — liberty is the default; its limitation requires justification.3 Perhaps the widest specification is Locke’s: “all men are naturally in … a State of perfect Freedom to order their actions ... as they think fit ... without asking leave, or depending upon the Will of any other Man.”4 A number of philosophers — both from within and without the liberal tradition — have rejected this principle. Some suspect that it is covertly libertarian, hostile to claims of distributive justice (this, despite the fact that Rawls, Feinberg, and Mill and other non-libertarians endorse it). To others, it is simply another piece of liberal ideology, seeking to insinuate into the very foundation of moral thinking a claim 2 that (negative) liberty has a special status, and is somehow more basic than positive liberty, welfare, equality or justice.
    [Show full text]
  • Suppose We Had a Real Democracy in the United States? a Time for Imagination
    Suppose We Had a Real Democracy in the United States? A Time for Imagination Remarks of Gara LaMarche Vice-President and Director of U.S. Programs Open Society Institute University of California at Irvine January 28, 2004 Being a Distinguished Visitor takes some getting used to, I must admit. It seems to be a sign of age, like needing to have the menu read to you when you misplace your glasses, or having the grocery clerk call you “sir,” and looking around to see if perhaps your grandfather is standing behind you. But this invitation to share some thoughts with you—distinguished or not—is a fine antidote to the AARP membership card that will arrive for me in late August, so please accept my thanks at the outset. When I was asked to give a topic for this talk a few months ago, my hosts assumed I would want to focus on civil liberties and human rights in the United States and around the world, particularly their state in the aftermath of the attacks of September 11, 2001, since those have been my professional pre-occupations at the American Civil Liberties Union, PEN American Center and Human Rights Watch, and a leading concern of my current institutional home, the Open Society Institute. But as I thought it over, I wanted to both broaden and narrow the topic. I’d like to raise some questions about the state of democracy here in the United States, where we like to think of ourselves as the world’s model. It hadn’t occurred to me months ago that I would be talking to you on the day after the New Hampshire Presidential Primary, and the week after the Iowa Caucuses, where the occasional messiness and unpredictability of a certain aspect of democracy would be on display, but I want to say a few words about that, too.
    [Show full text]
  • DFAT COUNTRY INFORMATION REPORT TURKEY 10 September 2020
    DFAT COUNTRY INFORMATION REPORT TURKEY 10 September 2020 MAP This map is presented for information only. The Department of Foreign Affairs and Trade accepts no responsibility for errors or omission of any geographic feature. Nomenclature and territorial boundaries may not necessarily reflect Australian government policy. Provided by the Commonwealth of Australia under Creative Commons Attribution 3.0 Australia licence. DFAT Country Information Report Turkey SEPTEMBER 2020 2 CONTENTS ACRONYMS 4 GLOSSARY 6 1. PURPOSE AND SCOPE 7 2. BACKGROUND INFORMATION 8 Recent History 8 Demography 9 Economic Overview 9 Political System 14 Human Rights Framework 16 Security Situation 18 3. REFUGEE CONVENTION CLAIMS 20 Race/Nationality 20 Religion 22 Political Opinion (Actual or imputed) 27 Groups of Interest 31 4. COMPLEMENTARY PROTECTION CLAIMS 40 Arbitrary Deprivation of Life 40 Death Penalty 41 Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 41 5. OTHER CONSIDERATIONS 45 State Protection 45 Internal Relocation 49 Treatment of Returnees 49 Documentation 50 DFAT Country Information Report Turkey SEPTEMBER 2020 3 ACRONYMS AKP Justice and Development Party (the ruling conservative political party) AKS Address Registration System BTK Information and Communication Technologies Authority CAT Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CHP Republican People’s Party (centre-left opposition political party) CMHC Community
    [Show full text]
  • Freedom of Choice: John Stuart Mill and the Tree of Life
    SERIEs (2012) 3:209–226 DOI 10.1007/s13209-011-0053-8 ORIGINAL ARTICLE Freedom of choice: John Stuart Mill and the tree of life Jorge Alcalde-Unzu · Miguel A. Ballester · Jorge Nieto Received: 15 November 2010 / Accepted: 3 March 2011 / Published online: 29 March 2011 © The Author(s) 2011. This article is published with open access at SpringerLink.com Abstract This essay deals with the notion and content of freedom of choice pro- posing a new set up and a new family of measures for this concept which is, indeed, an ethical value of paramount importance in a well ordered and open society. Following some ideas of John Stuart Mill, we propose that freedom of choice has to be understood not in a single stage of choice, but in the ordered collection of choices that a person can make in her life. We then suggest to represent a life in a tree structure, where each node represents a state of life and the edges between nodes will represent possible decisions in life. In this new framework, we propose a set of axioms that imply the following family of measures of lifetime’s freedom of choice: the lifetime’s freedom of choice has to be evaluated by a weighted sum of all possible states of life an individual might visit, with weights representing the number of decisions the individual took to reach that state. Keywords Freedom of choice · Tree of life · Autonomy JEL Classification D63 · D71 J. Alcalde-Unzu · J. Nieto (B) Department of Economics, Public University of Navarre, 31006 Pamplona, Spain e-mail: [email protected] J.
    [Show full text]
  • Report on the Impact of the State of Emergency on Human Rights in Turkey, Including an Update on the South-East
    Office of the United Nations High Commissioner for Human Rights Report on the impact of the state of emergency on human rights in Turkey, including an update on the South-East January – December 2017 March 2018 Contents I. Executive summary II. Introduction A. Background and scope of the report B. Methodology C. Protection concerns for individuals cooperating with the Office of the United Nations High Commissioner for Human Rights D. Applicable legal framework III. Human rights in the context of the state of emergency A. Effects of the Constitutional amendments on the separation of powers B. Effects of presidential decrees enacted during the state of emergency 1. Subject matter and scope of presidential decrees 2. Interference with the independence of the judiciary 3. Arbitrary dismissals of civil servants and private sector employees 4. Torture and ill-treatment 5. Violations of the rights to freedoms of expression and movement C. Commission of Inquiry for State of Emergency Practices IV. Update on the situation in South-East Turkey V. Conclusions and recommendations Page 1 of 28 I. Executive summary 1. The present report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) provides an overview of key human rights concerns in Turkey in the period between January and December 2017, with a focus on the consequences of the state of emergency on the enjoyment of human rights. The findings of OHCHR point to a constantly deteriorating human rights situation, exacerbated by the erosion of the rule of law. 2. OHCHR recognizes the complex situation that Turkey has been facing by addressing the 15 July 2016 attempted coup and dealing with a number of terrorist attacks.
    [Show full text]
  • Law, Development and Socio-Economic Changes in Asia
    IDE Asian Law Series No. 1 Proceedings of the Roundtable Meeting Law, Development and Socio-Economic Changes in Asia 20-21 November 2000 Manila INSTITUTE OF DEVELOPING ECONOMIES (IDE-JETRO) March 2001 JAPAN PREFACE With the evolution of the market-oriented economy as well as the increase in cross-border transactions, there is an urgent need to conduct research and comparisons of judicial systems and the role of law in development in Asian countries. The Institute of Developing Economies, Japan External Trade Organization (IDE-JETRO) established two research committees in FY 2000: Committee on “Law and Development in Economic and Social Development” and Committee on “Judicial Systems in Asia.” The former has focused on the role of law in social and economic development and sought to establish a legal theoretical framework therefor. Studies conducted by member researchers have focused on the relationship between the law and marketization, development assistance, trade and investment liberalization, the environment, labor, and consumer affairs. The latter committee has conducted research on judicial systems and the ongoing reform process of these systems in Asian countries, with the aim of further analyzing their dispute resolution processes. In order to facilitate the committees’ activities, IDE has organized joint research projects with research institutions in seven Asian countries, namely, China, India, Indonesia, Malaysia, Philippines, Thailand and Vietnam. To encourage the sharing of the findings of respective researches on the role of law in development, legal systems and the reform process in Asian countries, and to promote research cooperation and scholarly exchanges among research counterparts, IDE sponsored a roundtable meeting entitled “Law, Development and Socio-Economic Change in Asia” in Manila on November 20-21, 2000.
    [Show full text]
  • Address by His Excellency President Recep Tayyip Erdoğan on the Occasion of the Announcement of the Human Rights Action Plan
    ADDRESS BY HIS EXCELLENCY PRESIDENT RECEP TAYYİP ERDOĞAN ON THE OCCASION OF THE ANNOUNCEMENT OF THE HUMAN RIGHTS ACTION PLAN 2 MARCH 2021 Inaugural Address By H.E. President Recep Tayyip Erdoğan The Great Turkish Nation, Distinguished Guests, Ladies and Gentlemen, I would like to greet you wholeheartedly. Welcome to the Presidential Complex, the home of our nation and a battle-scarred venue. I hope that this meeting which is held to announce the Human Rights Action Plan will yield beneficial results for our country, nation, the judiciary and all institutions. I would like to express my thanks to the Minister of Justice and his team who have been working diligently for a long time to finalize this document. I would also like to express my gratitude to all institutions and parties who contributed to the preparation of the Action Plan by presenting their views and criticism. Almost two years ago when announcing the Judicial Reform Strategy Document to the nation from this venue, we had stated that the Strategy was the initial step for future reform. Today, we are happy to have fulfilled this responsibility and take great pleasure in presenting the Action Plan to our nation. Since change is constant in our lives, our efforts for reform must also be constant. 1 Our nation has witnessed the historic and significant steps we have taken in this respect since we took the responsibility to govern the country. The Action Plan which we will announce today is an indication of our unwavering resolve for change and reform. The Human Rights Action Plan is a reflection of the past and a deliberation for the future.
    [Show full text]