Yale Law School
2nd Doctoral Scholarship Conference
James Fowkes, The Uncomfortable Argument: Solidarity as a Reason for Courts to Prefer Majority Wishes to Minority Rights
One of the dogmas of constitutional law is that courts are supposed to protect minority rights against majorities. Accordingly, the idea of courts deferring to majority opinion in rights cases is treated with great suspicion. Matters, however, cannot be that simple. It is also common to understand constitutions as belonging to a nation, and to treat this belonging-ness as important. Judicial legitimacy is often understood to rest on the idea that the court is enforcing the nation’s deep commitments. That argument gets weaker in both theory and practice the more a population is estranged from what is being enforced in its name. The idea that a constitution develops in approximate step with the life of the nation implies that courts and other constitutional interpreters at least sometimes take the public mind into account. Insofar as constitutions are understood as tools for conflict resolution, patriotism and nation-building, there is an implied premise that the public identifies with the constitution and its project. I contend that these sorts of considerations can be found in, for example, several South African Constitutional Court judgments that reject attempts by minorities to use rights to protect their interests.
This raises a question: to what extent, if at all, should these considerations be a legal reason to curtail minority rights protection? This question is uncomfortable: our reflexes that courts should always protect minority rights are strong, and rightly so. But it is important to ask it. The reason is particularly starkly illustrated in new constitutional states. If, at bottom, some kind of majority support is part of what it takes to build a working constitution and establish judicial legitimacy, and if overriding the majority too much may damage a young court and an emerging constitutional project, then even a strong defender of minority rights has a reason to worry about majority wishes: it might be self-defeating not to do so. Judicial decisions like the South Africa Court’s denial of protection to minorities might not be constitutionally untenable.
My paper explores this uncomfortable argument. The importance of minority rights implies that it is subject to quite severe limits. But is there a satisfying way to balance the two sets of considerations? I argue that an account based on a constitutional argument for solidarity can offer some space to take the majority alienation problem into account, while imposing credible limits on the degree to which this can erode minority rights protection. Such an argument allows us to continue to take the judicial protection of minority rights seriously, in accordance with strong lawyerly and moral intuitions, without wishing away the sense that the problem of overriding majorities does and should matter to some extent.
Yaniv Roznai, ‘Unamendable Provisions’ as Means for Building Constitutional Solidarity
An increasing number of constitutions contain explicit material limitations on the constitutional amendment power in order, inter alia, to protect essential characteristics of the constitutional order or principles perceived as being at great risk of repeal via the democratic process, in light of historical circumstances. These ‘noli me tangere’ limitations reflect the idea that the amendment power can be substantially limited. In the literature, provisions that prohibit amending certain subjects are referred to as ‘immutable’, ‘eternal’, ‘perpetual’ etc. I prefer the term ‘unamendable’, since these provisions serve as a mechanism for limiting the constitutional amendment power.
The paper examines unamendable provisions. In order to do so, it studies the text of unamendable provisions which were and are stipulated in more than 500 former and current written national constitutions. It first reviews the origins of unamendable provisions and supplies a general overview of this constitutional phenomenon. It then describes the structure and content of unamendable provisions, seeking any content-based or material links among them. Lastly, it analyses the characteristics of unamendable provisions. It identifies various features of unamendability, not necessarily exclusive and often overlapping, such as preservation of core constitutional values, transformation of political communities, constitutional aspiration and conflict-management.
An unamendable provision can have a certain function to fulfill, but at the same time, that unamendability reflects certain cultural values. It directly relates to the nation’s ‘constitutional identity’. Unamendable provisions tie the past, present and future, thereby teaching us a great deal about the polity. Also, the mere expression of unamendability itself fulfills a certain educational and symbolic function. Just as constitutions carry out expressive functions serving as important symbols for the polity, the unamendability of a principle or an institution conveys its symbolic value; it sends a message to the citizens and to external observers regarding the state’s basic constitutional principles. Therefore, unamendable provisions are utilized, in a way, to build constitutional solidary, i.e., solidarity around certain constitutional principles or institutions.
Thomaz Pereira, Entrenchment and Constitutional Politics: Interpreting Eternity Clauses
Constitutional law is the product of a fundamental agreement, or of the wish to act as if there is such an agreement, on the basis upon which all other disagreements between the political participants should be settled. Thus, the Constitution represents putatively deep agreements that establish the identity and nature of the polity itself. But because their meaning or persistence may be politically contested, law must also find a way to channel this type of first-order disagreements. Ordinarily this is structured by representing interpretation as the power to establish the meaning of existing agreements, and amendment as the power to alter their terms. As such, the amending procedure is the legal process for channeling the political revision of the basic agreements that structure politics and, at the same time, the most fundamental agreement establishing the identity and the nature of the constitutional order. In this regard, what are the normative consequences and institutional functions of unamendable constitutional provisions (“eternity clauses”)?
Should unamendable constitutional provisions be understood as expressions of legal rationalism in its extreme, limiting irrational manifestations of the popular will? Or should they be understood as expressions of the popular will in its most absolute moment, limiting other legislative acts that lack the same democratic legitimacy? These are fundamental questions for which we still lack adequate answers. If eternity clausesare the product of an act of political self-definition, only by understanding the political meaning of this act it is possible to arrive at an actual understanding of the nature of such a regime and, consequently, form an informed opinion on how the constitutional text should be interpreted and the role of courts in the system.
An adequate analysis of how eternity clauses affect constitutional politics requires an understanding of the inner-workings of constitutionaldemocracies in which they exist. The general picture of eternity clauses as identifying legal systems that from their own internal perspective define themselves as independent of and prior to politics disregards: (i) the different political contexts that forged such fundamental political agreements – assuming instead that eternity clauses always have the same historical meaning; (ii) the distinct institutional settings in which they are embedded; and (iii) how different legal systems that define certain constitutional provisions as unamendable actually function. Although, theoretically, eternity clauses can be extreme expressions of legal rationalism, limiting supposedly irrational manifestations of the popular will, in reality they can also be expressions of the popular will in its most absolute moment, limiting other legislative acts that lack the same democratic legitimacy. And respectively, courts can play the role of guardians of reason against the irrationality of popular will, but also of guardians of the popular will against legislative erosion. Each one of these cases is founded on a different structure of political legitimation and can lead to different institutional dynamics in the pursuance of constitutional politics.
I approach the question of how eternity clauses affect the process of constitutional change and the relationship between Judiciary, Legislative and Executive in constitutional democracies by focusing on different constitutional contexts. In an effort to move beyond both the abstract rhetoric and the exclusive focus on German constitutional law that marks the academic debate on unamendable constitutional provisions, my research aims to examine the political origins and institutional consequences of the existence of eternity clauses in four countries: Germany, India, Portugal and Brazil. Germany, which adopted its supposedly provisory Basic Law (1949) in a “reconstruction scenario” and is the undisputed origin of the diffusion of the institute in the postwar constitutional context. India, which adopted its Constitution (1949 – the same year as Germany) in an “independence scenario” without any mention of eternity clauses, created by judicial interpretation as the product of a stand-off between Supreme Court and Parliament, with its meaning established by a back and forth of court decisions and constitutional amendments in the midst of a constitutional crisis (1967-1977). Portugal, which adopted its Constitution (1976 – in the midst of the Indian constitutional crisis) in a “revolutionary transition scenario”, providing for eternity clauses (under the influence of German constitutional law) that, among other things, should guarantee the socialist principles of the new constitutional order, and which were amended in the “Second Constitutional Revision” (1988-1989). And Brazil, which in a “non-revolutionary transition scenario” adopted its Constitution with an incredibly extensive catalogue of unamendable constitutional provisions (1988 – same year the second Portuguese constitutional revision started), with which any relevant institutional reform will have to deal.
Nora Markard, Building Solidarity in Health Care: A Comparative Perspective
Insurances are a well-known solidarity mechanism: everyone pays a premium into the system, and will be supported out of the communal fund in the case of unforeseen disaster which any one person (or company) alone could not over-come, or which would be too heavy a financial burden. This is the case for travel insurance, home owners’ insurance, and so forth. Nothing is wrong with such a system if it is freely chosen. Can the law prescribe solidarity, though? In the case of Sebelius, this question was addressed as a federalism issue: whether Congress could rely on one of its enumerated powers to pass such an individual mandate. The Supreme Court unexpectedly answered this question in the affirmative. The federalism challenge, however, was driven by a liberty objection, namely that the mandate takes away free choice. This paper will therefore seek to examine the substantive question from a comparative point of view: whether a mandate is an unwarranted interference with individual liberty.
The German legal system has known solidarity mechanisms in the health insurance sector ever since the late 19th century. Everyone has to sign up either to a statutory or a private scheme. Such mandatory memberships are considered a justifiable interference with liberty, as it is also the Government’s task to secure the material and structural conditions for the exercise of liberty; legal freedom (rechtliche Freiheit) is nothing if it is not real freedom (reale Freiheit). Thus, an existence without basic health care is one where the most basic freedoms can ring hollow.
At first glance, this appears in stark contrast to an approach that considers the pursuit of happiness both a right and the responsibility of the individual. But is it, really? In the words of the Solicitor General, the Affordable Care Act “secures the blessings of liberty for everyone.” And in fact, the U.S. legal system also strives to secure these blessings, and create ‘real’ freedom, for example where it tackles structural discrimination. Is it really alien to U.S. constitutional law to do this by way of collectivization? This paper argues that, constitutionally speaking, solidarity cannot be played off against individual liberty. It will explore when and how solidarity can be the very basis of the enjoyment of liberty.
Everaldo Lamprea, Right-to-health litigation in Latin America: evidence from Colombia, Brazil and Costa Rica
The puzzle that I address in this paper is why Colombia shows significantly divergent patterns of health rights litigation despite sharing with Brazil and Costa Rica similar judicial institutions and mechanisms for the enforcement of the right to health. I provide a diachronic account of how the different historical trajectories of health care systems in Colombia, Brazil and Costa Rica may have influenced the divergent outcomes of health rights litigation in those countries. I posit that in Colombia the moment of take-off of its health care system —in terms of expansion of coverage, unification and equity—took place only during the 1990s, after the implementation of an ambitious health care overhaul in 1993. In Brazil and Costa Rica health care systems took-off much earlier, during the 1960s and 1970s. I argue that, unlike what happened in Brazil and Costa Rica, the emergence of right-to-health litigation in the 1990s overlapped in Colombia with the turbulent take-off of its health system. This overlapping created in Colombia more incentives for litigation than in Brazil and Costa Rica. Additionally, I hypothesize that Brazil and Costa Rica have more state capacity and autonomy to create disincentives to health rights litigation because their health care sectors have more successful and longstanding historical trajectories than Colombia’s.
Tsung-ling Lee, Dissecting NCDs’ Regulatory Mixes: A Prescription for a Cure or a Malignant Growth for Population Health
The rise of modern managerial state can find expression through the risk discourse towards non-communicable diseases (NCDs), where the rising incidence of obesity, diabetics, cancers and cardiovascular diseases expands the traditional understanding of health. This transforms the role of government from a custodian of health to a managerial one, and arguably expands the scope of state interventions into private life, where individual autonomy and liberty protects state interferences. Across the world and most recently recognized by the World Health Organization (WHO) and the United Nations, the increased incidence of NCDs indicates a whole-of-government approach towards health prevention and promotion challenging the traditional notion of governance. This is premised on the notion that law is central to the creation of health, and as the managerial state experiments with regulatory mix, the ideology of the new public health paradigm is being incorporated into social fabric through law primarily through the creation of a health-enabling environment.
In keeping with the new public health paradigm, the managerial state draws regulatory innovations from behavioral psychology, where the use of regulatory mix intends to induce sustainable and healthy individual behavior. To the extent that law is being used to influence but not to dictate individual consumption patterns, it arguably, permits a managerial state to go beyond the traditional boundary which limits a regulatory state; a managerial state seeks to promote self-regulation in such a way that serves both societal and individual interests. Collective health interests are informed through a heightened sense of self-awareness through media campaigns, education programs, alternation to the physical environment and statutory legislation. This only becomes problematic when interventions go beyond the regulation of bodies without addressing the underlying determinants of health. Inasmuch as law begets positive changes in social norms and individual behaviors, as exemplified by the success of tobacco litigations and statutory enactments to protect public health, questions arise when persist and disproportionate burden fell on the poorest segment of society. The new form of governance transcends both the spatial and temporal dimensions that traditionally limit the scope of law, the potentials and challenges of the managerial state lies on its ability to meet citizens’ expectation of meaningful health protection.
As the recent public health movement raises doubts about the extent and degree of permissible public health intervention, I trace the origin of the movement and argue that a conceptual framework is needed to explain the ascendancy of the managerial state. More specifically, as the WHO advocates for a whole-of-government approach towards NCDs, this implicates a need for a normative framework which is contingent on country profiles and disease profiles of the adopting country. Further, as law is used as a vehicle to respond to the new public health paradigm, this reconceptualises the relationship between individuals and states. I explore the rights theory and regulatory theory to fill the current conceptual gap in explaining the emergence of a managerial state vis-à-vis NCDs. I argue that when public health strategies fulfil the requirements under both theories, it leads to meaningful health protection.
Ramzan Alnoaimi, Losing the historical character, losing the constitutional future: The prospective constitutional reforms in Arabian Gulf Monarchies
Following what has later became known as the Arab spring and its implications, the Arabian Gulf Monarchies realized the pressing need to modernize their governance systems. The historical legitimacy of their governance systems is constantly eroded by internal and international legitimacy challenges. However, due to the Gulf region’s particular governance culture and the discouraging history of unsuccessful transitions in the Middle East, any proposal for a radical change to the deep-rooted socio-political arrangements in those countries is likely to be destructive. In my doctoral dissertation, I will be trying to layout innovative political reform principles that balance the universal constitutionalism inspirations with the particularity of the Gulf Monarchies’ governance culture to ensure both the restoration of those governance systems legitimacy and the sustainability of a significant step forward towards rational governance. However, for this conference I will confine my discussion to my concerns about the massive influence of modern constitutionalism critique over the discourse of the prospective reforms, and the negative consequences of this influence. I will then offer a methodology to overcome those concerns.
At this point of the history, the Western liberal ideology finds itself with no ideological competitor in shaping the international critique for modern constitutionalism. Consequently, modern constitutionalism critique is premised on the universality of Western philosophical mythologies and narratives about nations’ historical development and it advocates blindly in favor of western governance models. Indeed, it disregards the distinct historical and cultural character of the nations at stake.
Constitutional reforms are meant primarily to constitute governance principles and dispute resolution mechanisms for the political decision-making to maintain social solidarity and foster cooperation between different groups within the state. Constitutional reforms can achieve those principles only if they succeed in framing moral and procedural principles that gather everyone around a higher collective faith; a faith that trumps individuals and groups’ personal faiths and interests. Otherwise, the constitutional principles will be only political tools to manage destructive conflicts between different groups in the society. However, establishing such a collective faith requires an emotional appeal to the collective imaginary and the identity of the nation in order to guarantee a genuine engagement of the different groups in the political process.
Submitting to the pressure of the modern constitutionalism critique, which is premised on completely foreign ideological and cultural conceptions, would make the Gulf Monarchies’ transition just another failed political transition of third world countries. Therefore, I will develop a methodology to distinguish between the international constitutionalism norms that have an inherent universal validity and the ones that are falsely universalized because of the ideological power of the Western superpower. I will argue that true universal principles will always find roots in the historical events and philosophical mythologies that make up Gulf people’s collective imaginary. And along those lines we can establish a collective faith out of the prospective constitutional reforms to guarantee a genuine engagement by all the different groups of society.
Jaclyn Neo, Mixed Constitutions: New Modalities of State-Religion Relations
Religion can be a source of solidarity as well as conflict. How a constitutional system relates to religion is one that critically affects its long-term viability. Eschewing the conventional proposition that secularism as disestablishment is the best constitutional approach to managing religious diversity, this paper engages the debate on the level of whether a constitutional system can accommodate public religion, and more importantly, how? The paper argues that coexistence between constitutionalist systems committed to popular sovereignty with public religion is possible in the middle ground between the theocratic/established state and the secular/disestablished state. It introduces the idea of a “mixed constitution” as a constitutional system containing both establishment and disestablishment elements as an alternative to the secular-theocratic paradigm. Mixed constitutions are not all the same, but may further be conceptually differentiated and analyzed based on the modalities of state-religion relations. This paper introduces three such modalities – subordination, coordination and superordination. States which ‘subordinate’ religions tend towards monism, in which state law and politics dominate, even where religion plays public functions. States which seek to coordinate religion tend towards dualism, where state and religious authorities maintain coexistence through differentiated spheres. States which superordinate religion provide the greatest challenge to currently dominant constitutional-secular theory because they designate religious texts and principles as having constitutional or supraconstitutional status. This paper examines these modalities, using the case studies of Malaysia, Singapore and Indonesia to illuminate the affinities, contradictions and ambivalences of the different Mixed Constitutions, reflecting upon the function of religion in creating, consolidating or even collapsing national solidarity efforts in nascent democracies.
Pieter Van Cleynenbreugel, Re-imagining Transnational Solidarity in Post-Crisis European Union Law
The financial and budgetary crises dramatically uncovered the limits of the European integration project and the values of transnational solidarity it embodies. In response to these critical systemic shortcomings, EU policymakers adopted an extensive set of post-crisis regulatory structures. These new structures aim to promote a rejuvenated image of European integration. In that image, substantive narratives of transnational solidarity that had thus far governed the European project were downplayed in favor of an alternative and potentially problematic institutional conception of solidarity. This paper identifies and evaluates the new conception of transnational solidarity reflected in the European Union’s regulatory responses to the 2008-2009 financial and 2010-2012 budgetary crises. It argues that this new conception presents opportunities for reshaping and re-integrating a modified post-crisis EU solidarity discourse. Its argument proceeds in three parts.
Part I distinguishes and identifies three generally accepted transnational solidarity narratives that have long structured debates on European integration and EU law: liberalizing solidarity, redistributive solidarity and constituted solidarity. Although considerably divergent in their modus operandi and practical applicability, these narratives all seek to operationalize the vexed concept of solidarity in a context of European integration. Part II analyzes EU post-crisis regulatory initiatives and situates them within the three solidarity narratives. Post-crisis regulatory reform showcases that none of the aforementioned narratives is able fully to capture the institutional innovations reflected in these reform initiatives. The part therefore develops a fourth narrative of institutionalized solidarity. That narrative implies that Member States can be forced to cooperate with each other through an institutionalized and complex supranational regulatory framework. Any substantive discussion on transnational solidarity is made wholly subordinate to the emergence and operationalization of new supranational institutional structures. Part III proposes a re-imagination of institutionalized solidarity that would allow to enable renewed substantive solidarity discussions to take shape. It does not seek to address whether institutionalized solidarity presents the best way forward for EU integration through law. It does however identify institutionalized solidarity as a vehicle for re-imagining transnational solidarity as an essential feature of European integration. The paper builds upon the concept of regulatory spaces to substantiate this argument.
Stefanie Egidy, Debt Ceilings in the European Union: Facilitating Economic Solidarity Through Law
Although solidarity is a concept often employed in the context of human rights, international, and environmental law, it is not limited to these areas. This paper will focus on two related inquiries: how debt ceilings facilitate economic solidarity among states in the European Union and, how they paradoxically act to both limit and enhance democratic legitimacy.
The so-called Fiscal Treaty of the European Union and the temporary Euro bailout mechanisms were created as a crisis resolution framework to safeguard financial stability by, among other things, providing for financial assistance in times of crisis and requiring states to enact provisions ensuring balanced budgets. This paper argues that, rather than creating solidarity, these legal instruments are in fact based on and reflective of preexisting mutual political commitments to economic solidarity. Unified action by states must be motivated by antecedent recognition of solidarity with each other. Therefore, the creation of mechanisms that promote solidarity between states is always based on a prior commitment of these states to establish a union of solidarity. This joint commitment leads representatives of individual states to come together and agree on ground rules for when solidary action will take place, including, as exemplified by the EU debt ceiling requirements, what limits will be placed on member-actors party to the agreement. In doing so, these legal rules facilitate the relationships of economic solidarity among the states.
By limiting national sovereignty, EU-imposed debt ceilings create a problem common in supranational organizations: restrictions on national sovereignty conflict with the principle of democracy. But there is a further aspect to the obligation to enact debt ceilings, which stems from its character as a facilitation of solidarity. Generally, solidarity and democracy are seen as counterparts. Being liable in a solidary union imposes costs on paying states, which lack democratic control over the mistakes of the bailed-out states. Debt ceilings, however, function to limit the potential need for such solidary actions. In promoting stability through a balanced budget, debt ceilings decrease the risk that a member state will need to request support from other member states of the solidary union and thus enhance democracy.
Thus, in facilitating and limiting the solidarity principle, debt ceilings serve as a fulcrum for the principle of democracy by restricting sovereignty on the one hand and protecting it on the other.
Johanna Stark, Crowding Out Morality? Regulatory Competition and Its Effects on Law as a Public Good
Noam Noked, Conflict Aversion and Legal Conflicts
People differ in their taste for conflict. While heterogeneity in conflict appetite is a well-known phenomenon in the behavioral literature, its implications on legal conflicts are yet to be explored. This paper offers an analysis of the effects of conflict aversion, conflict loving, and heterogeneity in conflict appetite on various legal conflicts.
Roy Shapira, Law and Reputation: How the Legal System Corrects Distortions in Reputational Sanctions
This paper provides a new perspective on the relationship between law and reputation by examining a previously unnoticed function that the legal system plays: correcting reputational distortions. Reputational sanctions are sometimes noisy, and the existence of a well-functioning legal control can reduce such noise, thereby facilitating a well-functioning extra-legal control.
To illustrate, consider a scenario of corporate reputational sanctions. When news of adverse corporate action is revealed, players in the market react by updating their beliefs about the future benefits of interacting with the corporation (consumers may infer that product quality is lower than expected, investors may infer that systematic governance problems will decrease expected cash flows, etc). Such updating of beliefs – before and regardless of factoring the expected legal sanctions – is the reputational sanction. The point is that this initial sanction may be distorted, for several reasons. For one, consumers of reputation-information may not have enough information to make a balanced assessment. Even when they know what happened, they may not know how it happened. And reputational intermediaries (such as the media or watchdogs), may have narrow private incentives that will distort the ways reputation-related information is diffused. The upshot is that the market reaction may punish misbehavior too little or too much. A well-functioning legal system can then step in to facilitate correction of initial market reactions. For example, litigation over corporate misbehavior can produce judicial opinions that supply new information on how things happened (for instance, perhaps the adverse action was a product of temporary incompetence rather than systematic immorality or deep-seated organizational flaws). More indirectly, the very existence of the potential to litigate the issue better aligns the incentives of players in the market for reputation (for example, a successful litigation distinguishes high-quality watchdogs from those who just bark; facilitating a market for watchdogs’ reputation).
The main contribution of this paper is in shifting the focus from the conventional view of law and reputation as mere substitutes to viewing them also as complements. The economic analysis of law and social norms usually considers extra-legal sanctions in the context of calls to deduct legal sanctions, so as not to cause an excessive avoidance of activities (legal over-deterrence). When reputational concerns are strong, the argument goes, we should scale back the level of (costly) legal control (think “abolishing product liability for widely-sold products”). This view rests on an implicit, flawed assumption, according to which extra-legal sanctions are costless, or at least less costly than legal sanctions. By showing how and when this assumption is flawed – that is, when legal systems enjoy a comparative advantage in acquiring and interpreting reputation-information – this paper fleshes out the need to revisit the legal implications generated by the conventional analysis. If reputational concerns are strong but noisy, then perhaps we should not scale back on legal intervention, as this could hinder the informational role that the law plays in reputation systems.
To substantiate and illustrate the theoretical claims, the paper revisits empirical studies of the economic consequences of corporate litigation, uses specific cases from the crisis-management literature, and offers a re-reading of notable corporate litigation cases. While for the sake of clarity and concreteness the paper focuses on corporate reputation; the implications of the analysis apply more broadly.
Elizabeth Chorvat, Expectations and Expatriations: An Event Study
Since 2008, we have observed an increasing rate of U.S. IPOs with non-U.S. incorporation, presumably associated with the increasing divergence between U.S. and OECD corporate tax rates, as well as the persistence of the U.S. worldwide tax regime, which stands in contrast with the territorial system employed in nearly every other industrialized country. For those corporations not already resident outside of the U.S., the only alternative to the U.S. tax regime is to escape the U.S. tax net by reorganizing with the goal of establishing a non-U.S. parent for the group. The unusual notion of corporate expatriation, sometimes called a corporate inversion or “flip” transaction, relates to the fact that corporations are considered to be resident where they are incorporated, rather than where they actually operate. What may in substance be little more than a “paper” transaction my significantly reduce the worldwide taxation of the entire group. Notwithstanding the substantial cost to this “self-help” territorialism, several corporations – including, most notably, Aon Corporation – have recently announced their intent to reorganize outside of the United States, presumably because the depressed share prices associated with the current economic downturn also reduces the amount of the penalty, which is a tax on any increase in value that has accrued within the U.S. taxing jurisdiction. The penalty to Aon’s shareholders has been estimated at between $33 and $52 million dollars. Why would corporate boards voluntarily trigger such a cost to the shareholders when, under standard financial theory, the cost of expatriation should equal or exceed any potential benefits from inversion? In fact, an analysis of the returns associated with those inversions which occurred between 2000 and 2002 reveal that these reorganizations returned excess profits on the order of 200% above the market average returns over the course of the last ten years.
The puzzle associated with the recent inversion announcements is not that they occur, which is easily explained by U.S. market downturns amounting to what corporate managers may perceive as mispricing, but rather the complete absence of any impact of these announcements on share price. The day before the announcement, Aon shares were trading at $46.52. The next working day, shares closed at $46.34. Why, if corporate inversions have historically returned excess profits on the order of 200% above the S&P average to corporate shareholders in the ten to twelve years following the flip, do share prices not react positively to the announcement? Any shareholder penalty may be avoided by holding the stock in a tax-exempt entity such as a pension fund, or in a tax-preferred vehicle such as a retirement account. This paper will explore potential explanations for this phenomenon, including the direction of causality, sampling bias, and shareholder investment horizon, and will encourage participants to consider alternative hypotheses, as well as methodologies for formulating critical tests of these hypotheses.
Rocío Lorca Ferreccio, Social Justice and the State's Standing to Punish
In this paper I defend two claims: (1) the authority to punish depends on whether the person being punished can be seen as a member of a political relationship in which punishment is appropriate, and (2) a political relationship in which punishment is appropriate is one in which membership implies not just formal equality and political participation but also the satisfaction of certain demands of distributive justice. To put it differently, by dwelling on the question of who can punish, I claim that only political agencies can have a standing to punish and they can do so only when they organize and secure systems of cooperation in which their members have both the possibility to determine the way in which these institutions regulate their life and the possibility to enjoy the benefits of social cooperation.
Toby Goldbach, Instrumentalizing the Expressive as Promoting Conflict or Inclusiveness: Law Reform and Alternatives to Criminal Sentencing Procedures in Canada
This paper examines reforms to the Canadian criminal justice system, in particular, the establishment of the Aboriginal Justice Strategy (the “AJS”) and the use of sentencing circles in the sentencing phase of a criminal trial. The paper questions how we assess legal change and the relationship between law reform projects, cultural inclusiveness and social solidarity.
On the surface, this paper presents a story about law reform in Canada, about claims to multiculturalism and legal pluralism, about Aboriginal law and alternatives to criminal sentencing procedures. Looking deeper, the case study describes a story about the complicated relationship between law and social or political solidarity. The progress of these reforms is a kind of typical story that points to larger questions about law’s role in mediating conflict and ‘control’ over our instrument. In order to demonstrate this ‘behind the scenes’ story, the paper discusses reforms to criminal sentencing procedure in Canada, in particular, the introduction of sentencing circles to the sentencing phase of a criminal trial. While a history of functionalism particularly in Comparative Law and legal transplants seems to have set culture against instrumentalism, legal thinking elsewhere seems to be embracing the cultural as useful. The reform of criminal sentencing procedures in Canada stands as an example of a not at all uniform movement to cultural and normative goals in addition to or instead of sociological instrumental goals.
This movement to cultural and normative goals is seen in development literature that features the Rule of Law or democratic freedom as the key to progress (Santos 2006; Sen 2004) but also with the rise of constitutionalism as an organizing concept or archetype in legal thought (Kennedy 2006; Rodrguez-Garavit 2011). The paper argues that these examples portend not merely a shift to different kinds of goals but also to an instrumentalizing of the expressive. The expression of culture is not only the end-goal but also the tool to accomplish other goals that law has defined. The question or problematic that remains unexamined, however, is whether this instrumentalizing of the normative or cultural achieves its goals of creating cultural solidarity or whether it lays groundwork for deeper conflict. This paper presents data compiled from a review of all published decisions regarding sentencing circles and suggests that reforms to institutionalize sentencing circles creates rather than dissipates the conflict between democratic values, multiculturalism and lay participation in criminal law.
Conor Hanly, Criminal Prosecution in Victorian England
The standard characterization of the criminal prosecutorial process in Victorian England is one of private initiative. Whereas Scotland and Ireland each enjoyed a well-developed system of centralized public prosecution, in England and Wales private citizens were responsible for the conduct of most prosecutions. Only in the middle of the nineteenth century did English reformers begin to push for the introduction of a system of public prosecution, a push that culminated in the creation in 1879 of the office of the Director of Public Prosecutions. This characterization of the English prosecutorial system ignores the substantial role played by executive authorities in the direction and development of that system from the latter half of the eighteenth century.
The state began to take a direct interest in the prosecutorial system from the mid-eighteenth century through a system of reimbursement of the costs incurred in prosecuting offenders. Restricted at first, this system expanded rapidly throughout the early years of the nineteenth century, culminating in the creation of an executive agency to oversee and control the system. Thus the public purse came to bear the cost of the prosecutorial process. Additionally, by controlling costs, the government was able to directly influence the development of the adversarial criminal process that depended upon the presence of professional lawyers.
Further, by 1850 executive officials already conducted a large amount of prosecutions. In the counties police officers and justices’ clerks mainly fulfilled this role, while the larger boroughs employed dedicated public prosecutors who officially bore that title. To be sure, this rather ad hoc process lacked the systemic structures present in the Irish and Scottish systems. Nevertheless, such structures are not a pre-requisite for a system of public prosecution. Public officials who took responsibility for prosecutions in their official capacity were engaging in public prosecutions in all but name. Thus, by the end of the first half of the nineteenth century, the public purse paid for criminal prosecutions that were mostly conducted by public officials. Accordingly, this paper argues that a de facto system of public prosecution had become the norm in England and Wales long before the appointment of a centralized public prosecutor in 1879.
Yoon Jin Shin, Beyond Victim Protection: Toward Contextualized Human Rights Responses Upholding the Agency of Persons in Human Trafficking Situations
This paper explores the nature, impact and effectiveness of the current anti-human trafficking regime from the perspective of persons in trafficking situations (PITs). It aims to suggest an alternative approach to better respond to the actual experiences, needs and agency of PITs. It proposes the law should recognize and guarantee PITs’ rights and status as migrant workers. It first examines the main approach of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the Trafficking Protocol) and exposes how the Protocol is designed to deny the PITs’ agency, or their ability to make autonomous decision in their lives. This analysis looks into the “irrelevancy of consent” clause with particular attention and argues that it hinders proper understanding of PITs’ agency in their migration processes: since the majority of trafficking cases involve “deception” as a means, rather than physical force or threat, PITs’ consent exists to a certain extent. However, it is not consent to “exploitation”, but rather consent and willingness to “migrate” for better work and life opportunities. This paper points out that the latter – PITs’ consent to migrate – is improperly ignored under the current anti-trafficking regime, which relegates PITs into a passive victim position. It then examines the treatment of PITs by the Trafficking Protocol and the domestic anti-trafficking laws in the U.S. and South Korea. In particular, this paper looks into their repatriation policies, which are informed by the simplified victimization approach. I argue that the current policy of “repatriation as a rule - stay permit as an exception” significantly limits the possibilities of imagining more practical and adequate remedies for differently situated PITs. This analysis suggests the necessity of recognizing PITs’ rights and status as migrant workers who experience serious breaches of their original contracts. As an example, this paper discusses three categories of PITs who are induced to sex trafficking in South Korea and suggest contextualized responses to more fully respect their agency, distinct needs and human rights.
Basil Ugochukwu, Pierre Bourdieu’s Habitus and Post-Colonial Influences on Human Rights Adjudication in Commonwealth Africa
The broad objective of this presentation is to apply insights from Pierre Bourdieu’s “habitus” towards an understanding of how legal education, professional training and socialization of lawyers and judges influence post-colonial human rights adjudication in Commonwealth African countries. Positivist orthodoxy often assumes that the determinants of judicial behavior in real-life litigation are the rules and doctrine applied to specific factual situations and therefore internal to the field of law and adjudication. However, Bourdieu’s concept tends to indicate that constraints on judicial behavior are not exogenous rules or doctrine external to a judge’s own personal attitudes, training and professional exposure. My presentation will therefore argue that constraints on human rights adjudication in the countries examined are more likely internal to the judges and become manifested from endogenous attributes to which the judges become habituated over time. I will argue that these attributes grow from within judges through the kind of education they have had. It may also include traits received from exposure and professional socialization as well as post-education training and real life experiences. I will draw upon comparative experiences from Ghana, Malawi and Nigeria.
Ryan Thoreson, “Human Rights for Everyone, Everywhere”: Exploring the Conjunction of Sexual Politics and Human Rights
When asked about its mission, activists at the International Gay and Lesbian Human Rights Commission, or IGLHRC, referred to it as an “LGBT human rights organization." While this seems descriptive, the conjunction of these two qualifiers – a focus on LGBT people on one hand, and the use of the human rights framework on the other – set IGLHRC apart. While human rights NGOs like Amnesty International and Human Rights Watch engaged with LGBT issues, that was only part of their broader institutional mission. Conversely, domestic NGOs like the Human Rights Campaign in the US or Stonewall in the UK overwhelmingly focused on national LGBT advocacy. IGLHRC remained the largest transnational NGO calling itself an LGBT human rights organization and working on issues affecting LGBT people using a human rights toolkit.
In this paper, I explore what it meant for activists to define IGLHRC as an LGBT human rights organization, and how their understanding of that mandate affected how they advanced particular norms. IGLHRC publicly demanded “Human Rights for Everyone, Everywhere.” In practice, however, activists had to determine who their partners would be, which cases merited intervention, and where resources, time, and energy should be spent. They were guided by the experiential needs of LGBT people, which were not always easily located within the human rights framework, and by human rights law, which did not always accommodate queer realities. Here, I explore the ways they incorporated, adjusted, and resisted aspects of both LGBT politics and traditional human rights praxis in their work. I argue that hybridizing frameworks not only encouraged creativity, but subtly shaped the development of LGBT human rights as a category.
Joanna Noronha, Harnessing Gender to Law: Designing Domestic Violence Law and Policy
My paper will discuss the design of legal mechanisms to address a pressing problem around the globe: domestic violence (DV). DV is generally defined as any form of violence (physical, psychological, patrimonial, sexual) that happens in the context of the family, including current or former intimate relationships. The central question of my paper is what would be the best legal mechanism to adequately address the complexity of DV, the myriad of conflicts and interests involved, and effectively inform policy.
In order to answer this question, I will start by analyzing the two traditional legal approaches to gendered patterns of DV. Substantive equality focuses at women-only mechanisms, targeting the most affected by the problem in an attempt at making state action more effective. The other approach, formal equality based on gender-neutral language, supports the idea that legal and policy mechanisms should not be targeted, due to equality concerns.
After exploring the rationales that justify each of these approaches, I will move to an analysis of two jurisdictions that have adopted substantive and formal equality approaches to DV: Brazil and the United States, respectively. While each approach has benefits, they also have significant costs. As an alternative, I argue that it is possible to design a flexible system that is neither focused on women, as the Brazilian system, nor gender neutral, as the American system. This alternative – which I call the mosaic approach – aims to make DV law and policy more effective.
To develop this argument, the paper is to be structured as follows. Section 1 will provide a brief overview of the incidence of DV in the two countries analyzed, indicating how pressing and relevant is the debate about effective legal solutions. Section 2 will map the academic literature on law, gender, and equality, presenting the trajectory followed by feminist theory from a denunciation of women’s invisibility to an argument for crafting women-only legal mechanisms. I will also present the opposing view, which argues that gender-neutral policies are more egalitarian, inclusive and protective of rights of all citizens. Then, I will present the critiques of feminism that emerge from sexual minorities (“queer theory”). Section 3 will discuss the treatment of DV in the Inter-American Commission for Human Rights, where both Brazil and the United States have been found to be in non-compliance with their obligation to protect female plaintiffs against DV. Section 4 will describe the historical move towards gender neutrality in U.S. policy against DV, the emergence of gender-neutral statutes, as well as the successful constitutional challenge of federal instruments, such as the civil rights clause in the Violence Against Women Act (VAWA, 1994). Section 5 will describe the Brazilian legal approach, namely the enactment of a statute concerning DV against women in 2006. Section 6 will conclude by comparing the two countries’ systems and presenting the outline of an alternative system, the mosaic approach, which focuses on a mosaic of vulnerabilities and risk factors for DV.
Thomas Wischmeyer,“Governance by Trust” in EU Law
Trust is an integral element of social capital and a precondition for societal welfare and solidarity. However, the theoretical relationship between law and trust is still not fully understood. Does law as a mechanism of hierarchical control undermine trust or can law build and foster trust? An analysis of the European Union’s (EU) common Area of Freedom, Security and Justice (AFSJ), which is based upon the principle of mutual trust, sheds light on this question. The paper proceeds in two steps. First, I will describe and criticize the interpretation of trust developed for the AFSJ by the European Court of Justice (ECJ). Second, I will develop elements of a legal “grammar of trust” for the AFSJ, i.e. certain legal rules which can build trust – not although, but because they are a means of control.
The AFSJ regulates judicial cooperation in civil and criminal matters between EU member states (MS). The Treaty of Amsterdam introduced a new mode of governance for the AFSJ. Since then, the EU aims to build mutual trust between the courts and administrative agencies of its MS rather than to harmonize the different legal systems (governance by trust). The ECJ developed a “principle of trust” to implement this policy. However, the ECJ has interpreted this principle in a rather unconventional way. In 2004, the ECJ has held (C-159/02 – Turner):
“It is that mutual trust which has enabled a compulsory system of jurisdiction to be established, which all the courts within the purview of the Convention are required to respect. […] [A review by a court of a MS of a jurisdictional decision by a court of another MS] runs counter to the principle of mutual trust which […] prohibits a court […] from reviewing the jurisdiction of the court of another Member State.”
Since Turner, the ECJ interprets the “principle of trust” as if mutual trust already existed. Moreover, for the ECJ trust seems to be incompatible with any form of legal control. Consequently, the ECJ turned the “principle of trust” into a “duty to recognize”. These decisions have provoked harsh critique within the MS and, paradoxically, have created a new level of mutual distrust.
The failure of the ECJ to give an adequate account of the relationship between trust and law makes it necessary to re-evaluate this problem. Social science literature tells us two things about trust building. First, trust is primarily the product of a learning experience. Second, trust presupposes a framework of rules and “weak” mechanisms of control. Although trust building might be incompatible with certain modes of command-and control regulation, it would be a conceptual mistake to understand trust and control as mutually exclusive. Rather, legal rules are one of many factors which enable trust, especially so-called “systemic trust”, i.e. trust in institutions and organizations. These insights can be used to develop a legal “grammar of trust” for the AFSJ and for judicial cooperation in general. This “grammar” comprises rules and is based on best practice experiences collected in other fields of supranational judicial cooperation. To mention only two of several candidates: The first is an old acquaintance from private international law, the ordre public doctrine. The second is a method underlying the ECJ’s N.S. decision (C-411/10) on the EU refugee law system, which could be described as “systemic control”.
Clemens Wackernagel, The International Common Good: Apotheosis or Twilight of International Constitutionalism?
My paper will be focused on a recent development in scholarship on international constitutionalism. This development consists in the use of the term ‘the common good’; a topos of political theory that is as old as thinking about social coexistence altogether and touching upon central issues of rulership such as its legitimacy. However, up until recently it was mainly theorized in the context of states.
The international common good has been suggested to be the protection of the individual as the ultimate and universally shared value of international law. This value and not state consent becomes the foundation for the main structural elements of the international order – the ones that form the international constitution. In my opinion, this development marks the final theoretical step in establishing international law as an order superior and independent from the sovereign will of states. At the same time it marks the moment where international constitutionalism’s underlying assumptions reveal themselves most clearly and should be rethought.
I will illustrate this by drawing an analogy between the use of the common good in international constitutionalism and the religious foundations of medieval international law. The analogy will be based on a sociological theory according to which ‘the sacred’, despite Enlightenment, never faded away but merely changed its locus. On this theory, it is plausible to say that the common good in international constitutionalism is an expression of a sacralized notion of the individual. The individual becomes ‘The Individual’ as a first principle of the international order. What the idea of ‘God’ was for medieval international law, the idea of ‘The Individual’ is for international constitutionalism.
The comparison of international constitutionalism to religion in a pluralistic world elucidates the formers own particularity and contingency. It makes the claim to be founded on universally accepted moral values implausible. In my view, however, that claim is international constitutionalism’s most salient vulnerability, because the objection of it being either cloaked hegemony or utopia is too easily made. This weakness can be eliminated when international constitutionalism’s foundation on a sacralized notion of the individual is acknowledged.
This is not to say, that international constitutionalism should be seen as a religion. It rather means to be aware that it takes part in a cultural development, starting, according to Chicago sociologist Hans Joas, with the abolishment of slavery. This development consists in continuous societal transformation as a reaction to human humiliation. It resulted in human rights and ultimately in the attribution of human dignity as ‘the sacred’ in every individual. The main insight of this line of thinking is that only a sacralized individual will not be sacrificed in the name of some larger end that might itself be attributed with meaning of the sacred – e.g. the nation or the state.
Once international constitutionalism acknowledges its contingency, it does not need to lay claim to universality. It can self assuredly give testimony of its contingent and particular experience without getting caught up in struggles over which concept of the universal is right. Thereby, it can contribute to achieving a style of world politics that avoids politicization of an issue to an extent where sacrifice in its name becomes meaningful. Such sacrifice should be what international constitutionalism strives to prevent, if the protection of the individual as the ultimate goal of international law is to be taken seriously.
Farshad Ghodoosi, Towards a Transnational Approach to Public Policy In International Dispute Resolution
International dispute resolution is undoubtedly the most dynamic aspect of contemporary international law. One of the main challenges in contemporary global judicial governance is related to the interpretation of public policy (order public) in international dispute resolution. The New York Convention on the Recognition and Enforcement of Foreign Awards vests the authority to adjudicators to refuse to recognize and enforce judgments and awards if contrary to public policy. The interference of public policy concerns, however, is not only limited to the enforcement stage. It may intervene into the scene of international arbitration in the referral to arbitration (e.g. arbitrability) as well as arbitral proceedings (e.g. mandatory rules).
The notion of public policy in arbitration, however, is far from clear. Thus far, there are three primary approaches to the interpretation of public policy: domestic, universal, and transnational. The first approach interprets public policy quite narrowly based on the state’s most basic notions of morality and justice. The second approach stretches domestic public policy to the international context. The third approach, on the other hand, conceptualizes public policy as a truly transnational notion. For instance, Pierre Lalive, posits three factors that shape the content of transnational public policy. Public policy might stem from private international law, the laws of lex fori, and the needs for international trade. Other scholars, e.g. Pierre Mayer, try to distinguish between transnational and international public policy. This concept has its strong skeptics (e.g. Michael Reisman).
Borrowing from the international relations literature (mainly the English School), I argue that tribunals should follow the transnational approach to public policy in the context of international arbitration. In an era when arbitral awards are rendered in an international context and sometimes follow international uniform rules, the approach to public policy, expectedly, should be international as well. The world has shifted from security-oriented public policy during the Cold War to a more economical and cultural public policy. In the era of globalization, the approach to public policy cannot and should not be local. It fosters solidarity between different legal systems in the context of conflict resolution at the international level. It also prevents domestic public policy concerns to enter the scene of international arbitration unnecessarily.
In this paper, I first examine different approaches to public policy. I then analyze a few examples in which public policy has raised serious challenges to arbitration and arbitral awards. In the last section, I try to formulate the best approach to the interpretation of public policy in international arbitration, which is consistent with dynamics of the contemporary multipolar world. The interpretation of the notion of public policy in the dynamic area of international dispute resolution is crucial for rendering cooperation and integrity between different legal systems. It is also consequential in dealing with cutting-edge issues such as domestic and international sanctions in contemporary international arbitration.
Damjan Kukovec, A Critique of the Rhetoric of Common Interest in the EU Legal Discourse
The current Euro crisis simply brought to the fore a larger and hitherto invisible structural problem of the relationship between the European Unions center and its periphery (think Germany and Greece or Austria and the Czech Republic).
The EU legal system prides itself in solidarity, diversity, in pluralism, in inclusion of the other, in constitutional tolerance, participation and in taking everyone’s interests into account. However, I am arguing that the position of the EU’s periphery is not reflected in the existing EU legal discourse and that many of the periphery’s aspirations and claims for protection against harm are foreclosed from operating powerfully in the Union. Moreover, the existing conceptualizations of solidarity in Contemporary legal thought, which pervade EU legal thinking, do not bring about change, but rather perpetuate the status quo. Rather than promoting solidarity, the EU legal discourse thus reproduces the domination of the center.
Redistribution through the EU budget is seen as an important element of solidarity in the EU. I contest this as not only insufficient in view of the actual transfers, but as a deficient way of thinking about solidarity. The problem to be addressed is thus not at all only in the level of compensation, but above all in the way we, lawyers, speak about issues to be discussed.
The existing legal thinking in EU legal scholarship reproduces the existing hierarchies in the European Union. The consciousness of the EU legal profession is one of the center of the EU and this crucially determines how harm is conceptualized in EU law. The EU center’s views concerning free movement and social considerations are strong, and are conceived of as natural or less problematic, whereas the periphery’s claims are often perceived as harmful.
As a part of the critique of market ideology in the European Union legal discourse, solidarity has been understood as enforcement of social rights, boundary marker as to applicability of competition rules and modifier of the market imperative of the free movement freedoms.
I am critiquing the “social” positions to be an inherent emanation of solidarity. I am challenging the dichotomy of social and autonomy/free movement claims in Contemporary legal thought in general. I argue that this kind of thinking and critiques based on such thinking are theoretically unwarranted. They result from a conceptual understanding of the law, which I have called "the conceptualism of Contemporary legal thought". Moreover, such thinking often works to the detriment of the periphery. For instance, the prohibition of social dumping (Laval case of the ECJ) and the lack of prohibition of goods dumping in EU law harms periphery’s workers and industry. There is indeed no doctrine of the periphery and I am challenging existing thinking in antitrust law, state aid law and free movement law, all of which are currently based on the social- autonomy/free movement dichotomy.
I argue that a legal system is better understood as a set of freedoms and prohibitions rather than a dichotomy between social and economic considerations. From this angle, the picture of the EU is quite different. The EUs center has more freedoms and less prohibitions and the periphery has more prohibitions and less freedoms. These entitlements should be rearranged if all the rhetoric of solidarity, inclusion of the other and tolerance is to have any real substance.
I critique the existing theorizing and the leading EU debate – constitutionalism and pluralism - for the assumption of common interest, inadequate conceptualization of power and for merely explaining, rationalizing and legitimating the status quo. The rhetoric of the inclusion of the other, of solidarity, or representation and participation is failing the EU's periphery. I am arguing that even the overtly political discourse is analytically insufficient and I thus propose a new grid of legal thought - on the center-periphery axis.
Hillary Nye, The Hart-Fuller Concurrence: Legal positivism and the conceptual connection between law and autonomy
This paper begins with an age-old question: what is the concept of law? Of course, I do not propose to present a new answer to it in thirty-odd pages. Instead, I make a contribution to the debate by highlighting an element that is common among otherwise seemingly opposed ways of viewing law. I argue that what makes law distinct from other forms of exercising power or achieving a certain outcome is its connection to autonomy. This connection has deep roots in both the positivist and non-positivist traditions, and in this paper I show this by drawing out the commitment to autonomy that is latent within the views of a particular positivist, H.L.A. Hart.
The first part of the paper discusses the concept of autonomy and sets out a conception that is utilized in the rest of the paper. I then argue that law is committed to viewing people as capable of autonomy in this sense. Hence, I demonstrate that one of the necessary features of law is that it puts forward its demands on people in a way that is respectful of them as (potentially) autonomous agents. From three relatively uncontroversial premises about law—that it aims to achieve some outcome, that it is something other than pure violence, and that it operates substantially through self-application—we come to the conclusion that law is necessarily constrained in the way it can operate.
I then show that Hart, despite his famous disagreement with Lon Fuller, must be committed to the view I defend. This indicates that there is a surprising agreement between two of the most prominent legal philosophers of the twentieth century. I discuss the implications of this shared commitment to the view that law treats people as autonomous, arguing further that, even on Hart’s positivist position, there is some conceptual connection between law and the more specific demands that Fuller called the ‘inner morality of law’. Finally, I ask what we should conclude from this about the debate between positivists and non-positivists. I address the question of whether a necessary connection between law and autonomy amounts to a necessary connection between law and morality, and thus a vindication of the non-positivist position. My suggestion is that acknowledging the connection between law and autonomy does not fully settle this enduring question in legal philosophy in favor of positivism or non-positivism.
Jakob Huber, Legally Mediated Loyalty? ‘Constitutional Patriotism’ and the Possibility of Cosmopolitan Solidarity
Political philosophers have in the last decade raised the question what forms of solidarity, loyalty, and patriotic attachment are still possible – and normatively desirable – in modern pluralist societies. In the absence of a thick normative consensus on what the good life is, as well as strong ethnic or religious ties, most theorists assume that liberal societies need a functional equivalent that motivates a sense of common purpose and willingness to take responsibility among citizens who remain strangers to one another, as some variety of collective sentiment is said to be an essential ingredient of social stability and justice. In this paper I critically examine in how far Jürgen Habermas’s conception of constitutional patriotism can close this ‘solidarity gap’ characterising increasingly heterogeneous societies. I argue that the concept is substantially ambiguous, for it inheres a tension between the universal (the so called system of constitutional rights) and the particular (national history and traditions), both pulling in different directions. This tension is entrenched in the very idea of a “legally mediated solidarity between strangers” and culminates is Habermas recent work on the possibility of a cosmopolitan constitution. I come to the conclusion that, contrary to what Habermas frequently argues, some sense of being engaged in a common political project that fosters trust and loyalty actually has to proceed legal relations. Luckily though, and unlike its nationalist predecessor, this is a kind of attachment that is ambivalent, contestable and relativised in nature and is, if taken up by political agents that foster transformative processes, open towards further inclusion.
Luise Mueller, Does International Law Promote Solidarity? Some Conceptual Reflections
Thinking about the connection between international law and solidarity triggers two irritations: first of all, solidarity seems to be something pre-legal, like a feeling or a moral appeal, but it is hardly plausible that it has something to do with the law. Secondly, in our times solidarity as a type of social cohesion presumably presupposes a sentiment that a society or group is by and large organized in a just manner; otherwise its constituents would denounce their solidarity to it. But, and I think this amounts to a social fact, the global community is characterized by vast inequality. So how is solidarity between states possible and what follows from it?
In my paper, I want to work against these intuitions. In order to do that, I will differentiate between two conceptions of solidarity - 'solidarity as identification' and 'solidarity as empathy' - and argue that the solidarity-as-identification conception does not make much sense for international law because it is both too abstract and too particular. In contrast, the interpretation of solidarity as empathy is a fruitful one in the context of international law: it allows for a version of solidarity in international law that is not dependent on a common identifier, such as a Constitution or a culturally defined group. It can also indicate which kind of obligations can be derived from solidarity - namely erga omnes obligations - and say something about the contents of these obligations, which, or so I suggest, include the persecution and adjudication of jus cogens breaches and important human rights violations.
Concluding, I argue that with this conception of solidarity, we might be able to account for many instances in which we think intuitively that there is obligation to act, but the obligation cannot be accounted for on justice-related principles.
Chen Zhao, The Interpretation of ‘Public Use’ in the United States and China and its Relation to Economic Development
Eminent domain grants the government the power to acquire private property without owners’ consent. Public use is an important restriction of this power. This paper examines the relationship between the interpretation of public use and a country’s economic development stage.
More specifically, the paper compares the legal and economic history of the United States and China, and shows that, although the legal history and terminology are very different, the development of the interpretation of public use is surprisingly similar. Both the United States and China interpreted “public use” very broadly for a long time, equaling “public use” to “public advantage” or “public benefits”. After a long time of almost no control of the power, both countries started only recently to narrow the scope of public use.
The central thesis of the paper is that a broad interpretation of “public use” is required during periods of rapid technological developments and fast economic growth, because this economic transition requires far-reaching changes in the use of land. As the economy develops, a country’s main economic sector will switch from primary sector to secondary sector, then finally to the tertiary sector. During the transition, a country would improve its infrastructure and develop its tertiary sector. Such tasks require large amount of land as a precondition. A narrow interpretation of public use will increase the cost of land acquisition, which would be an obstacle to industrial structure upgrade. Therefore, the government prefers a broad interpretation of “public use” to ensure that its eminent domain power would not meet many hindrances. Only after the economic transition has been made, can a legal system move to a narrow interpretation of public use, which increases the cost of land acquisition but better protects the owners.
The paper suggests that interpretation of “public use” is used as tool to meet the demand of economic structure transition. The differences between Chinese and US law are smaller than often believed, and that these differences are not so much due to ideological differences but rather to the underlying economic reality.
Natasha Salinas, Governing by collaborative agreements: a case study on partnerships established between the federal government and non-profit organizations in Brazil
The Brazilian federal government has sponsored nonprofit organizations (NPOs) activities throughout its history. At an early stage, the funding of NPOs primarily served the purpose of sponsoring independent private endeavor. In this institutional arrangement, organizations were seen as mere recipients of governmental financial aid. As the federal bureaucracy expanded, the government began purchasing goods and services provided by both nonprofit and for-profit private institutions. For this type of government-funding, nonprofit and for-profit organizations competed against each other on equal terms. Since the early-1990s, however, government-funding of nonprofit institutions has assumed a different shape in Brazil: besides awarding grants and contracting goods and services, government has delegated exclusive administrative authority to nonprofit institutions by granting them a prominent role in public policy implementation.
In this new institutional scheme, NPOs cooperate with the federal government by providing a vast array of social services and administering core aspects of federal programs. They do so through the establishment of collaborative agreements specifically designed to control government-NPO partnerships.
The legal regime applied to these collaborative agreements is characterized by a wide range of controls which aim to shape the behavior of administrators and nonprofit organizations to ensure that the public interest, not particularistic interests, prevails.
In this paper, I intend to explore to what extent the current mechanisms of control over government-NPO partnerships constitute appropriate instruments for the implementation of federal programs in Brazil. In other words, the purpose of this paper is to analyze whether the legal regime applied to government-NPO collaborative agreements contributes to - or undermines - the achievement of public policy goals and, more importantly, how and why this happens.
The argument developed in this paper is that government-NPO collaborative agreements are inadequate instruments for the implementation of federal programs by the government in conjunction with nonprofit organizations. This happens because collaborative agreements rely on a legal regime whose instruments of control are unaccompanied by substantive standards and are incredibly uniform regardless of the nature of the object of the agreement.
It is assumed that collaborative agreements are inadequate instruments for public policy implementation because their underlying legal regime provides poor guidance for administrators to analyze and approve proposals filed by nonprofit institutions with the aim of implementing federal programs. Conversely, legislation is excessively intrusive in imposing procedural obligations for the spending of public funds transferred by the government to NPOs, which does not lead to the realization of policy programs goals.
In order to assess the effectiveness of collaborative agreements as instruments of policy implementation, I will analyze (i) the purposes implied or declared by the enactors of collaborative agreement laws, in part I of the paper; (ii) the instruments provided by the legislation examined therein which seek to achieve the objectives of the rules, in part II; (iii) the impact of these instruments on the real process of policy implementation, in part III.
Diego McCawley, The Institutionalization of the Right to Housing in Chile: Possibilities and Limitations of Market-Oriented Reforms to Chilean Housing Policy
The purpose of this paper is to describe the regulatory architecture of the provision of social housing in Chile. Chilean housing policy has had an interesting evolution since its creation at the beginning of the 20th Century. Generally speaking, it is plausible to affirm that it has evolved from a model significantly controlled by the government, to a model that promotes an increase participation of market-based tools. Until 1976, public agencies had a central role in the organization and provision of public housing. In 1976, during the first years of the Chilean dictatorship, new instruments were created, especially demand subsidies focused on households with savings capacity. Recently, the government launched what is called the “New Housing Policy”, which has improved the focus on the poor, and has promoted public-private partnership for the implementation of housing programs.
This paper argues that, although the main regulatory architecture of Chilean New Housing Policy is still shaped by a minimalist approach to governmental intervention in the realm of social housing, some characteristics of the current model go beyond that regulatory scheme. These new dimensions of the new policy have the potential of providing a more customized response to the housing demands of the families that need governmental aid. However, this policy has been insufficient to respond to one of the main challenges that Chilean housing policy face today: the high level of socioeconomic residential segregation that exists in Chilean cities, especially in Santiago. This seems to be a limitation of the current model of housing policy based on demand subsidies. Hence, the possibility of including new regulatory incentives to get well-located land for social housing projects is a path that should be explored.
Scott Stephenson, How constitutional structures affect rights reform: Australia and the new Commonwealth model of constitutionalism
Michaela Hailbronner, Co-operation or Legal Autonomy? Tackling the Challenge of Transformative Constitutionalism
Fábia Veçoso, Between human rights absolutism and contextual history: aspects of the experience of the Inter-American Court of Human Rights
This study aims at discussing the Inter-American Court of Human Rights’ discourse related to the context of political transitions in Latin America. In four cases involving human rights violations perpetrated in Brazil, Chile, Peru, and Uruguay under authoritarian regimes, the court determined the incompatibility between the provisions of the American Convention on Human Rights and the amnesty laws adopted by these countries. Because of the validity of such laws, adopted in the context of democratic transitions, the violations were not investigated and their perpetrators not prosecuted. In the absence of trials, the four states were held responsible by the court.
In this setting, the arguments put forward by the court may be the subject of debate. The assertion that domestic amnesty laws are contrary to international law because of an indisputable duty to punish human rights violations is a court’s interpretive construction, not the application of an objectively defined international rule. In other words, affirming that violations related to democratic transitions in Latin America must necessarily give rise to trials reveals a preference. Following the court’s reasoning, this preference is covered in a universalist discourse regarding the imperative character of the international human rights law’s rules violated in the particular cases.
Unlike the court’s approach, the main argument developed in the thesis is that, in contexts involving regime change and violations, amnesty can also be adopted and justified based on a human rights perspective, the same perspective adopted by the court in relation to trials. Accordingly, it would not be possible to identify a priori one alternative or another as the appropriate one. Various legal solutions may be sought to promote a peaceful political transition, and the relative usefulness of one solution can be determined only contextually.
It seems inevitable to recognize that the IACtHR develops such a position seeking to ensure a decisive influence in Latin America. Even mentioning the work of truth commissions, the creation of reparation programs for victims and the assertion of alternative forms of state responsibility, all measures aimed to realize the victims’ rights, the absence of trials was considered the major reason to hold the states responsible.
The problem is that such a discourse reduces the complexity of processes of transitional justice, excluding the political dimension. Human rights do not arise in a neutral environment, beyond politics, but they constitute a discourse that articulates preferences regarding the distribution of material and spiritual goods in the world, about ideas for the common good. And these preferences are articulated through plausible legal arguments, given the indeterminacy of human rights discourse.
As will be argued in greater detail, the reasoning of the Inter-American Court yields one major drawback: it obscures the constraints and political commitments related to processes of regime change. By stating in an absolute manner that local amnesty is incompatible with the American Convention, the court comfortably departs from the domestic political struggles related to the processes of regime change in the region, claiming to be the genuine Latin American voice regarding transitional justice. However, the IACtHR affirms its position from a distant standpoint, away from the political battlefield, and this distance turns out to oversimplify the contexts of transition.
Farida Mortada, Courts in Revolutionary Times: A Post-Mubarak Moment of Adjudication
This paper addresses the question of how judicial bodies behave during times of political upheaval and socio-economic transformation. Drawing on the case of Egypt, the paper captures a post-Mubarak moment of adjudication that takes place in the Court of Administrative Justice (the Court) of the Egyptian Majlis al-Dawla, the judicial body of administrative courts that offers a venue for aggrieved citizens and civil servants to challenge administrative regulations and decisions. Vested with the power of judicial review and oversight, the authority of Majlis al-Dawla extends to nullifying executive acts deemed in violation of the constitution or established laws. Following the ousting of former President Mubarak in February 2011, the Court issued bold rulings reversing a number of privatizations of state owned enterprises concluded by the former government as part of the privatization program initiated in the early 1990s. Viewing this moment through the lenses of a highly dynamic political, economic and social setting, the paper examines how administrative courts, which by virtue of their mandate exercise considerable influence on executive policy, interpret and develop legal doctrine to influence the reconfiguration of power relations that is inherent in moments of political turmoil. The paper focuses on the rulings relating to two textile companies, which have been at the center of gravity of the continued workers’ movement in opposition to the privatization program. Offering an internal critique of the Court’s reasoning, the paper reveals a strategic construction of arguments that seeks to appeal to the post-revolutionary wave of economic populism.
Anchored in the rising tide of literature on the expansion of judicial power and the debate on the growing judicialization of politics, the paper hypothesizes that moments of extreme political transformations are likely to cause palpable shifts in the jurisprudence of Majlis al-Dawla. The rulings reveal that the Court is exploiting ambiguities in the law and is engaging in expansive interpretations to adopt liberal standing requirements and to expand its jurisdiction, thereby opening the space for social actors to continue to pursue strategic litigation before it. Moreover, the rulings show that the Court is willing to ignore previous Supreme Constitutional Court (SCC) decisions and precedents in favor of the market liberalization program in order to assert its posture as an independent political actor and to expand its sphere of influence vis-à-vis the SCC and the executive that was stripped of its hegemonic power. By doing so, I argue that the Court is seeking to realign Majlis al-Dawla with the prevailing political climate in post-Mubarak Egypt, usurping the role of a protector of the ‘revolution’ and an ‘ally’ of the Egyptian people. More so, Majlis al-Dawla seems to view strategic litigation presented to it as an opportunity to affect socio-economic reform that in its view would enjoy popular support and would ameliorate social ills caused by the adopted neoliberal strategies of economic reforms. This raises the question of what inclination and potential courts have to act as agents of social change by advancing, hindering or reversing the implementation of public policies.