The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society

Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy

Buying time: The delayed crisis of democratic capitalism

Taking economic co-ordination in EMU as a starting point, this article explores the development of the open method of co-ordination, addressing whether it is a new form of governance from two related perspectives. First, to what extent can the method be effectively applied outside the scope of economic policy? Second, will it lead to policy transfer to the EU and hence act only as a transitional mode of governance? Identified at the Lisbon European Council, the method codified practices such as benchmarking, target-setting and peer review developed in the Luxembourg, Cardiff and Cologne processes. The method offers a new approach to governance of the EU as a heterarchical, decentred and dynamic process. It supports and radicalizes the principle of subsidiarity; offers an alternative to the treaty rules on enhanced co-operation; and addresses some of the legitimacy issues inherent in the EU. In EMU, the method arose out of a specific policy framework with a common monetary policy complemented by the coordination of national economic policies. The recent recommendation issued against Ireland is the first example of the operation of the method in EMU and shows how debate can be stimulated and how different and arguably equally valid perspectives defended. The particular experience of EMU with a sound money, sound finance paradigm, a long history of project-building by key elites and the central role of the European Council suggest similar conditions are required for the effective application of the method in other policy spheres. The context within which the method has operated to date is contingent and could change either over time or between policy fields. If so, the very openness of the method may serve to reconfigure the boundaries of competence between the Member States and the Union, after all.

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The open method as a new mode of governance: the case of soft economic policy co-ordination

Advocates’ claims about restorative justice contain four myths: (1) restorative justice is the opposite of retributive justice; (2) restorative justice uses indigenous justice practices and was the...

/pdf/restorative-justice-the-real-story-3mx4fppogt.pdf

Restorative justice The real story

https://papers.ssrn.com/sol3/Delivery.cfm/mlr_579_4.pdf?abstractid=875080&mirid=4

Law as a Social System

Conventionally, normative and analytical philosophical approaches (i.e., those of Rawls, Dworkin, Alexy, etc) occupied an unshakably dominant position in constitutional theory. Theories of constitutional rule typically isolated the aspect of constitutionalism concerned with fundamental rights from other constitutional functions, and they usually revolved around the attempt to explain constitutions as documents expressing rationally defensible norms to govern the distinctively public exchanges of society. This dominance of analytical theory in constitutional inquiry was flanked and reinforced by the fact that ‘sociolegal’ analysis – with its own particular methodologies and emphases – had retreated from, or in fact had never really taken occupancy of, the sphere of constitutional debate, and it tended to concern itself with questions located in the sphere of private law, in regulation, or in criminology; the primary overlap of sociolegal analysis with a particular subdiscipline of law is clearly still now with criminology. In the rare cases in which more conventional sociological reflection placed a focus on constitutional law, for instance, in the works of Gunther Teubner and other theorists influenced by him, it usually located constitutional law on a continuum with private law. Indeed, the connection between constitutional law and private law was already anticipated by the very earliest sociotheoretical reflections on constitutional law – for instance, in the writings of theorists as diverse as Savigny and Marx. In contemporary debate, the indifference of legal sociology toward constitutional law (construed categorically as public law) is no doubt in part attributable to the fact that the field of sociolegal studies evolved in tandem with the development of research on legal pluralism and with the growth of attendant theoretical and explanatory models. In the spirit of Eugen Ehrlich, analysis of legal pluralism was historically associated with the sphere of private–legal relations, which meant that sociolegal inquiry into constitutional norms was also directed toward the domain of

New Bearings in the Sociology of Law

This article aims to situate the fascinating and deeply controversial work of the Truth and Reconciliation Commission in South Africa within a theoretical context that may explain how its attempt to overcome the tensions between truth seeking and amnesty giving stumbled on its use of law to bring about reconciliation. It locates the root of the problem in the dual nature of the TRC as public confessional and legal tribunal, and underlying it the incongruent logic of law on the one hand and reconciliation on the other, the former requiring the reductions of risks, the latter requiring risk to be embraced.

‘Truth and Reconciliation’ as Risks

The European Union as an Essentially Contested Project

The paper is an exploration in critical legal theory, and argues for a return to thinking of critical legal intervention in political-strategic terms. If the insistence is on strategies of rupture it is because the attention is on what registers as resistant, neither reducible to—nor co-optable by—the order it seeks to resist. It is argued that if law is to offer redress to injustice it has to offer terms that can break incongruently, irreducibly so, with the order of capital, and its economy of representation, not couching critique within its terms, taking flight into the mysticism and escapism of the ‘ethical turn’, or entrusting critique unconditionally to the deconstructive energies of the law. The paper explores how difficult the task facing critical legal theory is in view of law’s power of ‘homology’ and its ‘mechanisms of deadlock’. Both within the courtroom (the focus here is on the tactics of rupture of the lawyer Verges) and outside it, a return to a strategic understanding of law underlies its deployment as means of critique (‘simple’ or ‘immanent’) or object of confrontation rather than horizon of communicative exchange.

Emilios Christodoulidis

Papers

Law as a Social System

New Bearings in the Sociology of Law

‘Truth and Reconciliation’ as Risks

The European Union as an Essentially Contested Project

Strategies of Rupture