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...

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Restorative justice The real story

He confuses civil procedure with criminal procedure (pp. 208–9); presents the average cost of confining an inmate as $70,000 when it is closer to half that figure (p. 234); claims that the executions took place at ‘an average of 200 per year’ during the Depression (p. 52), when in fact there was never a single year in the twentieth century when 200 executions were carried out. (The peak was 199 in 1935.) He states the current number of inmates on death row as being 2,700 (p. 222) when he must have meant 3,700 (at the end of 2003, the total was actually 3,504) and refers to the increased number of lynchings that occurred between 1889 and 1993, when he must mean 1893 (p. 101). One can only shudder that so many errors have found their way onto the printed page and hope that other authors will be better served by their colleagues and their publishers.

Book Review: Rights vs. Public Safety After 9/11: America in the Age of Terrorism:

The argument about re-enactment is the argument about how hetero-reference, i.e. (law’s) reference to the (political) environment, builds on the back of the system’s own self-reference. The legal containment of conflict, I will argue, is the story of its re-enactment. Both with and against Luhmann and Teubner I will argue that: (a) legal roles, programmes and values are not merely translations of political into legal conflict but are the co-ordinates around which political conflicts are re-enacted as autonomous legal conflicts within the system; (b) ‘political interests’ act more often than not as law’s surrogate environment of politics. Much of this chapter centres on political speech; theses [6] and [7] focus the broader discussion of the re-enactment of conflict on political speech, develop and deepen it. Regarding political speech it will be argued that the political utterance never enters the legal screen but all reference to it is instead mediated through a legal distinction that makes the meaning of the political utterance dependent on law. Law’s reference to politics, its hetero-reference, is based on self-reference, on the projection of a legal distinction that makes sense of politics. Law thus imposes upon politics the realm of relevance - in carving out the ontological space of the action it takes as political - and the mode of relevance - the sense in which something is ‘politically’ relevant.

Conflict Re-enacted

The last few years have witnessed a remarkable renewal of interest in citizenship. The ideal of an active citizen has made a spectacular return to the political agenda of both the Left and the Right.1 On the Right the active citizen is resurrected along the lines of ‘the more Victorian concepts’ of charity, philanthropy and self-help and called upon to compensate for the gradual abolition of the Welfare State. The Left has viewed it as an appropriate lever to retrieve its tradition of solidarity. Indeed, rarely in recent years has a theory gripped the imagination of legal scholars of the political Left with such force as the new republicanism. The Left appears increasingly attracted to the promise of a republican constitutionalism as the site where the politics of the people will be redeemed. And citizenship-talk has become so pervasive that conceptions of republican ‘empowered’ citizenship have come to signify not only political involvement and popular sovereignty as such but also individual self-government and even self-fulfilment. Why? On the face of it the answer seems simple. The republicans are advancing a theory about the self-legislating political community. The emphasis has been shifted from rights and individualism to duty and care; from myopic bargaining to public disinterested deliberation; from self-interest to ‘empathy’; from compromise to the pursuit of common collective values. The theory professes to fulfil the promise of what Habermas calls a ‘constitutional patriotism’ or even the more elusive one of social solidarity, which, as Walzer once said, is the patriotism of the Left.2 In all, it exerts the appeal of an emancipatory project that is ambitious and all-inclusive.

Citizenship, Passive and Active

ZENON BAŃKOWSKI was my doctoral supervisor. Having just come from Athens, from an LLB where the course in legal theory had been steeped in Geny, Jellinek and Karl Engisch, the first thing I decided I should do when I arrived in Edinburgh was to sit down and read some of Zenon’s texts. I read two: an early article titled ‘Anarchy Rules OK’ and the book he wrote with Geoff Mungham, Images of Law (1976). Hard to pin it down as Wissenschaft, I thought, but how refreshing this Anglo-American tradition of Jurisprudence! The elation did not last long; the first term of the Masters programme, spent reading Raz’s Authority of Law, did much to drive it out of us. And yet Images survived that onslaught to remain to this day one of my favourite books. Images is not a book in the tradition of critical legal theory but should be read, sometimes in spite of itself, as an anarchist manifesto. I insert the ‘in spite’ because there is a crucial ambivalence at the heart of the book, to which I will return. But why is this not a book in critical legal theory? Because if critical legal theory is understood as popularized by the CLS movement, that is primarily as a methodology that exploits and builds on the ambivalences that haunt legal practice, then the book’s central insight is that reform and revolution are irreconcilable alternatives and that reform, to repeat the revolutionary’s standard indictment, makes the oppressive practice less heinous and thus more difficult to abolish. The dilemma is patently visible in Bańkowski and Mungham’s critique of legal aid and welfare law in the uncharacteristically long, empirical analysis of chapters 3 and 4. In contrast to the impatient, straccato idiom of the rest of the book, this is a careful account of the ‘legal profession in process’ and the ideological workings behind ‘bringing the law to the people’. This is a revolutionary’s critique of reformism, of the ideological function that systems of signification perform in sustaining oppression. ‘When we came’, Roberto Unger famously announced at the end of his CLS manifesto, ‘they [the orthodoxy] were like a priesthood that had lost their faith but kept their jobs. They stood in tedious embarrassment before cold altars. But we turned away from those altars and found the mind’s opportunity in the heart’s revenge’ (Unger, 1983: 119). Unger finds the legal ‘mind’s

Law’s Iconoclasts:

This chapter considers some of the jurisprudential implications of how countries have faced up to histories of extensive suffering, discrimination, human rights violations and other large-scale injustices. It discusses a number of such problems in the context of political transitions, typically from authoritarian to democratic forms of government. When atrocities have occurred on massive scale, for example, in the commission of genocide or crimes against humanity, establishing accountability and responsibility requires analysing complex causes, which together facilitated the commission of the harms, and for which conventional criminal law categories may not be adequate. The problem of unequal or uneven treatment is another element of the rule of law dilemma – whether and whom to prosecute and for what – and it plays out particularly in the context of criminal law. The chapter considers the issue of how democratic societies address a past, and an ongoing legacy, of colonialism by looking at a case study of Australia.

Emilios Christodoulidis

Papers

Book Review: Rights vs. Public Safety After 9/11: America in the Age of Terrorism:

Conflict Re-enacted

Citizenship, Passive and Active

Law’s Iconoclasts:

Transitional jurisprudence and historic injustices