This paper attempts to deconstruct the free speech defense of the publications of cartoons offensive to many Muslims in Denmark and elsewhere in Europe in order to highlight the deep philosophical tensions between the characterizations of religion and race, between free speech and hate speech, and between the freedoms of expression and of religion. A scrutiny of the jurisprudence of the European Court of Human Rights (“ECtHR”) reveals the difficulties inherent in defining permissible limits on expression, particularly as it involves the identification and prioritization of interests that are worthy of protection under a state's law. The struggles over the characterization of certain interests as fundamental rights, in turn, raise questions over the ‘fundamental-ness' of rights and the valuation of foundational social and political values that the rhetoric of rights presumes as incontrovertible. This study seeks to advance the argument that fundamental rights, such as the freedom of expression, are legal constructs whose value is contingent on the ends they are employed to serve in a given socio-political environment. While the contingency of fundamental rights is palpable in debates over their definition and over what they include or exclude, it is most clearly visible in the clash of fundamental rights, in particular the freedoms of expression and religion.

The Fundamentalism of Liberal Rights: Decoding the Freedom of Expression Under the European Convention for the Protection of Human Rights and Fundamental Freedoms

This book provides a new legal-sociological account of contemporary democracy. It is based on a revision of standard positions in democratic theory, reflecting the impact of global legal norms on the institutions of national states. Chris Thornhill argues that the establishment of fully democratic, fully inclusive governance systems in national societies was generally impeded by inner-societal structural factors, and that inclusive patterns of democratic citizenship only evolved on the foundation of global legal norms that were consolidated after 1945. He claims that this process can be best understood through a transposition of key insights of classical legal sociology onto the form of global society. Extensive analysis of select case studies in different regions illustrate these claims. Thornhill offers a sociological theory of global law to explain contemporary processes of democratic integration and institutional formation, and contemporary constructions of citizenship and political rights. This title is also available as Open Access.

/pdf/the-sociology-of-law-and-the-global-transformation-of-hljmy7gpja.pdf

The Sociology of Law and the Global Transformation of Democracy

Transnational law beyond bi-polarity : the FSB key attributes of effective resolution regimes for financial institutions in national, European and transnational Law

What is special about the intertwining of private and public corporate codes? It is not only tendencies of a juridification but also of a constitutionalization that materialize in this interplay. Both types of corporate codes taken together represent the beginnings of specific transnational corporate constitutions - conceived as constitutions in the strict sense. This point is based on a concept of constitution that is not limited to the nation state and implies that also non-state societal orders develop autonomous constitutions under particular historical circumstances. The following arguments highlight that corporate codes feature functions, structures and institutions of genuine constitutions: 1. To the extent that "public" and "private" corporate codes juridify fundamental principles of a social order and establish rules for its self-restraint at the same time, they fulfil central constitutional functions. 2. With their characteristics of double reflexivity and binary meta-coding, both codes develop genuine constitutional structures. 3. As constitutional institutions, the two codes do not form a hierarchy of public and private constitutions, but an ultracyclical linkage of qualitatively different networks of constitutional norms.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1680790_code566891.pdf?abstractid=1592529&mirid=5

Self-Constitutionalizing TNCs? On the Linkage of 'Private' and 'Public' Corporate Codes of Conduct

The article draws a bow from self-harming growth compulsions of social systems, over the moment of near-catastrophe, to new orientations, which cannot be effected from the outside but, rather, only through the transformation of their ‘inner constitution’. (1) In order to understand the recent global financial crisis, we should not rely on factor analysis alone. Instead, we should look for the underlying self-destructive growth compulsions of information flows - in other words, for phenomena of collective addiction. (2) ‘Hit the bottom’ refers to the constitutional moment when either a catastrophe begins, or societal forces for change are mobilised of such intensity that the ‘inner constitution’ of the economy transforms under their pressure. (3) Plain money reform is one of several examples that illustrate a capillary constitutionalisation of the global economy, the effects of which could not be achieved through either national or transnational interventions of the world of states. (4) The dichotomy constitutional/unconstitutional develops into a binary meta-code within the structural coupling between the economy and law, and is ordered above both the legal code and the economic code.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1700163_code566891.pdf?abstractid=1592465&mirid=1

A constitutional moment?: The logics of ‘hitting the bottom’

Die transnationale Expansion staatlicher Grundrechte: Zur Konstitutionalisierung globaler Privatrechtsregimes

The overlapping and intertwinement of both territorially confined and functionally oriented legal orders in world society is often referred to as “new legal pluralism”. Under these conditions, the coherence and legitimacy of the law may only be guaranteed through a horizontal coordination among the different legal orders, opening themselves for each other by internally reflecting their mutual impact. Indeed, a new kind of conflicts law required to this end is gradually evolving. In accordance with the spirit of some express provisions in treaties and constitutions, courts and tribunals dialectically develop rules of complementarity and subsidiarity without relinquishing their own identity. A “responsive legal pluralism” of this kind offers a promising fourth way to overcome both the outdated dualist doctrine of sovereigntism and the unattainable monist vision of universalism while at the same time avoiding radical legal pluralism. It may even amount to an adequate reconfiguration of constitutionalism in t...

Responsive legal pluralism: The emergence of transnational conflicts law

International law sometimes fails to regulate cross-border affairs due to a lack of consent or pace among the states. As a consequence, transnational governance arrangements, which are established by contract mainly among non-state actors, step in to fill the gap. The arrangement that allocates domains on the Internet offers the most sophisticated example to date. The present article argues that a new approach to the horizontal effect of constitutional rights may both account for the emergence of such arrangements and offer a solution to the problem of their legitimacy. According to this understanding, constitutional rights at the same time enable and restrict transnational regulation. In this way, they guarantee a comprehensive protection of freedom under conditions of globalisation. As long as transnational governance arrangements are not able to generate constitutional rights of their own, however, the national legal orders must complement them. Hence, the legitimacy of law in world society may only be ensured through a dialectical process of internal and external constitutionalisation, resulting from the interaction of its various constituents.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/5E0C6E377CBEDAF58DAD4FB667F38DB8/S2045381719000194a.pdf/div-class-title-the-transnational-dimension-of-constitutional-rights-framing-and-taming-private-governance-beyond-the-state-div.pdf

The transnational dimension of constitutional rights: Framing and taming ‘private’ governance beyond the state

The process which is commonly called “globalization” in social sciences seems to shatter the very foundations of law and legal thinking. Yet while legal scholarship, for the most part, is still grappling with identifying the problem, Karl-Heinz Ladeur is already offering a solution. He may therefore count among the avant-garde in the debate on law and globalization.

The Network of Networks: Karl-Heinz Ladeur's Theory of Law and Globalization

Die Uberlappung und Uberlagerung teils territorial ausgerichteter, teils funktional orientierter Rechtsordnungen in der Weltgesellschaft wird haufig als neuer Rechtspluralismus bezeichnet Koharenz und Legitimitat des Rechts lassen sich unter diesen Umstanden allenfalls noch dadurch gewahrleisten, dass die verschiedenen Rechtsordnungen sich wechselseitig intern reflektieren Tatsachlich bildet sich ein dazu erforderliches Kollisionsrecht neuen Typs in der Rechtspraxis allmahlich heraus Gerichte und Schiedsstellen entwickeln Komplementaritats- und Subsidiaritatsregeln dialektisch in Gestalt von Solange-Formeln, Beurteilungsspielraumen und Berucksichtigungspflichten Ein „responsiver Rechtspluralismus“ in diesem Sinne eroffnet einen Weg, um nicht nur die uberkommene Vorstellung staatlicher Souveranitat und die unerreichbare Vision weltstaatlicher Universalitat zu uberwinden, sondern auch die postmoderne Zumutung radikaler Partikularitat zu vermeiden

Lars Viellechner

Papers

Die transnationale Expansion staatlicher Grundrechte: Zur Konstitutionalisierung globaler Privatrechtsregimes

Responsive legal pluralism: The emergence of transnational conflicts law

The transnational dimension of constitutional rights: Framing and taming ‘private’ governance beyond the state

The Network of Networks: Karl-Heinz Ladeur's Theory of Law and Globalization

RESPONSIVER RECHTSPLURALISMUS. Zur Entwicklung eines transnationalen Kollisionsrechts