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.

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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’

233 I. Einführung 234 II. Globaler Konstitutionalismus 236 1. Assoziation 237 2. Assimilation 238 3. Kompensation 240 4. Kondensation 241 5. Kritik 242 III. Globaler Rechtspluralismus 243 1. Fragmentierung 244 2. Differenzierung 246 3. Pluralismus 248 4. Kritik 249 IV. Konvergenz 250 1. Systemtheorie 250 2. Verfassungspluralismus 255 V. Schlussfolgerung 257

Verfassung als Chiffre. Zur Konvergenz von konstitutionalistischen und pluralistischen Perspektiven auf die Globalisierung des Rechts

The chapter attempts to explore the fate of law and democracy in the euro crisis from the sociological perspective of systems theory. It consecutively ascertains the performance, the relevance, and the function of the law with regard to the current practice of restructuring sovereign debt in the euro area. While novel forms of regulation such as the European Stability Mechanism attest a remarkable assertiveness of the law, they cannot effectively command economic recovery and must cede to economic imperatives for their part. Under such circumstances, the law can no longer adequately fulfill its function to counterfactually secure normative expectations. Nevertheless, the regulatory experiments in the euro crisis may not be regarded as undemocratic. Rather, the heterarchical processes of mutual observation, recognition, and contestation among the various constituencies involved, including representatives of governments, institutions of the European Union, central banks, national parliaments and peoples via referenda, as well as European and national courts, provide some substitute for the lack of elections and parliamentary decision-making at the European level.

The Limits of Law (and Democracy) in the Euro Crisis: An Approach from Systems Theory

As soon as a statist paradigm of ‘legal centralism’ came to prevail in legal scholarship, the perennial question of ‘What is law?’ lost its intricacy. Technically speaking, it could be answered by a glance at the official gazette. For the constitutional state, moreover, the issue of legitimacy turned into an aspect of legality. All law enacted pursuant to the provisions of the constitution was deemed legitimate. Justice allegedly followed not from its congruence with a preordained good but from the enduring possibility of its alteration through the democratic legislative process, which the constitution established and constrained only negatively, notably by protecting fundamental rights. Admittedly, the statist paradigm has always had difficulty conceptualising international law. The outworn theories of dualism and monism could account for it but insufficiently, either finding clear separation or hierarchical delegation. Under conditions of globalisation, this repugnancy eventually springs to the surface. Questions of

Cosmopolitan Pluralism as an Approach to Law and Globalisation

amerikanischer unilateralismus als verfassungsfrage? Zur rechtlichen bergründung des einseitigen handelns der USA auf internationaler ebene

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Lars Viellechner

Papers

Verfassung als Chiffre. Zur Konvergenz von konstitutionalistischen und pluralistischen Perspektiven auf die Globalisierung des Rechts

The Limits of Law (and Democracy) in the Euro Crisis: An Approach from Systems Theory

Cosmopolitan Pluralism as an Approach to Law and Globalisation

amerikanischer unilateralismus als verfassungsfrage? Zur rechtlichen bergründung des einseitigen handelns der USA auf internationaler ebene

Introduction to the Special Issue: The Law of the Network Society, A Tribute to Karl-Heinz Ladeur