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’

Denken in Netzwerken : zur Rechts- und Gesellschaftstheorie Karl-Heinz Ladeurs

The tension between universalism and particularism, which characterises the modern concept of constitutionalism in general, is significantly more pronounced in the Basic Law [Grundgesetz] for the Federal Republic of Germany. On the one hand, the Basic Law not only provides for internal diversity by establishing a federal state and granting much leeway to societal self-regulation, but it also shows an unprecedented external openness. On the other hand, however, the strong commitment of the Basic Law to fundamental rights paradoxically entails distinct nationalist tendencies both internally and externally. This ambivalence is expressed by a peculiar principle of ‘friendliness’ towards other normative orders, arising both within and beyond the state. Arguably, the principle may best be captured and operationalised in a logic known from private international law, that is general recognition with a reservation of public order, which may vary depending on the trustworthiness of the norms to be recognised. The private law analogy appears as an attractive instrument for reconciling overlapping legal orders under conditions of globalisation. Indeed, it may be regarded as an adequate reformulation of modern constitutionalism for the current context. On the one hand, the rule of law in its aspects of legal certainty and equality presses for the mutual recognition of the various legal orders and hence for avoiding norm conflicts as far as possible. On the other hand, however, democracy allows for the self-determination of the various legal orders, at least as long as they do not affect the fundamental rights of outsiders.

“Friendliness” Towards Others: How the German Constitution Deals with Legal Pluralism

This special issue assembles eight articles on the relationship between democracy and the financial order from various legal perspectives. Each article engages with the concept of law from a particular theoretical angle, be it a full-grown legal theory or an approach in political economy that has a particular view of the law. We have arranged the special issue in order to reflect certain debates. Thus, the special issue begins with a debate between two contemporary German theories of law by Jurgen Habermas (Goldmann and Steininger) and Niklas Luhmann (Viellechner). Next is a transatlantic debate between rational choice conceptions of law (Towfigh) and ideas of constitutional pluralism (Avbelj). Different traditions of mostly Anglo-Saxon liberalism are reflected in the contribution by Suttle. Eventually, three contributions engage with conceptions of law in neoliberalism and ordoliberalism and the way they have shaped our perceptions of public finance, including budgetary rules, taxes, and money (Biebricher, Saffie, Feichtner).To connect theory with life, each contribution elaborates its salient theoretical points by using an example of a particular case study or issue area that faces challenges in the aftermath of the financial crisis. Thus, while all articles address the law’s capacity to accommodate both democracy and capitalism, each individually contributes to the development of law and policy in a particular issue area. Topics range from sovereign debt issues (Goldmann and Steininger, Viellechner, Suttle) to budgetary restrictions (Biebricher), banking regulation (Avbelj), money and the ECB (Towfigh and Feichtner), and taxes (Saffie).

https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=2866401

Lars Viellechner

Papers

Denken in Netzwerken : zur Rechts- und Gesellschaftstheorie Karl-Heinz Ladeurs

“Friendliness” Towards Others: How the German Constitution Deals with Legal Pluralism

Democracy and Financial Order: Legal Perspectives