Kaarlo Tuori

Critical legal positivism

Contents: Introduction: Modern law and its problems. Three Narratives of Modern Law: Max Weber: the formal rationality of modern law Francois Ewald: the rationality of the norm JA rgen Habermas: the communicative rationality of law. The Aspects and the Levels of the Law: The two faces of the law The levels of the law The formation of the legal order: the relations of sedimentation and constitution The self-limitation of the law The legitimacy of modern law Legal science Bibliography Index.

The Many Constitutions of Europe

Contents: Editors preface Part I Multi-Dimensionality of European Constitutionalism: The many constitutions of Europe, Kaarlo Tuori A default constitutionalism? A disquieting note on Europes many constitutions, Emilios Christodoulidis Constitutionalism and the multi-coded treaties of the EU: changing the concepts of constitutionality, Inger-Johanne Sand Constitutional ideal types in the global age: a sociological review, Sabine Frerichs. Part II Aspects of the Economic Constitution: European competition law: catalyst of integration and convergence, Milene Wegmann Failures or ideological preconceptions? Thoughts on two grand projects: the European constitution and the European civil code, Hans-W. Micklitz. Part III Aspects of the Political Constitution: Multilevel constitutionalism: looking beyond the German debate, Neil Walker European constitutionalism and the democratic design of European governance: rethinking directly deliberative polyarchy and reflexive constitutionalism, Stijn Smismans Could the Court of Justice have done differently?, Suvi Sankari. Part IV Aspects of the Social Constitution: Social constitution in historical perspective: Hugo Sinzheimer in the Weimar context, Sakari Hanninen Social rights and market freedom in the European constitution: a re-appraisal, Stefano Giubboni Constitutional issues in European health policy and practice, Meri Koivusalo Index.

Transnational Law: Rethinking European Law and Legal Thinking

Introduction Kaarlo Tuori and Suvi Sankari 1. Transnational law: on legal hybrids and legal perspectivism Kaarlo Tuori Part I. Law Beyond the State(s): 2. Transnational legal thought: Plato, Europe and beyond H. Patrick Glenn 3. Beyond the archetypes of modern legal thought: appraising old and new forms of interaction between legal orders Enzo Cannizzaro and Beatrice I. Bonafe 4. The cosmopolitan constitution Alexander Somek 5. On liberalism and legal pluralism Ralf Michaels Part II. European Law: 6. Rethinking EU law in the light of pluralism and practical reason Joxerramon Bengoetxea 7. European human rights pluralism: notion and justification Samantha Besson 8. Rethinking justice for the EU Sionaidh Douglas-Scott 9. Legitimacy without democracy in the EU? Perspectives on the constitutionalisation of Europe through law Christian Joerges Part III. The Laws Divisions: 10. Rethinking the public/private divide Hans Micklitz 11. Private law in a post-national society: from ex post to ex ante governance Jan Smits 12. Transnational public law in Europe: beyond the lex alius loci Giacinto della Cananea 13. The law of the Internet between globalisation and localisation Oreste Pollicino and Marco Bassini 14. Epilogue Neil Walker.

Crossing the limits but stuck behind the fault lines

ABSTRACT The article discusses Lindahl’s book as an important contribution to not only the debate on legal globalisation and transnationalisation but also general legal and constitutional theory, where it introduces a phenomenological first-person plural perspective. Yet, the article argues that concrete legal orders of first-level socio-legal practices do not add up to form a comprehensive and unitary legal order. The article also questions Lindahl’s claim of the primordiality of the concrete legal order in relation to second-level, specialised legal practices and law as an ensemble of abstract norms. In conclusion, an attempt is made to apply Lindahl’s conceptual distinction between boundaries, limits and faultlines to the relations between EU and Member State law.

European Social Constitution: Between Solidarity and Access Justice

Is there a social dimension in the European constitution or—if you prefer another expression—a European social constitution? And if there is, what are its characteristic features? On the basis of existing case law of the CJEU, I will weave the respective two concepts of social justice in the European Union. The first of these is market justice or allocative justice: whatever is the outcome of market mechanisms is just. Here the role of the state or the transnational polity is reduced to securing the general framework conditions for market mechanisms, such as right to property and freedom of contract. This is the realm of F. A. Hayek’s rules of just conduct or Robert Nozick’s libertarianism. The second alternative is access justice, as Micklitz has termed it. As a rule, functioning markets do not emerge spontaneously but presuppose particular market constructing measures by a polity. I will emphasise that both concepts have some complementary effect, depending on the level on which they are applied. Transnational markets are supposed to produce increased prosperity, while national redistributive mechanisms were supposed to ensure just allotment of that prosperity. However, both concepts have also exclusionary effects: Denationalisation and deterritorialisation of social security and healthcare in the name of access justice may threaten the solidaristic foundations of national welfare regimes.

The Economic Constitution Among European Constitutions

The paper starts from the (hypo)thesis, that European constitutionalism should be examined as a diversified process where each stage receives its particular colouring from a particular constitution (or constitutional dimension). Reflecting the temporal and functional primacy of economic integration, the first wave proceeded under the auspices of economic constitution; in the second phase, the emphasis shifted to juridical constitution; during the third wave, the focus was transferred to political constitution; and finally, in our contemporary age, since, say, the Treaty of Amsterdam the pacemaker role appears to have been taken over by security constitution. Such a temporal succession should not be interpreted in the sense of an emerging constitutional aspect replacing or supplanting the previous one; rather, the constitutional dimensions complement each other. Thus, the latent and manifest development of economic constitution has not stopped, and the economic constitution retained its functional primacy. Constructing a common (internal) market has been the motor of the whole integration process and, correspondingly, the non-economic constitutional dimensions have largely developed as a response to demands raised or consequences set off by the economic one. Here we can talk of relations of implication. Finally, relations between aspects of constitution can also be of a conflictual nature. Thus, the normative implications of economic constitution may clash with those of, say, political or social constitution. Before the European Court of Justice, such conflicts often assume the guise of contests between different types of rights: between, on the one hand, rights related to market freedoms and, on the other hand, civil and political or social rights.

La Constitution économique parmi les Constitutions européennes

In the European context, the place of the revolutionary notions of constitutive power, demos and constitutional moment is occupied by the evolutionary concept of constitutionalisation. Economic constitution is merely one aspect in multi-dimensional European constitution (alisation). My tentative proposal is to distinguish between the following dimensions of constitution : economic constitution ; juridical constitution ; political constitution ; social constitution ; and security constitution. In this classification, economic constitution is about the relation of law to the fundamentals of the economic system ; juridical constitution concerns the fundamental features of the legal system and establishes a reflexive relation of the law with itself ; and through political constitution, the law regulates the political system or – to use different political vocabulary – the polity, and contributes to both its empowerment and containment. The ultimate object of the social constitution consists of the members of society, their social life-world, while security constitution addresses society’s internal and external security risks. According to my (hypo) thesis, European constitutionalisation is susceptible to a periodisation where each stage receives its particular colouring from a particular constitution. Reflecting the temporal and functional primacy of economic integration, the first wave proceeded under the auspices of economic constitution ; in the second phase, the emphasis shifted to juridical constitution ; during the third wave, the focus was transferred to political constitution ; and finally, in our contemporary age, since, say, the Amsterdam Treaty (1998) the pacemaker role appears to have been taken by security constitution. Such a temporal succession should not be interpreted in the sense of one constitutional aspect replacing or supplanting another one ; rather, the constitutional dimensions complement each other. Thus, history of the economic constitution does not end with the first period of constitutionalisation. The economic constitution has retained its functional primacy, and, correspondingly, the non-economic constitutional dimensions have largely developed as a response to the demands raised or the consequences caused by the economic one. But relations between aspects of constitution can also be of a conflictual nature. Before the European Court of Justice, conflicts often assume the guise of contests between different types of rights : between, on the one hand, rights related to market freedoms and, on the other hand, civil and political or social rights.