Marco Goldoni

The early warning system and the Monti II regulation: : the case for a political interpretation

Human rights protection - Proportionality - Deference - Procedural rationality - Process-review - Interplay national courts and Strasbourg court

Constitutional Reasoning According to Political Constitutionalism

This article examines and assesses virtues and limits of the contribution of political constitutionalism to the question of reasoning about rights. In the first section, the role of legislatures in deciding about rights is examined and compared to judicial reasoning. The main tenets of the parliamentary style of politics are sketched out. The second section tries to establish that weak judicial review of legislation is compatible with political constitutionalism, but it shows also that some forms of strong judicial review may be necessary in certain cases. In order to prove this latter point, the third section takes the Hirst case as its focus. From an analysis of the parliamentary debate on the issue of prisoners’ right to vote, it is noted that the political process is not always the best institution for adjudicating questions that concern directly the political process itself and that are constitutive of the whole political system. The last section pushes this point a little further by showing that the pre-conditions of the political constitution are rarely taken into account by political constitutionalists. In this respect, constitutional rights that form constitutive aspects of the political process may deserve a stronger protection than other rights and in this respect judicial review might play an important role.

The material constitution

What is the material context of constitutional order? The purpose of this paper is to offer an answer to that question by sketching a theory of the material constitution. Distinguishing it from related approaches, in particular sociological constitutionalism, Marxist constitutionalism, and political jurisprudence, the paper outlines the basic elements of the material constitution, specifying its four ordering factors. These are political unity, the dominant form of which remains the modern nation-state; a set of institutions, including but not limited to formal governmental branches such as courts, parliaments, executives, administrations; a network of social relations, including class interests and social movements, and a set of fundamental political objectives (or teloi). These factors provide the material substance and internal dynamic of the process of constitutional ordering. They are not external to the constitution but are a feature of juristic knowledge, standing in internal relation and tension with the formal constitution. Because these ordering factors are multiple, and in conflict with one another, there is no single determining factor of constitutional development. Neither is order as such guaranteed. The conflict that characterizes the modern human condition might but need not be internalised by the process of constitutional ordering. The theory of the material constitution offers an account of the basic elements of this process as well as its internal dynamic.

A sense of self-suspicion: global legal pluralism and the claim to legal authority

Legal pluralism has become common currency in many contemporary debates on law and globalization. Its main claim is that a form of global legal pluralism represents both the most accurate description of law in times of globalization and the best normative option. On the descriptive level, global legal pluralism is considered more reliable than state-based accounts. On the normative level, global legal pluralism is understood as a possibility to open up the legal realm to previously unheard voices. This article assesses these claims against the background of classic legal-pluralist scholarship. After reconstructing the emergence of global legal pluralism and then examining its epistemic and normative versions, the last two sections identify the shortcoming of this approach by underlining the absence of what the authors call ‘a sense of self-suspicion’ in drawing the map of legalities in the global sphere. The main argument put forward is that global legal pluralism is oblivious of a few key insights offered by the founding fathers of classic legal pluralism.

Political Constitutionalism and the Question of Constitution‐Making

The debate on political constitutionalism has entirely neglected the constitution‐making dimension. This is probably due to the fact that constitution‐making usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution‐making. Either they are overlooking certain problems inherent to the electoral process that is supposed to tackle disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims undermine the political dimension of constitutionalism.

I limiti materiali e riflessivi della sociologia costituzionale = Material and reflexive limits of the sociology of constitutions

Globalization has brought about a resurgence of the sociological study of constitutions. This article engages with this renaissance in a critical way. First, it pinpoints the antecedents of a sociological approach to constitutions, with a focus on the work of Niklas Luh mann. Second, it analyses two of the most important contemporary contributions to the sociology of constitutions, that is, those of Gunther Teubner and Chris Thornhill. Finally, it acknowledges the importance of a sociological understanding of constitutions, but offers two arguments for abandoning functionalism and taking up a more material approach.

The Limits of Legal Accountability of the European Central Bank

The Euro Crisis has granted a new role to the European Central Bank (ECB) on top of the previous one: from regulator of monetary policy in the Eurozone to active participant in the governance of the common currency area. In light of the relevance of the latter role, some of the decisions of the ECB have been predictably challenged in court. This article reviews the Court of Justice of the European Union’s jurisprudence on the status and function of central banking in the EU. It focuses on three decisions (OLAF, Pringle, Gauweiler) to show that the trajectory of the Court has been too deferential toward the ECB. The Court could not change the role and function of the ECB because this would be beyond the scope of legal accountability; yet, the Court ought to have adopted a stricter review of ECB’s decisions and signalled a change in the constitutional function of the ECB to the other European institutions and the European public.

Legal Theory before the Political Economy of EU Law

At its dawn, the debate on European integration was the monopoly of political scientists. Then, the groundbreaking jurisprudence of the European Court of Justice made constitutional lawyers very interested in the unfolding of European integration and this made lawyers more aware of the role of law in the very same process, even when this applied beyond the realm of State law. This new awareness was due mostly to the success of the movement ‘Integration through law’. In the last 30 years, following the development of integration, the debate has become extremely rich and nuanced, but its theoretical underpinnings are not always immediately visible. As has been recently noted, the process of European integration and the nature of the European compact failed to draw the attention of philosophers for quite some time. For this reason, this edited collection on the philosophical foundations of EU law is timely and necessary: it is, amongst other things, a call for a philosophical turn in EU studies. The main methodological insight brought by this book is that EU law ought to be approached from the perspective of legal and political theory. The list of contributors is also impressive, collecting among

Carl Schmitt's Institutionalism: Social, Not Legal

This is a review article of M. Croce, A. Salvatore, The Legal Theory of Carl Schmitt, Routledge, 2012.

A Normative Positivism for the Deliberative Republic

Republicanism is a political philosophy of noble and ancient origins which in the last three decades has seen a ‘revival’ through the works of, amongst others, John Pocock, Quentin Skinner and Philip Pettit. With few notable exceptions,1 legal scholars seem to have either ignored or used only superficially the insights coming from republican political philosophy. For this reason, this collection of essays, edited by Samantha Besson and José Luis Martí, sets a new research agenda and also represents a timely and ambitious work. It serves a double function: on the one hand, it pinpoints some of the main republican ideas that are relevant for lawyers. On the other hand, it provides a map of the possible developments that a republican take on legal issues may generate. The volume encompasses both theoretical and more practical approaches and one of its virtues has to be seen in the mutual influence between these two aspects. While the reflection on republican theory may help to deepen our understanding of how institutions ought to work, the republican analysis of legal fields like international or constitutional law may help in defining how to put forward a republican legal theory. The introductory chapter written by the two editors epitomises the main arguments contained in the book. It also introduces and expands on some interesting theoretical points for the legal theorist. Since it is impossible to do justice to the complexities of the chapters collected in the book, the focus of this review will be mainly on the introduction, with references to other chapters when this is deemed necessary to illustrate an argument. Bearing this consideration in mind, this review will emphasise the editors’ plea for a republican legal theory and, in particular, for (2011) 2(1) Jurisprudence 249–260