Mikael Rask Madsen

The European Court of Human Rights between law and politics

1. Introduction: The European Court of Human Rights between Law and Politics PART I - POLITICS AND INSTITUTIONALISATION 2. The Birth of the European Convention on Human Rights-and the European Court of Human Rights 3. The Protracted Institutionalisation of the Strasbourg Court: From Legal Diplomacy to Integrationist Jurisprudence 4. Politics, Judicial Behaviour, and Institutional Design 5. Civil Society and the European Court of Human Rights 6. The European Court of Human Rights after 50 Years PART II - LAW AND LEGITIMIZATION 7. The Reform of the Convention System: Institutional Restructuring and the (Geo-)Politics of Human Rights 8. Constitutional v. International? When Unified Reformatory Rationales Mismatch the Plural Paths of Legitimacy of ECHR Law 9. Diplomatic Intrusions, Dialogues, and Fragile Equilibria: The European Court as a Constitutional Actor of the European Union 10. Individual and Constitutional Justice: Can the Power Balance of Adjudication be Reversed? 11. Rethinking the European Court of Human Rights Postscript

The return of sociology in Danish socio-legal studies: a survey of recent trends

This paper surveys recent trends in the development of the sociology of law in Denmark. The overall argument of the paper is that, currently, the sociology of law in Denmark is marked by a striking sociological and more specifically institutional and empirical turn. This new direction in scholarship suggests not only a renewed research focus on the institutional dimensions of law but it also – and very differently from work from the 1980s and 1990s – suggests a re-orientation towards sociology more generally. A clear consequence of this return to the sociological core of the sociology of law has been an empirical orientation towards how law is practised, how legal institutions work and, as part of that, how the legal profession takes part in both legal change and transformations of state and society. This new research relies not only on general sociological theory and method but also on the more specific elite sociology, sociology of professions and sociology of knowledge.

The End of Virtue? Denmark and the Internationalisation of Human Rights

The article analyses the interface of Denmark and internationalisation of human rights with the goal of examining the transformation of the place and perception of international law in Scandinavia over the last decades. More precisely, the article contrasts two fundamentally different moments of the interface of international human rights and Denmark: first a period of external engagement in which Denmark – and the other Scandinavian countries – developed their position as virtuous defenders of international law and human rights and, secondly, the eventual national implications of international human rights law. This approach allows us to more generally analyse the interrelationship between the internationalisation of human rights and its eventual effect on Danish legal and political practices. We generally argue that the original politics of virtue in the area of international law and particularly international human rights law declined when international human rights started having national implications, that is, it no longer was simply a good of export. We, moreover, argue that the realistic approach developed in the national context now is having significant spill-over effects on Denmarks international policies in the area.

Tomlinson v. Belize; Tomlinson v. Trinidad and Tobago

Caribbean Court of Justice judgment on compatibility of national immigration bans on entry of homosexuals with freedom of movement under Caribbean Community law.

Competing Supremacies and Clashing Institutional Rationalities: The Danish Supreme Court's Decision in the Ajos Case and the National Limits of Judicial Cooperation

On December 6, 2016, the Supreme Court of Denmark (SCDK) took the European legal community by surprise. In its decision in the Ajos case the SCDK disregarded the guidelines of the Court of Justice of the European Union (CJEU) which had been set out in a preliminary ruling earlier in the year. More notably still, the SCDK used the occasion to set new boundaries to the applicability of the CJEU’s rulings in Denmark. It did so in two steps: first, the SCDK delimited the competences of the European Union (EU) through the lens of its interpretation of the Danish Accession Act. Second, the SCDK delimited its own power within the Danish Constitution. In regard to the first point, it concluded that the judge-made principles of EU law developed after the latest amendments of the Accession Act, such as the general principle of non-discrimination on grounds of age, were not binding. This conclusion was consequential since the case at hand concerned such a principle developed by the CJEU after an amendment. With regard to the second step, the SCDK argued that it would in fact exceed its own judicial mandate within the Danish constitutional framework if it interpreted a national law, which violated the principle in question, in conformity with EU-law in a dispute between private parties, or dis-apply it. The decision has spurred great controversy. Critiques have noted that the SCDK’s attempt to push through a different and new institutional order rests on a misconception of EU law that is entirely inadequate for regulating the contemporary and future Danish-European legal interaction.

Toward a New Sociology of Human Rights

While disciplines such as law and history have now developed distinct subfields of human rights research, sociology only more recently started developing a clear research agenda with regard to human rights. The work reviewed in this article, sociologist Hans Joas’ book The Sacredness of the Person, is an important addition to the new sociological research into human rights. In this essay we outline the key thesis underlying the book, namely the social process of sacralization of human personhood and discusses it against advances in the sociology of human rights, notably the sociology of law, and recent historical scholarship on human rights.

Law and the Formation of Modern Europe: Perspectives from the Historical Sociology of Law

Law and the Formation of Modern Europe provides an overview of the foundations of the modern European legal order, and it explores processes of legal construction in both the national and the supranational domains. In its supranational focus, it examines the sociological pressures which have given rise to European public law, the national origins of key transnational legal institutions and the elite motivations driving the formation of European law. In its national focus, it addresses legal questions and problems which have assumed importance in parallel fashion in different national societies and which have shaped European law more indirectly. Examples of this are the post-1914 transformation of classical private law, the rise of corporatism, the legal response to the post-1945 legacy of authoritarianism, the emergence of human rights law and the growth of judicial review. This two-level sociological approach to European law generates unique insights into the dynamics of national and supranational legal formation.

Unpacking Legal Network Power: The Structural Construction of Transnational Legal Expert Networks

In his contribution Unpacking Legal Network Power: The Structural Construction of Transnational Legal Expert Networks, Mikael Rask Madsen explores the sociological properties of legal expert power as a necessary supplement to the more descriptive approaches prevalent in studies of transnational regulatory networks. It argues that although notions of regulatory networks clearly have descriptive force and help identify new patterns of transnational law-making, deploying such notions also entail a real risk of leaving out of the analysis those precise social conditions and forces that make networks powerful in the first place. According to the chapter, to make regulatory network power intelligible, one needs to establish the linkage between legal networks and power, including state power, and thus the structured social spaces the networked power is exercised in.

Non-elected Political Elites in the EU

With globalization and Europeanization, profound changes have taken place in the composition and structure of elites. Once solidly tied to the nation state, elites have, following processes of differentiation and specialization, become more transnational than ever before. Their development has been conditioned by the evolving relationship between international, transnational, and national powers. In the European context, key institutional players today include the European Commission, the European Ombudsman and the European Court of Justice as aspiring representatives of the general European interest and the Council of Ministers and member states as representing national interests in the EU. Their relationship and changing interfaces are crucial when assessing the development of non-elected political elites as well as more generally the rise of an institutionalized and integrated Europe.

Law and the Formation of Modern Europe: Index

Law and the Formation of Modern Europe provides an overview of the foundations of the modern European legal order, and it explores processes of legal construction in both the national and the supranational domains. In its supranational focus, it examines the sociological pressures which have given rise to European public law, the national origins of key transnational legal institutions and the elite motivations driving the formation of European law. In its national focus, it addresses legal questions and problems which have assumed importance in parallel fashion in different national societies and which have shaped European law more indirectly. Examples of this are the post-1914 transformation of classical private law, the rise of corporatism, the legal response to the post-1945 legacy of authoritarianism, the emergence of human rights law and the growth of judicial review. This two-level sociological approach to European law generates unique insights into the dynamics of national and supranational legal formation.