Poul F. Kjaer

Constitutionalizing Governing and Governance in Europe

The EU is a structure positioned “in-between” hierarchically organized nation-state governing structures and heterarchically structured global governance structures. Thus, the EU is a hybrid which relies partly on governing and partly on governance. This two-dimensionality is a central reason why the question of the constitutional character of the EU remains fundamentally unresolved. Thus, it is proposed that the EU should aim for developing a constitutional form aimed at alleviating the tensions inherent in the European construction through a conflict of laws approach. In order to respect the hybridity of the Union, such an approach, however, will have to be based on a three-dimensional conflict of laws concept. It would have to take account of horizontal conflicts between territorial units, vertical conflicts between the EU and its member states, and also horizontal conflicts between the functionally differentiated structures of the wider society.

Context Construction Through Competition: The Prerogative of Public Power, Intermediary Institutions, and the Expansion of Statehood Through Competition

This article examines the relationship between the evolution of statehood and competition in the European context. To begin with, a particular take on the evolution of modern political power in the state form in Europe is developed. Against this background, the article reconstructs how the institutionalization of competition as a specific type of policy tool has been used by emerging modern states to establish their authority vis-à-vis competing claims to public authority in society. The article, furthermore, engages in an examination of (neo-)corporatist and governance-based attempts both to curb and to expand the use of competition as a tool for organizing social processes, and the implications of these attempts for the state of statehood.

Regulatory governance: rules, resistance and responsibility

ABSTRACT Regulatory governance frameworks have become essential building blocks of world society. From supply chains to the regimes surrounding international organizations, extensive governance frameworks have emerged which structure and channel a variety of social exchanges, including economic, political, legal and cultural, on a global scale. Against this background, this special issue sets out to explore the multifaceted meaning, potential and impact as well as the social praxis of regulatory governance. Under the notions rules, resistance and responsibility the special issue pins out three overall dimensions of regulation and governance thereby providing a theoretical and conceptual framework for grasping the phenomenon of regulatory governance. This is combined with extensive case studies on a number of regulatory governance settings ranging from the World Bank to agricultural reforms carried by the International Transitional Administrations (ITAs) in Kosovo and Iraq as well as global supply chains and their impact on the garment industry in Bangladesh.

Regulatory hybridization in the transnational sphere

This book examines hybridization as a defining phenomenon of regulatory frameworks in the transnational sphere. The contributions illustrate that globalization contributes to blurring the distinctions between national and international, public and private law; and that hybridization therefore necessitates a rethinking of fundamental legal concepts.

The Political Foundations of Conflicts Law

Abstract Against the backdrop of the conflicts law approach developed by Christian Joerges, the basic features of a transnational concept of the political are developed. The starting point is the insight that statehood has undergone rapid expansion in both depth and scope in recent history. Thus, the central site for democratic decision-making is not in decline. Statehood has, however, always been a limited form of social ordering which has operated in conjunction with other forms of social ordering located beneath, beside and above the state. The central structural cause behind the expansion in statehood was the implosion of the eurocentric world and the subsequent decolonisation processes that unfolded in the twentieth century. Besides leading to a globalisation of statehood, this transformation also implied a transformation of transnational forms of ordering away from colonial centre/periphery differentiation and towards the kind of functionally delineated regulatory regimes that represent the dominant form of transnational ordering today. Understanding the consequences of this fundamental transformation is the central issue with which contemporary transnational legal and political theory, including the conflicts law approach, is dealing. But whereas central aspects of a new concept of transnational law have already been developed, a concordant concept of transnational politics is still lacking. Such a concept must reflect the functional delineated setup of contemporary transnational processes as well as the specific social functions that transnational processes reproduce.

A Hybrid within a Hybrid: Contextualizing REACH in the Process of European Integration and Constitutionalization

REACH is a hybrid which from a legal as well as an organizational perspective combines hierarchy and heterarchy. Such hybridity is however not a particular feature of REACH. Rather the EU itself must be understood as a hybrid, thereby making REACH a hybrid operating within a hybrid. The hybrid structure of REACH reflects its societal function which is to simultaneously separate and combine politics, science, economy, health and the environment within a single legal framework. The legitimacy of REACH reflects its hybrid structure in the sense that it is based on a combination of democratic, procedural and deliberative components.

The Societal Function of European Integration in the Context of World Society

Zusammenfassung In den vergangenen Jahrzehnten haben nicht-rechtliche und nichtpolitische Funktionssysteme in Europa ihre strukturellen Kopplungen mit den Systemen für Politik und Recht in nationalstaatlicher Form zunehmend durch Kopplungen zur EU substituiert. Weil europäische Kopplungen weniger strikt sind als nationale Kopplungen, erhöht dieser Wechsel die Autonomie der nicht-politischen und nichtrechtlichen Systeme. Der Grund für die geringere Zudringlichkeit der EU liegt in ihrer internen Struktur. Trotz bestimmter staatsähnlicher Merkmale muss die EU verstanden werden als ein Konglomerat, das eine breite Reihe von Rationalitätsformen horizontal bündelt. Ihre Politik zielt darauf ab, Asymmetrien zwischen funktional differenzierten Segmenten der Gesellschaft zu reduzieren, anstatt substantielle Einheit zu schmieden. Deswegen beschreibt sich das politische System der EU nicht als ein System, das anderen funktionalen Systemen übergeordnet ist.

Facilitating transfers: regulatory governance frameworks as ‘rites of passage’

ABSTRACT Departing from the paradox that globalisation has implied an increase, rather than a decrease, in contextual diversity, this paper re-assesses the function, normative purpose and location of Regulatory Governance Frameworks in world society. Drawing on insights from sociology of law and world society studies, the argument advanced is that Regulatory Governance Frameworks are oriented towards facilitating transfers of condensed social components, such as economic capital and products, legal acts, political decisions and scientific knowledge, from one legally-constituted normative order, i.e. contextual setting, to another. Against this background, it is suggested that Regulatory Governance Frameworks can be understood as schemes which act as ‘rites of passage’ aimed at providing legal stabilisation to social processes characterised by liminality, i.e ambiguity, hybridity and in-betweenness.

Why justification? The structure of public power in transnational contexts

ABSTRACT This article asks the question why the social praxis of justification has moved to the centre-stage within the debate on transnational legal ordering. The starting point is the development of a generic concept of legally constituted public power aimed at breaking the frames that classically distinguish the national and the transnational and state and society. On that background, two structural differences between national and transnational public power are focused upon. First is the issue of constructing and delineating boundaries, which in national contexts is addressed through reference to territorial borders. Second is the issue of adapting decision-making to changing societal circumstances, which is addressed in national contexts through democracy. Both of these remedies are unavailable or only partially available at the transnational level. It is in order to respond to these deficiencies, it is argued, that a turn to justification has emerged at the transnational level of world society.

Dimensions of justice & justification in EU and transnational contexts

ABSTRACT The introduction to this special issue presents and explains the main idea behind each contribution to this collection of papers. Specifically, this special issue explores a grammar of justice and justification through political theory, legal and sociological perspectives, and discusses their relevance in EU and transnational contexts. The introduction also links the papers together and supplies some concluding thoughts.