No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
Private and Public Autonomy Revisited: Jürgen Habermas' Concept of Co-Originality in Times of Globalisation and the Militant Security State
Abstract
This paper examines the concept of constituent power and constitutional form in Jurgen Habermas' legal philosophy. It argues that a concept of constituent power needs to be embedded in a constitutional theory that can explain the difference between legitimate law and a mere wielding of power. Theories operating with assumptions of a pre-legal and unbound constituent power are either pre-modern or a-historical. While Habermas' theory can convincingly spell out general terms for a legitimate constitutionalisation and legitimate law-making, however, it appears to be at the same time too thin and too thick with regard to two recent transformations of the democratic nation-state: Firstly, it cannot grasp the shift from enabling 'freedom' to upholding 'security' as the central description of the function of the nation-state. This shift has severe implications for the discourse on human rights and their a priori status as constraints on the popular sovereign: the security paradigm seems to trump the notion of inalienable individual rights and replace them with the rule that the end justifies the means. Secondly, the idea of a necessary internal link between public and private autonomy in Habermas' system of rights appears to be unable to explain the emergence of supranational and transnational law outside of a national legal community. In a different reading, however, it can serve as a normative yardstick for existing regulatory structures, and as an orientation for the elaboration of new forms and institutions that may reduce the obvious democratic deficits of supranational and transnational regulation.
... 753 Rainer Nickel points out that 'in a new, globalized environment where the execution of diffuse powers by diffuse actors blurs the line between public authority and private power, the well-ordered theory of the democratic Rechtsstaat seems to lose its empirical foundation and its persuasiveness altogether'. 754 The blurring of the boundary between private and public autonomy is highly worrisome when international courts radically reinforce the protection of fundamental rights while their decision-making is beyond national control. 755 With regard to the transnational roles of constitutional courts, the European constitutional democracy doctrine suggested by Komárek provides a fresh analytical perspective. ...
Through gaining lessons from the doctrine of constitutionality control, the book deals principally with conventionality control achieved by judicial adjudicators. This monograph fills the gap in comparative international human rights law by analysing the practice of conventionality control in Europe and Latin America. Based on the empirical data, the author normatively envisions a ‘trapezium’ model of conventionality control with the features of openness, substantivism and human-centrism, which overcomes the limits of the closed, formalist, and State-centric ‘pyramid‘ model. Author: Yota Negishi, Associate Professor of Public International Law, Seinan Gakuin University, Fukuoka, Japan.
... 753 Rainer Nickel points out that 'in a new, globalized environment where the execution of diffuse powers by diffuse actors blurs the line between public authority and private power, the well-ordered theory of the democratic Rechtsstaat seems to lose its empirical foundation and its persuasiveness altogether'. 754 The blurring of the boundary between private and public autonomy is highly worrisome when international courts radically reinforce the protection of fundamental rights while their decision-making is beyond national control. 755 With regard to the transnational roles of constitutional courts, the European constitutional democracy doctrine suggested by Komárek provides a fresh analytical perspective. ...
Through gaining lessons from the doctrine of constitutionality control, the book deals principally with conventionality control achieved by judicial adjudicators. This monograph fills the gap in comparative international human rights law by analysing the practice of conventionality control in Europe and Latin America. Based on the empirical data, the author normatively envisions a ‘trapezium’ model of conventionality control with the features of openness, substantivism and human-centrism, which overcomes the limits of the closed, formalist, and State-centric ‘pyramid‘ model. Author: Yota Negishi, Associate Professor of Public International Law, Seinan Gakuin University, Fukuoka, Japan.
Global legal pluralism is not simply a result of political pluralism, but is instead the expression of deep contradictions between colliding sectors of a global society. At core, the fragmentation of global law is not simply about legal norm collisions or policyconflicts, but rather has its origin in contradictions between society-wide institutionalized rationalities, which law cannot solve, but which demand a new legal approach to colliding norms. This thesis will be evolved with three arguments: (1) The fragmentation of global law is more radical than any single reductionist perspective - legal, political, economic or cultural - can comprehend. Legal fragmentation is merely an ephemeral reflection of a more fundamental, multidimensional fragmentation of global society itself. (2) Any aspirations to a normative unity of global law are thus doomed from the outset. A meta-level at which conflicts might be solved is wholly elusive both in global law and in global society. Instead, we might expect intensified legal fragmentation. (3) Legal fragmentation cannot itself be combated. At the best, a weak normative compatibility of the fragments might be achieved. However, this is dependent upon the ability of conflicts law to establish a specific network logic, which can effect a loose coupling of colliding units.
Do fundamental rights obligate not only States, but also private transnational actors? Since violations of fundamental rights stem from the totalising tendencies of partial rationalities, there is no longer any point in seeing the horizontal effect as if rights of private actors have to be weighed up against each other. On one side of the human rights relation is no longer a private actor as the fundamental-rights violator, but the anonymous matrix of an autonomised communicative medium. On the other side, the fundamental rights are divided into three dimensions: first, institutional rights protecting the autonomy of social discourses – art, science, religion - against their subjugation by the totalising tendencies of the communicative matrix; secondly, personal rights protecting the autonomy of communication, attributed not to institutions, but to the social artefacts called ‘persons’; and thirdly, human rights as negative bounds on societal communication, where the integrity of individuals' body and mind is endangered.
Cambridge Core - International Trade Law - Global Business Regulation - by John Braithwaite
Over 9000 recently collected sipunculans from the deeper waters of the eastern Atlantic Ocean from 80° N to 34° S are discussed. Brief notes on their morphology and a key to the 31 species are presented. The existence of zoogeographical barriers at slope depths between the Norwegian and European Basins, within the Cape Verde Basin (a diffuse one), and between the Angolan and Cape Basins are noted. Most species (17) are very widely distributed (north of 40° N and south of 15° N). Most of those with wide latitudinal ranges also have wide vertical ranges. Two slope species occur on the shelf in upwelling areas off West Africa. These analyses are based on just these recent collections, i.e. disregarding earlier records.
This paper responds in its first sections to a series of articles in which Rainer Schmalz-Bruns developed a concept of legitimate governance beyond the constitutional state, which he called 'deliberative supranationalism' and contrasted with what Jurgen Neyer and the present author had suggested under the same title. Our querelles allemandes had follow-ups in various contexts, among both lawyers and political scientists. The second part of the paper first summarizes and comments on more recent critiques. It then deals with the programmatic rejection of comitology by the European Commission's White paper on Governance in the EU of July 2002.
- Cutler
Cutler, Private Power and Global Authority, (Oxford: Oxford University Press, 2003);
- J Braithwaite
- P Drahos
J. Braithwaite and P. Drahos,
Global Business Regulation, (Cambridge: Cambridge University Press, 2000);
Auf dem Weg in eine andere Moderne (Frankfurt am Main: Suhrkamp 1986)
- See U Beck
See U. Beck, Risikogesellschaft. Auf dem Weg in eine andere Moderne (Frankfurt am Main: Suhrkamp 1986); in
English, Risk Society: Towards a New Modernity (London: Sage, 1992).
Das Grundrecht auf Sicherheit
- J Isensee
J. Isensee, Das Grundrecht auf Sicherheit. Zu den Schutzpflichten des freiheitlichen Staates (Berlin: de Gruyter,
1983).
12 Constellations 379, esp. at 382. theory, these regulations bear the tarnish of being illegitimate, at least if they originate outside the classical canon of international law. As a consequence
- K Günther
K. Günther, 'World Citizens between Freedom and Security' (2005) 12 Constellations 379, esp. at 382.
theory, these regulations bear the tarnish of being illegitimate, at least if they originate outside the
classical canon of international law. As a consequence, in a new, globalized environment where
- H Schepel