The Horizontal Effect Revolution And The Question Of Sovereignty

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The Horizontal Effect Revolution and the Question of Sovereignty

Johan Van der Walt
The Horizontal Effect Revolution and the Question of Sovereignty Book PDF

Author : Johan Van der Walt
Publisher : Unknown
Page : 128 pages
File Size : 48,8 Mb
Release : 2015
Category : Electronic
ISBN : OCLC:1306295936

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The Horizontal Effect Revolution and the Question of Sovereignty by Johan Van der Walt Pdf

That the recent turn in European Constitutional Review has effectively brought about a revolution in European law has been observed before. At issue are two major developments in European judicial review. On the one hand, the European Court of Human Rights has been collapsing traditional boundaries between constitutional law and private law with a series of decisions that effectively recognized the “horizontal” effect of Convention rights in the private sphere. On the other hand, the European Court of Justice has also given horizontal effect to fundamental liberties embodied in the Treaty on the Function of the European Union in a number of recent cases in a way that puts “established” boundaries between Member State and Union competences in question. This book takes issues with these developments by bringing to the fore a key issue that the horizontality effect debate has hitherto largely overlooked, namely, the question of sovereignty. It shows with detailed references to especially the American debate on state action and the German debate on Drittwirkung that horizontal effect jurisprudence cannot be understood consistently without coming to grips with the conceptions of state sovereignty that inform different approaches to the horizontal effect of fundamental rights.

The Horizontal Effect Revolution and the Question of Sovereignty

Johan van der Walt
The Horizontal Effect Revolution and the Question of Sovereignty Book PDF

Author : Johan van der Walt
Publisher : Walter de Gruyter GmbH & Co KG
Page : 450 pages
File Size : 47,6 Mb
Release : 2014-08-25
Category : Law
ISBN : 9783110391701

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The Horizontal Effect Revolution and the Question of Sovereignty by Johan van der Walt Pdf

That the recent turn in European Constitutional Review has effectively brought about a revolution in European law has been observed before. At issue are two major developments in European judicial review. On the one hand, the European Court of Human Rights has been collapsing traditional boundaries between constitutional law and private law with a series of decisions that effectively recognized the "horizontal" effect of Convention rights in the private sphere. On the other hand, the European Court of Justice has also given horizontal effect to fundamental liberties embodied in the Treaty on the Function of the European Union in a number of recent cases in a way that puts "established" boundaries between Member State and Union competences in question. This book takes issue with these developments by bringing to the fore a key issue that the horizontality effect debate has hitherto largely overlooked, namely, the question of sovereignty. It shows with detailed references to especially the American debate on state action and the German debate onDrittwirkung that horizontal effect cannot be understood consistently without coming to grips with the conceptions of state sovereignty that inform different approaches to horizontal effect.

Horizontal Rights

Gautam Bhatia
Horizontal Rights Book PDF

Author : Gautam Bhatia
Publisher : Bloomsbury Publishing
Page : 281 pages
File Size : 41,5 Mb
Release : 2023-08-24
Category : Law
ISBN : 9781509967636

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Horizontal Rights by Gautam Bhatia Pdf

This book provides a new conceptual model for considering constitutional rights from a comparative perspective. A prestigious club bars women from standing for executive positions. A homeowner refuses to rent their house to a person on grounds of their race. Each of these real-life cases involves the exercise of private power, which deprives individuals of their rights. Can these individuals invoke the Constitution in response? Horizontal Rights: An Institutional Approach brings a fresh perspective to these age-old, yet fraught issues. This book argues that constitutional scholarship and doctrine, across jurisdictions, has proceeded from an inarticulate premise called 'default verticality.' This is based on a set of underlying philosophical assumptions, which presumes that constitutional rights are presumptively applicable against the State, and need special justification to be applied against private parties. Departing from default verticality and its assumptions, this book argues that constitutional rights should apply horizontally between private parties where the existence of an economic, social, or cultural institution creates a difference in power between the parties, and allows one to violate the rights of the other. The institutional approach aims to be both theoretically convincing, as well as a providing a workable model for constitutional adjudication. It applies both to classic issues such as restrictive covenants, as well as cutting-edge contemporary legal problems around the regulation of platform work and the distribution of property upon divorce. This promises to be an exciting new contribution to the global conversation around constitutional rights and private power.

Boundaries of State, Boundaries of Rights

Tsvi Kahana,Anat Scolnicov
Boundaries of State Boundaries of Rights Book PDF

Author : Tsvi Kahana,Anat Scolnicov
Publisher : Cambridge University Press
Page : 341 pages
File Size : 52,5 Mb
Release : 2016-10-20
Category : Law
ISBN : 9781107066502

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Boundaries of State, Boundaries of Rights by Tsvi Kahana,Anat Scolnicov Pdf

The book explores the various and sometimes unexpected ways in which states, human rights, and private actors intersect.

Constitutional Sovereignty and Social Solidarity in Europe

Jeffrey Ellsworth,Johan ven der Walt
Constitutional Sovereignty and Social Solidarity in Europe Book PDF

Author : Jeffrey Ellsworth,Johan ven der Walt
Publisher : Bloomsbury Publishing
Page : 304 pages
File Size : 45,8 Mb
Release : 2015-05-21
Category : Political Science
ISBN : 9781474228398

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Constitutional Sovereignty and Social Solidarity in Europe by Jeffrey Ellsworth,Johan ven der Walt Pdf

The essays in this book respond in different ways to questions regarding sovereignty, constitutionality and social solidarity in the European Union. A common theme in the book is a perception that the people and peoples of the European Union have drifted into a quagmire of political paralysis within which essential features of the paralysis – lack of constitutionality, lack of sovereignty and lack of social solidarity – feed off one another. Some of the essays put forward a more positive view. They associate the demise of sovereignty in Member States of the European Union with an emergence of new forms of democracy or new formations of political legitimacy in the complex structures of multi-level governance in the European Union. Between them, the essays provide the reader with a comprehensive study of the key issues of European politics and law today.

Fundamental Rights Challenges

Cristina Izquierdo-Sans,Carmen Martínez-Capdevila,Magdalena Nogueira-Guastavino
Fundamental Rights Challenges Book PDF

Author : Cristina Izquierdo-Sans,Carmen Martínez-Capdevila,Magdalena Nogueira-Guastavino
Publisher : Springer Nature
Page : 298 pages
File Size : 40,5 Mb
Release : 2021-06-17
Category : Law
ISBN : 9783030727987

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Fundamental Rights Challenges by Cristina Izquierdo-Sans,Carmen Martínez-Capdevila,Magdalena Nogueira-Guastavino Pdf

This book presents a comprehensive review of fundamental rights issues that are currently in the spotlight. The first part explores why the question of whether or not fundamental rights have horizontal effect is a topic of endless debate. The second part focuses on human rights and the rule of law. It begins by arguing that the hitherto valid model of the rule of law is now outdated, and then goes on to outline the importance of the judicial dimension in countering threats to the independence of the judiciary. Lastly, the third part addresses a classic issue in the field of human rights: states’ margin of appreciation, highlighting two aspects: (i) the elements used by the ECJ to determine the scope of the margin of appreciation, which varies depending on the subject matter, the nature of the right in question, as well as the severity and the purpose of the interference; and (ii) the margin of appreciation enjoyed by national courts when interpreting the law. Exploring current issues concerning a topic of eternal interest, the book will appeal to scholars and practitioners alike. Written by formidable intellectual talents, committed to the study of fundamental rights, it rigorously analyses the most recent judgments of both the ECJ and the ECHR.

Constitutional Theory: Schmitt after Derrida

Jacques de Ville
Constitutional Theory Schmitt after Derrida Book PDF

Author : Jacques de Ville
Publisher : Taylor & Francis
Page : 214 pages
File Size : 46,5 Mb
Release : 2017-04-21
Category : Law
ISBN : 9781351866392

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Constitutional Theory: Schmitt after Derrida by Jacques de Ville Pdf

This book advances a new reading of the central works of Carl Schmitt and, in so doing, rethinks the primary concepts of constitutional theory. In this book, Jacques de Ville engages in a close analysis of a number of Schmitt’s texts, including Dictatorship (1921), The Concept of the Political (1927), Constitutional Theory (1928), Land and Sea (1942), Ex Captivitate Salus (1950), The Nomos of the Earth (1950) and The Theory of the Partisan (1963). This engagement takes place from the perspective of constitutional theory and focuses specifically on concepts or themes such as sovereignty, the state, the political, constituent power, democracy, representation, the constitution and human rights. The book seeks to rethink the structure of these concepts in line with Derrida’s analysis of Schmitt’s texts on the concept of the political in Politics of Friendship (1993). This happens by way of an analysis of Derrida’s engagement with Freud and other psychoanalysts. Although the main focus in the book is on Schmitt’s texts, it further examines two texts of Derrida (Khōra (1993) and Fors: The Anglish Words of Nicholas Abraham and Maria Torok (1976)), by reading these alongside Schmitt’s own reflections on the positive concept of the constitution.

The Law of Political Economy

Poul F. Kjaer
The Law of Political Economy Book PDF

Author : Poul F. Kjaer
Publisher : Cambridge University Press
Page : 423 pages
File Size : 45,9 Mb
Release : 2020-04-23
Category : Law
ISBN : 9781108493116

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The Law of Political Economy by Poul F. Kjaer Pdf

"Political economy themes have - directly and indirectly - been a central concern of law and legal scholarship ever since political economy emerged as a concept in the early seventeenth century, a development which was re-inforced by the emergence of political economy as an independent area of scholarly enquiry in the eighteenth century, as developed by the French physiocrats. This is not surprising in so far as the core institutions of the economy and economic exchanges, such as property and contract, are legal institutions.In spite of this intrinsic link, political economy discourses and legal discourses dealing with political economy themes unfold in a largely separate manner. Indeed, this book is also a reflection of this, in so far as its core concern is how the law and legal scholarship conceive of and approach political economy issues"--

Judicial Deference in International Adjudication

Johannes Hendrik Fahner
Judicial Deference in International Adjudication Book PDF

Author : Johannes Hendrik Fahner
Publisher : Bloomsbury Publishing
Page : 312 pages
File Size : 43,8 Mb
Release : 2020-08-06
Category : Law
ISBN : 9781509932306

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Judicial Deference in International Adjudication by Johannes Hendrik Fahner Pdf

International courts and tribunals are increasingly asked to pass judgment on matters that are traditionally considered to fall within the domestic jurisdiction of States. Especially in the fields of human rights, investment, and trade law, international adjudicators commonly evaluate decisions of national authorities that have been made in the course of democratic procedures and public deliberation. A controversial question is whether international adjudicators should review such decisions de novo or show deference to domestic authorities. This book investigates how various international courts and tribunals have responded to this question. In addition to a comparative analysis, the book provides a normative argument, discussing whether different forms of deference are justified in international adjudication. It proposes a distinction between epistemic deference, which is based on the superior capacity of domestic authorities to make factual and technical assessments, and constitutional deference, which is based on the democratic legitimacy of domestic decision-making. The book concludes that epistemic deference is a prudent acknowledgement of the limited expertise of international adjudicators, whereas the case for constitutional deference depends on the relative power of the reviewing court vis-à-vis the domestic legal order.

Law's Sacrifice

Brian W. Nail,Jeffrey A. Ellsworth
Law s Sacrifice Book PDF

Author : Brian W. Nail,Jeffrey A. Ellsworth
Publisher : Routledge
Page : 320 pages
File Size : 54,9 Mb
Release : 2019-07-17
Category : Law
ISBN : 9780429602115

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Law's Sacrifice by Brian W. Nail,Jeffrey A. Ellsworth Pdf

This volume examines the relationship between law and sacrifice as a crucial nexus for theorizing the dynamics of creation, destruction, transcendence, and violence within the philosophical and legal discourse of western society. At a time of populist political unrest, what philosophical and theoretical resources are available for conceptualizing the discontent that seems to emanate from practically every sphere of society? What narrative strategies have been employed within literary, theological, philosophical, and legal discourse to tame or mystify human violence? Engaging with the work of preeminent theorists of sacrifice, such as Georges Bataille, René Girard, Giorgio Agamben, and Jacques Derrida this collection examines from an interdisciplinary perspective the sacrificial logic that characterizes the cultural and political dynamics of law in society. The book will be of interest to students and scholars in the field of legal theory and philosophy.

Against Constitutionalism

Martin Loughlin
Against Constitutionalism Book PDF

Author : Martin Loughlin
Publisher : Harvard University Press
Page : 273 pages
File Size : 49,5 Mb
Release : 2022-05-17
Category : LAW
ISBN : 9780674268029

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Against Constitutionalism by Martin Loughlin Pdf

A critical analysis of the transformation of constitutionalism from an increasingly irrelevant theory of limited government into the most influential philosophy of governance in the world today. Constitutionalism is universally commended because it has never been precisely defined. Martin Loughlin argues that it is not some vague amalgam of liberal aspirations but a specific and deeply contentious governing philosophy. An Enlightenment idea that in the nineteenth century became America's unique contribution to the philosophy of government, constitutionalism was by the mid-twentieth century widely regarded as an anachronism. Advocating separated powers and limited government, it was singularly unsuited to the political challenges of the times. But constitutionalism has since undergone a remarkable transformation, giving the Constitution an unprecedented role in society. Once treated as a practical instrument to regulate government, the Constitution has been raised to the status of civil religion, a symbolic representation of collective unity. Against Constitutionalism explains why this has happened and its far-reaching consequences. Spearheaded by a "rights revolution" that subjects governmental action to comprehensive review through abstract principles, judges acquire greatly enhanced power as oracles of the regime's "invisible constitution." Constitutionalism is refashioned as a theory maintaining that governmental authority rests not on collective will but on adherence to abstract standards of "public reason." And across the world the variable practices of constitutional government have been reshaped by its precepts. Constitutionalism, Loughlin argues, now propagates the widespread belief that social progress is advanced not through politics, electoral majorities, and legislative action, but through innovative judicial interpretation. The rise of constitutionalism, commonly conflated with constitutional democracy, actually contributes to its degradation.

Self-Constitution of European Society

Jiří Přibáň
Self Constitution of European Society Book PDF

Author : Jiří Přibáň
Publisher : Routledge
Page : 346 pages
File Size : 49,8 Mb
Release : 2016-05-26
Category : Law
ISBN : 9781317057529

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Self-Constitution of European Society by Jiří Přibáň Pdf

Recent social and political developments in the EU have clearly shown the profound structural changes in European society and its politics. Reflecting on these developments and responding to the existing body of academic literature and scholarship, this book critically discusses the emerging notion of European constitutionalism, its varieties and different contextualization in theories of EU law, general jurisprudence, sociology of law, political theory and sociology. The contributors address different problems related to the relationship between the constitutional state and non-state constitutionalizations and critically analyze general theories of constitutional monism, dualism and pluralism and their juridical and political uses in the context of EU constitutionalism. Individual chapters emphasize the importance of interdisciplinary and socio-legal methods in the current research of EU constitutionalism and their potential to re-conceptualize and re-think traditional problems of constitutional subjects, limitation and separation of power, political symbolism and identity politics in Europe. This collection simultaneously describes the EU and its self-constitution as one polity, differentiated society and shared community and its contributors conceptualize the sense of common identity and solidarity in the context of the post-sovereign multitude of European society.

Cultural Heritage in the European Union

Andrzej Jakubowski,Kristin Hausler,Francesca Fiorentini
Cultural Heritage in the European Union Book PDF

Author : Andrzej Jakubowski,Kristin Hausler,Francesca Fiorentini
Publisher : BRILL
Page : 528 pages
File Size : 54,5 Mb
Release : 2019-05-15
Category : Law
ISBN : 9789004365346

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Cultural Heritage in the European Union by Andrzej Jakubowski,Kristin Hausler,Francesca Fiorentini Pdf

This volume offers a critical inquiry into the ever-evolving notion of cultural heritage and the way it has been made accessible, governed, and protected by the institutional, operational, and legal structures of the European Union.

Definition and Development of Human Rights and Popular Sovereignty in Europe

European Commission for Democracy through Law,Council of Europe
Definition and Development of Human Rights and Popular Sovereignty in Europe Book PDF

Author : European Commission for Democracy through Law,Council of Europe
Publisher : Council of Europe
Page : 236 pages
File Size : 51,5 Mb
Release : 2011-01-01
Category : Political Science
ISBN : 9287171343

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Definition and Development of Human Rights and Popular Sovereignty in Europe by European Commission for Democracy through Law,Council of Europe Pdf

What role do the people play in defining and developing human rights? This volume explores the very topical issue of the lack of democratic legitimisation of national and international courts and the question of whether rendering the original process of defining human rights more democratic at the national and international level would improve the degree of protection they afford. The authors venture to raise the crucial question: When can a democratic society be considered to be mature enough so as to be trusted to provide its own definition of human rights obligations?

Religion and Realism

Davor Džalto
Religion and Realism Book PDF

Author : Davor Džalto
Publisher : Cambridge Scholars Publishing
Page : 160 pages
File Size : 51,9 Mb
Release : 2016-05-11
Category : Religion
ISBN : 9781443894104

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Religion and Realism by Davor Džalto Pdf

This volume revisits the concepts of reality and realism with regard to their relation to religion and the religious real. Religion remains one of the most significant social forces and cultural constituencies, and it can even be said that religion and religious truths are becoming increasingly important in these so-called “post-secular” times, when the sphere of the (secular) social/political and the sphere of the religious have to be reconsidered. The relevancy of religious truths and the way they structure our understanding of “reality” overcomes the sphere of theology and particular religious practices. Religion, truth, and reality, and the way these concepts are approached and understood, continue to be vital for a broader cultural discourse as well, from philosophy and science to politics, mass media and show-business. The book presents ten essays that offer methodologically diverse and intellectually challenging analyses of various aspects of the topics of Religion and Realism. The essays are based on papers presented at the international conference on Religion and Realism, which took place at the American University of Rome in 2014.