Journal of Law and Society最新文献

In this article, we use the concept of epistemic othering to describe the subjectivation of people who experience debt problems in the legislative drafting process, and argue that the evidence-based policy paradigm, together with its participatory dimension, produce a potentially harmful subject position for people who are considered vulnerable and irrational. By analysing the preparatory material of Finnish interest rate cap laws, we explore what is constructed as rational and possible in the legislative process, and how these modalities frame the use of expert knowledge. We argue that what is considered rational is constructed in terms of market logic, and what is construed as possible is heavily framed by law-as-knowledge. Together, market logic and law-as-knowledge form the preconditions for the use of expert knowledge. Ultimately, the way in which these three types of knowledge interact contributes to the epistemic othering of people who experience debt problems.

This Special Supplement of the Journal of Law and Society builds on the success of the Special Supplement Societal Constitutions in Transnational Legal Regimes, which was published in 2018 and focused on non-political societal constitutions and their transnationalization and globalization. This current volume revisits political constitutions and their recent societal evolution and transnationalization. It explores the societal evolution of political constitutions beyond the traditional semantics and structures of state and national institutions and imaginaries.

Individual contributions use interdisciplinary and socio-legal methods to examine political constitutions and constitutionalism in supranational, transnational, and international constellations. They focus on methodological modifications in constitutional theory as much as reconceptualizations of its classic concepts, especially polity, identity, citizenship, and the public sphere and its reason, deliberation, and mobilization.

Relations between transnational polities and legal networks are examined in individual articles to highlight the role of non-political constitutional regimes in political institutions and constitutional settlements. Classic notions of republicanism, democracy, legitimacy, sovereignty, freedom as non-domination, and social justice are analysed beyond nation states because the impact of their transnationalization on practical politics cannot be underestimated as the current critical state of the European Union (EU) illustrates in the most persuasive way.

Public and private constitutional regimes, conflict of laws, and the relationship between political and economic constitutions are discussed in both general theoretical and specific international, European, and national contexts. The EU's political legitimacy depends on a strengthening of market governance and economic constitutionalism. Nevertheless, the societal strength of its economic constitution is matched by the weakness of its political legitimacy. The common market was originally expected to facilitate the common good of a transnational European polity, yet this political benefit of the EU's economic constitution has been significantly questioned in recent decades.

The transnationalism of current political constitutions is also discussed in the context of plurinational statehood and its regional and sub-national political, administrative, and cultural units. The EU's transnational democratic failings are not only consequences of the democratic deficit at the EU level but, much more importantly, of a democratic disconnect at the member state level. The urgent need for democratic reconnection, therefore, applies to the relationship between the EU and its member states as much as between constitutional bodies of national politics and sub-national institutions.

The volume opens with Richard Bellamy's article ‘Political Constitutionalism and Populism’. Using the metho

How should we understand the claims on the right to decide on status made within plurinational member states of the European Union by actors and institutions seeking to protect the self-government of sub-state nations or peoples, or at least their right to consent to their ascribed status? Peaceful solutions to conflicts involving contested claims over territory, citizenship, and national sovereignty (authority) can be found when a conceptual or cultural transformation takes place towards a pluralist and bottom-up or federal concept of plurinational democracy, recovering the centrality of self-determination as the self-assertion of a political community. Constitutional law based on the popular sovereignty of a majority nation within plurinational democracies often neglects the question of the definition of the demos as the prefigured constituency, and the existence of national or territorial minorities. If constitutions are interpreted as precluding any claim to self-determination by a constituency, and any debate about that claim, then an undemocratic, sacralized model of militant constitutionalism may emerge. That model is not so much about protecting democracy as it is about imposing a national mould, a pre-defined demos. This article revisits the claims of sovereignty made by national territorial minorities in Spain, against the background of the constitutional doctrine of the Spanish judiciary that precludes these constituencies from engaging in political debates on the right to decide. The resulting sacralization of the Constitution leads to a new version of the model of ‘militant democracy’, a militant nationalist constitutionalism, which can be countered by an alternative, secular, even profane approach to the Constitution.

Transnational constitutionalism is both a sociological given and a legal challenge. We observe the emergence of ever more legally framed transnational arrangements with ever more power and impact. Do such arrangements deserve to be called legitimate rule in Habermasian terms? Is it at all conceivable that the proprium of law can be defended against the rise of its informal competitors? This article opts for a third way that listens to neither the siren songs on law beyond the state nor to the defences of nation-state constitutionalism as the monopolist of legitimate rule. The proposed alternative suggests that transnational legal ordering of the European Union should build on its reconceptualization as a ‘three-dimensional conflicts law’ with a democracy-enhancing potential. This reconceptualization operationalizes the ‘united in diversity’ motto of the Draft Constitutional Treaty of 2004, preserves the essential accomplishments of Europe's constitutional democracies, provides for co-operative problem solving of transnational regulatory tasks, and retains supervisory powers over national and transnational arrangements of private governance.

In the post-national setting, the concept of the ‘economic constitution’ has been seen as design template and saviour; whether based on transactional certitude or founded on ordoliberal precepts, the economic constitution is assumed to legitimate economic integration across national borders in the absence of comprehensive political settlement. Nevertheless, recent tensions – not only within the European Union (EU) but also, more strikingly, within the World Trade Organization context – indicate the limits of economic constitutionalism. This article seeks to identify the roots of recent dysfunction within the history and theory of economic constitutionalism. It traces the evolution of an adjudicational economic constitutionalism and its place within the EU legal order, including the new EU Charter of Fundamental Rights, and contrasts this vision with the more comprehensive and/or socialized models of economic constitutionalism found not only within the Weimar Republic but also within the post-revolutionary/post-conflict constitutional context. The article also places a major emphasis on theorizing around the apex of economic-constitutional thought, ordoliberalism, but concludes that no concept of the economic constitution can be seen in isolation from its social-political context, or from notions of the common good. To this exact degree, failures in modern economic constitutionalism may derive from a misplaced universalism – a technocratic absolutism that abdicates political responsibility for the common good, locating it instead in an ‘idolatry of the factual’ or a new naturalism of market inevitability.

The Security Council is the only international body capable of authorizing the use of force in cases other than self-defence. Its main mission is to protect international peace and security, and this has been reinterpreted in recent decades to include the protection of human rights in situations of grave humanitarian emergencies as well as to allow it to exercise legislative powers. Given this extraordinary range of functions, it is worth asking whether the Security Council is justified in their exercise. Should the international community entrust such power to an institution with the authority, structure, and decision-making process of the Security Council? This article explores the implications of a distinctive tradition in political philosophy – namely, the public reason tradition – for judging the adequacy of some of the proposals for reform of the Security Council. I show that the scope of authority of the Security Council, as well as some of the proposals for reform, can be challenged on the basis of an emerging global public culture.

The sociology of constitutionalism emphasizes the duality of constitutions as both power limitations and power enhancements. Following the socio-legal perspective, this article focuses on the constitutional imaginary of the public sphere and distinguishes it from the imaginary of the authentic polity, in which the constituent power of the people is protected against the corrupting effect of representative institutions and technocratic bodies. The promise of authenticity is behind the recent resurgence of populism and the constitution of what Zygmunt Bauman describes as ‘explosive communities’. The final part of the article focuses on the transnational politics and law of the European Union (EU) and discusses its possible responses to the imaginaries of constitutional populism – most notably, the emergence of European public spheres and demoicracy. Without the constitutional imaginaries of an anti-explosive transnational and democratically constituted community, further enhancement of the power of EU institutions will always lead to populist backlash at the national and local levels of its member states.

This article traces the disconnect in the constitutional study of the European Union from the Maastricht era to the euro crisis. In the Maastricht era, a discourse of ‘post-sovereignty’ came to dominate theoretical enquiry, reflecting but also distorting a number of material developments: the ‘end of history’, the retreat of critical theory into discourse analysis and systems theory, and the prioritization of law over politics. Jürgen Habermas was a key intellectual figure in driving this ideological mix at the very moment when anti-systemic challenges began to return, both formally and informally, as exemplified in the German Constitutional Court and the French political scene. In revisiting the idea of political constitutionalism, we can foreground this constitutional disconnect and show how it contributes to the irresolution of the subsequent euro crisis conjuncture.