Applied Evolutionary Theory: Explaining Legal Change in Transnational and European Private Law

2008 ◽  
Vol 9 (4) ◽  
pp. 477-491 ◽  
Author(s):  
Jan M. Smits

This contribution aims to apply some insights from evolutionary theory to transnational commercial law and to the harmonisation of private law in the European Union. By doing so, it hopes to provide a fresh perspective to the theoretical underpinning of the development of both transnational commercial law and European private law. For transnational commercial law, it has already been well explained that the transformation of the role of the State led to new forms of governance. If there was previously a State monopoly on providing legal certainty and enforcement mechanisms, today the goods of legal certainty and enforcement are often provided by others rather than the State institutions, in particular in cross-border transactions. In European private law, an organic development – in which the role of the national States is also rather limited – is the most likely way to create a successful unified law. Both developments raise many questions. This contribution only aims at providing a framework to deal with one of these questions: how to explain (or even predict) the evolution of law beyond the State (of which transnational commercial law and European private law are important examples)? If legal development can no longer be explained by positivist or natural law thinking, can evolutionary theory fill the gap?

2016 ◽  
Vol 8 (1) ◽  
pp. 265-282
Author(s):  
Tomasz Łachacz ◽  
Sylwester Zagulski

Unemployment is classified today as one of the main threats to society. The phenomenon affects the lives of individuals, the functioning of families and society and development of the state. It is often the source of other social problems such as poverty, violence, or social pathologies. The article presents the scale and nature of unemployment occurring after 1989 in Poland and in selected European Union countries, i.e. the Netherlands, Spain, Slovakia and Latvia. It attempts to show the characteristic trends of the phenomenon over a period of more than two decades. Examples from the European countries analysed show that the situation in the labour market and the approach to employment are radically different. Individual countries are characterised by very different unemployment rates, which reflect their different size, economic and demographic potential, or are associated with the tradition of employment. The existence of differences seems to be normal, but their scale may give rise to concern. A characteristic feature of unemployment in the period analysed is its regional diversity, both in Poland and in the whole of the European community. Important factors that determine the level of unemployment are age, sex, education and people’s qualifications. The effects of long-term unemployment are very painful for the whole of society. Such a situation can lead to, amongst others, poverty, societal antagonism, violence and migration. The latter is an issue that the whole of Europe is currently struggling with. The uncontrolled influx of immigrants, including those migrating for economic reasons, causes fear of losing their job among Europeans, which in turn translates into the radicalisation of society. A role of the state and the EU institutions is to create an effective mechanism for the protection and support of the unemployed. This is a prerequisite for Europeans to continue the project which is a common united Europe.


2008 ◽  
Vol 9 (4) ◽  
pp. 491-514 ◽  
Author(s):  
Bart Du Laing

The various contributions to this theme issue are likely to have at least two (non-trivial) things in common. First, they aim to contribute to a research project on “Legal certainty for globalized exchange processes” and to the latter's attempts to explain the observed transformation “towards the transnationalization of commercial law, which is understood as a combination of the internationalization and privatization of the responsibility of the state for the production of the normative good of legal certainty for global commerce”. Secondly, they aim to fulfill this task by making use of “evolutionary theory” or, as it was again expressed in the original conference announcement, by dealing with “a theoretical perspective that gives some substance to the meaning of the term “evolution” with regard to law, social organization, and the state”. Since, as I will try to explain shortly, my own particular take on this – it would appear – relatively small set of commonalities involves more specifically the use of contemporary evolutionary approaches to human behavior. I must admit to having been surprised that no one else seemed to have much use for these approaches in their respective takes on the problems that united us in the conference from which this contribution stems. After all, what better use to make of a theory originating from biology than to elucidate the biological underpinnings of our behavior and its underlying psychological mechanisms as they relate to law and legally relevant phenomena? Perhaps some of the reasons for these at first sight, striking differences in opinion on which “evolutionary theory” to make use of, or what meaning to impinge upon the term “evolution” will become clearer in the pages that follow, offering ways in which eventually to combine them. Or perhaps the two things we had in common when we started out will be all there is left to look at in the end.


2021 ◽  
Vol 1 (72) ◽  
pp. 333-349
Author(s):  
Mircea COȘEA

Coronavirus has generated changes and mutations not only in the conduct of our daily lives, but also in the organization and functioning of the economic mechanism at national and global level.The rapid changes and shifts that are taking place in the economy are for the moment the result of the political mainstream, especially the governmental one, and of the system of internationalfinancial institutions. What is visible and certain is the elimination of some limits in giving up ideological principles and established rules of the functioning of the economic mechanism. Thus, the neoclassical ideology, the foundation of the whole scaffolding of the global economic policies, easily compromises by admitting that in the current conditions state interventionism has a more  important role than free market laws in counteracting the effects of the pandemic on the economy. This process easily went beyond the regulations of the liberalization of trade in goods, returning to protectionism with nationalist accents as well as to bans on food and medicine exports. The principle of European solidarity is being threatened by unilateral decisions taken by Member States, or by the abandonment of European agreements in order to replace them by national decisions. Globalization was based on the imperative to produce, sell and buy, move, circulate, move on. Its ideology of progress is based on the idea that the economy must definitely replace politics. The essence of the system was the abolishment of limits: more trade, more and more goods, more and more profits to allow money to circulate and turn into capital. This whole concept of development has ceased to be the guiding principle of economic growth and development, thecurrent trend being the return to national borders, if not in a strictly territorial sense, at least in an economic sense. That is why one of the important changes of recent months is the emergence of policies designedto change the meaning of supply chains. Rethinking supply chains is a consequence of border closures or of the sudden closure of transport. It is a critical point of pressure that weighs mainly on car manufacturers and capitalgoods. As a result, there will be a trend of relocating production to European or Maghreb countries where wages remain lower than the European average. Another quick and important change is the one related to the role of the state in the economy, neoliberalism successfully promoting throughout the global economy the idea of the need for the limited role of state decision and state interventionism in the economy. The current change consists precisely in reversing the role of the state from passivity to activity, considered as the only one capable of ensuring an efficient system for managing the pandemic and restarting the economy. For many analysts, the coronavirus crisis could lead to a profound change in the global economic model and in the individual economic behavior.This is an extremely important issue also from the perspective of Romania's future. We are at a turning point and will have to make quick and complex decisions, because Romania risks entering a post-crisis period in an economic stagnation difficult to overcome, due to the lack ofproductivity, innovation and modern management. The gaps between Romania and the vast majority of European countries will be maintained, condemning us to occupy a marginal and lower place in the hierarchy of the European economy, characterized by a high and dangerous degree of dependence on the evolution and dynamics of markets in the strong states of the European Union. The explanation of this situation lies in the type and functioning of the structure of the Romanian economy. The current structure of the Romanian economy lies on the last concentric circle of European integration, if its center is considered the western core of theEU. There is no doubt about this inevitability. The crisis caused by the pandemic already exists and despite the optimism of some international financial institutions it will profoundly affect the state of the world economy and the life of the citizens. There will be not only major changes in the paradigm of the neoliberal model of the global economy but also changes in the balance of power between the world's major economic and political actors. The trade war between the USA and China is also beginning to have important political aspects, as the fight for world leadership between these two superpowers is generating tensions over the entire world. These tensions will surely have many "collateral victims" through the direct and indirect damage that many national economies, even the European Union, will suffer, as a result of the economicand political consequences of the US and China entering a state that some Western analysts define as " a cold war but with a tendency to warm up". These elements will aggravate the pressure that the pandemic crisis will put on the state of the world economy, determining the extent and depth of the effects of the crisis not only on the economic field but also on the balance and stability of international relations.Keywords: coronavirus crisis; value chains; multilateralism-unilateralism; protectionism, neoliberal global economic model. 


Author(s):  
Seyhan Taş ◽  
Mehmet Akif Kara ◽  
Sena Türkmen ◽  
Enver Günay

It is observed that regional economic policies, which are applied to reduce the regional imbalances and to improve the income and employment in underdeveloped regions, tend to change in time. This change in turn brings out the concept of regional competition. This change also reflects the state’s policy tools, while the concept of regional efficiency becomes to be determinative in state’s regional economic policies in addition to the concept of regional equality. In this context the public policies of regional level can be said as following: first to develop regional infrastructural investments, second; to support the small and medium sized firms and the clusters around them which can stimulate internal potential of the region, and to develop the technological and innovative frames of the firms. Similar changes occur in Turkey as well together with the European Union membership process, while the concept of regional competition begins to shape the regional economic policies with the legal and institutional arrangements. In this study, we tried to assess the changing role of the state, especially from the point of Turkey, in the regional development policies.


2021 ◽  
Vol 106 (6) ◽  
pp. 155-166
Author(s):  
Anatoliy Boyashov ◽  

Having developed into a political and ideological concept since the 1990s, global governance has evolved as a priority of the European Union. Although the EU promotes the idea of state decentralization within global governance at the UN, in the EU itself the state is paramount. This article examines the structure of the complex networks of the UN Human Rights Council. The scholarly problem of the article is the contradiction between the key decision-making role of the state in the HRC and increasingly complex social networks of the UN system. The Council is structured in a way that ensures the active participation of transnational corporations, NGOs, and EU supranational institutions in its agenda. Does this hypothetically mean that the role of the state in the UN system and in international affairs is declining? The focus of this article is on the ties between states, NGOs, and international organizations in the UN Human Rights Council. These ties suggest that the state is included in complex networks and enhances their sustainment.


Author(s):  
Hanri Mostert ◽  
Tjakie Naude

This chapter scrutinizes the role of the state in ensuring electricity supply and protecting end-consumers along a spectrum of energy market models. On the one end, there are markets dominated by virtual state monopolies, such as the South African example, where supply and consumer protection take on a different shape, compared to those on the other end of the spectrum, where distribution of energy to end-consumers is privatized. The European Union (EU) exemplifies the latter. Analyses of both the Australian and Nigerian models of energy supply and end-consumer protection are included to demonstrate variations within privatized markets, and comment on the role of the state in implementing privatization. Issues of procedural and participatory justice are considered. Social justice issues are raised, furthermore, in that the type of consumer protection in a system is influenced by the degree of affluence of the community and the resilience of the system of governance.


Author(s):  
Tassos Giannitsis

The chapter focuses on the role and impact of public policies on Greece’s economic development mainly in the period after 1974. The aim is to investigate the key interactions between state policies and economic development, identify the factors hampering or driving economic development during this long period, provide a deeper insight into the links and causalities between the short- and long-term dimensions of policy-making and its nexus to economic development, and reveal the underlying social and political dynamics. In a first part, the focus is on the long-term determinants of Greece’s post-war development, (role of the state, weak technological and innovation capabilities, macroeconomic imbalances, over-indebtedness, and pension system). In a second part, six major phases are distinguished and the focus is on the economic performance, the role of governance, deindustrialization, and structural weaknesses, the significant changes regarding the integration of Greece into the European Union and the eurozone, and the unfolding of the business sector during these phases. Regarding the crisis period, the chapter examines how besides its macroeconomic nature, the crisis was also the outcome of accumulated structural weaknesses and inappropriate long- and short-term policy choices. Finally, it displays the complexity involved in overcoming deeply entrenched attitudes and behaviours, including government practices, which appear to generate satisfactory results in the short- or medium-run, but make necessary extensive and highly painful interventions at later stages.


2016 ◽  
Vol 61 (S24) ◽  
pp. 243-262 ◽  
Author(s):  
Max Koch

AbstractThis article examines the changing role of the Swedish state in employment and welfare regulation in an environment that has become more market driven, commodified, and Europeanized. It begins with a theoretical reflection on the role of the state in capitalist development and a review of the recent debate on the spatiality of state regulation: the state as employer, redistributor, and arbiter, and as a shaper of employment relations and welfare. In the latter role, the state is conceptualized as employer, guarantor of employment rights, and procedural regulator, as intermediating neo-corporatist processes, as macroeconomic manager, and as welfare state. From this theoretical basis, the paper identifies changes in state employment and welfare regulation by comparing two periods: the original and mainly nation-state-based founding stage of the Swedish welfare and employment model as it developed after the 1938 Saltsjöbaden Agreement, and the period after Sweden’s accession to the European Union in 1995.


2014 ◽  
Vol 42 (1) ◽  
pp. 1-22 ◽  
Author(s):  
Michelle Welsh

Traditionally corporate law has been viewed as having characteristics that are commonly associated with private law. Largely this view developed as a result of the “law and economics” scholarship which dominated the corporate law debate, especially in the United States, in the last quarter of last Century. While the traditional “law and economics” approach supports the view that corporate law should be treated as a branch of private law, and that the state should have no role in its enforcement, other scholars, particularly those that adopt a progressive approach, argue that corporate law has, and should be recognised as having characteristics that are usually associated with public law. Arguably, an area of Australian corporate law that displays characteristics that are usually associated with public law is the statutory directors’ duties and the civil penalty regime that supports them. This enforcement regime gives the state through the corporate regulator, standing to take court based proceedings to enforce what are in effect, contracts that established corporate governance structures. This article seeks to determine the appropriate role of a public regulator in these circumstances. The questions considered are: whose interests should the public regulator represent when it is tasked with the responsibility of enforcing the statutory directors’ duties that largely codify fiduciary and common law duties? Given that the duties are owed by directors to their company should the primary role of the public regulator be to represent the interests of the company, and its shareholders, who have suffered a loss as a result of the alleged contravention of the directors’ duties or should the primary role of the public regulator be to act in the interests of the members of the larger community? In these situations what are the interests of the larger community? Drawing on regulatory theory the argument advanced in this paper is that despite the fact that the statutory directors’ duties codify what are in effect private rights between directors and their companies, the primary role of a public regulator is not to utilise the enforcement mechanisms at its disposal in order to obtain compensation for companies who have suffered a loss. Rather, the regulator's primary role is to act in the interests of the larger community by utilising the enforcement mechanisms at its disposal strategically in order to encourage greater compliance.


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