A Cosmopolitan Legal Order

2018 ◽  
Author(s):  
Alec Stone Sweet ◽  
Clare Ryan
Keyword(s):  
Legal Order ◽  
Fundamental Rights ◽  
Constitutional Theory ◽  
Nation State ◽  
Public Officials ◽  
Rights Protection ◽  
Perpetual Peace ◽  
The World ◽  
European System ◽  
Constitutional Justice

The book provides an introduction to Kantian constitutional theory and the European system of rights protection. Part I sets out Kant’s blueprint for achieving Perpetual Peace and constitutional justice within and beyond the nation state. Part II applies these ideas to explain the gradual constitutionalization of a Cosmopolitan Legal Order: a transnational legal system in which justiciable rights are held by individuals; where public officials bear the obligation to fulfil the fundamental rights of all who come within the scope of their jurisdiction; and where domestic and transnational judges supervise how officials act. The authors then describe and assess the European Court’s progressivie approach to both the absolute and qualified rights. Today, the Court is the most active and important rights-protecting court in the world, its jurisprudence a catalyst for the construction of a cosmopolitan constitution in Europe and beyond.

Dialogic constitutionalism and judicial review

2020 ◽  
Vol 9 (3) ◽  
pp. 506-514
Author(s):  
SEYLA BENHABIB
Keyword(s):  
Judicial Review ◽  
Legal Order ◽  
European Convention ◽  
The European Union ◽  
Public Officials ◽  
Rights Protection ◽  
Legislative Authority ◽  
The People ◽  
Constitutional Justice ◽  
Representative Function

AbstractIn A Cosmopolitan Legal Order: Kant, Constitutional Justice and the European Convention on Human Rights, Alec Stone Sweet and Clare Ryan reconstruct Kant’s legal philosophy as a program of cosmopolitan legal order (CLO). A CLO is defined as a multi-level, judicialized, transnational system of rights protection that confers on all persons, by virtue of their humanity, the entitlement to challenge the rights-regarding decisions of public officials, who are under an obligation to assure the equal juridical status of all. The authors illustrate this claim with respect to the development of the ECtHR and the Court of Justice of the European Union. While generally agreeing with their argument, I claim that they minimize the republican aspects of Kant’s political philosophy in favour of strong judicial review. After outlining republican and democratic objections, I claim that their book illustrates a model that I call ‘dialogic constitutionalism’. Dialogic constitutionalism does not neglect legislative authority, but places it in a conversation with judicial authority, whether domestic or transnational; such conversations can serve to upgrade standards of rights protection over time and are not frozen precommitments. Constitutions also have a representative function of standing for the intergenerational continuity of the people, whereas legislatures are bound by electoral cycles.

Introduction and Overview

2018 ◽  
Author(s):  
Alec Stone Sweet ◽  
Clare Ryan
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
Fundamental Rights ◽  
European Convention ◽  
Constitutional Theory ◽  
Combined Effects ◽  
Public Officials ◽  
Law And Politics ◽  
Do So

This introductory chapter defines the concept of a cosmopolitan legal order (CLO), and provides a summary overview of the book. A CLO is a transnational legal system in which justiciable rights are held by individuals, all public officials bear the obligation to fulfill the fundamental rights of every person within their jurisdiction, and domestic and transnational judges supervise how officials do so. In Europe, such an order emerged as a product of the combined effects of Protocol no. 11 (1998) of the European Convention on Human Rights (ECHR), and the incorporation of the Convention into national law. The book explicates the European CLO in light of Kantian constitutional theory, which is applied to the law and politics of the ECHR regime.

scholarly journals SOVEREIGNTY AND THE MOTION TO IMPEACH BRAZIL’S PRESIDENT

2018 ◽  
Vol 4 (5-6) ◽  
pp. 110-148
Author(s):  
Vania Siciliano Aieta ◽  
Ricardo Lodi
Keyword(s):  
Public Policies ◽  
Legal Order ◽  
Fundamental Rights ◽  
The Political ◽  
Economic Downturn ◽  
Popular Vote ◽  
Public Officials ◽  
Serious Injury ◽  
Internal Plane ◽  
Political Game

This article aims to demonstrate that public policies involving the economy follow, in their process of formulation, implementation and especially results, different paths than those for the exercise of political power.This involves a question of decisions. The decisions of public officials and even of judges are not aseptic, but instead ideological.Economic crises and political disaffections over these choices cannot serve as justifications for removing that leader, elected by popular vote, especially when the “rules of the political game”, have all been respected.When democracy is threatened by such incidents, motivated by an economic downturn, notably in supposed exceptions that in reality flaunt the constitutional and legal order, we are faced with a serious injury to sovereignty in the internal plane, perhaps even a coup d’état.This article will analyze the question of the motion to impeach Brazil’s president, demonstrating there is no legal support because she has not committed any act of malfeasance in office. And we conclude that in name of seeking more successful economic results, to serve political demands that are most of the time instigated by ideological passions, a society cannot ride roughshod over fundamental rights assured by the Constitution.

scholarly journals SOVEREIGNTY AND THE MOTION TO IMPEACH BRAZIL’S PRESIDENT

2018 ◽  
Vol 4 (5-6) ◽  
pp. 110-148
Author(s):  
Vania Siciliano Aieta ◽  
Ricardo Lodi
Keyword(s):  
Public Policies ◽  
Legal Order ◽  
Fundamental Rights ◽  
The Political ◽  
Economic Downturn ◽  
Popular Vote ◽  
Public Officials ◽  
Serious Injury ◽  
Internal Plane ◽  
Political Game

This article aims to demonstrate that public policies involving the economy follow, in their process of formulation, implementation and especially results, different paths than those for the exercise of political power.This involves a question of decisions. The decisions of public officials and even of judges are not aseptic, but instead ideological.Economic crises and political disaffections over these choices cannot serve as justifications for removing that leader, elected by popular vote, especially when the “rules of the political game”, have all been respected.When democracy is threatened by such incidents, motivated by an economic downturn, notably in supposed exceptions that in reality flaunt the constitutional and legal order, we are faced with a serious injury to sovereignty in the internal plane, perhaps even a coup d’état.This article will analyze the question of the motion to impeach Brazil’s president, demonstrating there is no legal support because she has not committed any act of malfeasance in office. And we conclude that in name of seeking more successful economic results, to serve political demands that are most of the time instigated by ideological passions, a society cannot ride roughshod over fundamental rights assured by the Constitution.

UN Sanctions and Judicial Review

2007 ◽  
Vol 76 (1) ◽  
pp. 1-17 ◽  
Author(s):  
Nikolaos Lavranos
Keyword(s):  
European Union ◽  
Security Council ◽  
Judicial Review ◽  
Legal Order ◽  
Fundamental Rights ◽  
Rights Protection ◽  
European Court ◽  
Un Security Council ◽  
Ec Law ◽  
Community Legal Order

AbstractThis article analyses the way UN sanctions are implemented in the European legal order. As a basis for the analysis, the European Court of First Instance's (CFI) rulings in the Yusuf/Kadi/Ayadi 1 cases and the European Court of Human Rights's (ECrtHR) judgment in the Bosphorus 2 case are applied. The main critique of the author is that the CFI misconstrued the hierarchy of norms within the Community legal order when it argued that the EC/EU (European Community/European Union) is bound by UN Security Council resolutions in the same way as the Member States. Moreover, the conclusion drawn from this by the CFI that UN law enjoys supremacy over primary EC law is also rejected by the author. Finally, it appears that European courts are unwilling to provide judicial review against UN sanctions, which results in a lacuna concerning fundamental rights protection for affected individuals and organisations.

scholarly journals “There is no home for me in this world”: States of statelessness and the need to deterritorialize human rights

2010 ◽  
Vol 2 (1) ◽  
Author(s):  
Maria-Carolina Cambre
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Nation State ◽  
World Today ◽  
Or Groups ◽  
The World ◽  
No Man's Land ◽  
The Individual ◽  
Right To Refuse ◽  
The Doors

There are millions of people in the world today who ‘reside’ in no place. Technically, though, no place simply means a non-existent place, which by extension annuls the existence of these people. May of these are from areas where they not recognized as citizens, and from where they have been uprooted because of war and related upheavals. In these instances, these have no other choice but to seek other places to live. It is indeed, when the doors are shut and they are not accepted in the new places that they become denationalized and trapped in ‘no-man’s land.’ Such acts of exclusion are dehumanizing, painful and should not be accepted in our world. In this paper, I argue that this widespread problem exists due to lack of basic citizenship and human rights possibilities. The problem is also attached to specific understandings of sovereignty and human rights where, in the case of a conflict, for example, whatever the nation-state almost always takes precedence over the fundamental rights of the individual and/or groups.  Indeed, this problematic reality is discursively (as well as pragmatically) located within the human rights, and related governance debates, which always display some form of conceptual and practical disconnect between the nation-state’s right to refuse entry, and an individual’s right for asylum.

A Kantian System of Constitutional Justice

2018 ◽  
Author(s):  
Alec Stone Sweet ◽  
Clare Ryan ◽  
Eric Palmer
Keyword(s):  
Structural Features ◽  
Constitutional Court ◽  
Universal Principle ◽  
Public Officials ◽  
Rights Protection ◽  
Positive Law ◽  
Basic Criterion ◽  
The People ◽  
Constitutional Justice ◽  
Proportionality Principle

This chapter develops an account of a Kantian system of constitutional justice based on a series of interlocking claims: (i) that the People have placed their freedom in trust, in the form of a charter of rights; (ii) that rights provisions instantiate the foundations on which the external freedom of all persons may be constructed; (iii) that public officials are under a duty to make and enforce law in ways that fulfill the rights of persons that come under their authority; (iv) that an omnilateral trustee, a constitutional court, supervises the lawmaking activities of officials, through the enforcement of the Universal Principle of Right (UPR); and (v) that the UPR, as operationalized through the proportionality principle, lays down the basic criterion for the legitimacy of all positive law. Insofar as these structural features combine to render rights protection more effective, they will also maximize a polity’s capacity to achieve a Rightful condition.

A cosmopolitan legal order: Constitutional pluralism and rights adjudication in Europe

2012 ◽  
Vol 1 (1) ◽  
pp. 53-90 ◽  
Author(s):  
ALEC STONE SWEET
Keyword(s):  
Human Rights ◽  
Legal System ◽  
National Level ◽  
Structural Transformations ◽  
Legal Order ◽  
Fundamental Rights ◽  
European Convention ◽  
Public Officials ◽  
Law And Politics ◽  
Constitutional Pluralism

AbstractThe European Convention on Human Rights is rapidly evolving into a cosmopolitan legal order: a transnational legal system in which all public officials bear the obligation to fulfill the fundamental rights of every person within their jurisdiction. The emergence of the system depended on certain deep, structural transformations of law and politics in Europe, including the consolidation of a zone of peace and economic interdependence, of constitutional pluralism at the national level, and of rights cosmopolitanism at the transnational level. Framed by Kantian ideas, the paper develops a theoretical account of a cosmopolitan legal system, provides an overview of how the ECHR system operates, and establishes criteria for its normative assessment.

On the Foundations of International Law

1945 ◽  
Vol 39 (2) ◽  
pp. 231-243
Author(s):  
John P. Humphrey
Keyword(s):  
International Relations ◽  
International Law ◽  
Middle Ages ◽  
Legal Order ◽  
Brute Force ◽  
The World ◽  
European System ◽  
International Legal Order ◽  
Independent States ◽  
Potential Enemy

Since the collapse of the European system of the Middle Ages and the birth of modem international law most jurists have worked on the assumption that the principles underlying the international legal order are radically different from those that lie at the base of national law. With the disintegration of the authority of the Pope and the Emperor there had come into being a number of independent states that recognized no political superior and hence considered themselves as equals. In their relations with each other, at least, these states acted like the sovereign bodies which in fact they were. In so far as international relations were concerned the world had returned to a condition of complete anarchy. The states of the world lived in that condition of natural equality described by Hobbes where each was the potential enemy of every other. In the formulation of their policies and in their acts each state took into account its own interests only and when these interests came into conflict, as they inevitably did, the only arbiter was brute force.

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