Book of panels and abstracts
Rule of law as a foundation of Polish constitutionalism and liberalism at the turn of 18th and 19th century
Download 0.92 Mb.
|
- Navigate this page:
- Rule of French Commercial Law in the Polish Territories
- Panel 4
- Decline of the Rechtsstaat in Turkey: An Analysis through Schmitt’s Articles at the Dawn of Nazi Power
- Liberties Under Siege: The Liberal Democratic Partys Draft Constitution for Japan and the Regression of the Rule of Law
- Panel 5
- European Court of Human Rights and the Case of Turkey: A failure in the enforcement of liberal ideals
- Distorted Communication at the European Court of Human Rights
- History Against Rules: History against Rules: Is the Nationalistic Quest for Returning the Cultural Properties of Ancient Kingdoms Dangerous to the Rule of Law
- The Precariousness of (Constitutional) Rights: Investigating the Charter-Interpreting Process
- Indonesia and the Challenge of Legal Pluralism and the Rule of Law
- 6. FROM CRISIS TO RESILIENCE: SPATIAL JUSTICE IN AN AGE OF AUSTERITY
Rule of law as a foundation of Polish constitutionalism and liberalism at the turn of 18th and 19th century Michał Gałędek, University of Gdańsk In this paper, I intend to seek an answer to the question about the characteristics of Polish constitutionalism in the first half of the 19th century, viewed from the perspective of the role played in it by the Polish Republican tradition of the 18th century. The main point of reference is Polish attachment to rule of law understood as legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of government. In seeking this answer, I am guided by the premise that, to a large extent (yet not only), the answer is hidden in the system-related debates held directly prior to the issuing of constitution of the Kingdom of Poland by Alexander I in 1815. The general thesis to be verified is that the world-view revolution that took place in late 18th and early 19th century, prompted by the founding of the French Revolution, Napoleonic epic and the crystallization of liberalism, left a sufficiently lasting impression on the Polish political and intellectual elites. And so, when they embarked on the project of building foundations of the system of their own state following the demise of the Duchy of Warsaw, they did not decide to take a more unequivocal turn towards the Polish political tradition, though it seemed to have satisfied all the necessary conditions. This happened even though the Polish constitutional heritage from late 18th century, and particularly the Constitution of 3 May 1791, had achieved the status of a symbol, of an indisputable value and of an object of national pride; despite the fact that it was imbued in the national imagery as lasting patrimony of native political thought, constantly referred to on the symbolic plane. However Polish attachment to rule of law seems to be an exception. I am going to analyse it. Rule of French Commercial Law in the Polish Territories Anna Klimaszewska, University of Gdańsk - anna.klimaszewska@prawo.ug.edu.pl The Polish commercial law of the 19th century developed along a specific trajectory. In 1807, Napoleon established the Duchy of Warsaw, as a result of which French legislation from various branches of the law, especially private law, was successively adopted in this state. Besides the Civil code and the Code of civil procedure, also the Commercial code of 1807 was promulgated. It was, however, 'hurdled' into a legal reality that was feudal, particular and largely customary, in which there had never been any commercial code before, which entailed a number of ensuing problems. How, then, was its potential put to a use? Did the Polish legislator employ Code de commerce consciously and purposely to change the existing economic reality? To what degree the foreign institutions, adopted to the French reality, exerted an influence on the shaping and development of economic relations on the Polish territories, whose specificity was so starkly different? What was the reaction of the Polish society to the new institutions, which appeared suddenly, without time for gradual development? In other words: how did the Polish society perceive the French commercial law and to what degree (if at all) did it use it? In my presentation, I will refer to the reactions to Code de commerce on three different levels: (I) the statutory one; (II) of scholars, and of the representatives of the society who participated in the commercial life of the country (III). Panel 4 Chair: Kimberley Brayson Judicial Politics and the Rule of Law Konrad Kobyliński, University of Silesia - Kobylinski.konrad@gmail.com The term judicial behaviour refers to what judges do as judges. Judicial decision making is the most evident form of judicial behaviour. There are two points of view about judicial decision making: the legal perspective, in which the behaviour of judges is explained by law and formal procedure and the attitudinal perspective, in which personal values and social factors play a crucial role in decision making. In political science, the Attitudinal Model suggests that judicial outcomes are driven by judges' sincere policy preferences - judges bring their ideological inclinations to the decision making process and their case outcome choices largely reflect these policy preferences. It is quite obvious that most judges see their own behaviour in terms of legal behaviour. In this model judges only want to find the correct interpretation of law. In the attitudinal perspective, law is a rationalization for judicial decision making, because it is too general and imprecise to determine the decision. The law does not constrain judicial decision in any meaningful way. I will argue that the proper framework for judicial behaviour research is goal-based analyses, and that the content of legal policy and legal accuracy are the most important goals that judges are trying to achieve. But sometimes an obvious contradiction between these two goals emerge. Legal participants act as if the law matters, they are trying to find legal arguments and doctrinal explanations that fit their policy preferences. C. Herman Pritchett, one of the pioneers of judicial behaviour, considered three types of attitudes:
For many judicial behaviour scholars, legal policy is the most important goal that drives judicial decision making. However, as studies have shown, the role of legal policy in judicial decision making depends on the level of the judiciary. The third type of attitude was called structural preferences. No Supreme Court or Constitutional Court does not exists in an institutional vacuum. Justices can only maximize their policy goals by reacting to the constraints imposed by other significant players in the Court’s political and institutional environment. It has been suggested that “judges’ decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do” (J.L. Gibson, From simplicity to Complexity: The Development of Theory in the Study of Judicial Behaviour, Political Behaviour 5, 9) . This constatation leads us to another model of judicial behaviour – strategic model. “In most strategic models judges seek to make good policy, but they define good policy in terms of outcomes in their court and in government as a whole” . It is unquestionable that, at some level, all political and social behaviour must be explained in reference to individual values, attitudes or personalities. But all these factors should be explained in contexts of their occurrence. In my paper I will try to examine the policy implications of extra – legal models of judicial behaviour, especially their significance to the rule of law idea. Decline of the Rechtsstaat in Turkey: An Analysis through Schmitt’s Articles at the Dawn of Nazi Power Berke Özenç, Turkish-German University in Istanbul - ozenc@tau.edu.tr Rechtsstaat is the legitimate organizational form of the modern political power at the age of liberalism. The promise to be a Rechtsstaat is also a constitutional component of the legitimacy building of the Turkish Republic, whose constitution define it as a democratic, social Rechtsstaat. Although the promise of Rechtsstaat has been distorted so many times during the history of the Republic, policies of AKP government, especially after the Gezi resistance, have gained a novel feature which is implicated in two major break points in its path towards a Rechtsstaat. The first major break point can be defined as the decline of the public trust in the idea of state's neutrality. This has been the result of the state's attempts to resolve political conflicts through political trials, government's interventions in the judicial power and the extreme violence against the protesters in big cities, most of whom have never faced with the brutality of the state before, unlike the Kurds in south-eastern Turkey. The second break point, on the other hand, happened to be a more fundamental one. Since Gezi protests, the political power in the leadership of Erdogan has tried to establish its legitimacy not on legality and impersonal order but on a kind of survival strategy, which comes into being in the form of an ongoing state of emergency. In this paper, I will use Schmitt’s perspective on Rechtsstaat in order to conceptualize the recent shift towards authoritarianism and one man rule in Turkey. I will analyse recent political developments based on Carl Schmitt’s articles, which were written at the dawn of Nazi Power. I will argue that Schmitt’s attempt to redefine Rechtsstaat by replacing the legal security with the justice and his glorification of Führer’s “will” as a personal political power instead of liberal promise of stabile and impersonal order offer some insights to understand the ongoing transformation of the political sphere in Turkey. Liberties Under Siege: The Liberal Democratic Party's Draft Constitution for Japan and the Regression of the Rule of Law Keisuke Abe, Seikei Unviersty - abekei.seikei@gmail.com Japan’s ruling Liberal Democratic Party and its allies won a sweeping victory in this year’s upper house election, achieving the two-thirds supermajority necessary for putting constitutional change to a national referendum. For the first time in history, there are now enough votes to propose a constitutional revision in both houses of the Diet. Political changes towards such direction have been taking place for some time. In 2015, the Diet passed a package of security bills loosening constraints on the use of force so that the Self-Defense Forces would be able to play an open-ended role in war zones around the world, drastically modifying the interpretation of Article 9 of the Japanese Constitution, which had long been thought to prohibit the exercise of collective self-defense. Against the backdrop of the rise of Chinese military power in the Asia-Pacific region, Prime Minister Shinzo Abe seems determined to replace the present pacifist constitution with a new one, with less protection of civil rights and liberties and more flexibility to take military actions. The LDP’s draft constitution, however, is often viewed as a deviation from the tradition of constitutional democracy. If adopted, it would impose on every citizen a duty to salute the flag; it would also allow the government to limit freedom of speech when the maintenance of public order so requires. Most noticeably, it would eviscerate the doctrine of separation of church and state, opening the door to direct government participation in Shinto rituals. Its approval could pave the way to theocratic monarchy similar to the one Japan experienced in the past. Is Japan able to defend itself effectively without amending its constitution, which was drafted in 1946 by General Douglas MacArthur’s advisers—who clearly intended to disarm Japan? Will the Abe administration be able to initiate legal change without raising the specter of nationalism? Combining insights from constitutional law, history, and politics, the presenter will explore answers to these and other questions and forecast the future of the rule of law in Japan. Panel 5 Chair: Paulina Święcicka ‘Burqa Avenger’ and the paradoxes of the secular subject Giorgia Baldi, Birkbeck - Baldi.giorgia@yahoo.it The current debate over the hijab is often understood through the lenses of a ‘clash of civilizations’ between a tolerant ‘secular’ ‘west’ and a chauvinist ‘religious’ ‘east’. This article argues that this polarization is the result of a specific secular semiotic understanding of religion and religious practices which is nowadays embedded in western law. In fact, the fixed symbology attributed to the practice of veiling by many European judges emerges as a useful tool not only to re-configure religious sentiments in the public sphere, but also to create a specific religious subject based on secular thought. This re-conceptualization of religious practices has been rendered necessary in order to save unity and homogeneity of a heterogeneous and fractured Europe. European Court of Human Rights and the Case of Turkey: A failure in the enforcement of liberal ideals? Esra Demir-Gürsel, Marmara University - esdemir@gmail.com The European Court of Human Rights has been widely regarded as aninfluential institution having a significant impact on the domestic legal orders of the state parties to the European Convention on Human Rightsin the enforcement of the liberal ideals of human rights, democracy and the rule of law.Turkey, however, has almost always ranked among the top three in the violations of the rights protected under the European Convention,although it has recognized the jurisdiction of the European Court many years ago.Furthermore, recent events in Turkey indicate that human rights violationsof the state havegaineda more systematic character particularly in relation to its so-called "war on terror".Turkey's obligations under the European Convention do not seemingly prevent it from violating Convention rights.In the face of large-scale human rights violations, doesthe incomplianceof Turkeywith the Convention indicate a failure on the part of the European Court of Human Rights in the enforcement of theliberal ideals of human rights, democracy and the rule of law?And does the Court's ineffectiveness against suchincompliance constitute a rupture in the path towards the realization of these ideals?In this paper, I will address these questions by investigating into the historical records produced during the preparatory workfor the drafting of theEuropean Convention. I will argue that the Convention was more of a product of its founders' motivations to protect the European states as liberal nation-states and to maintain a liberal inter-state order within Europethan to protect every single human being from state interventions. Informed by this argument, I will first discuss the legal mediums applied by the Court in line with these motivations and than try to explain the ineffectiveness of the Court in the example of therecent systematic human rights violations of Turkish state. Distorted Communication at the European Court of Human Rights Kimberley Brayson, University of Sussex - K.D.Brayson@sussex.ac.uk This paper challenges existing orthodoxy at the European Court of Human Rights as the highest constitutional court for Europe using a discourse theory analysis. The paper takes up the methodological tools developed by Jürgen Habermas in The Theory of Communicative Action as a normative yardstick by which to diagnose and test the human rights discourse developed under the European Convention on Human Rights. The paper focuses in particular on the issue of Islamic dress in Europe as presenting a challenge to the liberal vision of fundamental rights. The paper examines the extent to which the jurisprudence developed by the ECtHR in this area can be considered “systematically distorted communication” in the sense defined by Habermas, with the aim of highlighting systematic discrimination against women who wear Islamic dress. As such the paper sheds light on the normative role that this case law plays in reinforcing existing popular attitudes and shaping social morés on the issue of Islamic dress in Europe. Understanding of this divisive issue is imperative in a society which continues to become ever more diverse and where Muslim women continue to experience an increase in verbal and physical hate crime. The application of the critical theory of Habermas to the case law of the ECtHR is borne out of a need to identify and analyse the deep structures functioning behind the case law of the ECtHR in cases concerning Islamic dress. The ECtHR is not an apolitical arbitrator and what this paper aims to do is to expose the external political and economic forces at play which influence the decision making processes of the ECtHR. The paper concludes that given the ECtHR’s reliance on state acquiescence for its very existence, all decisions made by the ECtHR ultimately constitute “distorted communication”. Panel 6 Chair: Giorga Baldi (tbc) History Against Rules: History against Rules: Is the Nationalistic Quest for Returning the Cultural Properties of Ancient Kingdoms Dangerous to the Rule of Law? Yoshiaki Sato Seikei University - lcjcij@hotmail.com In 1995, the Korean government designated three volumes of large Prajnaparamita, printed in the eleventh century, as national treasure. It is highly probable that these volumes were stolen by a group of Korean thieves from a temple in Japan. The Japanese government requested the Korean authorities to check the identity of the volumes. The Korean government refused to do so, backed by the popular opinion that it was legitimate to recover the “Korean antiques,” even by means of criminal acts. Here we find a typical argument for repudiating the legitimacy of positive rules of law. It relies on the historical legitimacy and tries to exploit the nationalistic sentiment of the populace. Such arguments seem to increase influence around the world. In particular, the People’s Republic of China and Korea are being more and more assertive for recovering their cultural properties, i.e. remains of their “glorious past”, relying on the historical arguments similar to “irredentism”. In order to establish peace based on the Rule of law, it is necessary to respect positive rules and status quo. The claims whose causes happened too distant in the past should be barred by prescription. If everyone is allowed to bring the historical claim up over and over again, the legal order may become too instable. However, it is true that the history appeals more and more people for challenging the status quo. This presentation will examine the relationship between the Rule of Law and the challenge by historical legitimacy. The Precariousness of (Constitutional) Rights: Investigating the Charter-Interpreting Process Garrett Lecoq, Carleton University - GarrettLecoq@cmail.carleton.ca What are constitutional rights and how do they regulate phenomena in common wealth constitutional models (S. Gardbaum 2013)? Countries that prescribe to this constitutional model, such as the United Kingdom, Canada, and New Zealand share a certain precariousness of rights that follows from the potential for legislative and judicial branches to contest the other’s interpretation of the constitution. This precariousness echoes agonistic conceptions of politics by constantly allowing for one of these branches of the state to disagree with the other (B. Honig 1993). In addition, this precariousness also reifies the problematic liberal conceptions of rights by insinuating that rights do certain (albeit vague) things such as guarantee the right to ‘equality’ or ‘freedom’ regardless of their tendency to be (re)interpreted. The thrust of this paper looks at two recent controversial decisions from Canada’s Supreme Court (Bedford 2013 & PHS Community Services 2011) coupled with the responding legislation from the federal legislature to illustrate how both branches have presented drastically opposing interpretations of s. 7 of the Canadian Charter of Rights and Freedoms. These different readings, while equally legitimate, highlight the precariousness of (constitutional) rights located in their potential to be read in opposite ways, specifically as they relate to my examples of the sex trade and the operation of safe injection sites. By facilitating this stark disagreement between these two branches, the Charter embraces agonistic philosophy in the act of governing sex workers and drug users in distinctly different directions. As such, this paper emphasizes the importance to further examine the constitution-interpreting process as a pivotal link in governing populations through the precarious and agonistic nature of (constitutional) rights in common wealth constitutional models. Indonesia and the Challenge of Legal Pluralism and the Rule of Law Hilaire Tegnan, The Center for Constitutional Study, Andalas University, Indonesia - Tegnan1@yahoo.fr It has been over 70 years since Indonesia proclaimed her independence in August 1945. However, the 350 years of the Dutch colonialism is still impacting the life of the Indonesian people. The difficulties faced by the Indonesian legal system as the government tries to accommodate adat (custom) and religion principles within the national law and the extent to which this legal mechanism affects the everyday life of the Indonesian people from the legal perspective are the main focuses of this paper. It discusses the characteristics as well as the phases of the Indonesian legal system. The research, conducted in 5 Indonesian cities (Aceh, Bali, Batam, Medan, and Padang), reveals that several problems hinder the Indonesian legal system: the foreignness of the law, the neglect of customary law, half century of military and totalitarian regimes, corruption within the state’s apparatus and unsynchronized laws. These obstacles are most certainly threats to the rule of law and lead to a weak legal pluralism. 6. FROM CRISIS TO RESILIENCE: SPATIAL JUSTICE IN AN AGE OF AUSTERITY Stream organisers: Julia Shaw (De Montfort University) and Hillary Shaw (London School of Commerce) The production of space is dependent on a variety of social practices and physical conditions, meaning the experience of space and time varies between particular individuals, groups and cultures: ‘Castles, palaces, cathedrals, fortresses, all speak in their various ways of the greatness and the strength of the people who built them and against whom they were built’ (Lefebvre 1991, 232). Just as social models and relationships are contingent upon and shaped by large scale policies and organising mechanisms such as almanacs, calendars and maps; cultural norms and economic prospects are also influenced by temporal and spatial structures. The spatial turn provides a material grounding from which to address the erosion of jurisdiction in a world of algorithms, globalisation and advanced capitalism. By reconsidering the means by which the physical infrastructure is allocated and appropriated by citizens across the socioeconomic spectrum, it moves towards an understanding of how social justice expresses itself in the technologically mediated urban environment. The figuration of space and its elaborations are no less significant than the spectacle or event. Understood as a form of writing, the organisation of power is able to be read by those encountering it. Spatial metaphors also constitute an imagistic way of thinking which transfers one idea or concept to another; this cross-domain mapping can usefully represent the abstract in terms of the concrete. In this way, technologies of surveillance, policing strategies, areas of separation in the built environment express regimes of order and control which, in turn, describe the nature of a society. For Lefebvre, ‘constructed space – a transparency of metal and glass – tells aloud of the will to power and all its trickery. It is hardly necessary to add that the ‘habitat’ too shares in this spatial distribution of domination’ (1976, 88). Law’s capacity for reinvention as an instrument of politics, finance, commerce or technology for example, is exposed by its proximity to spatial schisms and ambiguities. In precisely the same instant law engages in the allocation and reinterpretation of space, justice is required; so as to interrogate the legitimacy and efficiency of existing legal configurations. Oppressive new globalised systems of governance and their self-destructive structural policies often facilitated by coercive technological innovations have proliferated and further exacerbated the retreat of the state and law. As the pace of change continues to outstrip our potential to control these new sites of opportunity and exclusion, it is necessary to engage in critical socio-spatial justice analysis in the context of, what has become, a seemingly endless era of austerity. Shaw J.J.A., H.J. Shaw (2016) ‘Mapping the technologies of spatial (in)justice in the Anthropocene’, Vol. 25(1) Information and Communications Technology Law (2016) 32-49 Shaw J.J.A., H.J. Shaw (2015) ‘The politics and poetics of spaces and places: mapping the multiple geographies of identity in a cultural posthuman era’, Vol. 12(3) Journal of Organisational Transformation & Social Change, 234-256 Panel 1 Chair: Julia J.A. Shaw Directory: law law -> Law in American Society Black History Month Essay Contest law -> A brand New Image? Should Personality Rights be law -> Jurisdiction of the Courts law -> Luther V. Borden: a taney Court Mystery Solved law -> ‘Intellectual Property Rights in Sport’ law -> The law of tort introduction a. What is a Tort? law -> Law of Delict Chapter 1: General Introduction law -> Appendix C: Federal and Minnesota Case Law Summaries Download 0.92 Mb. Share with your friends:
|