Browsing by Subject "law"

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  • Airaksinen, Timo (2019)
    Abstract: In this paper, I study conspiracy theories as two novelists handle them: Kafka and Sade. Kafka’s depiction of guilt depends on anxiety that refers to nameless accusations. His protagonists may well assume that a conspiracy targets them in a way they can never understand. I explain the logic of the law that embodies such anxiety, in his novels The Trial and The Process. My second example is the Marquis de Sade who gives many examples of conspiracies on his major novels Justine and Juliette. I study two of them, first, the group of murderous monks in Justine and the Parisian secret society called Sodality in Juliette. Both are successful organizations and Sade helps us understand why this is so. I discuss some real life examples of conspiracies. Finally, I compare Kafka, Sade, and their viewpoints: Kafka’s is that of the victim and Sade’s that of the victor.
  • Pijetlovic, Katarina (Springer, 2015)
    This dissertation analyses the legal problem posed by the clauses in UEFA Statutes that prevent clubs from unauthorised formation of alternative transnational structures in football. Unequivocally, these clauses constitute restrictions on economic activities of football clubs in their capacity as undertakings contrary to EU competition and internal market laws, in particular, Articles 101, 102 and 56 TFEU that form the core of EU sports law. More contentiously, however, the heart of the analysis lies in the question of justification and proportionality of the restrictions, which could possibly render the restrictive UEFA clauses legal and enforceable. Over the past 20 years, a solid body of case law, legislation and EU policy documents developed a distinct legal discipline that can be referred to as EU sports law and that can facilitate in resolving this question. The essence of EU sports law lies in the custom-tailored application of traditional economic provisions that takes account of the specificities of sport, a concept that has been given constitutional basis in Article 165 TFEU after the Lisbon Treaty amendments. Moreover, the approach to specificity of sport can be traced back to its origins in 1974 Walrave case, and it forms the basis of the crucial notion of sporting exception in the EU law. This study first highlights the problems in the governance of European football with particular reference to power struggles between UEFA and the elite football clubs and the threats of formation of alternative cross-border leagues by the clubs. Thereafter, the study sets out and discerns the principles underlying the application of EU freedom of movement and competition law to legal disputes in the sports sector, contributing several original interpretations of the key sports cases, such as Bosman, Meca-Medina, Bernard, and Murphy. Most prominent contribution of this thesis to the general study of EU sports law, however, is sketching a novel way of looking at the different categories of sporting exceptions through the prism of convergence between EU free movement law and competition law. The quest for convergence revealed a largely streamlined analytical framework in the sporting cases that involve organisational/regulatory rules and rely on public interest justifications. Finally, thus streamlined framework is applied to analyse the question of legality of the UEFA clauses restricting the formation of breakaway leagues. Some of the conclusions that emerge from this analytical process are surprising, in particular those pertaining to UEFA s power on the relevant market for organisational services for transnational club football in Europe.
  • Praduroux, Sabrina (2012)
    Over the past sixty years, the Council of Europe and the European Union have taken steps to promote respect for fundamental rights in Europe. In particular, the Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights, gave effect to certain of the rights stated in the Universal Declaration of Human Rights and established an international judicial organ with jurisdiction to find against States that do not fulfil their undertakings. Moreover, the European Union laid down human rights principles in the Treaty on European Union and the Charter of Fundamental Rights, which became legally binding with the entry into force of the Lisbon Treaty on 1st December 2009. This means that the Charter applies to the European institutions, and also to EU countries when they implement EU law. Against this framework, my thesis investigates the constitutional dimension of private property, which currently appear to be particularly fragmented and complex due to the ever increasing influence of European law over national laws. In pursuing my research, I choose to employ the methodology of comparative law, which is the most appropriate in treating the different conceptual models of the right of property existing within the various European legal orders. The scope of my study is limited, however, in that it focuses on national law considerations in the French and Italian legal systems. The reasons for selecting these two specific countries arise from connections I draw between the different constitutional and political traditions of the two nations. Considering the continuous interplay between European law and domestic laws, the chief aim of my research is to investigate, first, the impact of European human rights law on Italian and French constitutional traditions in the field of property rights protection, and, second, the contribution of the latter in the establishment of European principles on property as a fundamental right. Interweaving philosophical, economic, and legal strands, my work contributes to a critical understanding of property law dynamics and sheds light on the way that property is currently understood in Europe, especially in Italy and France. Among the arguments arising from my research, the thesis particularly reveals the major role played by the European Court of Human Rights in developing substantive rule of law principles, which also apply to property law and have an appreciable impact on Italian and French law.
  • Mehling, Michael (Helsingin yliopisto, 2020)
    On all regulatory levels, climate policy is undergoing a process of rapid proliferation as well as a paradigmatic shift towards flexible instruments based on voluntary incentives, pricing control, and quantity rationing. While the resulting policy mix has yielded initial successes in various regions and jurisdictions, it has also proven increasingly prone to regulatory conflicts and a general trend towards fragmentation. Arguably, no attempt to face a challenge as pervasive as global climate change can avoid such difficulties entirely. Still, this thesis traces many of the identified shortcomings to a flawed, yet uncritically perpetuated canon of criteria for instrument choice in climate policy, and highlights both conceptual weaknesses and important historical decision processes where these criteria had little or no influence on the final political outcome. Rather than follow a utopian promise of rational and objective criteria, this book argues that stronger consideration of the law and jurisprudential methods can improve the final policy design by avoiding conflicts and tensions while incurring a greater level of legitimacy. It concludes with several recommendations for a coherent policy design at the international, regional and domestic level.
  • Salmenhaara, Perttu (2004)
    Object of the research is immigration political rhetoric and policy implementation in Finland between 1998 and 2004. The time period was fruitful for such research, since during this time the first steps toward common European migration policy were taken, implementation of national integration legislation begun, and discrimination legislation was reformed. At the same time begun a public and administrative discussion about ageing of the population and need for both 'replacement migration' as well as skilled labour from EU member states and third countries. A separate debate about asylum seekers' protection of law has been going on for several years in the public media, as well as between the State of Finland and the United Nations. The aim of the study is to evaluate the concept of 'proactive' immigration policy, represented by the outlines of common EU immigration policy, and evaluate how the developments in Finnish immigration policy between 19982004 corresponded to the objectives of 'proactive' premises. Research methods include argumentation analysis and analysis of policy implementation (outspoken goals / evaluation of effects). Theoretical context was social constructionism and so-called new rhetoric. The results include a Finnish language definition of the concept of proactive immigration policy, and a contradictory concept called reactive immigration policy. Proactivity seeks to prepare in advance to changes that happen in the object of policy and is connected to trans-national approach to international migration and to comprehensive management of immigration (reflective policy). Reactivity is connected to nation-state-based administration, in which immigration as such is seen as a threat since its definitions are connected to security discourses and to a Westfalenian judicial tradition (reflexive policy). Data that was used in the research, include administrative documents, Finnish and EU policy papers, evaluation reports, discussion papers, national and community legislation, official communication between the State of Finland and the United Nations and Council of Europe, press releases, newspaper articles and existing research literature.
  • Diatlova, Anastasia; Näre, Lena Margareta (2018)
    As the external borders between Finland and its neighbouring countries have become more permeable for some migrants after the collapse of the Soviet Union and the EU enlargement, the internal borders have become more ubiquitous and enforced by various kinds of bordering practices. Drawing on a qualitative research on Russian-speaking women engaged in commercial sex in Finland, we have examined the everyday material consequences of policies and bordering practices. We have distinguished different sites in which everyday bordering takes place: rental markets, banking and law enforcement. Our analysis demonstrates the importance of analysing commercial sex from an everyday perspective. This perspective reveals that even women with formal citizenship can be subjected to various bordering practices due to the criminalisation of commercial sex and the stereotypes attached to Russian-speaking women. We have argued for the need to expand on the notion of "depodability" as it not only concerns non-citizens but also naturalised foreigners.
  • Cederbom, Charlotte (Routledge, 2019)
    Routledge Research in Gender and History
    This book describes the ways in which married women appeared in legal practice in the medieval Swedish realm 1350-1450, through both the agency of women, and through the norms that surrounded their actions. Since there were no court protocols kept, legal practice must be studied through other sources. For this book, more than 6,000 original charters have been researched, and a database of all the charters pertaining to women created. This enables new findings from an area that has previously not been studied on a larger scale, and reveals trends and tendencies regarding aspects considered central to married women’s agency, such as networks, criminal liability, and procedural capacity.
  • Zhang, Kangle (Picaset, 2020)
    The workings of the financial market contribute greatly to the exacerbation of income and wealth inequality. The rate of return from capital is significantly higher compared to labour and the extreme structural biases at the global level among states and at the domestic level among different groups of people systemically benefit the haves at the cost of the have-nots. The law is central in enabling these operations. Finance as the architecture that structures economic arrangements (so as to achieve goals by stewarding the assets needed) operates through legal arrangements and, perhaps even more importantly, international legal arrangements have normalized economic disparity. The dissertation starts by describing the link between the international financial market and economic inequality. From there, it [i] examines the law of international finance and its relation to inequality, [ii] suggests an explanation for the nonchalance of the financial system and rules therein towards enlarging inequality, and [iii] proposes the inclusion of international financial market into the purview of international law research—the nexus of an international law of finance. The dissertation suggests that an international law of finance would be a field where international lawyers actively engage with the intertwined network of actors and rules in the financial market, where they master the vocabulary and grammar of finance, dissect the distributive significance of the legal design of the financial market, and make good use of their toolbox by examining the role of state in enabling financial market operations. As a performance of such engagement, the dissertation carries out a case study on credit rating agencies. The study examines the source of authority of this small but ubiquitous group of private actors, the significance of their ratings in both domestic and international financial markets, and their role as a cornerstone in the architecture of international finance—largely constructed by only a small number of states. With the state as the central unit of analysis, the international law of finance could shed light on the various ways in which states contribute to, maintain and reproduce the problems of international finance, thereby broadening the imagination needed to deal with global economic inequality.
  • Kozlowska-Rautiainen, Daria (Unigrafia, 2016)
    This dissertation provides an analysis of the scope and procedure of obtaining documents from the opponent in international commercial arbitration. The goal of this research is to provide an in-depth study of the myriad of detailed questions regarding the procedure and scope of obtaining document production which goes beyond analyzing the differences between common law and civil law practices and takes an international commercial arbitration perspective. The primary aim, however, is not to supply definite answers, but rather to present possible best practices by, for example, discussing various approaches and problematic areas of the topic and also providing the reader with awareness of different aspects that should be taken into account when dealing with document production. To reach this aim, the method of legal dogmatics is predominantly employed. The core of this research is in the interpretation and systematization of international arbitration sources, especially soft law, which provide detailed guidance regarding document production, against the background of legal principles of arbitral procedure. The challenge of conducting research regarding document production is that procedural timetables, document requests, objections and procedural orders are confidential. However, the author of this dissertation had the rare opportunity to research files of ICC cases and anonymized examples from the chosen cases serve as valuable source regarding international arbitration practice. The research is divided into five substantive chapters. In Chapter 2, the framework for document production is discussed. In Chapter 3, the procedure and requirements of the request for documents is analyzed. Here important questions are considered, such as what is the basis of a party s right to obtain documents, how to delimit a narrow category of documents, what is meant by relevance and materiality, can a party request documents relating to issues it does not have the burden of proving and also when are the documents considered as being in a party s control. In Chapter 4, the attention turns to the possible bases for an objection to a document request, such as privilege, confidentiality, data protection, unreasonable burden of production etc. Chapter 5 contains analysis of the questions connected to the actual production, including the tribunal s order to produce or dismiss a production request, the form of production and the consequences of non-compliance, i.e. adverse inferences and financial consequences. In Chapter 6, the issue of national courts assistance in obtaining documents from the opponent is addressed. The detailed results of the analysis are presented throughout this dissertation and the significance of this research is in the discussion of the specific questions. Nonetheless, on the basis of the conducted study certain key findings are also drawn. First, the research shows that many issues can be resolved on the basis of balancing principles of international commercial arbitration. Consequently, there is no need for more regulation. Arbitration needs to remain flexible. Predictability should not be achieved on the level of arbitration rules and soft law, but in specific arbitration proceedings. Second, there are important legal implications relating to production of electronic documents and participants of the arbitral process need to be aware of them. Third, arbitrators are very cautious when making decisions as to not violate possible due process or public policy requirements. In fact, only one arbitral award has been set aside due to a reason connected to a document production question. Finally, with respect to many questions regard-ing the scope and procedure of document production, one can refer to an international commercial arbitration approach.
  • Glover, Edinam (Helsingin yliopisto, 2020)
    Many countries in sub-Saharan Africa have seen considerable concern about the depletion and loss of natural resources due to over exploitation and other socio-economic activities. This menace of resource degradation threatens the stability of the ecosystem, food security, national and international security, and the very survival of life of people in the region. The general aim of this research is to explore how the legal development during colonial times - with forests and forest activities becoming colonial property and under colonial authority, and with the exercise of police power - in many ways contradicted and broke up the traditional customary law in the Sudan. More specifically, the study describes the major elements in the development of forest law in the Sudan: Prior to the colonization, during the colonization by the British from late 18th century to independence in 1956, and elements of the development of the forest law after independence. It seeks to analyse the legal mechanisms for enforcement and implementation in the broader context of sustainable development in the Sudan: It examines the enforcement from the perspective of its relationship with environmental laws. It examines a wide range of laws and conventions that have an indirect impact on forest conservation and development. It attempts to answer the following questions: What are the legal enforcement mechanisms that help to enhance compliance with the rule of law and promote sustainable development? What are the obstacles that hinder the enforcement and implementation of these legal mechanisms? What was the forest policy and legislation in Sudan during the colonial era? What changes, if any, occurred or should have occurred? Looking into the future, what may be expected, and how could it be made better than today? This study complements qualitative content analysis (QCA) with mono-disciplinary legal research data. Qualitative content analysis largely involved the use of data derived from a range of primary sources of Environmental Law such as domestic and regional law, early 20th-century English colonial law and customary law as evidenced by national legislation, government statements and restatements. The data have been analysed by means of content analysis. Results indicate that legal mechanism that can help to enhance compliance with the rule of law may include public awareness and participation, conservation orders, environmental permitting and licensing system, and environmental impact assessment. It has been shown in this study that the received law forms an essential or basic element of forest legislation and development in the Sudan and as far as law does not fulfil people’s needs, they do not consider it as binding. In addition, the evidence seems to indicate that the colonial era laws have not been compatible with Sudanese pre-existing social norms and have not been well received and thus implemented. Findings demonstrate that in a bid to tackle land use issues, the government of the Sudan has created the necessary enabling environment by putting in place environmental policies and legislation as well as setting up a wide range of institutions that handle various aspects of resource management such as law enforcement, policy formulation, research, and creation of awareness. The evidence seems to be strong that the government has provided some level of legal recognition to customary and state land tenure. Despite the above efforts, environmental degradation in Sudan is still a major concern. The study suggests that efforts must be made to encourage an internal process of law development and to produce a self-sustaining demand for legal innovation and change. The conclusion from the study is that the most common explanation for non-compliance is inadequate monitoring and enforcement of law. Weakness in the rule of law has grave consequences in minimizing progress towards sustainable development. Keywords: Compliance, colonialism, enforcement, environmental changes, foreign law, legal mechanisms, natural resources, sub-Saharan Africa, the Sudan
  • Emelonye, Uchenna (Helsingin yliopisto, 2014)
    Abstract This thesis adopted the law in context methodology after due consideration of other legal research methodologies. To situate child justice within the parameters of child rights, this thesis analyzed the normative underpinning of child rights and found that its foundation is traceable to the International Bill of Human Rights. It also examined the philosophical foundations of child rights and adopted the view that it is based on inclusive legal positivism found at the intersection of natural law and positive law. This thesis validated the existing claim that child justice is predicated on the mitigated culpability of children and that whilst human rights extend to children because of their humanity, child-specific rights, including child justice accrue to them specifically due to their age and vulnerability. Having considered all the principles of child rights, this thesis elevated the principles of proportionality and the best interests of the child as twin pillars of child justice. As a standard for the humane treatment of children in conflict with the law and predicated on the premise that the twin pillars encapsulate all other principles of child rights, this thesis examined to what extent the twin pillars are incorporated and applied in the Nigerian child justice system. This thesis found that although the 2003 Child Rights Act of Nigeria meets the minimum international legislative standard, child offenders in Nigeria seldom enjoy the protective shield of the twin pillars of child justice. It corroborated the strength of the twin pillars of child justice as judicial sentencing tools and found that whereas child rights may accommodate relative sensitivities, the twin pillars of child justice are immutable and non-derogable principles for the treatment of children in conflict with the law. To ensure the promotion and protection of the rights of child offenders, this thesis recommended the amendment of the Child Rights Act and the immediate establishment of all the enablers contemplated therein. Although the review of the 1999 Constitution of Nigeria was not the main focus of this thesis, it however found that certain provisions of the constitution inhibit the enjoyment of child rights. Exploring the opportunity presented by the ongoing constitutional reform in Nigeria, this thesis recommended the amendment of some sections of the constitution.
  • Reyes Gomez, Javier Alberto (2014)
    Law & Economics is the hegemonic framework in mainstream corporate governance theory and praxis. It permeates how legal scholars see corporations, how they must be managed, and to which ends they should be geared to. Because large amount of power is concentrated and exercised through corporations, the fact that law & economics is both a descriptive and a normative theory has an impact on the shaping of the world. This research aims at asking: is there an alternative normative jurisprudence to law & economics in corporate governance? In order to approach this task, the methodology used is hybrid, leaning towards a hermeneutical qualitative non-doctrinal approach, inspired by the mapping and criticism analysis of Roberto Mangabeira Unger and Dworkin s interpretivism all within the greater context of critical legal theory. This allows the research to make a detailed exploration of current structures and unearth its ideological underpinnings. The research starts by pinpointing the importance of corporate governance in the context of development theory, and it dissects its ideologically charged significance within an economicist view of the world. Then, corporations are analyzed from both historical and ontological perspectives in preparation for an alternative corporate legal theory. Such a jurisprudential approach takes, first, a descriptive form, though it then evolved into a normative one, gravitating around the goal of corporate law and the contrast between the theory of the firm and political philosophy. The tenets of law & economics are then critically dissected. The main findings are that law & economics appeal arises from its sound epistemological construction. It takes off from an ethical position (i.e. utilitarianism) which then serves a methodological path (i.e. positivist empiricism), on top of which a theoretical framework is developed (i.e. neoclassical economics). Its weakness, though, consists of simplistic and erroneous elemental assumptions. Based on these findings, the research proposes an alternative to the law & economics theory of corporate governance built on top of a model which mirrors its sound epistemological construction, though centers around a normative jurisprudence analysis of individual and corporate personhood and to the core of corporations, what they really are, and what they should be used for.
  • Zhang, Liguo (IPR University Center, 2012)
    The interaction between IPRs and standards has lately raised growing concerns in the information and communication technology (ICT) industry. These highly controversial issues include industry standards embracing proprietary technologies, excessive royalties for the use of proprietary technologies, and the refusal to grant licenses for the use of proprietary technologies. This study examines the patent licensing practice in the ICT industry, the EU’s regulation on intellectual property licensing and standardization, aims to find out how best to balance standardization and access to essential patents. The study applies entitlement theory to examine the two traditional approaches to facilitating exploitation of patented technology. The market approach that suggests transaction can distribute technological resource to the one that value it most may not be effective because of the poor quality of patents in the industry and the high transaction costs resulting from the high fragmentation of technology and the use of patent for strategy purpose. The intervention approach that suggests applying compulsory license or rules of abuse of patent against patent holders may ignores right holder’s subjective valuation of rights and disrupt right holder’s plan to exploit the right based on that valuation, therefore the application of this approach is limited to only exceptional circumstances. Given that, the study suggests that a cooperative scheme that facilitates licensing of industry wide generally used technology, which mixes the market and intervention approaches, may be effective. Firstly, global patent explosion, the division of technology creation from technology implementation, the convergence of complex technologies, and highly standard-dependent in the industry lead to the problems. Industry wide cooperation is needed in dealing with these common problems. Secondly, standards and patents are not in contradiction inherently. Patent holders may favor standardization as a way to share its innovation with those who could commercialize and use the technology, and as an opportunity to reap the fruits of their R&D investment. Indeed both standards and patents serve a same purpose of promoting innovation. Therefore the cooperation may be desirable. A cooperative scheme may not only manage and share existing resources but also engage in producing those resources and encourage the creation of new resources in the future. Nonetheless this study finds that the collective action problems such as free riding, prisoner dilemma, which usually leads to non-corporation, are main obstacle for creating a cooperative scheme. To overcome these problems, standard setting and selection process can be improved in order to develop such a cooperative scheme. Moreover, fair, reasonable and non-discriminatory licensing conditions established in intellectual property rules of standard-setting organizations or in competition rules could be a flexible mean in creating an optimal arrangement to balance encouragement of individuals to contribute to standardization and encouragement of exploitation of patented technology.
  • Nieminen, Kati (2019)
    This article takes violence in the law seriously, scrutinizing three sites engaged in violent subject production and resistance: the Guantanamo Bay detention center, supermax prisons in the US, and European refugee camps. The concepts of martyring and torturing serve help to untangle the dynamics of the law’s violence. The violent subject production techniques used in these sites are discussed as torture practices that aim to reproduce the dominant subjectivity. As the law has often proved unable to fully address the situation of the detainee, the prisoner, and the refugee, hunger striking as martyring is discussed as a way to deconstruct hegemonic subjectivity and to force the law to face its own violence.
  • Miettinen, Samuli (2015)
    How is EU criminal legislative competence regulated after the Lisbon Treaty? The European Union has always had powers which affect national criminal law. Classic internal market judgments consider whether national criminal law measures are justified restrictions of freedom of movement. The Union s direct legislative powers in this field have developed more slowly through international agreements, Treaty revision and the case law of the Court of Justice on implied powers. This study asks what powers have been conferred on the Union in the field of substantive criminal law and how the exercise of its powers may be reviewed after the entry into force of the Lisbon Treaty. The questions raise a wide range of issues relevant to EU criminal law, but also to EU constitutional, administrative and institutional law. A state-centric view of European integration holds that EU criminal law powers were framed to preserve core areas of national sovereignty. Scholarship in the field of EU criminal law is often ambivalent or critical of centralized powers in this field. Addressing the Union s competence creep was at the heart of constitutional reforms incorporated by the Lisbon Treaty. This sentiment explains some unusual features of the field after those revisions: the emergency brake , the special position of the UK, Ireland and Denmark, limits to Court of Justice jurisdiction, the unanimity requirement for states participating in the European Public Prosecutor s office, more sensitive ex ante subsidiarity control, and limiting express criminal law powers to directives. Nevertheless, these limits are constructed from the reference point of EU institutional law. The survey of those elements shows that the foundations of these structures are unreliable. If codification was intended to limit creeping competence , the framers have failed. Case law of the Court of Justice of the European Union after December 2009 suggests that Article 83 TFEU, or even the complete set of legal bases in the Union s area of freedom, security and justice , is not an exhaustive codification of the Union s criminal law powers. The central question in the calculus, the Court s rules on choice of legal bases , has been susceptible to creative drafting and suffers from weak judicial oversight. Legislative practice suggests that the new safeguards can be sidelined in this process. Thus, the central, and important debates in EU criminal law on the meaning of specific concepts like minimum rules , what crimes can be included in the 83(1) list, and how the European Public Prosecutor should operate may be gradually sidelined by the incoming tide , or at least creeping competence in other estuaries. At the same time, Member States cling to pre-Lisbon practices that restrict the exercise of competence but which seem disconnected from the post-Lisbon legal framework. A detailed examination of this field finds anomalies in the external relations law of the Union, where pragmatism prevails. Small elements that have criminal law implications may be included within Union powers where express internal competence is doubtful. In others, declarations of competence appear to reserve powers to the Member States that the Union could lawfully exercise. The Court now accepts ancillary provisions with criminal law relevance in mainstream measures that do not offer the safeguards of the express criminal law provisions. This is demonstrated by analogy with the case law on issues in the area of freedom, security and justice . Thus, social security coordination measures can be based on the free movement provisions, criminal law obligations may be part of the common commercial policy, and agreements on the treatment of suspected pirates may properly be concluded as part of an agreement that is exclusively Common Foreign and Security Policy. The Court even allows the EU legislature to predetermine the success of any legal challenge because it relies primarily on textual evidence in recitals to determine the aim of the legislature. Thus, measures establishing information systems and exchange mechanisms concerning road traffic offences are measures of transport policy, not measures concerning cooperation in criminal matters, and data retention is an internal market measure. These judgments have surprised academics, national governments, and even EU institutions legal services. Questions also arise as to the effectiveness of the new safeguards even when they are not circumvented. The emergency brake may lead to consensualism, but it is not pulled when a Member State position that is presented as a red line is ignored. The pleadings of the opt-out states in key cases suggest that national governments are not policing their opt-out. National parliaments rarely raise formal subsidiarity concerns. Intervention is rare even if an EU proposal raises constitutional issues and overrules significant policy choices in national criminal law. National policy choices may be legitimate even if the Union has the technical capacity to overrule them. National criminal law scholars often argue that integration in criminal law will come at a high personal cost to the victims of that policy unless appropriate safeguards are developed. The Court of Justice has struggled to distinguish between criminal and civil rules in the European Union constitutional system. Instead, it has developed institutional safeguards that require, as far as possible, democratic decision-making. It has also begun to use fundamental rights, and in particular the Charter of Fundamental Rights, to test the legality of Union action. Thus, whilst its standard of review has been criticized in the past, the findings suggest the Court may be better placed to cope with the increasing trend to treat de facto penal law as administrative rules than the corpus of EU judicial review literature suggests. This research has used standard legal research methods but combines these with an element of the law in action in the field of EU transparency law. During the research, it became clear that the key research questions required material that had not been published. In order to study the drafting processes, the study sought and obtained series of documents that were not originally released for public use. These include legislative negotiation documents, legal opinions of the legal services, and even the pleadings of Member States and EU institutions in key constitutional law cases. One document was released through litigation; another is pending litigation. Both cases raise novel points in transparency law that may have wide-reaching consequences on the nature of the EU criminal legislative process. To what extent should it be open to public scrutiny? Should the Union consider strictly defined conferral or procedural limits to the enumerated powers? The history of constitutional limits is that they are circumvented at the first opportunity when a crisis presents itself. It is possible to conceive some which are more difficult to ignore than those which appear to have buckled under the strain of post-Lisbon practice. However, when limits are drafted in a strict form, this can later cause constitutional contortions that call into question the rule of law. Instead, the present criminal competence control has been effectively proceduralized: particular steps must be taken, but their review is likely to be unintrusive or sympathetic. More legal research is required in the pre-legislative stage, even to understand the nature of competence control. Debates in poorly studied legislative forums are likely to shed great light on the Union s constitution: what happens .
  • Malminen, Toni Petteri (Unigrafia, 2016)
    The study is about the intellectual origins of a form of jurisprudence legal realism. A set of novel ideas about adjudication, legal education, property rights, freedom of contract, and administration of justice, legal realism was established between 1860 and 1960 by three generations of reformist European and American lawyers, philosophers, economists, sociologists, political scientists, and anthropologists who shared the conviction that various areas of social thought were infested with scientifically unsustainable and politically regressive ideas. With their sights fixed on the rise of political progressivism and social democracy, legal realists attempted to remold law for the felt necessities of the time. Through their activities as idea brokers, political confidantes, progressive judges, and innovating ideologists, they became pivotal figures in American and Swedish turn-of-the-century legal, cultural, and political history. This is a history of the intellectual origins of their ideas. The study argues that the early critique of formalism was targeted at not only formalism, positivism, and the systematic orientation of contemporary legal science but also at the romantic historicism of Savigny and his allies. Part 1 will argue that the shift from romanticism, idealism, and conceptualism toward legal realism was mediated by a novel historical sensibility I will call critical historicism. Offered as an alternative to metaphysical conceptions of history, critical historicism approached the past from a materialist and naturalistic vantage point. It also drew on contemporary cultural anthropology to gain a less parochial perspective on law and morals. With its novel historical consciousness, marked by a debunking spirit, instrumentalist vision of law and morals, and private sense of time, critical historicism mediated a shift from nineteenth-century historicism toward twentieth-century modernism and legal realism. Part 2 discusses the secularization of legal thought from the vantage point of legal realism. Although secularization was a major historical trend in the age of legal realism and realism was a distinctly secular approach to law and morals, no specialized study on the relationship between legal realism and the secularization of legal thought has been undertaken so far, a gap in scholarship I will begin to fill, although much more certainly needs to be done. The rise of legal realism coincided with the fall of the American Protestant Establishment and the crisis of the Church of Sweden, and realism was itself a step in the transformation toward pluralism and secularism in social thought. Part 3 addresses the legal skepticism and agonism of Jhering, Holmes, and Hägerström through their notion of law as a site of social struggle. Their turn toward conflict was driven simultaneously by contemporary political, economic, and social developments, including the rise of organized labor, and various intellectual currents such as Darwinism.
  • Frerichs, Sabine; Losada, Fernando (2021)
    In an article recently published in this journal, Steven Klein revised Karl Polanyi's conceptualization of the relation between economy and society, and adapted it to the post-crisis European context. His reconstruction put emphasis on the re-democratization potential of trade unions and central banks against the pernicious effects of the commodification of labor and money on the European level. While Klein’s approach is without doubt very insightful and original, we think that some of his claims either deserve discussion or require closer elaboration. This concerns the conceptual approach of setting Polanyi against Habermas as well as the critique of the role of law in the integration process. As to the latter, we think that further contextualization is due to appreciate changing historical contexts and layers of European integration. With the objective in mind to enrich Klein’s analysis, we first propose a way to reconcile, against what Klein suggests, Polanyian and Habermasian understandings of law and money. This theoretical background will help us, second, to explore in detail the differences between market and monetary integration, and in particular the role that law plays in each of these politico-economic constellations. Based on this we will, third and final, explain how the interaction of public and private law in the context of post-crisis European integration further promotes the process of commodification, and how the configuration of law in market and monetary integration currently prevents trade unions and central banks from exerting the re-democratizing potential that Klein’s assigns to them.
  • Garmestani, Ahjond; Craig, Robin K.; Gilissen, Herman Kasper; McDonald, Jan; Soininen, Niko; van Doorn-Hoekveld, Willemijn; van Rijswick, Helena F. M. W. (2019)
    Around the globe, coastal communities are increasingly coping with changing environmental conditions as a result of climate change and ocean acidification, including sea level rise, more severe storms, and decreasing natural resources and ecosystem services. A natural adaptation response is to engineer the coast in a perilous and often doomed attempt to preserve the status quo. In the long term, however, most coastal nations will need to transition to approaches based on ecological resilience—that is, to coastal zone management that allows coastal communities to absorb and adapt to change rather than to resist it—and the law will be critical in facilitating this transition. Researchers are increasingly illuminating law’s ability to promote social-ecological resilience to a changing world, but this scholarship—mostly focused on U.S. law—has not yet embraced its potential role in helping to create new international norms for social-ecological resilience. Through its comparison of coastal zone management in Australia, Finland, and the Netherlands, this article demonstrates that a comparative law approach offers a fruitful expansion of law-and-resilience research, both by extending this research to other countries and, more importantly, by allowing scholars to identify critical variables or variable constellations associated with countries’ decisions to adopt laws designed to promote social- ecological resilience and to identify mechanisms that allow for a smoother transition to this approach. For example, our comparison demonstrates, among other things, that countries can adopt coastal zone management techniques that integrate social-ecological resilience without fully abandoning more traditional engineering approaches to adapt to environmental change and its impacts.
  • Martineau, Anne-Charlotte (Hakapaino Oy, 2014)
    Over the past decade, the "fragmentation" of international law has certainly been one of the most widely debated themes in the field. Both practitioners and scholars have tried to assess the significance of international law's splitting up into specialized regimes such as trade law, environmental law, human rights law, humanitarian law, etc. What has this meant for international law's "unity" or "coherence"? The creation of specialised rules and institutions has certainly made international law appear more technical, less dependent on large and perhaps utopian ideas about world peace, than old "public international law" used to be. How has this affected the professional identity of international lawyers? Fragmentation has also been the subject of numerous academic studies. Unlike most of those works, this thesis does not enter the debate, by assessing the pros and cons of fragmentation and then by seeking to suggest technical solutions to deal with its problems. Instead, it tries to assess the nature and significance of the debate: what does the debate, including the proposed solutions, tell us about international law today? The thesis attempts to make sense of the repetitious character of the debate, the way in which the positions are both well-known and conducive to familiar, yet always only partly satisfactory, solutions.
  • Nazarenko, Salla; Aitamurto, Kaarina; Heusala, Anna-Liisa; Korhonen, Vesa; Koski, Sanni; Laine, Veera; Lassila, Jussi; Mitikka, Eemil Johannes (Puolustusministeriö, 2019)