| 1. |
- Andersson, Emil, 1982-
(författare)
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Reinterpreting Liberal Legitimacy
- 2019
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This thesis is an inquiry into the Liberal Principle of Legitimacy, formulated by John Rawls in his later writings. According to this principle, the exercise of political power is legitimate only if it is justifiable to all citizens. This view can be interpreted in different ways, and I argue that the presently most popular way of doing so faces serious problems. The aim is to identify and defend a more plausible version of the principle, which overcomes these problems, and yet preserves the most essential and appealing features of the approach. Among the most central issues for how to interpret the principle are how to understand the notion of justifiability to a person, and who should be included in the group of persons referred to as "all citizens". On the currently received view, only justifiability to those who count as "reasonable" matter, and justifiability to these persons is understood in non-moral terms, as being determined by what is accessible to them, given the beliefs that they happen to hold. I argue that we have good reasons to reject both of these suggestions. We should instead spell out justifiability to a person in terms of what could be reasonably accepted in a moral sense, which allows us to retain the appealing idea that legitimacy is dependent on justifiability to all citizens over whom political power is exercised. I further suggest that we can use the original position – Rawls’s version of the social contract – to determine what is justifiable to all in this sense. I defend this suggestion against the expected objection that it will not be able to take reasonable pluralism – the assumption of deep disagreement between citizens – into account, by explaining why we should sharply distinguish this principle of political legitimacy from the theory of Political Liberalism. This distinction also contributes to my response to the objection, raised against this principle, that it is self-defeating. That my suggested interpretation allows us to convincingly respond to this line of criticism is yet another reason as to why it is preferable to the standard view.
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| 2. |
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| 3. |
- Carlsson, Anni, 1988-
(författare)
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Constitutional Protection of Freedom of Expression in the Age of Social Media : A Comparative Study
- 2024
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- Social media platforms are increasingly important arenas for communication in today’s society. These platforms can both enable and restrict their users’ exercise of free speech. The right to freedom of expression has traditionally protected individuals against state interference. However, the most popular social media platforms are owned by private companies, which creates new challenges for the constitutional protection of freedom of expression. This study examines how constitutional free speech rights have been adapted and should be adapted to the new communicative landscape dominated by social media.A comparative study of the adaption of constitutional free speech guarantees to social media in the US, Sweden and Germany is carried out. Relevant European law (European Convention on Human Rights and European Union law) is also included in the comparison. Four dimensions of the exercise of free speech on social media are compared. Firstly, social media users' and platforms' free speech rights are studied. Secondly, it is analysed whether constitutional free speech rights can be applied to relationships between private social media platforms and their users (horizontal effect). Thirdly, the state’s potential positive obligations to protect users' freedom of expression against social media companies are examined. Finally, laws regulating the effects of social media platforms on free speech exercise are addressed, including the Digital Services Act adopted by the European Union.Through the comparative analysis, different constitutional law mechanisms that allow freedom of expression to impact relationships between private social media platforms and their users are identified. Constitutional free speech guarantees can affect the activities of social media platforms through the horizontal effect of constitutional rights or the state’s positive obligations. Even without horizontal effect and positive obligations, the constitutional free speech law may allow the state to regulate platforms’ power over free speech through ordinary laws. It is argued that regardless of which of these constitutional law mechanisms is used, it is necessary to balance competing free speech interests of speakers, audience, platforms and society against each other. Guidelines for weighing the various free speech interests against each other are presented in the last chapter of the dissertation. It is suggested, among other things, that democracy should be chosen as the guiding free speech value for such a balancing exercise.
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| 4. |
- Cuono, Massimo, et al.
(författare)
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Verso una teoria del diritto per l’età delle migrazioni di massa : Una tipologia del potere arbitrario
- 2018
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Ingår i: Rivista di Filosofia del Diritto - Journal of Legal Philosophy. - Milano : Societa Editrice Il Mulino. - 2280-482X. ; 1, s. 11-32
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Tidskriftsartikel (refereegranskat)abstract
- In this paper, a typology of forms of arbitrariness, as related to political power, is sketched out and applied specifically to the analysis of citizenship policies and border-control techniques. The paper offers a basic typology of forms of arbitrariness making possible a hopefully clarifying differentiation among forms of abuse: (a) illegal practices, (b) irrational policies, and (c) discriminatory statuses.
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| 5. |
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EU Citizenship: Twenty Years On : Special Issue German Law Journal
- 2014
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Samlingsverk (redaktörskap) (refereegranskat)abstract
- The Maastricht Treaty (the “Treaty”) first introduced the status of EU citizenship. The twentieth anniversary of the signing of the Treaty, marked in 2013, was declared the European Year of the Citizen. Union citizenship has been understood as the world’s first post-national citizenship, although it is still complementary to national citizenships. EU citizens enjoy rights that have been expanded, modified, and reinterpreted in light of the EU integration process. The Court of Justice of the European Union (CJEU) has been a driving force in this process. This twentieth anniversary has provided the occasio for this special issue. Indeed, much has happened over the last two decades. The Maastricht Treaty entered into force on the heels of German reunification, and afterwards, a series of EU treaties followed: The Amsterdam Treaty, the Nice Charter of Fundamental Rights, the aborted constitutionalization process and the Rome Treaty in 2004, and the Treaty of Lisbon. The Euro took over former national currencies in 2002; the enlargement process led to today’s twenty-eight Member States. But the ratio of this special issue is based on other events as linked to the 2008 financial crisis, bailouts, the fiscal compact, and similar measures. In a nutshell, the timeliness of this volume is linked to the current financial disarray. Since prognosis presupposes diagnosis, no further words are necessary as to the importance of this task. It is (almost) self-evident that before taking action and preparing for the future, one needs to address the very first question: Nosce te ipsum...
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| 6. |
- Gkouvas, Triantafyllos, et al.
(författare)
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Trust in Law
- 2020
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Ingår i: Routledge Handbook of Trust and Philosophy. - : Routledge. - 9781138687462
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Bokkapitel (refereegranskat)abstract
- Some basic empirical acquaintance with the operations of legal systems is sufficient to render visible the presence of issues of trust across a continuum flanked by legal doctrine on one side and legal practice on the other side. The spectrum of legal events where appeals to the concept of trust occupy center stage is so wide that it becomes rather difficult to track a minimal common ground in the way in which legal theorists choose to describe trust as a topic of legal regulation, scrutiny or interest. In response to this constraint we shall assume that in its core trust invites the adoption of a “participant” stance from which a particular combination of reactive attitudes is deemed an appropriate response towards those we regard as responsible agents. This responsibility-based conception of trust dovetails with a widely accepted understanding of the addressees of legal requirements as practically accountable for their satisfaction. The entry will be divided in four subsequent sections each outlining the most lucid elaborations of the legal relevance of trust by theories of law which, for a host of different reasons, associate, more or less explicitly, the participant perspective on trust with either one of the following four basic concepts of law: sociological, doctrinal, taxonomic and aspirational.
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| 7. |
- Goldoni, Marco, et al.
(författare)
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Between Democracy and Nationality : Citizenship Policies in the Lisbon Ruling
- 2012
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Ingår i: European Public Law. - 1354-3725 .- 1875-8207. ; 18:2
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Tidskriftsartikel (refereegranskat)abstract
- When the German constitutional court expressed itself in the Lisbon ruling, on the 30th of June 2009, the famous German newspaper Der Bild published the corrosive headline “the end of federalism”. The aim of this paper is to present and discuss the arguments of the Court concerning (1) the nature of the EU as a confederation (Staatenverbund), (2) the illegitimacy of further development towards a federal state (Staatsverband) and (3) the determination of the EU’s ‘core competences’, in order to shed light on why, within the EU, the relationship between federalism and democracy appears to be so tense. The point is that the claim that the EU cannot legitimately become a federation without calling for the constituent power of the German people (§228) is grounded in a circular logic that ultimately depends on the definition of citizenry adopted. Two connected issues will thus be deepened. On one hand, we look at the problem of jurisdictional competence attribution, the ‘ultra vires’ and ‘domaine réservé’ doctrines. In particular, the adoption of criteria for determining the state’s core competences on the basis of the principle of essentiality (Wesentlichkeitstheorie) will be assessed. On the other hand, the focus is on the theory of democracy that the German constitutional court embraces, according to which ‘the democratic legitimacy derives from the interconnection between the action of European governmental entities and the parliaments of the Member states’.
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| 8. |
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| 9. |
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| 10. |
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Justice of Others : Arbitrary Law-making in Contemporary Migration Policy (Etikk i praksis - Nordic Journal of Applied Ethics, Vol. 14, Issue 2)
- 2020
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Samlingsverk (redaktörskap) (refereegranskat)abstract
- The special issue covers both fronts by presenting a conceptual analysis of arbitrary law-making that sets out to typify its various meanings, along an empirical account of its actual functioning in legal and political practice. As arbitrariness becomes a pressing concern for lawyers, politicians and scholars attempting to grasp the discretionary powers of judicial and administrative authorities vis-a-vis legal subjects, its social impact as well as its political consequences must be taken into consideration in order to fully comprehend how central arbitrariness has become for a philosophical and a sociological account of law-making. Migration policy is precisely where arbitrariness vividly shows its face, and where its various forms unleash their most revealing implications. It is in this field that we must dig further if we want to know how this hitherto peripheral and surrogated dimension of legal decision-making stretches the leeway of legal officials to the very margin of legality, disclosing the social tension and the power struggle between their agency and the structures that condition and enable it.
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| 11. |
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LEGITIMACY 2.0 : E-DEMOCRACY AND PUBLIC OPINION IN THE DIGITAL AGE
- 2012
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Proceedings (redaktörskap) (refereegranskat)abstract
- Digital democracy has been cutting the edge in fields connected to legal, political and social theory over the last two decades but cross- fertilization and transdisciplinary approaches are still scarce. The impact of ICTs on political and governance processes seem elusive to traditional theoretical settings and mainstream conceptualizations. This is a selection of peer-reviewed conference papers originally presented at the workshop Legitimacy 2.0: E-democracy and Public Opinion in the Digital Age, at the IVR World Congress held in Frankfurt, August 18th 2011. They are also being published in the Law, Technology and Society - Proceedings XXV World Congress of IVR Special Workshop on "Legitimacy 2.0: E-democracy and Public Opinion in the Digital Age", Paper series B, ed. by Ulfrid Neumann, Goethe University, Frankfurt am Main 2012. These papers offer different approaches to findings in the field, the purpose being to go beyond the polarization between the apologists that hold the web to overcome the one-to-many architecture of opinion-building in traditional democratic legitimacy, and the critics that warn cyberoptimism entails authoritarian technocracy.
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| 12. |
- Marques Pedro, Guilherme, 1984-
(författare)
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The Human Right to Leave: But Whereto?
- 2022
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- While all persons — with a few exceptions — are allowed to leave any country regardless of nationality, not all persons are allowed to enter any country of their choosing; and only citizens enjoy, in principle, the right to enter their country of nationality, which most often, and by necessity, is a restricted number of countries, since some of them prohibit multiple nationality. One claim that is frequently made in contemporary migration-related literature, and that much migration-related philosophical debate presupposes in one way or another, yet remains unexplored, is the claim that the right to leave a state – enshrined in the Universal Declaration of Human Rights of 1948 – does not entail a right to enter another state. This claim is typically made in relation or conjunction with another (set of) claims: that this alleged state of affairs is wrong somehow, or vice versa, that it is not. This dissertation deals with both claims and offer a first systematic study of these. On the one hand, the aforementioned descriptive claim has caught the attention of many observers who have, for the most part, taken it as a fairly undisputed description of current international law. I defend the view I call descriptive legal symmetrism, according to which there already is a form of symmetry between entry and exit rights, albeit not the one that most scholars set out to look for. On the other hand, in the context of the normative set of claims made by some authors concerning whether this alleged state of affairs is either immoral or unlawful (or both) in that it would expose the migrant to moral injustice and a protection gap in the contemporary human rights regime (namely, that of having, after leaving a country, nowhere to go), I submit that the object of disagreement in the normative legal debate concerns whether or not we ought to use the law to enforce what I call ‘Proposition A’: ‘it is permitted that any person leaves any country (besides justified exceptions), therefore it is obligatory that all states permit entry (besides justified exceptions)’. I conclude that much of the debate focuses on matters that, albeit interesting in their own right, might not be what is at stake. I hope to contribute to the normative discussion by sorting out the different positions, illustrating their truth-making conditions, and stressing where a position depends on problematic assumptions.
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| 13. |
- Mindus, Patricia
(författare)
-
A Constitutional Eyesore After Brexit : EU Citizenship and British Nationality
- 2019
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Ingår i: Citizenship in Times of Turmoil?. - Cheltenham : Edward Elgar Publishing. - 9781788119207 ; , s. 151-173
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Bokkapitel (refereegranskat)abstract
- In this chapter I explore what happens to British nationals after Brexit in relation to EU citizenship. Some Union citizens will lose their “fundamental status” (to speak with the ECJ) in 2019: all British nationals of exclusively British nationality. The problems faced by British citizens resident in member states of the European Union after Brexit and British nationals living in the UK (and their family members) are in focus. In the first section I tell my own life story: the tale of an EU citizen with the view to present the highlights of the derivative status of EU citizenship. This way we can appreciate better what Brexit challenges. In the second section, focus is on the legal uncertainty afflicting British citizens turning from expats to post-European third country nationals. In the third section, I discuss why we are facing an automatic collective loss of citizenship that will affect all British nationals of exclusively British nationality, irrespective of place of residence. In the last section, I present some ideas that have come up during the negotiations and that constitute a different, yet quite peculiar constitutional eyesore that has not yet received the attention it merits, that risk turning British nationals into a lesser kind of EU citizens.
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| 14. |
- Mindus, Patricia
(författare)
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À l'origine du non-cognitivisme moderne : Axel Hägerström
- 2009
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Ingår i: Analisi e Diritto. - Barcelona : Editorial MARCIAL PONS. - 1126-5779. ; 1, s. 159-176
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Tidskriftsartikel (refereegranskat)abstract
- This article on Axel Hägerström’s theory is presented in four sections. First, focus is on his meta-ethics, a perhaps lesser explored, but no less important aspect, which earned him the title of “father of modern non-cognivism”. His inaugural lecture at the Uppsala University, On the Truth of Moral Propositions from 1911 will be examined. Some very hot debates in the thirties and forties originated from this lecture that gave Hägerström his notorious nickname “axiological nihilist”. In section two, I will explain why his position cannot be properly understood as nihilism. This enables us to avoid a common misinterpretation and to illustrate in a more appropriate way Hägerström’s view of Hume’s law. By pointing to the specific features of Hägerström’s theory, the aim in section three is to determine what arguments of his can be considered the first form of modern non-cognitivism, as distinct from both classical moral relativism and Hobbes’ conventionalism. In section four, light is shed on the argumentative strategies used by Hägerström in defending the four meta-ethical theses that make up his “axiological nihilism”. This exposition enables further critical assessment on where to locate Hägerström in the contemporary debate on entanglement.
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| 15. |
- Mindus, Patricia
(författare)
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A Real Mind : The Life and Work of Axel Hägerström
- 2009
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Bok (refereegranskat)abstract
- This comprehensive presentation of Axel Hägerström (1868-1939) fills a void in nearly a century of literature, providing both the legal and political scholar and the non-expert reader with a proper introduction to the father of Scandinavian realism. Based on his complete work, including unpublished material and personal correspondence selected exclusively from the Uppsala archives, A Real Mind follows the chronological evolution of Hägerström’s intellectual enterprise and offers a full account of his thought. The book summarizes Hägerström’s main arguments while enabling further critical assessment, and tries to answer such questions as: If norms are neither true nor false, how can they be adequately understood on the basis of Hägerström’s theory of knowledge? Did the founder of the Uppsala school uphold emotivism in moral philosophy? What consequences does such a standpoint have in practical philosophy? Is he really the inspiration behind Scandinavian state absolutism? A Real Mind places the complex web of issues addressed by Hägerström within the broader context of 20th century philosophy, stretching from epistemology to ethics. His philosophy of law is examined in the core chapters of the book, with emphasis on the will-theory and the relation between law and power. The narrative is peppered with vignettes from Hägerström’s life, giving an insightful and highly readable portrayal of a thinker who put his imprint on legal theory. The appendix provides a selected bibliography and a brief synopsis of the major events in his life, both private and intellectual. "The work offers an excellent reconstruction of Hägerström’s work and life, and presents his personal and intellectual evolution balancing perfectly the chronological and the systematic dimensions."Liborio L. Hierro, Professor of Jurisprudence, Faculty of Law, Universidad Autónoma de Madrid, Spain "The book is excellently-sourced, always well-argued, and makes a case for a revival of interest in Hägerström. I believe this to be important. Hägerström is relevant, insightful and interesting."Michael Freeman, LLM, Barrister, Professor of English Law, Faculty of Laws, University College London, United Kingdom
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| 16. |
- Mindus, Patricia
(författare)
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Anatomia del cittadino : Tre modi di intendere la cittadinanza e alcuni problemi indesiderati
- 2009
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Ingår i: Analisi & Diritto. - Barcelona : Editorial MARCIAL PONS. - 1126-5779. ; 1, s. 73-97
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Tidskriftsartikel (refereegranskat)abstract
- This essay aims to distinguish analytically the meanings of “citizenship” in the contemporary debate. According to the semantic area of reference, citizenship stands for a political status referring to the individual’s position within the polity; a legal status referring to the overall position of a subject characterized by a determinate sphere of capacities; a social status indicating the ascribed or achieved position of a person within the social stratification in the group. After distinguishing the three semantic areas and specifying the methodology used, focus switches to the structure, genesis and internal composition of the semantic areas. These are subsequently summed up in a scheme that accounts for the basic problem that a given semantic area attempts to respond to. The purpose is to explain, on the basis of practical examples, why the distinction is important and why there is so much confusion in the current debate. In the last section, I suggest another distinction, inspired by Aristotle’s third book of Politics according to which we should distinguish between what the citizen is and who a citizen is. The stake of the issue is to inquire on the plausibility of assuming that a person has to enjoy a determinate attribute or capacity in order to have the right or the legal obligation implied by the status of citizenship.
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| 17. |
- Mindus, Patricia
(författare)
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Ancora sulla teoria funzionale della cittadinanza. Risposta ai critici : More on the Functional Theory of Citizenship. Reply to critics
- 2015
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Ingår i: Materiali per una storia della cultura giuridica. - : Societa Editrice Il Mulino. - 1120-9607. ; :2, s. 521-544
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Tidskriftsartikel (refereegranskat)abstract
- This paper defends the functional theory of citizenship on the grounds of the conceptual map of contemporary models of citizenship that I have developed elsewhere. I address three different types of criticisms. First, the focus is on the arguments of those who believe the legal model of citizenship needs to be abandoned or rejected all together. Several reasons against this suggestion are highlighted. Second, a short discussion follows of some points made by those contributors to this volume who instead think that the legal model should be not be rejected, but that it still needs to be amended or requires development to fit contemporary migration patterns. Finally, I address the criticisms of those who believe the whole enterprise of developing a general theory of citizenship is flawed since there would be no concept of citizenship independently of political contingencies.
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| 18. |
- Mindus, Patricia
(författare)
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Austin and Scandinavian Realism
- 2013
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Ingår i: The Legacy of John Austin's Jurisprudence. - : Springer-Verlag New York. ; , s. 73-106
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Bokkapitel (refereegranskat)abstract
- The imperative theory of law exemplified in the work of John Austin is the object of much criticism in the movement of Scandinavian legal realism (SLR). The very core notions of command, sovereignty and will are targeted. This paper explores the Scandinavian readings of Austin’s theory, chiefly by reconstructing the main arguments of Axel Hägerström’s criticism of the will-theory and Karl Olivecrona’s reading of the imperative character of law. Special attention is paid to the affinities between the various outlooks and to their core differences. On one hand, strong resemblances can be discovered in the common methodological afflatus and respect for Hume’s principle. On the other hand – apart from contrasting opinions on minor aspects (such as tacit consent grounding custom) – among the unbridgeable divergences mention should be made of the view on morals: Austin embraced a form of cognitivism, while the Scandinavians supported a strict form of non-cognitivism. In order to assess the originality of the Scandinavian attack on the imperative theory of law, the aim of the paper is to test to what extent it stimulated the seminal work on the question of law’s authoritative dimension in SLR.
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| 19. |
- Mindus, Patricia
(författare)
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Begreppet medborgarskap
- 2019
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Ingår i: Juridiska grundbegrepp. - Lund : Studentlitteratur AB. - 9789144127118 ; , s. 377-402
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Bokkapitel (refereegranskat)abstract
- MEDBORGARSKAP har blivit en mycket diskuterad fråga i samtiden. Trots den omfattande debatt som pågår råder det oklarhet omkring hur vi bör förstå medborgarskap. Det här kapitlet syftar till att bringa klarhet i frågan om vad medborgarskap betyder, vilka begreppsbildningar man bör ta hänsyn till, vilka grundfrågor och värderingar olika meningsbyggnader går tillbaka till, hur vi kan förstå själva begreppet och stava ut hur denna insikt kan vara värdefull för juristen.
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| 20. |
- Mindus, Patricia
(författare)
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Chi decide sul futuro del federalismo europeo?
- 2011
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Ingår i: Quale federalismo?. - Turin : Giappichelli. - 9788834818510 ; , s. 117-142
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Bokkapitel (refereegranskat)abstract
- Questo lavoro mira a ricostruire e discutere l’argomentazione della Corte costituzionale tedesca nella sentenza sul Trattato di Lisbona sulla natura dell’Unione europea, tema molto dibattuto in ambito accademico, al fine di chiarire i motivi per cui la relazione fra federalismo e democrazia all’interno dell’Unione risulta così tesa. L’idea secondo la quale l’UE non può legittimamente diventare uno stato federale senza chiamare in causa il potere costituente del popolo tedesco è una tesi che, a mio parere, si basa su una logica circolare che dipende, in ultima analisi, dalla definizione di cittadinanza adottata. Attraverso le politiche di cittadinanza si influenza, infatti, la definizione di «popolo», che a sua volta incide sulla relazione, di rango costituzionale, fra federalismo e democrazia. Si partirà dall’analisi delle affermazioni sulla natura e la legittimità dell’Unione europea e sulla relazione fra l’Unione e gli Stati membri contenute nella sentenza, per soffermarsi, poi, sulla definizione di cittadinanza, e quella conseguente di «popolo tedesco», che sono apparentemente fra i concetti chiave per comprendere come sia possibile articolare il legame tra democrazia e federalismo.
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| 21. |
- Mindus, Patricia
(författare)
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Chi deve essere cittadino? La teoria della cittadinanza nella Politica di Aristotele : Who Should Be Citizen? The Theory of Citizenship in Aristotle
- 2018
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Ingår i: Teoria Politica. - 0394-1248 .- 1972-5477. ; 1, s. 127-137
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Tidskriftsartikel (refereegranskat)abstract
- In this paper, I argue that Aristotle was the first and, to my knowledge, only philosopher to have developed what may be called, using Hans Kelsen’s wording, a general theory of citizenship. This theory, much overlooked in the literature, is useful in order to assess the coherence and consistency of policies regulating the access to the policy, which include most notably citizenship policy, but also migration policies regulating prior segments of the route to naturalisation. The Aristotelian theory is based on a thesis that I call the thesis of correlation, according to which access to status civitatis is not neutral, but can be conceived as a variable of the content of the status. There is, in other words, a relationship between the two dimensions, between who is a citizen (i.e. the extension of citizenship) and what a citizen is (i.e. the intension of citizenship). I think this relationship is best described as a functional correlation, even if these are not the Aristotelian terms. Function here appears in its mathematical meaning. The correlation is functional, in the sense that the criteria regulating acquisition and loss of the status must fit the entitlements or legal positions that citizenship gives access to (a.k.a. the content of the status). If the criteria for acquisition and loss are not aligned with the legal positions associated with citizenship, the status becomes an arbitrary instrument of social closure: As if we were to randomly distinguish citizens from non-citizens. This theory, I argue, focuses on the relationship, or rather the functional dependence, between legal positions (rights and/or obligations that constitute the content of status civitatis) and the criteria for acquisition and loss of the status (which gives the form to the status of citizenship); that is, the two dimensions that together determine citizenship according to Aristotle. To answer the question who should be a citizen? we must therefore look at the dialectic between form and substance: it is necessary to ask whether it is reasonable that a certain personal characteristic is deemed necessary and/or sufficient to confer the status which gives access to certain entitlements. If the answer is positive, the characteristic constitutes a reason for conferring citizenship; otherwise, it does not.
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| 22. |
- Mindus, Patricia
(författare)
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Cidadania, Identidade e o Poder Soberano de Excluir
- 2019
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Ingår i: Revista do Ministério Publico. - 2595-3966. ; 40:158, s. 117-139
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Tidskriftsartikel (refereegranskat)abstract
- Nos nossos dias, nos passaportes e carteiras de identidade, a cidadania não é, em geral, distinta da “nacionalidade”. Não obstante, o recurso jurídico à noção de “nacionalidade” foi estabelecido somente após um longo e acidentado percurso. Mas o que entendemos com a equiparação da cidadania com a nacionalidade e, sobretudo, quais são os efeitos para o discurso jurídico da cidadania? Este artigo analisa a questão abordando, em primeiro lugar, a ambiguidade da ideia de nação em si e, em segundo lugar, a artificialidade das tipologias de nacionalidade que encontramos principalmente na literatura.
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| 23. |
- Mindus, Patricia
(författare)
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Citizenship and Arbitrary Law-Making : On the Quaintness of Non-national Disenfranchisement
- 2016
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Ingår i: SMP - Società Mutamento Politica. - Florence : Firenze University Press. - 2038-3150. ; 7:13, s. 103-118
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Tidskriftsartikel (refereegranskat)abstract
- The paper explores forms of arbitrariness in relation to citizenship and migration policies. Non-national disenfranchisement follows from certain migration policies, and these may be cast as an arbitrary form of domination, that may undermine political legitimacy. Political exclusion is the vertex of a chain of other forms of exclusion: the denizenship of the politically powerless is particularly bothersome because liberal-democratic systems lack incentives to promote their rights. We have singled out the specificity and quaintness of the argumentative strategy employed to sustain non-national disenfranchisement. It differs from other argumentations in favour of disenfranchisement because it is not framed in derogatory terms and shifts the burden of proof from the state over to the individual.
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| 24. |
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| 25. |
- Mindus, Patricia
(författare)
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Cultura angolsassone e cultura latina a confronto
- 2011
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Ingår i: Teoria Politica. - Barcelona : Editorial MARCIAL PONS. - 0394-1248. ; 1:1, s. 445-450
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Tidskriftsartikel (refereegranskat)abstract
- Resumen: In questo contributo, intendo segnalare i principali punti d’interesse del Congresso internazionale organizzato da Marcial Pons Editor, in collaborazione con l’Università Pompeu Fabra di Barcelona e l’Università di Girona, sul tema Neutralidad y teoría del derecho, che si è svolto a Girona, dal 19 al 23 maggio 2010. Gli interventi sono disponibili in video all’indirizzo: http://www.udg.edu/CulturaJuridica/ Noticies/Arxiudenoticies/tabid/12506/p/17055/language/es-ES/ Default.aspx e verranno presto pubblicati in un volume collettaneo per i tipi di Marcial Pons. I lavori sono stati preceduti, il 19 maggio 2010, dalla presentazione degli ultimi volumi della collana di filosofia del diritto di Marcial Pons, la casa editrice spagnola che ha sostenuto l’evento internazionale. Francisco Laporta (Università Autonoma, Madrid) ha commentato il volume di Ricardo Caracciolo, intitolato El Derecho desde la Filosofía. Ensayos (Madrid, CEPC, 2009). José Juan Moreso (Barcelona, Università Pompeu Fabra) ha presentato la raccolta di saggi di Bruno Celano sulla meta-etica, intitolata Derecho, justicia, razones. Ensayos 2000-2007 (Madrid, CEPC, 2009). La presentazione dei libri si è conclusa con il commento di Rafael Escudero al volume di Paolo Comanducci, Hacia una teoría analítica del derecho. Ensayos escogidos (Madrid, CEPC, 2010). Questi tre titoli danno un’idea delle collane in tema di teoria del diritto e della politica che vengono ospitate dall’editore.
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| 26. |
- Mindus, Patricia
(författare)
-
Dimensions of Citizenship
- 2014
-
Ingår i: German Law Journal. - 2071-8322. ; 15:5, s. 735-750
-
Tidskriftsartikel (refereegranskat)abstract
- The Maastricht Treaty (the “Treaty”) first introduced the status of EU citizenship. The twentieth anniversary of the signing of the Treaty, marked in 2013, was declared the European Year of the Citizen. Union citizenship has been understood as the world’s first post-national citizenship, although it is still complementary to national citizenships. EU citizens enjoy rights that have been expanded, modified, and reinterpreted in light of the EU integration process. The Court of Justice of the European Union (CJEU) has been a driving force in this process. This twentieth anniversary has provided the occasio for this special issue. Indeed, much has happened over the last two decades. The Maastricht Treaty entered into force on the heels of German reunification, and afterwards, a series of EU treaties followed: The Amsterdam Treaty, the Nice Charter of Fundamental Rights, the aborted constitutionalization process and the Rome Treaty in 2004, and the Treaty of Lisbon. The Euro took over former national currencies in 2002; the enlargement process led to today’s twenty-eight Member States. But the ratio of this special issue is based on other events as linked to the 2008 financial crisis, bailouts, the fiscal compact, and similar measures. In a nutshell, the timeliness of this volume is linked to the current financial disarray. Since prognosis presupposes diagnosis, no further words are necessary as to the importance of this task. It is (almost) self-evident that before taking action and preparing for the future, one needs to address the very first question: Nosce te ipsum...
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| 27. |
- Mindus, Patricia
(författare)
-
Doppiando il Capo Horn della scienza del diritto : Sull’oggettivismo post-metafisico quale fondamento del positivismo inclusivo
- 2012
-
Ingår i: Teoria Politica. - : Marcial Pons. - 0394-1248. ; :2, s. 143-160
-
Tidskriftsartikel (refereegranskat)abstract
- Inclusive legal positivism has been in the limelight for some time. There are several reasons for this. Among the structural reasons for this general change of direction within general jurisprudence are cultural changes such as the renewed interest for theory of action or normative methodology. This paper discusses José Juan Moreso’s contribution to this debate. The paper focuses especially on the thesis that there would be no connection between non-cognitivism as set out in meta-ethics and positivism in legal theory. This thesis is really the outcome of a compound of different positions: on the political level, the question concerns the possible relationships and tensions between democracy and liberalism. On the ethical and foremost meta-ethical level, the issue basically revolves around the relation between cognitivism and expressivism; and, on the level of legal theory, Moreso attempts to resolve the problem that Benedetto Croce, a century ago, compared to the difficulty of sailing around Cape Horn, i.e. to connect the law and ethics. The paper is divided into five sections. In the first section of the paper, a few historical remarks are made. In section two, I look at how natural law is defined in Moreso. In section three, some observations are made on how legal positivism is qualified in relation to natural law. In section four, I suggest a possible criticism of the conception of moral relativism used by Moreso and recommend an alternative conception that hopefully grasps further features of the way the problem is frequently discussed. Finally, some methodological remarks are made: the choice of disregarding the distinction between authentic and inauthentic normative propositions leads Moreso to conceive the object of dispute between cognitivists and expressivists in an unfruitful way. The lack of distinction between the role played by belief on the one hand and conative attitudes on the other makes it hard, if not impossible to grasp what exactly is the object of this dispute. In fact, their opposition, instead of representing a fertile scientific dialogue becomes similar to a situation where people are talking pass each other. If this outcome is to be avoided and the two positions reconstructed properly, an account of what constitutes belief should complement the theory. Probably greater focus is also needed on what is considered to be the primary function of normative propositions.
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| 28. |
- Mindus, Patricia
(författare)
-
Emergenza, costituzione, diritti fondamentali : una guida critica
- 2007
-
Bok (refereegranskat)abstract
- In any given time of emergency, fundamental rights and the constitutional arrangement are being jeopardized. The question of how to keep together liberty and security in times of emergency has puzzled generations of scholars but the issue is hardly ever addressed in times of normalcy. In the wake of 9/11, the scholarly debate has taken off quite significantly, especially in the U.S. This paper examines the various explanatory models and normative proposals on the background of legal assessments in a historical and comparative perspective. The aim of the paper is to sort out theoretically different issues that need custom-made handling and to provide an outline for evaluating emergency statutes and regulations.
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| 29. |
- Mindus, Patricia, et al.
(författare)
-
EU Citizens – Thirty Years On : An Introduction
- 2024
-
Ingår i: Nordisk socialrättslig tidskrift. - : Stockholms universitet. - 2000-6500. ; 38, s. 3-23
-
Tidskriftsartikel (övrigt vetenskapligt/konstnärligt)abstract
- 2023 marked thirty years since European Union citizenship was introduced as the Treaty of Maastricht entered into force. Celebrated as the world’s first “transnational legal status”, yet a complement to nationality, the status entails rights that have been expanded, modified, re-interpreted, against the background of the economic integration process. Criticisms against European Union citizenship frequently focus its exclusionary nature, often in relation to economic factors. This offers the springboard from which we started to reflect in pulling together this special issue.The articles presented in this special issue are the result of a conference held 22–23 November 2022 in Uppsala, Sweden, entitled European Citizens Thirty Years On: Economic Contributors, Political Members, Right-holders?The conference offered an important occasion to reflect on, and assess, the past three decades of Union citizenship with the understanding that citizenship has to be grasped in opposition to different forms of exclusion – legal, political and social. Different disciplinary outlooks were thus taken into account. Its aim was, more specifically, to assess the three decades of Union citizen- ship against the backdrop of the revival of interest in economic contributions and the role these ought to play in attribution of social roles and political power. We therefore asked whether economic contributions matter more, and what this means for citizenship, and European Union citizenship in particular.
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| 30. |
- Mindus, Patricia
(författare)
-
Filosofisk syn på medborgarskap
- 2016
-
Ingår i: Filosofisk Tidskrift. - 0348-7482. ; 37:3, s. 38-44
-
Tidskriftsartikel (övrigt vetenskapligt/konstnärligt)
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| 31. |
- Mindus, Patricia
(författare)
-
Gli anni svedesi di Ernst Cassirer e il confronto con Axel Hägerström
- 2012
-
Ingår i: Rivista di filosofia. - Milano : Mulino Editore. - 0035-6239. ; 103:2, s. 277-304
-
Tidskriftsartikel (refereegranskat)abstract
- In this article, some recent literature on Ernst Cassirer and foremost on the years he spent in Sweden (1935-1941) is presented against the background of the contemporary streaming of ideas. Sweden’s philosophical panorama was then characterized to a large extent by the so-called Uppsala school of Axel Hägerström and Adolph Phalén, that developed a strong criticism of subjectivism as well as a non-cognitivist and language-centred form of meta-ethics. Cassirer engaged in dialogue with both the theoretical and practical philosophy he encountered in Sweden – an occasion for him to attune his original philosophical stance – that, today, offers a significant opportunity for scholars to understand the context of an otherwise often overlooked period in his intellectual life.
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| 32. |
- Mindus, Patricia
(författare)
-
Global Harmony and Rule of Law : An Empirical-Analytic Approach
- 2012
-
Ingår i: Global Harmony and the Rule of Law. - Stuttgart : Steiner Verlag.
-
Bokkapitel (refereegranskat)abstract
- I take humans to basically strive toward a condition of peace enabling human flourishing. Yet human groups and individuals alike have an extraordinary wide range of understandings of such a condition. If hope for lasting peace and joint cooperation is to emerge from rule of law or otherwise underpin global harmony, first these very concepts need to be unpacked in proper detail. Given the remarkable diversity of legal practices across societies, simply looking at our own will prove insufficient. I suggest building on both Eastern and Western traditions of thought, as well as looking at contemporary practices across the globe in an attempt to enquire into the nature and historical background of the two key notions: rule of law (section 1) and harmony (section 2). Some concluding remarks are then drawn (section 3).First, we focus on “rule of law” (ROL): Is it a likely candidate to set the foundations of global harmony? Looking at the meaning that “rule of law” has acquired within a broad range of fields (legal theory, law and jurisprudence, political philosophy, political science, international relations, sociology and social theory), the first striking aspect is that it does not seem to be the monopoly of technical definitions (principles of legality and impartiality). Historically, the appeal of ROL derived from the distinction between “empire of laws” (rule by law) and “empire of men” (rule under men). Today, both practitioners and scholars refer to ROL as an aggregate of legal rules and institutions, but also as a variety of informal discursive practices aimed at legitimising those rules and institutions.One-size-fits-all definitions can obviously be found, but they suffer from tremendously high levels of generality. Once we acknowledge the need for distinctions, however, we find too many. The long-standing distinction between thin (or procedural) and thick (or substantive) conceptions of ROL has been debated at great length, as has the difference between rule of law, rule by law etc. At this point there is little to be gained by further restatements of these basic distinctions. However, abandoning this debate will not reduce the number of competing conceptions: Rechtsstaat, État de droit, Estado de derecho. Moreover, the continental civil law tradition also developed other concepts that are smeared into the Anglo-Saxon formula, including certezza del diritto, sécurité juridique, etc. We should also ask whether Chinese fazhi is or might be a Far Eastern equivalent to rule of law.A promising start is then to go beyond the consensus omnia of international declarations and shed light on the arguments of those who do not estimate that rule of law enhances concord. ROL appears to be equivocal and often (covertly) value-laden both in ordinary language and scholarly literature. Three criticisms of rule of law are taken into consideration. One criticism holds it to be a case of law-fare: Not a mere technical device, ROL is rather an instrument for hegemony. Another criticism holds ROL to be a Western invention (legal Occidentalism): What is being questioned is not a specific set of institutions that may, rightly or wrongly, be identified as “Western (rule of) law.” The challenge goes deeper and concerns the epistemological status of law itself. A third criticism comes from “global constitutionalism.” The ideal of ROL is not questioned as much as the way it is currently practiced: Since it lacks effectiveness, it is unsatisfactory. Given that constitutionalism, at state level, implied that constitutions made legislative power respect the constitution, advocates of international constitutionalism calls for such a paradigmatic change in the international arena.These arguments show that ROL is no “magic bullet” : Its banner was used as a synonym for an independent judiciary, but came to include democracy, rights, civil society and many more. This conceptual overstretch explains why rule of law is not likely to promote global concord.In section two, it seems prima facie that “harmony” has much higher odds for being a stepping stone for lasting peace: The concept has figured prominently in both Eastern and Western philosophical traditions where it indicates concord, equilibrium between forces resulting in peace, in opposition to disorder (chaos in the Greek tradition and luan in the Chinese tradition). The order emerging from harmony is a composition of differences and not merely a sum of unities. On a social level, harmony is a relational concept and hints to concert or absence of contradiction in relationships between individuals and/or groups. Contrarily to rule of law, we do not deal with an essentially contested concept: its structure is not seriously questioned. Moreover, contrarily to ROL, we have a clear referent: The CCP’s commitment to “building a harmonious society” was officially announced in 2002 and has since been added to the basic line in its constitution.Here, the arguments of those who disbelieve the emancipating strength of harmony have to be addressed. First, there is the legal positivist’s objection: Harmony amounts to natural law-talk that suffers, ultimately, from abusing Hume’s principle. Secondly, there is the criticism of the liberal democrat: Let aside the epistemological and theoretical nature of the concept, in the realm of practical reason harmony implies an essential (and fix) hierarchy of people that will inevitably lead to autocratic political regimes. The overall idea is that the harmonious order does not take controversy seriously: contradictions have to be eradicated or hidden in order to promote (apparent) stability. Harmony would then only amount to a cover-up status quo, based on manufactured consensus.In conclusion, I suggest that there are two lessons to be learnt if we want to overcome the cultural divides of the West-östlicher Diwan: From the rule of law, we must hence learn again the fundamental lesson of impartiality as an indispensable element in applying the principle of justice. From harmony, we must refine our understanding of the complex ways in which social cohesion is enhanced and without which no order is sustainable.
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| 33. |
- Mindus, Patricia
(författare)
-
Hacia una teoría funcionalista de la ciudadanía
- 2019. - 1st
-
Bok (refereegranskat)abstract
- ¿Quién debe ser considerado un ciudadano? ¿Qué significa ser un ciudadano? ¿Cuáles son los mecanismos que regulan la inclusión y la exclusión de la ciudadanía? ¿Cómo se justifican y critican estos mecanismos? El libro presenta estudios sobre la ciudadanía con un enfoque multidisciplinar. El objetivo es reconstruir el debate con referencias a casos empíricos y permitir, a partir del análisis conceptual, una discusión de los principales modelos de ciudadanía y de las diversas formas que han asumido en la historia. La teoría funcional propuesta proporciona una herramienta para identificar cuándo se justifica o no la atribución de estatus. La obra es útil para aquellos que desean tener una base sólida para justificar opiniones y propuestas de políticas en el campo de la política de migración.
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| 34. |
- Mindus, Patricia, et al.
(författare)
-
Introduction
- 2014
-
Ingår i: Axel Hägerström and Modern Social Thought. - Oxford : Bardwell Press. - 9781905622436 ; , s. 1-18
-
Bokkapitel (refereegranskat)
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| 35. |
- Mindus, Patricia
(författare)
-
Introduction - Justice of Others: Arbitrary Law-making in Contemporary Migration Policy
- 2020
-
Ingår i: Etikk i praksis. - NTNU : Norwegian University of Science and Technology (NTNU) Library. - 1890-3991 .- 1890-4009. ; 14:2, s. 1-7
-
Tidskriftsartikel (övrigt vetenskapligt/konstnärligt)abstract
- Does the regulation of migration constitute a blatant case of arbitrary law-making? What is arbitrary law-making? And how does it manifest itself in contemporary migration policy? These are pressing issues that the scholars who come together in this special issue seek to engage with, by exploring international migration from the point of view of arbitrary power. When does legitimate state discretion slide into an exercise of arbitrary power? Since we cannot address what we do not understand, the urgency of the matter addressed in this special issue speaks for itself. Deciding who may enjoy the right of abode, the right to remain, the right to asylum and to citizenship is a key power of the state: it is a regal prerogative, an act of sovereignty, limited only by deliberately accepted commitments, such as the respect for human rights. This makes migration policy an exceptionally interesting ground to test the limits of discretion and the forms of arbitrariness. Power can be understood to be of a discretional nature if it acts freely within the boundaries defined by law, whereas arbitrariness qualifies discretional power exceeding the limits of law.
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| 36. |
- Mindus, Patricia
(författare)
-
Karl Olivecrona ou le souci de l’impératif du droit
- 2012
-
Ingår i: Revue des droits de l'homme. - Paris : Centre de Théorie du Droit (Nanterre, Paris X). ; 1:1
-
Tidskriftsartikel (refereegranskat)abstract
- Karl Olivecrona was among the founders of the Scandinavian Legal Realist movement that developed a theory of law at odds with traditional imperativist and voluntaristic theories of law. Here his theory is presented on the backdrop of a comment to the first translation of his work into French. The aim of the paper is to flesh out a reading of Olivecrona theory of fundamental rights that better fits the facts and that does not lead to laments over lack of constitutionalization.
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| 37. |
- Mindus, Patricia, et al.
(författare)
-
La cittadinanza «a pagamento» nell'Unione europea.
- 2018
-
Ingår i: Quaderni costituzionali, Rivista italiana di diritto costituzionale. - 0392-6664. ; 1, s. 246-252
-
Tidskriftsartikel (övrigt vetenskapligt/konstnärligt)
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| 38. |
- Mindus, Patricia
(författare)
-
La gestión privada del gobierno de Internet : La capacidad de autodeterminación en juego
- 2016
-
Ingår i: Revista de Estudios Políticos. - Madrid : Centro de Estudios Politicos y Constitucionales. - 0048-7694 .- 1989-0613. ; 173, s. 113-140
-
Tidskriftsartikel (refereegranskat)abstract
- To better understand what issues today’s technologies raise in relation to political liberty, understood as self-determination, attention should shift from the level of contents of the Internet to its more basic architecture and governance (critical internet resources [CIR], protocols, governance ecology, etc.). Mainstream political science has for a long time eschewed the field of Internet governance. There is nonetheless an interesting debate on how we should handle this new world we have in common that is constituted by the infosphere. The paper shows why the debate on the control of the Internet is often misleading: too much attention on traditional institutional actors has obscured the fact that the «seats of power» are now elsewhere. In order to move within the private ordering that currently characterizes Internet governance, in a way that is respectful of fundamental rights, we need to rethink the relationships between social powers.
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| 39. |
- Mindus, Patricia
(författare)
-
La legislación en Hägerström
- 2020
-
Ingår i: Iuris Dictio. - : Universidad San Francisco de Quito. - 1390-6402 .- 2528-7834. ; 25:25, s. 141-163
-
Tidskriftsartikel (refereegranskat)abstract
- The relationship between law and politics is one of the most debated topics in legal theory. There is no consensus on the range and scope of the political and the legal element in law. Legislation or lawmaking is conceptually ambiguous because it indicates the law which has been promulgated, and therefore the primary object of many modern theories of law, but also the process of making it, that many theories of law usually locate outside the scope of jurisprudence and more specifically in the realm of politics. The first section sets the problem of legislation by distinguishing a number of different problems that often appear indistinctly under this label. Standpoints can be viewed according to a spectrum stretching from legal theories holding politics to essentially permeate the law to those claiming the opposite. The aim is to situate Hägerström’s view on law-making along this spectrum. My claim is that Scandinavian realism holds middle ground in that ideological constructs structurally affect the law yet legal normativity cannot be reduced to the will of de facto holders of power: law cannot be reduced to any idea of will, including that of the majority or of the people. To substantiate this claim the article investigates Hägerström’s view on the foundation of a new constitution pursuant to a political revolution, the ultimate touchstone for maintaining the (in)distinctiveness of law and politics. His bottom line is that the problem cannot be explained in terms of discovery of public interest, because of his non-cognitivist approach. But it cannot be explained in terms of decision-making either. Law-making here amounts to access and control of technical procedures grounded in a form of faith, or in his own terms “ideas governing men’s minds”.
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| 40. |
- Mindus, Patricia
(författare)
-
Libertà politica e nuove tecnologie : Political Liberty And New Technologies
- 2015
-
Ingår i: Ragion Pratica. - 1720-2396 .- 2612-1441. ; 44:1, s. 9-36
-
Tidskriftsartikel (refereegranskat)abstract
- Victim of its own success, the concept of «digital democracy» risks to turn into an obstacle, and not a tool in order to grasp reality. We need to look into another field to better understand what issues today’s technologies raise in relation to political freedom, understood as self-determination: the field of Internet governance. There is an interesting debate on how we should handle this new world we have in common that is constituted by the infosphere, starting with the current debates surrounding the reform proposals for the ICANN. The stakes are high (balkanization, loss of neutrality, etc.) but mainstream democratic theory is largely unprepared for the challenge. The paper shows why the debate on the control of critical Internet resources is misleading: the «seats of power» are now elsewhere. In order to move within the private ordering that currently characterizes Internet governance in a way that is respectful of fundamental rights we need to rethink the relationships between social powers.
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| 41. |
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| 42. |
- Mindus, Patricia
(författare)
-
Medborgarskap under förändring : Medborgarskap, åsikter och värderingar om migration och integration
- 2022
-
Ingår i: Värderingsförändringar i ett Europaperspektiv. - Stockholm : Kungliga Krigsvetenskapsakademien. ; , s. 1-28
-
Bokkapitel (övrigt vetenskapligt/konstnärligt)abstract
- Kapitlet behandlar en rad samtida förändringar av medborgarskapet, främst i ett europeiskt perspektiv. I första delen sägs ett ord om medborgarskap i allmänhet och hur det är kopplat till demokrati och nationalstat, speciellt i relation till debatten om att det europeiska medborgarskapet skulle utgöra en slags postnationell status. Därefter belyses några förändringar som rör medborgarskapet och vår syn på dess roll, med förgreningar emot problematiken om ett eventuellt undergrävande av demokratiska principer och rättsstatsprinciper. De förändringar som tas upp är kopplade till det som kallats instrumentalisering av medborgarskapet, som exempelvis försäljning av medborgarskap och återkallelse av medborgarskap som påföljd.
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| 43. |
- Mindus, Patricia
(författare)
-
Perché la democrazia è nordica? Alf Ross e teoria della democrazia
- 2016
-
Ingår i: Analisi e diritto. - 1126-5779. ; , s. 391-416
-
Tidskriftsartikel (refereegranskat)abstract
- Alf Ross (1889-1979) is not only one of the most renowned figures of Scandinavian Legal Realism, but also an important name in 20th Century theory of democracy. The Danish legal philosopher developed a procedural and value-free theory of democracy: Democracy, as form of government, is about how you decide, not what you decide. In this essay I investigate Ross’ theory of democracy, starting from his famous essay Why Democracy?, namely his contribution to what is now known as “the great Nordic debate on democracy” in which several members of the second generation of the Uppsala school took part. I shall try to illustrate the historical context in which this debate developed in order to shed new light on Ross’ theories; in particular, I aim to show how he combines procedural theory of democracy with the claim that shared values are necessary and the non-cognitivist thesis in the field of meta-ethics. Finally, I shall point out some possible implications.
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| 44. |
- Mindus, Patricia
(författare)
-
Preface
- 2013
-
Ingår i: The Legacy of John Austin's Jurisprudence. - Dordrecht : Springer-Verlag New York. ; , s. iv-viii
-
Bokkapitel (övrigt vetenskapligt/konstnärligt)
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| 45. |
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| 46. |
|
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| 47. |
- Mindus, Patricia
(författare)
-
Realism Today: : On Dagan’s Quest Beyond Cynicism and Romanticism in Law
- 2015
-
Ingår i: International Journal for the Semiotics of Law. - : Springer Science and Business Media LLC. - 0952-8059 .- 1572-8722. ; 28:2, s. 401-422
-
Tidskriftsartikel (refereegranskat)abstract
- This paper explores the contribution by the contemporary legal realist Hanoch Dagan. Dagan’s brand of realism defines law on the basis of its institutions or social practices, not of its norms or rules. The paper first provides a critical overview of this realist theory of law: It is not synonymous with the predictive theory of law, with Leiter’s theory of judges, or Frank’s “breakfast theory”. By focusing on the role of judges and the methodology of legal reasoning, we discover that the core difference between realism and positivism lies in the claim that law is affected by a strong form of indeterminacy, stemming from the plurality of legal sources, not from the open texture of legal language as expressed in rules; and we are also able to distinguish this form of realism from contemporary movements in legal theory, such as critical legal studies and law & economics. The normative dimension of realism is also addressed: This theory of law develops a specific concept of justice, on the ground of a cognitivist theory of value.
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| 48. |
- Mindus, Patricia
(författare)
-
Social Tools and Legal Gears: Hägerström on the Nature of Law : Hägerström on the Nature of Law
- 2014
-
Ingår i: Axel Hägerström and Modern Social Thought. - Oxford : Bardwell Press. - 9781905622436 ; , s. 257-281
-
Bokkapitel (övrigt vetenskapligt/konstnärligt)abstract
- One of the most renowned ideas of Scandinavian legal realism (SLR) is that the law is like a machine. This paper examines the figure of speech on the basis of the understanding that metaphors are conceptual maps that go from a less abstract or complex source dominion (e.g. the machine) to a target dominion of increased complexity or abstractness (e.g. the legal system). I distinguish, in the first section, various referents in the source dominion, namely different machines, so as to outline a reading that historically makes sense and that does not treat just any tool as a machine. In the second section, I list different meanings of the metaphor in its specific relation to law, the target dominion. By looking at both the source and the target dominion, I stress the terms in which Hägerström applied the metaphor, to better understand the limits of validity in the figure of speech. My aim is to grasp what features of the legal system the metaphor enables us to highlight.
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| 49. |
- Mindus, Patricia
(författare)
-
Sorting Out Modern Emergency Rules : A Theoretical Framework
- 2011. - 14
-
Ingår i: Redescriptions. - Berlin : LIT Verlag. - 9783643999160 ; , s. 109-134
-
Bokkapitel (refereegranskat)abstract
- The effort to link emergencies and constitutional norms is a classical problem for political and legal scholarship and the scientific literature on the topic has grown significantly over the last decade. Yet very notion of “constitutional emergency” needs to be unpacked in proper detail. I therefore suggest a detailed analysis and an empirical investigation into its various modes of utilization. The empirical data is constituted by selected cases of modern emergency rules, constitutional in the main, with special reference to Sweden. These will be examined through a specific theoretic framework that will enable us to sort out different levels and kinds of problems that are currently being indiscriminately mingled into the “constitutional emergency” discourse. The aim is to offer a theoretical framework that improves our skills in finding appropriate answers for emergencies and other unexpected situations according to their nature, intensity and occurrence within a determinate political and legal culture.
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| 50. |
- Mindus, Patricia
(författare)
-
The Contemporary Debate on Citizenship. : Some Remarks on the Erased of Slovenia
- 2009
-
Ingår i: Revus – European Constitutional Review. - : Klub Revus. ; 9, s. 29-44
-
Tidskriftsartikel (refereegranskat)abstract
- “Citizenship is the right to have rights” was famously claimed by Hannah Arendt. Te case of the ‘erased’ of Slovenia sheds new light on this assumption that was supposedly put to rest afer World War II. We lack a comprehensive paradigm for grasping what citizenship means today in and to our societies. My thesis is that there are currently three ways to understand the notion. These different views tend to merge and overlap in the today’s debate, furthering misunderstandings. I will account for different conceptions of the citizenship by looking at the opposite of citizenry. Te political model holds the subject (sujet) in opposition to the citizen (citoyen), entailing problems related to the democratic quality of institutions. Law and jurisprudence look at the citizenship by trying to limit the numerous hard cases arising in the world of migration where the opposite of the citizen is the alien and the stateless. While in social sciences the citizenship is the opposite of the exclusion and represents social membership. Therefore, my aim is to distinguish and clear out these three different semantic areas.This essay is presented in four sections: First, I briefly recall the case of the ‘erased’ of Slovenia, which presents us with one of the more poignant examples of statelessness in the today’s world, so their status can be easily related to the problems that the aforementioned theoretical shortcomings entail. The ‘erased’ had their residency permits and by extension, civil rights as well, revoked by the Slovene government in the aftermath of the break-up of Yugoslavia. This erasure was ruled to be unconstitutional by the Constitutional Court of the Republic of Slovenia but so far it has by and large remained only at that ruling, with little additional legal action, which has prompted complaints from the Ombudsman’s Office and Amnesty International. Tis issue is tied to some of the findings of Hannah Arendt, who claimed that human rights often proved to be ineffective when faced with significant numbers of people who were not citizens of any specific country. Although in the aftermath of WW2 measures to end this situation of statelessness were progressively taken by the international community, there are still cases of a legal vacuum where people could be deprived of their fundamental rights. And as long as human rights remain largely declarative and as long as there is a glaring lack of international agencies of judicial enforcement, we can claim that Arendt’s paradox of human rights has not been yet fully overcome.The second section focuses on discourse analysis of the citizenship. There is no doubt that the citizenship nowadays represents a much broader subject than it did only a couple of decades ago, however, if anything, this has only caused its meaning to become more vague. Since the late 1990’s scholars have increasingly directed attention towards interdisciplinary perspectives covering the fields of politics, sociology, history and cultural studies that move beyond conventional notions of the citizenship, but the understanding of the citizenship itself often lingers on traditional assessments, characterised by clear-cut disciplinary divides. This disciplinary entrenchment has led to the effect of deepening misunderstandings, and attempts to bridge the divide between various perspectives facing increasing difficulties. So it becomes clear that we lack a comprehensive model for understanding the notion of the ‘citizenship’, and to remedy that, rather than simply asking “what is citizenship?” as that would give no clear answer, we shall ask what is opposed to the citizenship. I will provide the answer to that question in the third section, where attention is directed to the composition of the three separate semantic areas that are connected to the term “citizenship.” These areas correspond to three separate figures of opposition: Te subject, the alien and the excluded, which form the foundation of three basic dichotomies (citizenship/subjecthood; citizenship/being a foreigner; citizenship/exclusion). And from this we can extract various meanings of the citizenship: in the realm of political science, ’citizenship’ means the ‘non-subject’; in legal science, ‘citizenship’ means the ‘non-alien’; and in social science, ‘citizenship’ means ‘non-exclusion’ from participation in the social network of a group. I shall focus on the structure, content and origin of these dichotomies, and also on the kind of problems they are trying to resolve.Finally, I will point to an array of questions that the citizenship raises in the today’s complex society. Some of them deal with political rights of the Poles living in the UK, citizenship issues of the Russians in Estonia and the status of the Hungarian ethnic minorities in Romania, Slovakia and Serbia. Furthermore, we may notice an alarming surge of perverse effects that the customary legal perspective has on citizenship such as the increase of cases of statelessness and multiple nationalities, besides new phenomena such as the so-called “legal tourism.” On top of that, Europe is facing an increasing wave of nationalism and social integration issues, which come in wake of the general economic downturn, activism against the Bolkenstein directive and recent jurisprudence of the ECJ in the cases Rüfert, Viking Line and Laval. In light of all this we can conclude that citizenship studies require less ambiguous tools than those prevailing in literature. Te first step towards achieving this is to give up hoping for any understanding of “citizenship” that encompasses all the different meanings mentioned above. Te only way to take them all in is to use a very vague idea of “citizenship” that promotes unsuitable policies and no real solutions. So I suggest that we should rather focus on the tripartition scheme and discourse analysis discussed above, as they can be useful tools for decision makers so as to design as consistent policies as possible, and also for our shedding new light on transnational citizenship building and cross-state handling of status-related issues.
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