Sunday, October 18, 2009

Communitarian Law Research

The communitarian nature of the new constitution is based on the recognition of the cultural institutions that give form to the behaviours not only of rural communities, but also urban ones. We speak about the ayllus, the tentas, the capitanias, the organising structures that give meaning to migration, migrant settlements, holidays, festivals, challas, rituals and ceremonies, where collective symbolism lies. An initial conclusion could be the following: the new constitution represents a transition from the unitary and social nature of the state to a plural-national and communitarian one.

It is also a constitutional transition, as developments in liberal rights, obligations and guarantees are combined with constitutionalised indigenous demands, and with legal and political forms that give a constitutional framework to the process of nationalisation and recovery of natural resources. In other words, it does not cease to be a liberal constitution, albeit in a pluralist version, incorporating four generations of rights: individual rights, social rights, collective rights and environmental rights. It is also an indigenous and popular constitution in that it incorporates the indigenous nations’ and peoples’ own institutionality, their own structures and practices. In the same way, it is a constitution that recognises the fundamental role of the public realm as an interventionist, welfare and industrialising state. Bolivia's New Political Constitution of the State, by Raul Prada (link below, emphasis mine)
Decided I should update my sources for this interview today, finding things I wrote years ago and things I remember seeing, like this one from the author of Modern Diplomacy: http://www.diplomacy.edu/Books/mdiplomacy_book/nick/regular/nick-5.htm

The direct link to EU Communitarian Law has moved, hard to find it since I only read and speak in english.

Here's how it's explained in Europe:
Environmental Law

Are you aware of all of the obligations imposed on your company by legal regulations with respect to the environment? Are you sure that your company fulfils these obligations duly and reliably? Are you aware that the penalties for breach of these obligations amount to millions of crowns?

Compared to the previous marginal legal regulations, businesses and other entities are now regulated by countless directly applicable communitarian legal regulations and Czech laws as well as decrees aimed at protecting the environment.
http://www.landwellglobal.com/cz/Services/Environmental-law.html

Nice to see this current page for Researching French Law 2009 http://www.scribd.com/doc/18995947/Researching-French-Law-2009 (Communitarian law is acquis communitaire)

Here's the way American law schools teach communitarian law: http://faculty.washington.edu/pmay/pols574/pols574a02.html

It's also called Progressive Corporate Law. this book, written in 1995 deserves more attention. Check out the number 1 and 2 chapter titles: http://www.questia.com/library/book/progressive-corporate-law-by-lawrence-e-mitchell.jsp

Here's a one from http://www.juridica-danubius.ro/ar4/ro that explains quite a bit:
LES SERVICES PUBLICS ROUMAINS ET L’UNION EUROPÉENNE
Doctorante Lavinia DARIE, Université

This article analyzes, on the one hand, the role of services of general interest and the notion of public service obligation under the Communitarian law, and on the other hand, the way in which Communitarian law (which, after Romania's adhesion, became national law by transforming the communitarian acquis into the preferred national law) will influence and enrich Romanian public service. The article deals with the new obligations imposed by the Communitarian law to the Romanian public services.


Here's the view from Bolivia:
Analysis of the New Political Constitution of the State
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=405x19587

Raúl Prada Alcoreza

Abstract

In this article, the author analyses the characteristics of the new political constitution of the state, passed after Evo Morales took office as the president of Bolivia. This new con-stitution redefines the concept of the state as well as that of citizenship from a plurinational, multicultural and communitarian perspective. The development of liberal rights, obligations and guarantees is combined with grassroots indigenous claims, which are thereby included in the new legal and institutional framework. Hence, the notion of an interventionist, welfare state that protects natural resources takes shape, which incorporates the ways and practices of first peoples and nations into its institutional life. The state thus becomes a tool for equitable, sovereign and sustainable development.

Raúl Prada Alcoreza - Professor and Researcher. Coordinator of Doctorate Studies on Epistemology at the Universidad Autónoma Gabriel René Moreno. Member of the Research Group La Comuna.

...

The characterisation of the Bolivian state as a social unitary state of plurinational and communitarian law is new; this broad and complex description is not found in the old constitution. The characterisation of the state is a thorny subject. It articulates the legal sphere with political urgencies, and the social unitary rule of law with its plurinational, community and intercultural nature, ratifying its condition as free, independent, sovereign and democratic. It is founded on plurality and pluralism that operate in distinct spheres: political, economic, legal, cultural and linguistic. It is based on the recognition of the pre-existence of the originary indigenous peoples and nations, which implies the recognition of their right to self-determination. The characterisation of the state offers a description of the Bolivian people in its diversity and multiplicity, identifying its multicoloured composition with respect to nations, classes(1) and social strata, scattered around the cities and the countryside. The characterisation of the state describes a democratic and participatory government, and opens up multiple types of direct, universal and communitarian representation. It also combines the cultural values of originary peoples and nations with liberal principles. This composite understanding of the characterisation of the state includes liberal constitutional developments and is enriched by the indigenous contributions of new constitutional and political forms.


Here's a book review from Oxford that may help: http://ejil.oxfordjournals.org/cgi/reprint/7/1/136.pdf
Book Reviews
theory and philosophy. The not-so-rare
bibliographical pointers in brackets
scattered throughout the text illuminate an
immense variety of theoretical conceptions
built upon. However, there are a lot of
thoughts that will not feature an explicit
reference to a particular author - but all
these conceptions that are indirectly being
made use of will slowly dawn upon the
reader as an unmentioned yet clearly visible
background that enriches March's and
Olsen's narrative.
In remarkable difference to other works
of democratic theory, 'Democratic
Governance' does not have the sometimes
dusty smell of academic self-reference.
While informed by traditional as well as
less traditional sources, it never comes
close to scholarly rumination. Indeed,
March and Olsen assemble a whole new
world of thinking about the basic issues of
democracy. Sometimes it seems to be
possible to locate them in the vicinity of
some familiar political conception (such as
some strands of communitarian thought, or
new republicanism, or Habermassian
discourse ethics), but as soon as this
familiarity is graspable the authors subtly,
albeit quickly and unmistakably, distance
themselves from it. It is impossible to put
them into a drawer with a traditional label -
they are simply March and Olsen.
Why is it so worthwhile for legal
scholars to invest in this book? Because it
casts a new light on many, if not all,
preconceptions and Vorversta'ndnisse of
legal thought. For instance, is it not
common legal knowledge in modern
democracies that democratic accountability
is the centre-piece and Archimedean point
of conceptualizing democratic legitimacy?
March and Olsen, of course, do not argue
against accountability - but relying on
findings of psychology and political
science, they manage to drag this theorem
into the twilight of ambiguity and implant
that grain of doubt into the reader's brain
that will force her to go on thinking about
accountability and to question some of the
basic knowledge we already believed to be
uncontestedly received. In addition, the
authors place our legal beliefs into a wider
context (of ideas about the common good,
or a civilized society), connect them to
thoughts about learning, ideology,
aspirations, solidarity, virtue, faith, or the
development of political identities, and
thus broaden our horizons in the true sense
of the word. Starting out with a brilliant
analysis of democratic governance, March
and Olsen eventually arrive at a democratic
agenda of how individuals and societies
can achieve institutions that make politics
civil and capable. Anyone with only a
slight interest in political theory who is
bored by self-referring accounts of the
exaggerated antinomies between substance
and process or between liberalism and
communitarianism should buy and read
this book.
Ulrich R. Haltern
Harvard Law School
Boyle, A.E. (ed.), Environmental
Regulation and Economic Growth, Oxford:
Clarendon Press (1994) xxix + 252 pages +
Index. $65.
Increasingly stringent environmental
regulation in industrialized States has given
rise to fears of decreasing competitiveness,
and of a curbing of economic growth.
Simultaneously the possibility of
imposition by these countries of green
barriers to regional and international trade
threatens to restrict imports from countries
with lower environmental protection
standards. Fears of economic inhibition are
justified only to the extent that the concept
of sustainable development demands a halt
on indiscriminate economic development
in favour of environmental protection. Yet
the practical meaning of such a concept
and the implementation of leading
complementary environmental principles,
such as the 'polluter pays' principle,
remain full of uncertainties. Focusing on
the interconnection between environmental
law and economic development.
Environmental Regulation and Economic
Growth, fleshes out some of the key legal
136
Book Reviews
issues underpinning any future synthesis
between economic growth and
environmental protection.
The book is basically a collection of
papers presented at the 1993 Oxford Law
Colloquium, in which the concept of
'sustainable development' and the 'polluter
pays' principle serve as the guiding lines
through which the authors discuss various
topics, ranging from the interconnection of
domestic, European, and International
environmental law, through the role of
information, auditing, and liability regimes
in environmental protection, to the
relationship between free trade policy and
environmental protection, the effects of
environmental regulation on business, and
the costs of compliance with a
continuously growing environmental
regulation.
Therefore, as the editor points out in the
Introduction, the book tackles many
important problems of practical importance
to all those dealing with environmental law,
but it does not attempt to present a
comprehensive account of what in any
event is an extremely wide-ranging issue.
However, as he acknowledges, the confines
of the colloquium and of this book did not
permit the inclusion of contributions by
environmental economists. Nor does it
afford attention to developmental issues as
such, which could be regarded as a rather
important omission, although some aspects
of North-South relationships are touched
upon in chapters devoted to the relationship
between trade and environment.
The book has two particular strengths.
First, its blend of expertise and views of
academics, practicing lawyers, regulators,
and figures in industry and commerce
which presents a multilateral and quite
comprehensive account of the relationship
between environmental law and economic
growth (though it is somewhat surprising
that the perspectives of Non-Governmental
Organizations have not been
accommodated). And second, its constant
drawing upon the interplay of international,
Community and national law, which
provides the reader with insights to the
different policy levels and legal solutions
bearing upon the subject. Thus, for
example, in the national arena special
consideration is given to an analysis of the
relevant legal issues in the United
Kingdom, with occasional references to
other Anglo-American legal systems
(United States, Canada and Australia) and
to other European Union Member States
(mainly to northern partners such as
Germany , The Netherlands and Denmark).
However, while accepting the logical
constraints of the colloquium and the book,
a more detailed analysis of the cost
effectiveness of the environmental
legislation under assessment would have
served to further illustrate the extent to
which different levels of environmental
protection allow economic development, as
well as establishing criteria to select the
most appropriate legal instruments for the
attainment of joint environmental and
economic goals.
Overall, the approach followed in
Environmental Regulation and Economic
Growth constitutes a worthwhile
contribution to the ever expanding
literature on environmental law which,
hopefully, will trigger further research on
methods and processes best suited to realize
sustainable growth.
Carmen Plaza Martin
LLM. (University of Essex)
S.J.D. candidate (Universidad Complutense
de Madrid)
HauBler, Richard, Der Konflikt zwischen
Bundesverfassungsgericht und politischer
Fuhrung, Berlin: Duncker & Humblot
(1994) 286 pages. DM 108; 6S 843; sFr
108.
The expansion of judicial power, above all
of Constitutional Courts, has been the
subject of a flood of publications around
the world (the latest example being Tate
and Vallinder's compilation, reviewed in
this issue). In the United States alone, the
'countermajoritarian difficulty' (Alexander
137

1 comment:

Sean said...

My God. Real research. Are you sure you are a conspiracy theorist?


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