(with M. Jachtenfuchs & C. Joerges) (ed.) The End of the
Eurocrats’ Dream (2016, CUP)
This volume argues that
the crisis of the European Union is not merely a fiscal crisis but reveals and
amplifies deeper flaws in the structure of the EU itself. It is a
multidimensional crisis of the economic, legal and political cornerstones of
European integration and marks the end of the technocratic mode of integration
which has been dominant since the 1950s. The EU has a weak political and
administrative centre, relies excessively on governance by law, is challenged by
increasing heterogeneity and displays increasingly interlocked levels of
government. During the crisis, it has become more and more asymmetrical and has
intervened massively in domestic economic and legal systems. A team of
economists, lawyers, philosophers and political scientists analyze these deeper
dimensions of the European crisis from a broader theoretical perspective with a
view towards contributing to a better understanding and shaping the trajectory
of the EU.
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(with A. Arnull) (eds) Oxford Handbook of EU Law (2015,
OUP)
Since its formation the
European Union has expanded beyond all expectations, and this expansion seems
set to continue as more countries seek accession and the scope of EU law
expands, touching more and more aspects of its citizens' lives. The EU has never
been stronger and yet it now appears to be reaching a crisis point, beset on all
sides by conflict and challenges to its legitimacy. Nationalist sentiment is on
the rise and the Eurozone crisis has had a deep and lasting impact. EU law,
always controversial, continues to perplex, not least because it remains
difficult to analyse. What is the EU? An international organization, or a
federation? Should its legal concepts be measured against national standards, or
another norm?
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(with G. Davies and G. Monti) European Union Law (2014, CUP)
This
eagerly awaited new edition has been significantly revised after extensive user
feedback to meet current teaching requirements. The first major textbook to be
published since the rejuvenation of the Lisbon Treaty, it retains the best
elements of the first edition – the engaging, easily understandable writing
style, extracts from a variety of sources showing the creation, interpretation
and application of the law and comprehensive coverage. In addition it has
separate chapters on EU law in national courts, governance and external
relations reflecting the new directions in which the field is moving. The
examination of the free movement of goods and competition law has been
restructured. Chapter introductions clearly set out what will be covered in each
section allowing students to approach complex material with confidence and
detailed further reading sections encourage further study. Put simply, it is
required reading for all serious students of EU law.
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European Union Public Law (With Adam Tomkins) (2007,
Cambridge University Press, lix, 501 pp)
‘Alternatives to EU Membership and the Rational Imagination’
(2016) 87(2) Political Quarterly 269–279
‘The Persona of EU Law’ 89-108 in L Azoulai, S. Barbou des
Places and E. Pataut (eds), Ideas of the Person and Personhood in EU Law
(2016, Hart, Oxford)
(with Sarah Trotter) 'Fundamental rights and legal wrongs:
the two sides of the same EU coin' E.L.J. 2016, 22 (1) pp.9-39.
This article argues that the relationship of EU fundamental
rights to the rest of EU law can only be understood if the former are seen as an
integral part of a general vision of what EU law is about. This vision conceives
EU law as concerned to secure the government of a European political economy. In
turn, it has come to shape the interpretation and incidence of EU fundamental
rights with the latter conceived as a central tool for incorporating the
individual into and asserting her place within the government of the European
political economy. A paradox has therefore emerged. EU fundamental rights have
become ever more pervasive in EU law, and it is couched more frequently in their
terms, but these same fundamental rights seem ineffectual to deal with the
suffering caused by events such as the crisis.
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‘Crisis Reconfiguration of the European State’ 266-298 in D.
Chalmers, M. Jachtenfuchs & C. Joerges (ed.) The End of the Eurocrats’ Dream
(2016, CUP)
(with M. Jachtenfuchs and C. Joerges) ‘The Retransformation of
Europe’ 1-25 in D. Chalmers, M. Jachtenfuchs & C. Joerges (eds) The End of
the Eurocrats’ Dream (2016, CUP)
‘Judicial Performance, Design and Membership at the Court of
Justice’ 51-78 in M. Bobek (ed) Selecting Europe’s Judges (2015, OUP)
‘The Democratic Ambiguity of EU Law-Making and Its Enemies’
303-326 in A. Arnull & D. Chalmers (eds) Oxford Handbook of EU Law (2015,
OUP)
‘Icesave - Limited Homogeneity and Unlimited Judicial
Interpretation’ in C. Baudenbacher (ed) The EEA and the EFTA Court (2014,
Hart) 407-417
'What Van Gend en Loos stands for' International
Journal of Constitutional Law (2014) 12 (1) pp.105-134
Three transformational developments flowed from Van Gend en Loos: the central symbols and ideals of EU law; an autonomous legal order with more power than traditional treaties; and a system of individual rights and duties. The judgment also set out how each of these developments was to be deployed. The symbols and ideals were set out to proclaim EU authority rather than to go to what the EU did. What the EU did was, above all, government through law. The EU legal order was conceived, above all, therefore, as a vehicle for the expression of EU government. This, in turn, shaped the allocation of individual rights which were predominantly granted only where they furthered the realization of the collective objectives of EU government. Conceiving EU law as governmental law also left a profound and negative effect on EU legal meaning. This became shaped by EU law being reduced to something to sustain activities valued by EU government rather than to provide a wider, more emancipatory imaginary.
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(with Mariana Chaves) ‘EU law-making and the state of European
democratic agency’ in S. Hobolt & O. Cramme (ed) Democratic Politics in a
European Union under Stress (2014, OUP) pp.155-179
(with Mariana Chaves) 'The reference points of EU judicial
politics' Journal of European public policy (2012) 19 (1). pp. 25-42.
ISSN 1350-1763
'Introduction: the conflicts of EU Law and the conflicts in EU
law' European law journal (2012) 18 (5). pp. 607-620.
'The European redistributive state and a European law of
struggle' European law journal (2012) 18 (5). pp. 667-693.
'Looking back at ERT and its contribution to the EU
fundamental rights agenda' In: Azoulai, L. and Maduro, M., (eds.) The past
and future of EU law: the classics of EU law revisited on the 50th anniversary
of the Rome Treaty. (2010 Hart Publishing Ltd)
'Gauging the Cumbersomeness of EU Law' (2009) Current
Legal Problems 62 (1). pp. 405-439
'The Politics of European Reason and New Reasons for European
Politics: the European Union Fundamental Rights Agency' in Vos (ed) Fifty
Years of European Integration (2009, Kluwer) pp.77-112
'Looking Back at ERT and Its Contribution to an EU Fundamental
Rights Agenda' in M. Maduro & L. Azoulay (ed) The ECJ After Fifty Years
(2009, Hart)
'Constituent Power and the Pluralist Ethic' 291-315 in
Loughlin & Walker (ed) The Paradox of Constitutionalism (2007, OUP)
The book sets out to examine some of
the key features of what we describe as the paradox of constitutionalism:
whether those who have the authority to make a constitution - the 'constituent
power' - can do so without effectively surrendering that authority to the
institutional sites of power 'constituted' by the constitutional form they
enact. In particular, is the constituent power exhausted in the single
constitutive act or does it retain a presence, acting as a critical check on the
constitutional operating system and/or an alternative source of authority to be
invoked in moments of crisis? These questions have been debated both in
different national contexts and at the level of constitutional theory, and these
debates are acknowledged and developed in the first two sections of the book.
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'Political Rights and Political Reason in European Union Law
in Times of Stress' 55-83 in Sadurski (ed) Political Rights under stress in
21st century Europe (2006, OUP)
'Private Power and Public Authority in European Union Law'
(2005-6) 8 Cambridge Yearbook of European Legal Studies 59-94
'The Government and Citizenship of Self Regulation' 161-189 in
Cafaggi (ed) Reframing Self Regulation in European Private Law (2006,
Kluwer)
In this thought-provoking book thirteen outstanding authorities
from various EU jurisdictions examine the legal basis of self-regulation and its
function in the process of European legal integration, with particular reference
to European private law.
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'Administrative Globalisation and Curbing the Excesses of the
Nation State' 351-380 in Joerges & Petersmann (eds) Constitutionalism,
Multilevel Trade Governance and Social Regulation (2006, Hart)
This
is a book about the ever more complex legal networks of transnational economic
governance structures and their legitimacy problems. It takes up the challenge
of the editors' earlier pioneering works which have called for more
cross-sectoral and interdisciplinary analyses by scholars of international law,
European and international economic law, private international law,
international relations theory and social philosophy to examine the
interdependences of multilevel governance in transnational economic, social,
environmental and legal relations. Two complementary strands of theorising are
expounded. One argues that globalisation and the universal recognition of human
rights are transforming the intergovernmental "society of states" into a
cosmopolitan community of citizens which requires more effective constitutional
safeguards for protecting human rights and consumer welfare in the national and
international governance and legal regulation of international trade. The second
emphasises the dependence of the functioning of international markets and
liberal trade on governance arrangements which respond credibly to safety and
environmental concerns of consumers, traders, political and non-governmental
actors. Enquiries into the generation of international standards and empirical
analyses of legalization and judizialisation practices form part of this agenda.
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'Judicial Understandings of the Authority of EC Law in the
United Kingdom' 151-170 in Bapuly, Riekmann & Slominksi (eds) Europäisierung
durch Recht: Zwischen Anspruch und Wirklichkeit (2005, Nomos)
'The Court of Justice and the Constitutional Treaty' (2005) 4
I-CON 428-453
'Judicial Authority and the Constitutional Treaty' (2005) International
Journal of Constitutional Law (ICon) 3.2 (448).
'Risk, Anxiety and the European Mediation of the Politics of Life' (2005) 30
European Law Review 649-675
Discusses how the regulation of genetically modified (GM) food and feed by
the European Food Safety Authority reveals the mediation which occurs between
the politics of hazard and the politics of anxiety. Outlines the legal framework
governing the marketing of such food and reflects on the operation of the
politics of genetic hazard in relation to three GM products.
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'The Reconstitution of Europe's Public Spheres' (2003) 9 European Law
Journal 127-189
The strength of participation in its political processes has increasingly
become the yardstick against which the legitimacy of the European Union is
measured. Yet experiments in deliberative and participatory democracy suggest
that their practice invariably falls short of their lofty ideals. A reason is
their failure to consider the process of communication itself. As understanding
of communication is constituted through a number of surrounding communicative
contexts, communication, per se, can never be said to be good or bad. More
important is a constitutional framework for communication which provides the
contexts—performative, institutional and epistemic—that enable communication to
contribute to particular, desirable ideals. This piece will argue that a
deliberative approach to European governance involves a process of justification
in which the three practical tasks of the European Union—polity-building,
problem-solving and the negotiation of political community—are debated and
resolved around the four values that have underpinned the development of
politics as a productive process—those of transformation, validity,
relationality and self-government. The organisational reform required for this
involves a wide-ranging revisiting of the structures of the European polity.
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'"Food for Thought": Reconciling European Risks and Traditional Ways of
Life' (2003) 66 Modern Law Review 532-562
The European Food Safety Authority marks a new stage in European Union
governance. It has no direct regulatory powers, but is entrusted with developing
norms of food safety, which are to inform the material content of EC food law.
The hope is that its independence and expertise will restore popular confidence
both in the EU and in the food we eat. The irreducible nature of lay-expert
conflicts about hazard suggests that a more likely scenario is that such
disputes become recast as opposition to EC law. Such conflict is most likely to
manifest itself in national courts through challenges to or non-compliance with
EC law. The current principles for resolution of such conflicts are hopelessly
outmoded. The article, therefore, argues for a constitutional resettlement,
which sets out principles germane to the nature of the EC regime, namely that of
a multi-level regulatory State. It argues for a new defence of regulatory
balance. Individuals could argue for the disapplication of EC norms where these
violated a valued local regime which had given consideration to the issues
raised in the EC legislation and whose positive value to its subjects exceeded
its negative impact on the interests protected by the EC legislation.
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'The Mistakes of the Good European' in Fredman (ed) Discrimination and
Human Rights: The Case of Racism
(2001, OUP) 193-247
This
set of essays provides and important contribution to the debate about the role
of human rights law in combating racism. The first essay examines the right to
equality in the context of racism, drawing on a wide range of international and
comparative sources to create a critical framework of analysis. The second essay
locates the discussion within the context of multi-culturalism, ethnicity, and
group rights, with specific reference to ethnicity within Europe. The next set
of essays is concerned with international istruments to address racism, followed
by a critical examination of the newly developed race discrimination directive
at EU level. The particular problem of race hatred on the internet is examined
in the seventh chapter, followed by an important discussion of enforcement and
remedial structures.
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'Postnationalism and the Quest for Constitutional Substitutes' (2000) 27
Journal of Law & Society
178-217
Post-nationalism is suggestive of a number of transformations in the
practice of both law and politics. In the case of politics, it implies an
assertion of the salience of the organization of scale, time, and individual
subjectivity in the practice of politics, yet a corresponding acknowledgement
that traditional administrative structures have lost their hegemony over
organization of these phenomena. In the case of law, it implies a legal
pluralism caused in part by administrative differentiation, but also brought
about an increase in the number and types of organization that have private
'law-making' capacities. These processes are particular disruptive for the
modern constitution, which has traditionally been identified as a central
instrument in the recognition, co-ordination, interaction, and self-legitimation
of law and politics. This begs the question as to what processes are carrying
out tasks that have traditionally been associated with the modern constitution.
This essay argues that the fluidity and complexity of these processes entail
that they must lie in the processes of interaction themselves. In particular, it
argues that the central 'constitutional substitute' is the individual act of
recognizing organizations as having political and legal attributes. For the
process of recognition contains two structures which serve to organize and
legitimize interaction. Any act of 'constitutional' recognition requires, first,
a process of prior evaluation on the part of the observer that requires the
organization to justify itself to the observer. The according of recognition, by
contrast, entails that the observer respect the organization as having the
autonomy to impose and represent itself politically. This respect allow the
organization to order legal and political life.
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'The Positioning of EU Judicial Politics within the United Kingdom' (2000)
23 West European Politics 169-210