Abstracts from Volume XVII, Number 1 (January 2004)


GUEST EDITOR: Colin Harvey

1. "The Left and the Question of Law", Canadian Journal of Law and Jurisprudence, Volume XVII, Number 1 (January 2004) pp. 7-30

David Dyzenhaus 
Faculty of Law 
University of Toronto 
Toronto, Ontario, Canada

This article examines the work of Martin Loughlin, a prominent public lawyer who works in the leftwing tradition of political and legal theory, often associated with the London School of Economics and Political Science. It argues that tensions in Loughlin’s work exemplify certain trends within the left, the result of the left having lost faith in its positive political programme, one which was supposed to be delivered by Parliament. What remains once this faith is lost is a traditional hostility to liberalism and judicial review in combination with a sense that the realm of politics—the political—is valuable. This combination explains the turn taken by certain leftwing theorists to Carl Schmitt’s authoritarian understanding of politics and to a kind of romanticism about tradition. Given the risks inherent in this turn, would be better for the left both to return to its roots in a positive programme. This move would require the left to engage properly in the contemporary debate about the normativity of law.

2. "Social Democracy and the Limits of Rights Constitutionalism", Canadian Journal of Law and Jurisprudence, Volume XVII, Number 1 (January 2004) pp. 31-59

Gavin W. Anderson 
School of Law 
University of Glasgow 
Glasgow UK

Can rights constitutionalism operate as a social democratic restraint on private power? How should we assess this? Following renewed interest in social democratic legal theory, some propose developing more egalitarian forms of rights constitutionalism as a counterweight to overweening private power in the global economy. Such strategies follow a normative methodology, associated with liberal accounts of legality which emphasize the autonomy of law as an external means of social change. This can be contrasted with traditional social democratic accounts of law as an artifact produced through and in political struggle. This shift of focus to normative argument is at the expense of contextual diagnosis, which remains valuable in questioning whether constitutional strategies can restrain private power in the name of substantive equality. Rights constitutionalism, reflecting its classical liberal roots, continues to protect private power in important ways.; Two strategies, based in innovations in North American and European constitutionalism respectively, have been proposed to overcome this default. First, the Application to State Institutions (ASI) model seeks to extend the reach of constitutional application to include private actors, and; second the Application to Law (LAW) model seeks to extend the scope of rights by requiring all law to conform to constitutional guarantees, including equality. A sociologically grounded analysis of the comparative jurisprudence shows these models retain key elements of the classical liberal framework, such as the state-civil society distinction, and which have in practice militated against any significant democratization of private power.

3. "What Constitutions Can Do (but Courts Sometimes Don’t): Property, Speech, and the Influence of Constitutional Norms on Private Law", Canadian Journal of Law and Jurisprudence, Volume XVII, Number 1 (January 2004) pp. 61-81

Oliver Gerstenberg 
Law Department 
University of Leeds 
Leeds UK

In this paper I want to address, against the background of the ECtHR's recent attempt to resolve the clash between property rights and the right to freedom of expression in its decision in <I>Appleby<I> v. <I>UK<I>, two questions, both of which I take to be related to the overarching theme of "social democracy". First, there is the problem of the influence of "higher law"—of human rights norms and constitutional norms—on private law norms; second, the question of the role of adjudication in "constitutionalizing" private law, in other words, the question of the "judicial cognizability" of constitutional norms within private law.

4. "The Equalization of Effective Communicative Freedom: Democratic Justice in the Constitutional State and Beyond", Canadian Journal of Law and Jurisprudence, Volume XVII, Number 1 (January 2004) pp. 83-99

Professor Shane O'Neill 
School of Politics and International Studies 
Queen's University Belfast 
Belfast UK

Jürgen Habermas takes the realization of rights through the democratic self-organization of legal communities to be the normative core of emancipatory politics. In this article I explore the implications of this claim in relation to the requirements of justice. I argue that Habermas's discourse theory of democratic legitimacy resupposes a substantive principle of justice that demands the equalization of effective communicative freedom for all structurally constituted social groups in any constitutional state. This involves the elimination of a range of structural injustices rooted in the complex interrelationships between political, economic and cultural orders. In the final section I sketch briefly the implications of this analysis in the context of ongoing globalization processes. It is suggested that the most effective way to establish a just system of global governance is to equalize effective communicative freedom among nation-states.

5. "Democratic Experimentalism or Capitalist Synchronization? Critical Reflections on Directly-Deliberative Polyarchy", Canadian Journal of Law and Jurisprudence, Volume XVII, Number 1 (January 2004) pp. 101-127

William E. Scheuerman 
Department of Political Science 
University of Minnesota 
Minneapolis, MN, USA

Contemporary "flexible capitalism" requires novel forms of legal regulation. In this vein, Joshua Cohen, Michael Dorf, Archon Fung, and Charles Sabel have developed a provocative set of proposals for a new mode of regulatory law, what they describe as "democratic experimentalism" or, alternately, "directly deliberative polyarchy." Their proposal are criticized: they not only fail to take traditional liberal democratic rule of law virtues seriously enough, but it remains unclear whether they can 
effectively tame and humanize capitalism. Instead, some evidence suggests that their proposals simply amount to a normatively problematic synchronization of the legal system with contemporary high-speed capitalism.

6. "e-democracy: on-line civic space and the renewal of democracy?", Canadian Journal of Law and Jurisprudence, Volume XVII, Number 1 (January 2004) pp. 129-142

John Morison 
School of Law 
Queen's University Belfast 
Belfast UK

e-government is a fast-developing phenomenon in many countries world-wide. Information and communication technology (ICT) has the potential to transform government generally and re-invigorate democracy in particular.  This article considers the role of ICT in increasing democratic engagement both in relation to traditional aggregative forms of democracy and as regards more radical, participatory democracy. Within traditional democracy the potential of ICT moves beyond simply e-voting and has particular application in the various consultations processes that are increasingly of significance within ideas of “modernised government”. The particular value that ICT can bring is of importance for more participatory versions of democracy too.; A model of consultation, drawn from mediation, is outlined and the application of ICT to such methods of decision-making is considered. Finally a range of best practice examples is given to illustrate how a technology of democracy requires putting information technology in service of democracy rather than the other way around.

7. "Max Weber and the Legal-Historical Ramifications of Social Democracy", Canadian Journal of Law and Jurisprudence, Volume XVII, Number 1 (January 2004) pp. 143-184

John P. McCormick 
Department of Political Science 
University of Chicago 
Chicago, IL, USA

Max Weber grappled with the rise of social democracy, the welfare state, or theSozialstaat, most explicitly in the “sociology of law” sections of his posthumously published Economy and Society. Through a close reading of Weber’s text, this essay argues that the historical and analytic categories Weber deployed in his investigation of the Sozialstaat, its rise and its legal dimensions, were inadequate for an appropriate understanding of the phenomena and for the attempt to offer progressive prescriptions for their further development. Instead, by relying on a faulty historical logic, Weber obscured many realities of the Sozialstaat, and unwittingly laid the groundwork for the neo-conservative critique of the welfare state on both sides of the Atlantic. The essay concludes with some reflections on similar, “Weberian,” theoretical moves observable in literatures dealing with the most recent large-scale transformation of law and the state: the rise of the European Union.

8. "The EU and European Democracy – Social Democracy or Democracy with a Social Dimension?", Canadian Journal of Law and Jurisprudence, Volume XVII, Number 1 (January 2004) pp. 185-207

Richard Burchill 
McCoubrey Centre for International Law 
Law School 
University of Hull 
Hull UK

In recent years democracy has become a prominent topic in the development of international law and relations. The trend in the international system in pursuit of international legal requirements of democracy is perhaps most evident in Europe with significant support coming from the regional organisations of Europe. The EU is part of this development having established treaty-based provisions making democracy a requirement for current and potential members. At the same time the economic integration project of the EU places a range of demands upon states which directly impact the type of democracy they may be striving for. Significantly, the EU’s requirements will influence the extent to which social democratic practices may be pursued. Examining the type of democracy the EU is promoting among its current and potential members will be useful for understanding the meaning and content of the type of democracy international law is working towards and also for the future of social democratic practices in Europe.

9. "Media, Markets, and Democracy: Revisiting an Eternal Triangle", Canadian Journal of Law and Jurisprudence, Volume XVII, Number 1 (January 2004) pp. 209-226

Guy Pessach 
Faculty of Law 
The Hebrew University of Jerusalem 
Mt. Scopus, Jerusalem

The article is a Critical Notice of C. Edwin Baker’sMedia, Markets, and Democracy (Cambridge UP: 2002).