Various studies have recently revealed that a political representation crisis is taking place worldwide. The results obtained show that adolescents represent democracy as a fundamental mechanism for the operation of the representative democratic regime and the inherent principles of this form of government. It is concluded that these ways of representing democracy seem to overshadow the possibility of regarding it as a system of government, that is, a broad political institution. The purpose of political parties is to represent citizens in representative democracies.

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War is permitted as a sanction only as a reaction against a wrong suffered, against a definite conduct of states, determined by international law, and permitted only when directed against the state responsible for this conduct. Any war that does not present this character is a violation of international law. This is the substance of the bellum iustum. War is a mass murder, the greatest misfortune of our culture.

The problem of peace and the roads to war: an historical investigation on the use of international force. Nowdays Europe faces troubling times. Constructive suggestions — such as the federal finality that Joschka Fischer sought to promote in his legendary lecture at the Humboldt University in Berlin [1] more than ten years ago — no longer sound credible. One of his seminal essays explained that the pressure to harmonize, stemming from integration, would become stronger [8]. It was both smaller and more homogeneous than the current Union.

For this reason alone, the incorporation of the project of integration through law, particularly its commitments to a legal ordering of economic policy Ordnungspolitik , no longer seem viable. By now, individuals see the symptoms of a deep crisis and the necessity for developing new perspectives for the European project appears irrefutable.

This essay proceeds in five steps. The first step, taken somewhat in haste, concerns the Weberian notion of the nation-state and its pursuit of power through economic strength. The second involves the taming of the self-same nation-state by law and the de-coupling of the European economic constitution from the labor and social constitutions of the nation-states, which presents itself to the one — Ordo-liberal — side as nothing but a logical implication of the establishment of a European economic order, while other political quarters perceive this disconnection as a threat to the legacy of the welfare state.

These challenges will be addressed in the Epilogue, which will also tentatively consider an alternative vision to both the frightening as well as the possibly merely voluntarist scenarios on the future of the European integration project.

The steps towards European integration after World War II document how we overcame our bellicose past. At the same time, the designers of the project wanted to rein in the economic militancy of the nation-state.

Processes of economic development are in the final analysis also power struggles, and the ultimate and decisive interests at whose service economic policy must place itself are the interests of national power, where these interests are in question.

The science of political economy is a political science. It is a servant of politics, not the day-to-day politics of the individuals and classes who happen to be ruling at a particular time, but the lasting power-political interests of the nation.

We do not. This text has weathered these concerns well. He developed a profoundly thought-through in terms of economic theory, sociology, and history, and — despite all its jingoistic pronouncements — also stands as a critique of the lack of political capacity of the German political class [14].

A rare, albeit superficial, consensus has emerged regarding this critical evaluation. Beyond this consensus, the crisis has generated challenges for all disciplines engaged in European studies. The following deliberations will examine the peculiar position of Carl Schmitt [15].

Also during this time period, the Institute for Politics und International Law was celebrating its 25th anniversary. His observations on the increase of executive power — broadly supported by comparative legal research — must also be taken into account. Their necessity arises from the particular circumstances of an individual case, an unexpected abnormal situation.

If, in the interest of the whole, such renegade entities are formed, the superiority of the existential over mere normativity is apparent. Whoever authorised such acts and is capable of acting, is sovereign. After all, in the current management of the crisis, the actors are not alone.

They must not only come to an arrangement at a supranational level, but also between the levels of the multilevel governance system, as well as internationally—the dictator has been replaced by technicity.

But how comforting is this? The fact remains that the new form of European government collides with democratically-legitimized institutions and processes. Thus, it is anything but comforting that the new European practice coincides with ideas of prominent American constitutionalists who draw upon Carl Schmitt in order to turn away from James Madison and argue the case for a plebiscitary democracy in place of a representative one; theorists who advocate delegating political power to the executive in case of need.

Now, one must take into account what Rechtsstaatlichkeit [42] and democracy meant to Schmitt. For Kelsen there exists only one legal system, which includes in its single normative hierarchy both domestic and international law. The starting point is radical, in that the premises Kelsen takes have their roots in general epistemology.

Kelsen adopts the theory of knowledge and the philosophy of science developed by the Marburg school, deducing from them, following the teaching of Rudolf Stammler, the central assumptions of his theory of law.

Logico-mathematical knowledge, by contrast with the empirical disciplines that study natural phenomena, is autonomous in object and method [46]. It is, moreover, transcendental knowledge in the Kantian sense [47] , i. In this epistemology of the unity and objectivity of the science of law, the dimension of state subjectivity, and even the individual and his or her fundamental rights — in a paradoxical equation of the individualism of states with the individualism of individuals — are subordinated to the objectivity of the universal legal system.

For objectivism the individual is a mere appearance. Kelsen admits that the acceptance or rejection of these epistemological hypotheses are, in principle, the object of an evaluative choice involving alternative world views [52].

In particular, it is clear that Kelsen cannot maintain the primacy of international law without committing himself to maintaining its juridical nature too. As we know, doubts as to the legal nature of the international normative [55] system have mostly been raised by pointing to the lack at the international level of sanctioning institutions or instruments, or to the decentralized, fragmentary and ineffectual nature of those which do exist [56].

In Peace through Law Kelsen, as is well known, sets forth a complete legal-institutional strategy to pursue a stable and universal peace among nations [57]. According to Kelsen, the royal road to achieving the aim of peace is the union of all states or the greatest possible number of them in a world federal state [59]. But to be a realist, this objective must be viewed as the outcome of a long historical process.

It is only through numerous intermediate stages and on the basis of a conscious ideological, political and educational commitment that it is possible to achieve an attenuation of national feelings and a levelling out of cultural differences between the various countries [60]. These give a central role to judicial functions by comparison with those of government or legislation. The failure of the League of Nations, Kelsen maintains, is due to the very fact that the centre of its operations was not the Court of Justice but the Council, that is, a sort of international government.

Failing this higher authority, every state has de facto competence to decide who is in breach of international law and to make recourse to war or reprisals against those presumed in breach of international law [63]. Nor did it make much sense to maintain that this would amount to ratifying at legal level their political and military hegemony. By accepting the rules of the Covenant and ensuring their observation the Great Powers would commit themselves to exercising their inevitable superiority within the conventions of international law rather than in arbitrary fashion [65].

On the other hand, it is clear that an international court, in order to secure enforcement of its own verdicts without recourse to the military force of the Great Powers or even against them , would have to have extremely great power at hand: it would itself have to be a nuclear superpower or the judicial organ of a nuclear superpower, endowed with overwhelming force by comparison with the other Great Powers.

The consequences this would have in terms of impartiality of its verdicts are easy to conjecture. It need scarcely be added that the concentration of political and military power in the hands of an international institution — whether governmental or judicial — amounts to concentration in it of the ius ad bellum that has been taken away from nation-states.

The first is easily dealt with: how international law can be binding upon sovereign states. The second doubt is how international law can, in the absence of organized international sanctions, be binding in the same sense as ordinary municipal law.

Hart argues that, although in any legal system obligation is generally congruent with a likelihood of sanctions for disobedience, there is no necessary relation between the two. Whatever differences exist do not overcome the fact that international law is thought and spoken of as obligatory, that it gives rise to claims and admissions couched in legal terms, and that when rules of international law are disregarded, states attempt to show that the facts are not as claimed or, it may be added, that the rules do not apply to the alleged facts , rather than that the rules are not binding.

Nevertheless each of his arguments entails a line of reasoning which may lead to undesirable implications for international law. This rule makes it possible to identify sources of law. The rule of recognition is more fundamental than the notion of sovereignty since it tells who the sovereign is and how his power can be transferred. Perhaps, Hart adds, if multilateral treaties were to be generally recognized as binding upon states that are not parties to them, such treaties would become legislative enactments and thus international law would be provided with a distinctive criterion of validity for its rules.

A closer look at the idea of rules of recognition is therefore in order. When does the rule of recognition arise which transforms a primitive society into a modern legal system? How does it arise? Once it has arisen, can it be revoked? Hart does not appear to give a satisfactory answer to these questions, which are analogous to questions one might ask about a theory of sovereignty.

Further, how does the rule of recognition cope with the possibility of an abuse of authority on the part of the lawmakers? But if this is true, it would not take long for a legislator to change or manipulate the rules of recognition at whim.

This point is easily seen in international law. The practice of states which gives rise to rules of international law often reflects shared attitudes about what international law ought to be. States are aware that their actions have legal consequences — that their conduct is the raw material of custom and precedent — within a system in which it is generally accepted that their actions ought to have legal consequences.

Why this has come about is a matter of sociology, but there is no doubt that it does occur. His argument is that when multilateral treaties become generally accepted as binding upon nonparties, they will become legislative enactments and thus international law will finally have a rule of recognition. The treaties might be given weight according to the number of states which have ratified each convention, an idea wholly at variance with municipal legislation.

But quite apart from these objections, it is apparent that if treaties become a form of international legislation, they will have done so by the operation of the practice of states hardening into law. State practice may accept a form of international legislation or it may not, but the entire legal system is not fundamentally altered thereby.

Although neither of these arguments separating law and morality appears logically compelled by his main arguments on international law, it is nevertheless significant that Hart has made them. They tie in with his general thesis that rules of law are often morally indifferent but are no less rules of law. While it is true that at least some rules of law in most legal systems may be morally indifferent, to emphasize this too much is to underestimate the contribution of natural law to international law or to misinterpret some of the rules deriving from natural law.

Yet to reject this learning may be to discard much of the structure that is common to international law and to classic theories of natural law. Two brief examples may be cited: first, it is possible to argue that the prohibition against unjust wars found in Grotius and many of his contemporaries has persisted as a rule which requires by its own terms a moral or natural-law interpretation. Even in the era of the United Nations there may still be a just war fought solely for self-defense against an armed attack or fought by the international community acting through appropriate United Nations organs against a state which has caused a threat to the peace.

If in years to come the idea of threat to the peace is enlarged to include such actions as violation of an arms control treaty or even severe violations of human rights law, natural law and morality will have to be taken into account in determining whether the international community is authorized to take action.

Second, the rule of pacta sunt servanda cannot always be satisfactorily applied without reference to its moral purpose. Hart suggests that a state may adhere to an onerous treaty because of a long-term interest in preserving confidence in treaties or because it considers that, having received the benefits of a treaty, it is likewise obliged to accept its present burdens. Yet such motivation — which may indeed explain the not quite analogous municipal law contract — is no help in assessing a claim of clausula rebus sic stantibus.

But attention to the substance of morality inherent in a prior promise may, in some cases where the circumstances have radically changed, indicate that the prior promise is no longer substantively applicable and that it would be unjust to insist upon strict compliance [74].

The just war tradition is comprised of jus ad bellum , which governs the decision to go to war, and jus in bello , which regulates the conduct of war. This has been the standard used by moral philosophers to examine the use of force in an international context [75]. To avoid unnecessary confusion, my paper assumes a defence of the collective approach in war has already been given, i. This allows me to make two claims which are relevant to this structure.

First, the ethics of war is, indeed, sui generis and, contra revisionists, cannot be governed by any accounts of individual defensive ethics. To this end, I explore a conceptually different form of force, or more specifically the way in which military force is used, in modern warfare and assess whether this has any implications for the Just War paradigm [76].


Chapter 7. Application Of The Legal Order



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