Dutch-speaking readers of this blog may be interested in an article I wrote on the Dutch Supreme Court (Hoge Raad)'s handling of EU law in private legal disputes (published in Ars Aequi 2015, p 716-722). In brief, the main conclusion is twofold: On the one hand, the Court integrates EU law in Dutch private law in line with a monist (constitutionalist) perspective on the relationship between European law and national law. On the other hand, the Supreme Court seems hesitant to interfere in the system of private law laid down in the Dutch Civil Code, opting for interpretation of private law provisions in line with EU law rather than amendment of the Code.
Showing posts with label constitutional theory. Show all posts
Showing posts with label constitutional theory. Show all posts
Tuesday, 15 September 2015
Monday, 12 January 2015
The constitutional imagination
European private law scholarship can learn a lot from European constitutional theory. Where constitutional rights and principles determine the framework within which modern societies (have) develop(ed), private legal rights and principles also form important building blocks in the architecture of transnational societies.
Hence, a reading suggestion on 'The Constitutional Imagination', by Martin Loughlin, available in the Modern Law Review and on SSRN. Its abstract reads:
'The constitutional imagination refers to the way we have been able to conceive the relationship between thought, text and action in the constitution of modern political authority. The lecture seeks to demonstrate how modern constitutional texts come to be invested with a ‘world‐making’ capacity. The argument is advanced first by explaining how social contract thinkers have been able to set the parameters of the constitutional imagination (thought), then by showing that constitutions are agonistic documents and their interpretative method is determined by a dialectic of ideology and utopia (text), and finally by examining the degree to which constitutions have been able to colonise the political domain, thereby converting constitutional aspiration into political reality (action). It concludes by suggesting that although we seem to be entering a constitutional age, this is an ambiguous achievement and whether the power of the constitutional imagination can still be sustained remains an open question.'
'The constitutional imagination refers to the way we have been able to conceive the relationship between thought, text and action in the constitution of modern political authority. The lecture seeks to demonstrate how modern constitutional texts come to be invested with a ‘world‐making’ capacity. The argument is advanced first by explaining how social contract thinkers have been able to set the parameters of the constitutional imagination (thought), then by showing that constitutions are agonistic documents and their interpretative method is determined by a dialectic of ideology and utopia (text), and finally by examining the degree to which constitutions have been able to colonise the political domain, thereby converting constitutional aspiration into political reality (action). It concludes by suggesting that although we seem to be entering a constitutional age, this is an ambiguous achievement and whether the power of the constitutional imagination can still be sustained remains an open question.'
An audio recording of Loughlin's lecture is available on the website of the London School of Economics.
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