This contribution argues that the European crisis in general and Brexit in particular, can be seen to reflect the partial loss of the ethos of a principle that has been at the heart of the EU, namely mutual recognition. While familiar to legal scholars as a norm governing the integration of markets and the management of conflicts of law, the essay seeks to show how this principle bears on our current European predicament as a philosophical concept and a form of governance between states before dwelling on the intricacies of mutual recognition in the EU single market. Because recognition is sought, obtained or denied in all social spheres, every discipline has its own complex variation on this simple theme requiring to connect legal theory with anthropology, philosophy, history, sociology and international relations. The essay spans all these fields through eight takes (mutual Recognition shunned, invented, enshrined, constitutionalised, managed, ‘on trial’, lost, and for grabs) which can also be interpreted as different time horizons (from Sapiens to Brexit through Westphalia). Each take provides a variation on what is referred to as “mutual recognition paradox”, eg how to increase mutual engagement and mutual deference at the very same time.

The nature of the Treaty provisions on EU external action, with a set of open-ended policy objectives and fewer policy-directed legal obligations on the Member States, has left much to the agenda-setting of the political institutions. The Court of Justice emphasises the need for the institutions to retain their discretion, their room for manoeuvre; it is non-interventionist, tending to take those choices at face value without seeking to define or shape them. Instead it has taken on another role: it ensures that the institutions act within their powers, and that the Member States do not obstruct the formation and implementation of Union policy. It is in fact engaged in establishing and protecting an institutional space within which policy may be formed, in which the different actors understand and work within their respective roles. The principles which have been drawn from the Treaties and elaborated by the Court to establish this institutional space are identified here as 'structural principles'. They include the duty of sincere cooperation, the principles of conferral and institutional balance, mutual solidarity, subsidiarity, and the principle of autonomy.

Many states, or rather their leaders and officials, routinely violate the fundamental human rights of both their compatriots or outsiders. Faced with this depressing catalogue of abuses, the international community'™s response of choice consists in imposing economic sanctions on wrongdoers. The relatively scant philosophical literature on the topic tackles primary sanctions - where the sanctioning party (Sender) restricts economic relationships between, on the one hand, the sanctioned party (Target) and, on the other hand, agents of any nationality who are located on its own territory, or its own nationals wherever they are located – in other words, agents who are subject to its territorial and/or personal jurisdiction. In this paper however I focus on unilateral secondary sanctions, whereby Sender seeks to restrict the economic activities of agents who are not subject to its territorial and/or personal jurisdiction, on the grounds that they trade with or invest in Target. I provide a cosmopolitan defence of those sanctions as a means to stop ongoing grievous human rights violations. I proceed as follows. First, I outline the central tenets of cosmopolitan morality which I take for granted throughout this paper. I then mount my cosmopolitan defence of unilateral secondary sanctions. I end by rejecting the view that multilateral authorisation is a necessary condition for sanctions in general and secondary sanctions in particular, though I consider cases where such authorisation is warranted.

An authority often needs to decide whether to go along with a decision of another authority, in order to carry out its own responsibilities. The relevant considerations vary widely among different contexts, but there are some general principles of the approach that authorities ought to take towards the decisions of others. The most important is the principle of comity: that the authority passing judgment (I call it the ‘second authority’) ought to act in a way that respects the capacity of the other (the ‘first authority’) to carry out its own role. A duty of comity is not a duty to trust the first authority. It does not require the second authority to approve of the decisions of the first. It arises not from the rights of the first authority, nor even from the first authority’s success in carrying out its duties, but from the second authority’s duties to those whom the second authority serves, and to those whom the first authority serves. The reasons for the principle of comity support two further principles: that the second authority has limited responsibility for justice, and that the second authority has no general duty to agree with the judgment of the first authority.

Detention as part of migration control is sometimes portrayed as a ‘necessary adjunct’ of the state’s power to control immigration. This characterization is a masking device, obscuring the grounds of detention (or the lack thereof) from proper scrutiny. It has convincingly been argued that human rights law fails to scrutinize the necessity of immigration detention. Many scholars have pointed out the anomalous approach to assessing the legal justifications for immigration detention, compared with other forms of deprivation of liberty, which are more powerfully constrained by human rights law. Yet, cogent as this critique is, it sometimes fails to interrogate the related questions concerning the legal grounds of detention. A ground is a particular form of legal reason, which both explains and justifies the official action in question. By examining the question of grounds, this article aims to elucidate the manner in which immigration law itself produces reasons to detain, and by doing so creates detainable subjects, migrants. Basic liberty-protective principles and practices developed in other areas of law are notably absent. This state of affairs is not inevitable, and legal alternatives are within reach.

There is overwhelming empirical evidence that the rights and wellbeing of children incarcerated in penal institutions in England and Wales are inadequately protected, despite some significant rights-based litigation taken by detained children and their advocates. The removal of criminal legal aid from all prisoners, including children, and the potential future repeal of the Human Rights Act will further increase their vulnerability to rights-abuses. This article argues that one solution to this current legal problem is to abolish penal institutions for children sentenced to custody and to place them instead in care-based homes. A rights-based case is made for this solution by conceptualizing the rights of incarcerated children to argue that the State has an assumed responsibility to parent children deprived of their liberty; a responsibility that can be met only in small, care-based homes. The article concludes by setting out the Coalition Government’s recent proposals to introduce Secure Colleges in the juvenile secure estate, and briefly considers whether these new institutions will facilitate the State’s fulfilment of its assumed responsibility to parent incarcerated children.

Journal Article 'We the People' Outside of the Constitution: The Dialogic Model of Constitutionalism and the System of Checks and Balances Get access Roberto Gargarella Roberto Gargarella * * CONICET (Buenos Aires). Email: roberto.gargarella@gmail.com . Search for other works by this author on: Oxford Academic Google Scholar Current Legal Problems, Volume 67, Issue 1, 2014, Pages 1–47, https://doi.org/10.1093/clp/cuu008 Published: 05 August 2014

The emergence of ‘trade in services’ as opposed to ‘trade in goods’ has the potential to pose challenges for transnational labour laws. In particular, three intertwined narratives have emerged regarding the evolution of international markets and their legal regulation. The first is that trade in services is transforming contemporary labour markets. The second is that the inevitable response to that transformation is to radically revise transnational labour laws, previously established by institutions such as the International Labour Organization and European Union. The third is that, as previous international and European labour standards reflect a political accommodation largely imposed by high-income countries on others, dismantling these can aid development. When subjected to close critical attention, with reference to evolutionary and systems theory, these assumptions emerge as flawed. It is argued that increased trade in services need not lead inevitably to the decline of transnational labour law. Instead, in policy terms, we should be aware of opportunities to follow other potential trajectories, which can enhance agency of all countries and workers therein.

While there is a voluminous literature on proportionality, there is considerably less on reasonableness as a test for judicial review of discretionary determinations. This paper examines the nature of reasonableness as a test for judicial review of discretion in UK law. The paper is not predicated on the assumption that reasonableness always bears the same meaning whenever it is used in constitutional and administrative law in any legal system. Subject to this caveat, it is argued that reasonableness as a test for judicial review of discretion in UK law is concerned with review of the weight and balance accorded by the primary decision-maker to factors that have been or can be deemed relevant in pursuit of a prima facie allowable purpose; that this is borne out through examination of the case law; that insofar as incommensurability is perceived to be a problem in the context of proportionality then this is also true in relation to reasonableness review; that the incommensurability problem is less problematic than is commonly perceived; and that a proper appreciation of reasonableness review has implications for the debate concerning reasonableness and proportionality as tests for judicial review in administrative law.

The accession of the European Union to the European Convention on Human Rights raises questions about the autonomy of EU law, and about the future relationship between the EU Court of Justice and the European Court of Human Rights. The concept of autonomy appears to confirm prevailing theories about the relationships between legal systems in Europe, ie legal and constitutional pluralism. This study challenges those theories, and proposes an alternative paradigm: the integration of laws. Its central argument is that the EU system of human rights protection is increasingly characterized by its integration with the national constitutional laws of the Member States and with the ECHR. It argues that in integrated legal systems, conflicts between supreme adjudicators can be resolved from within the law. Each of the supreme/constitutional courts needs to recognize the limits of its jurisdiction, but is also sharing jurisdiction with the others. This principle of limited and shared jurisdiction is a tool for resolving conflicts, leading away from a conception of a deep conflict of supreme judicial authority. Integrated legal systems are governed by a law of integration, which is there for all to see. The article touches upon some of the elements of that law of integration. It goes on to investigate the scope for EU law autonomy — which is in essence concerned with safeguarding the jurisdiction of the Court of Justice — in connection with accession to the ECHR. It argues that the principle of limited and shared jurisdiction should govern the relationship between the two European courts, and that it is capable of ensuring that the European Court of Human Rights does not decide matters of EU competence, or EU law generally. But the principle also means that the Court of Justice will be bound by judgments of the European Court of Human Rights.