Europe’s “independence wars”: A constitutional perspective—A reply to Antoine Vauchez (2022)
International Journal of Constitutional Law, moac101, Published: 07 December 2022.
https://doi.org/10.1093/icon/moac101
This reply to Antoine Vauchez deploys a constitutional perspective to analyze three critical moments identified by Vauchez in the institutional evolution of the European Union. It argues that a constitutional lens offers a more robust perspective for considering the key issues underlying each of the “critical junctures.” It enables a clearer identification of the costs to the EU of prioritizing functional objectives over democratization. It places debate about the independence of the European Central Bank within the broader context of how to situate expert bodies within governance structures. The debates around the judiciary in Hungary and Poland can be seen as part of the inevitable tension between viewing Europe’s construction as a work in progress towards “ever closer union” and the idea that the basic rules of democratic political association should be settled and stable. Far from being a benign “proxy” for Europe’s constitutional evolution, “independence” obscures the real issues and the costs of evasion.
Consociationalism revisited: Democracies with deep divisions (2022)
It has long been recognised that democracies struggle when deep internal divisions or cleavages exist within their societies. Unresolved divisions lead to backsliding from democratic norms to potential violence and, in the worst cases, to failed states. Modern democratic societies have diversified populations holding many different views about what constitutes well-being. Dissensus on many matters is to be expected. But where deep divisions exist, no group will be able to protect their most important values, or advance any of their aims, if the divisions lead to a situation where the state hovers constantly on the brink of disintegration. Deep internal divisions may also mean that there is no willingness or agreement on how to cooperate with others. You can download the paper here.
The 'Do No Harm' Principle (2021)
The maxim ‘do no harm’ is enjoying a surge in popularity. From its early use in the Hippocratic Oath and medical ethics, its deployment has now extended to other areas including bioethics more broadly, education, the environment and internet ethics. It is held to apply to the decision-making of all actors, from individuals and corporations to governments and their regulators. This paper looks at the sources of the maxim in political economy with particular reference to the work of JS Mill’s theory of knowledge. You can read a brief summary of the paper here or download it here and here.
Brexit: What are the lessons? (2020)
Revista Mexicana de Sociología Volume 82, Issue 3, page 705-17
Download here.
Fairness and the Role of Economic Regulators (2018)
Paper presented at a workshop on The Changing Model of Economic Regulation in the United Kingdom, Wolfson College Oxford, 12 June 2018
The paper looks at fairness in the context of the UK model of economic regulation and suggests that the 1980s model is being replaced by a second stage model. In the 1980s market liberalism triumphed as the least bad way to organize economies. However in recent years market liberalism has come under renewed attack. Some of the critique is from old style socialists, but the more interesting critique is from the American left. Much of the criticism centres around growing inequalities in income and wealth. However, in my view we should look at the growth of contractual uncertainties in market economies. In general terms the issue revolves around fairness and the need for democratic societies to respect norms of fairness. In my book Making a 21st Century Constitution, I discuss different concepts of fairness. Distributional fairness is one dimension, but in my view we have to give greater attention to fair treatment or relationship values.
A fully written UK constitution (2018)
Lecture on A Twenty-First Century Constitution for the UK, Wolfson College Oxford, 6 March 2018
In my new book Making a 21st Century Constitution I discuss the principles for updating constitutional structures in ways that would enable them to provide better support for democracies in today’s world. In this context I have been challenged to set out what these principles would mean for the UK itself. My paper entitled ‘UK constitutional proposal’ responds to this challenge. It also responds to my longstanding interest that the UK should develop a fully written constitution. In my view one of the reasons for the failure of the UK’s relationship with the EU has been because it has lacked a constitutional frame of mind and has thus been unable to grapple with the EU as a political construction. 'Muddling through’ and ‘It will be all right on the night’ has been the mantra of the British political elite from left and right. My proposals replace the House of lords and more generally provide a challenge to the old establishment.
Differentiation in the EU: The Development of Policy Clusters (2013)
University of Strathclyde Studies in Public Policy Paper 499
This paper reviews the scope for greater policy differentiation in the EU. It defines differentiation in terms of the ability of a member state to pursue its own policy in an area where the EU is active. It maps the scope using the concept of policy clusters that gauge the extent to which different areas of EU competence are closely or more remotely connected to each other. The paper outlines the current scope for differentiation and identifies influences on greater differentiation and its costs and benefits in terms of efficiency. It identifies a normative loss in terms of cohesion policies and a normative gain in terms of a reduction in the democratic deficit. The paper points towards institutional implications for greater involvement of member state parliaments and supreme courts.
Regulation in an age of austerity: Reframing international regulatory policies (2011)
LSE Global governance Working Paper 03/2011
This paper looks at the different elements that need to be considered in reframing international regulatory principles. To do so the paper compares the original regulatory reform agenda of the 1990s with three different approaches provided by ‘responsive’, ‘smart’ and ‘performance-based’ regulation. The purpose of this review is to try to ensure that any revisions are securely grounded on approaches that are recognised in regulatory theory and practice and are not simply plucked from the air.
NGO Codes of conduct: The Way forward (2008)
European Policy Forum Presentation at the Meeting on Non-Profit Sector Transparency, EU DG Freedom, Security and Justice
Regulatory Budgeting (2007)
European Policy Forum, London
NGO Codes of Conduct: Monitored Self-Regulation? (2007)
European Policy Forum, London
Not for Profit Organisations: Codes of Conduct (2003)
European Policy Forum, London
Governance in the European Union: From Ideology to Evidence (2001)
European Policy Forum, London
A Framework for Non-Governmental Organisations in International Diplomacy (2001)
Chicago Journal of International Law Volume 2, Issue 2
Structured Flexibility in the EU (1996)
European Policy Forum, London
International Journal of Constitutional Law, moac101, Published: 07 December 2022.
https://doi.org/10.1093/icon/moac101
This reply to Antoine Vauchez deploys a constitutional perspective to analyze three critical moments identified by Vauchez in the institutional evolution of the European Union. It argues that a constitutional lens offers a more robust perspective for considering the key issues underlying each of the “critical junctures.” It enables a clearer identification of the costs to the EU of prioritizing functional objectives over democratization. It places debate about the independence of the European Central Bank within the broader context of how to situate expert bodies within governance structures. The debates around the judiciary in Hungary and Poland can be seen as part of the inevitable tension between viewing Europe’s construction as a work in progress towards “ever closer union” and the idea that the basic rules of democratic political association should be settled and stable. Far from being a benign “proxy” for Europe’s constitutional evolution, “independence” obscures the real issues and the costs of evasion.
Consociationalism revisited: Democracies with deep divisions (2022)
It has long been recognised that democracies struggle when deep internal divisions or cleavages exist within their societies. Unresolved divisions lead to backsliding from democratic norms to potential violence and, in the worst cases, to failed states. Modern democratic societies have diversified populations holding many different views about what constitutes well-being. Dissensus on many matters is to be expected. But where deep divisions exist, no group will be able to protect their most important values, or advance any of their aims, if the divisions lead to a situation where the state hovers constantly on the brink of disintegration. Deep internal divisions may also mean that there is no willingness or agreement on how to cooperate with others. You can download the paper here.
The 'Do No Harm' Principle (2021)
The maxim ‘do no harm’ is enjoying a surge in popularity. From its early use in the Hippocratic Oath and medical ethics, its deployment has now extended to other areas including bioethics more broadly, education, the environment and internet ethics. It is held to apply to the decision-making of all actors, from individuals and corporations to governments and their regulators. This paper looks at the sources of the maxim in political economy with particular reference to the work of JS Mill’s theory of knowledge. You can read a brief summary of the paper here or download it here and here.
Brexit: What are the lessons? (2020)
Revista Mexicana de Sociología Volume 82, Issue 3, page 705-17
Download here.
Fairness and the Role of Economic Regulators (2018)
Paper presented at a workshop on The Changing Model of Economic Regulation in the United Kingdom, Wolfson College Oxford, 12 June 2018
The paper looks at fairness in the context of the UK model of economic regulation and suggests that the 1980s model is being replaced by a second stage model. In the 1980s market liberalism triumphed as the least bad way to organize economies. However in recent years market liberalism has come under renewed attack. Some of the critique is from old style socialists, but the more interesting critique is from the American left. Much of the criticism centres around growing inequalities in income and wealth. However, in my view we should look at the growth of contractual uncertainties in market economies. In general terms the issue revolves around fairness and the need for democratic societies to respect norms of fairness. In my book Making a 21st Century Constitution, I discuss different concepts of fairness. Distributional fairness is one dimension, but in my view we have to give greater attention to fair treatment or relationship values.
A fully written UK constitution (2018)
Lecture on A Twenty-First Century Constitution for the UK, Wolfson College Oxford, 6 March 2018
In my new book Making a 21st Century Constitution I discuss the principles for updating constitutional structures in ways that would enable them to provide better support for democracies in today’s world. In this context I have been challenged to set out what these principles would mean for the UK itself. My paper entitled ‘UK constitutional proposal’ responds to this challenge. It also responds to my longstanding interest that the UK should develop a fully written constitution. In my view one of the reasons for the failure of the UK’s relationship with the EU has been because it has lacked a constitutional frame of mind and has thus been unable to grapple with the EU as a political construction. 'Muddling through’ and ‘It will be all right on the night’ has been the mantra of the British political elite from left and right. My proposals replace the House of lords and more generally provide a challenge to the old establishment.
Differentiation in the EU: The Development of Policy Clusters (2013)
University of Strathclyde Studies in Public Policy Paper 499
This paper reviews the scope for greater policy differentiation in the EU. It defines differentiation in terms of the ability of a member state to pursue its own policy in an area where the EU is active. It maps the scope using the concept of policy clusters that gauge the extent to which different areas of EU competence are closely or more remotely connected to each other. The paper outlines the current scope for differentiation and identifies influences on greater differentiation and its costs and benefits in terms of efficiency. It identifies a normative loss in terms of cohesion policies and a normative gain in terms of a reduction in the democratic deficit. The paper points towards institutional implications for greater involvement of member state parliaments and supreme courts.
Regulation in an age of austerity: Reframing international regulatory policies (2011)
LSE Global governance Working Paper 03/2011
This paper looks at the different elements that need to be considered in reframing international regulatory principles. To do so the paper compares the original regulatory reform agenda of the 1990s with three different approaches provided by ‘responsive’, ‘smart’ and ‘performance-based’ regulation. The purpose of this review is to try to ensure that any revisions are securely grounded on approaches that are recognised in regulatory theory and practice and are not simply plucked from the air.
NGO Codes of conduct: The Way forward (2008)
European Policy Forum Presentation at the Meeting on Non-Profit Sector Transparency, EU DG Freedom, Security and Justice
Regulatory Budgeting (2007)
European Policy Forum, London
NGO Codes of Conduct: Monitored Self-Regulation? (2007)
European Policy Forum, London
Not for Profit Organisations: Codes of Conduct (2003)
European Policy Forum, London
Governance in the European Union: From Ideology to Evidence (2001)
European Policy Forum, London
A Framework for Non-Governmental Organisations in International Diplomacy (2001)
Chicago Journal of International Law Volume 2, Issue 2
Structured Flexibility in the EU (1996)
European Policy Forum, London