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European Legal Integration and Legitimacy

Abstract: 
For it to be legitimate, this study must be carefully circumscribed. The problem it purports to address is not that of the legitimacy of the structures or organs of the European Union but that of the integration of EU law into the legal systems of its Member States. By what title can EU law impose its norms on national legal systems, and so much so that the conditions in which rule-making is organized within those orders are affected to the point of turmoil? On what conditions can EU law be integrated? What consequences does such normative integration hold for the way in which relations among legal systems are described? Our discussion addresses not so much the actual dynamics of legal integration but rather the discourses of justification it produces and on which it rests.

Norberto Bobbio and international law

Abstract: 
For an international law scholar who delights in the work of Norberto Bobbio, who was without contest one of the greatest legal theorists of the 20th century, Bobbio’s attitud towards his discipline is downright frustrating. Admittedly, internationalists are used to theorists’ hostile or reserved attitudes towards international law. Remember John Austin explaining that international law is not law "properly so called" but mere "positive morality", or Hart, who saw in international law a set of primary norms without any secondary norms, and so a very primitive system that hardly deserved to be called law at all. But Bobbio’s attitud is even more frustrating. He says next to nothing of international law, not, as we shall see, that he did not make reference to it, but he (almost) never addressed it as a specific subject of reflection for the legal theorist.

Impeachment clauses and the different meanings of ‘constitution’ in the United States of America

Abstract: 
The purpose of the present article is not to review all the aspects of executive accountability in the United States. Rather, I will attempt to make a few steps towards a better understanding of the removal procedure applicable, among others, to the President of the United States and that is commonly termed “impeachment”. Besides, impeachment is so central to the constitution that it commands the overall interpretation of the accountability of the US President. From this standpoint impeachment exerts both an attractive and an inhibitive effect. It is attractive because the political will to bring the President to account must generally fit into the mould of impeachment. It is inhibitive because impeachment has such solemnity, such gravity about it that it is not an instrument for everyday use. Attempts to inflict lesser sanctions or disapprobation on the President are halted by that solemnity and that gravity. From a dogmatic standpoint, all of that is capture in the fact that impeachment is approached by lawyers as a procedure of an exceptional nature.

Can failure to enact the organic law called for by article 68 of the Constitution fetter impeachment of the President of the French Republic?

Abstract: 
We shall dwell upon a constitutional nicety: although article 68 was revised on 23 February 2007, the organic law called for by that article has still not been passed more than two-and-a-half years later! Right-minded people are growing concerned about it. In the latest edition of his commentary on the Constitution, Guy Caracassonne observes that this new organic legislation “is becoming overdue, which is worrying as a matter of principle”.

Compensation for losses arising from the early termination of public contracts for reasons of public interest

Abstract: 
Can a public contract be terminated early on the ground that it is in the public interest to do so, without the contractor being able to claim any compensation? The question might come as a surprise because its two terms seem so inseparable. Early termination in the public interest is anchored every bit as firmly in administrative contract law as the principle of compensation, a variant of liability without fault for sovereign acts, which is its corollary. Being a rule applicable to all administrative contracts, including contracts between public entities, the early termination of a contract in the general interest cannot be the subject of any waiver by the administration and consequently can only be varied by legislation. There has thus long been enshrined in law, as in some foreign legal systems, the idea that matters in the general interest entitle the administration to require of its contractor the early termination of contracts to which it is party in exchange for fair compensation.

The main lines of the draft reform of the Uniform Act Organizing Securities

Abstract: 
As credit institutions have to comply with ever tighter solvency ratios, their financing potential is highly dependent on their exposure to the risk of default by borrowers and therefore on the quality of the security interests and personal guarantees they have in such circumstances. Since increased investment and trade presupposes increased lending and borrowing, one way and not the least to enable the economy to develop may therefore be to improve the quality of security interests that may be offered to credit institutions, thereby allowing them to lend more or to lend more cheaply.

The International Bill of Human Rights, coherence and complementarity?

Abstract: 
The Universal Declaration of Human Rights derives its political inspiration and its legal standing from the United Nations Charter. It gave hard substance to the general commitment to cooperate to bring about “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” pursuant to article 55 (c) of the UN Charter. For want of time, the participants at the San Francisco Conference had been unable to draw up a list of human rights and so confined themselves to the incantatory references to human rights that form a sort of leitmotiv of the Charter in answer to the hopes and expectations of NGOs, especially US associations and trade unions.However, in his closing speech to the San Francisco Conference, President Truman voiced the wish that the UN would adopt ‘an international bill of rights acceptable to all the nations involved’. Actually, this mission was to be the first mandate given to the new Commission for the Promotion of Human Rights, the creation of which was expressly provided for by UN Charter article 68. ECOSOC resolution E/RES/1946/9 (II) of 4 June 1946 setting up the Commission on Human Rights asked it to draw up an “international bill of rights” (para. 7) on the basis of the early work of the “nuclear commission” which had been tasked with preparing the ground.

Continental law confronted with globalization

Abstract: 
Continental law and globalization: each of the terms of the subject requires some explanation.Continental law first. This is the law that comparatists distinguish from common law and sometimes refer to by the term civil law. So it is a system, a culture, a tradition, a legal family that is said to be Romano-Germanic, Latin, civilistic or… continental. It now has its own Foundation, formed under the laws of France, created in 2007: the Fondation pour le droit continental or Civil law initiative. It is not monolithic: comparatists distinguish principally within it German law and French law, that they willingly present for German law as a professorial law ordered around concepts, and for French law as a legists law ordered around rules. It is about continental law as illustrated by the French tradition that we shall reason here.Globalization next. This term denotes roughly a change of scale. In the sense that questions that used to be posed at state level are now posed for much greater areas and often for the planet as a whole. That is a phenomenon that is as plain as day: just look at the financial and stock-market news of recent weeks… The phenomenon prompts various reactions: it worries those who are reassured by their borders; it thrills those whom their borders stifle.

A confused constitutional order. Inexpressibility and uncertainties of the French constitution

Abstract: 
In France today, we are prompted to value the notion of constitution whether in political talk or in the learned discourse of jurists. The notion has in some sense been placed back at the very core of national political culture after, if not having been driven out, at least having played only a very unobtrusive role for many decades. "The Constitution" is nowadays invoked much as it is in most free countries governed by law, in what are conventionally called constitutional democracies. This reinstatement (for it does seem that is what it is, especially with respect to the beginnings of the Fifth Republic) appears to be incontrovertible, but it is extremely ambiguous even so.

From the European civil code to revision of the Community acquis: Just how legitimate is Europe?

Abstract: 
In 2010 a body of rules on contract law in the European Union will have to be adopted", that body of rules being but the vanguard of a future European Civil Code. That was the message delivered up to French jurists by Christian von Bar, just eight years ago now, from the Grand’chambre of the Cour de cassation, by way of notice to them that they should prepare to store away the French People’s Code civil along with any other outdated theatrical props. In voicing that opinion, the speaker was for that matter merely responding to the call of the Community authorities and of the European Parliament in particular.What had all the appearance of a diktat encountered a wave of protest in France. It was pointed out both that "a Civil Code is not a community instrument" and that the Community authorities have no jurisdiction to infringe on codes that are an important piece of each country’s history, culture and identity. We shall not go back over the familiar terms of this debate here. Let it be recalled simply that the resistance was strong enough for the Community authorities to beat a retreat, including on the contract law front. After examining its conscience, performing their "auto-critique" as Bénédicte Fauvarque-Cosson put it, the Commission marked its preference for drawing up a common reference framework, a sort of ‘tool kit’ containing in its drawers the definition of the key concepts and the statement of the fundamental principles of contract law. Thus, faced with the scepticism and even the hostility prompted by their initiatives, the Community authorities seemed to take the point that they had no competence, no legitimacy even, to intervene in what is the core of each legal system, its civil law.

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