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Session Overview
RS15_10: The Crisis of Legitimacy in Law and Justice
Friday, 23/Aug/2019:
2:00pm - 3:30pm

Session Chair: Nicole Busby, University of Strathclyde
Session Chair: Carlo Pennisi, Università di Catania
Location: UP.2.220
University of Manchester Building: University Place, Second Floor Oxford Road

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Formal Democratic Legitimacy In The European Union: The Continued Barrier Of Multilingualism

Erin Nicole O'Leary

University of Chester, United Kingdom

The term ‘democratic legitimacy’, as defined by such academics as Joseph Weiler, David Robertson, Richard Bellamy and Dario Castiglione, encompasses two key elements: formal (or procedural) democratic legitimacy, and social democratic legitimacy; the former being described as internal in nature, the latter external. Formal legitimacy corresponds to legality and thus concerns the democratic institutions and processes of law-making within a legal system. On the other hand, social legitimacy does not take procedures into account, but rather refers to a broad social acceptance of the system. Criticisms of the EU in regards to its ‘democratic deficit’ centre around its formal law-making processes and voting systems and thus relates to its arguable lack of formal (or procedural) legitimacy. The changes to the law-making process and voting systems brought about by the Lisbon Treaty have arguably increased the level of formal legitimacy overtly evidenced in the institutional workings of the EU institutions.1 However, there remains the significant barrier to true democratic participation with these processes caused by the EU’s multilingual nature. This paper will consider the impact the EU’s multilingual nature has on its formal legitimacy by considering the role of language in democratic participation processes. Considering this issue using Western linguistic theories of language reveals the extent of the role language plays in these formal institutional processes and thus allows us to work towards greater formal legitimacy within the European Union.

1. Stephen C. Sieberson, The Treaty of Lisbon and Its Impact on the European Union's Democratic Deficit, 14 Colum. J. Eur. L. 445 (2008)

The Court Of Justice Of The European Union: A New Model Of Legitimation Of Justice

Stefania Adriana Bevilacqua

Sapienza University of Rome, Italy

Following a period of study and work at the Court of Justice of the European Union, I empirically developed a thesis on why its preliminary judgements are accepted, legitimized and applied throughout the territory of the Union, even if the decisions are referred to specific national cases.

According to my research, the key of the Court legitimacy is the judicial procedure used within the Court, because it was empirically created to link the judicial power and the european societies.

To explain how the social legitimacy works, it will be first described how the procedure takes place in a multilingual and multicultural context that leads to the creation of an impartial area of mutual recognition between different societies.

Secondly, I’ll stress the method of interpretation of the law created by the judges themselves, since it was developed precisely to make the Court highly responsive to social changes.

Finally, I’ll show how this method entails the social legitimacy of the decisions especially thanks to the participation of multiple actors: the CJEU judges, the referring Court, the Advocate General, the Member States and the national litigants.

They are central actors in the construction of the communication bridge that, thanks to the procedure itself, leads to the legitimacy of the decisions of the Court of Justice in every national legal system of the European Union and their alignment with social needs.

The paper aims to highlight these elements, so as to provide a theory on the social and political legitimacy of the European judiciary.

Gender Strategies of the Czech Norm-Makers

Zuzana Fellegi

Anglo-American Univeristy, Prague, Czech Republic

Despite the fact that the Czech Republic is the most atheist country in Europe, it is also a very conservative one with a traditional patriarchal perception of gender roles. The situation has been slowly improving after its accession to the European Union and adoption of the EU anti-discrimination and gender acquis. A number of gender progressive norms and programs has been adopted but the overall change of the gender role perception and the gender equality process is rather slow. This paper is based on an interdisciplinary approach combining legal and discourse analysis. It provides a systematic analysis of the gender norms which were proposed and debated in the Czech Republic after its accession to the EU. The legal analysis is combined with analysis of the discourses of the main decision-makers detected from the meeting proceedings of the government and parliament, judicial decisions, expert articles and opinions as well as discourses maintained in the media. Based on the findings, I argue that there is a clear and repetitive pattern where the Czech policy and norm-makers selectively opt for norms which seemingly support women but actually result in effective preservation of the patriarchal family and the traditional gender role division in society.

Key words: European Union, European gender acquis, gender equality, gender roles, patriarchal family.

Islands of Innovation: Exploring the Dark Side of Judicial Innovation in Southern Europe

Luca Verzelloni

Centre for Social Studies, University of Coimbra, Portugal

In the last 20 years and, in particular, following the economic crisis, the Southern European countries have introduced a large number of reforms, with the aim of improving the quality, effectiveness and efficiency of their judicial systems. Following this long “season of reforms”, despite the fact that on a formal level all the procedural guarantees of due process do exist, justice in southern Europe is still not particularly transparent, effective or efficient, limiting the opportunity for citizens to access justice and protect their rights. However, using the metaphor of a geographical map, if we change the scale of reference, we realize that some courts in southern Europe have become "arenas of innovation", where many local interventions are designed, trialled and implemented. The hypothesis of this paper is that, on one hand, despite the investments made in recent years, the reforms carried out in the southern Europe have only rarely achieved effective, lasting and, above all, widespread results and, on the other, the propensity for innovation of some judicial offices has helped bring out great differences in the ways in which justice is provided in the territory. The paper's arguments are based on the results of a 5-year research project, focused on the 4 main Southern European judicial systems: Greece, Italy, Portugal and Spain.

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