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Session Overview
RS15_04: Democratic Deficit and the Judiciary
Wednesday, 21/Aug/2019:
6:00pm - 7:30pm

Session Chair: Eleni Nina Pazarzi, UNIVERSITY OF PIRAEUS
Session Chair: Luca Verzelloni, University of Coimbra
Location: UP.3.212
University of Manchester Building: University Place, Third Floor Oxford Road

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Judicial Appointments In A Democratice Society

Mavis Maclean

University of Oxford, United Kingdom

Judicial appointments in a democratic society

The UK sees itself as a democracy. Brexit is justified as respect for the will of the people, given new sacred status,but making difficulties for elected members of parliament who must choose either to do what voters asked for, or behave as responsible representatives of their constituents and act in their best interests.

Representative or direct democracy is a dangerous dichotomy, especially under a minority government, We rely on the ability of parliamentarians led by their speaker to maintain the supremacy of the legislature over the executive. Who will be left to pick up the pieces? the judiciary. Their wisdom and independence of thought will be more vital than ever.

So who are they? white middle class men of traditional education and high intelligence, experiences in weighing evidence and making decisions. Satisfactory? Perhaps. But how are they chosen? At no level are they elected. Not a problem, elections produce bizarre results. Not at the senior level does the Lord Chancellor "make soundings". We have an independent Judicial Appointments Commission. But who appoints these members? For the lay magistracy, the pathway is application,

We reformed in haste and are repenting at leisure. Recent constitutional change achieved the separation of posers by removing the LC as speaker of the Upper House, head of the judiciary and cabinet minister. Democratic? Maybe, but the influence of the judiciary has been reduced just when most needed.

Politicians, Judges and the Democratic Deficit in Transnational Institution Building: The Case of the European Unified Patent Court

Emmanuel Lazega

Institut d'Etudes Politiques de Paris - Sciences Po, France

At the transnational level, the complexity of the relationship between democratically elected politicians and the judiciary includes cases where politicians from different countries are unable to concentrate enough power to build new transnational judicial institutions (such as specialized courts). In such cases, public-private technocratic elites and oligarchic networks of national judges and transnational lawyers try cross-nationally to make up discreetly for the failed politicians by building these very same transnational institutions themselves. These transnational institutions then bear the marks of the democratic deficit that initiated them and of the oligarchic process and capture that created them. This paper presents a substantive area of law in which this process takes place, i.e. intellectual property, particularly European patent law. At the national and at the transnational levels, regulation in this field is developed and enforced by a closed, self-contained public-private legal community. The latter was able to build the recent European Unified Patent Court, a public-private judiciary now part of the European judicial architecture. In many ways this legal sub-system succeeds by reducing the Parliamentary process to a quick ratification that squeezes the legislative process and debates described by Maclean and Kurczewski (2011). It is thus argued that when citizens, in turn, react negatively to this democratic deficit and when national politicians take advantage of this reaction to "scapegoat the judiciary under the guise of the sovereignty of the people and the State", a first step in reconsidering the politicians-judiciary-general public triangle should be to enforce the Montesquieu division of powers. Additional steps are also discussed.

Glocal Welfare: Global Irritations and Local Decisions

Carlo Pennisi, Maria Teresa Consoli, Francesco Mazzeo Rinaldi

Università di Catania, Italy

In the tradition of the theory of action and its evolution in the system theory, the change in complex organizations can occur if contextually intercepts the internal structure of decisions and the external motivation for this change. The most interesting transformation in welfare systems occurs when local administrations re-organize their procedures and contextually re-define the criteria for collaborating with local actors. In many cases this eventually happens when resources are cut (or given under certain conditions) and when local administrators perceive the re-organizations imposed as an opportunity to change consolidated (but partially inefficient) services. The perspective we assume in order to focus these changes is experimented on a specific service to poor family in a Municipality in Southern Italy during the recent economic crisis, and therefore linked to the decisional local structure, to the kind of irritations perceived on both internal and external processes and the ways through which administrative procedures become a communication media between (relatively) autonomous social systems.

In this light, what seems remarkable is the emergence of new local decisional structures enforced by the hybridization of existing normative systems, new processes that guarantee and legitimize local decisions according to crossing “uses” of national and European legislation. How these procedures have enhanced re-uses in local administration, and which kind of changes have been introduced that reflect a different communication among actors, the content of the service, the expectations of clients? The results obtained by studying this service for poor families in a Sicilian town, underline the opportunity of enhancing and combining the re-construction of local decisional processes with instruments for their monitoring and evaluation.

Judicial Power And Social Claims: Confrontational Narratives And Constructive Interactions

Ariadni Polichroniou

National and Kapodistrian University of Athens, Greece

This paper attempts to contribute to the exploration of the turbulent relation between the judicial power and the claims of social movements and solidarity mobilizations formed within the current conditions of institutional destabilization and social precarity. More specifically, it aims at the close analysis and comparison of three high-profile legal cases that provoked the public interest in Greece in the latest years leading to protestations, campaigns, festivals and various other political and cultural forms of resistance due to serious violations of both the Greek Constitution and the European legal order, namely the case of Irianna V.L. and Periklis (2012-2018), the case of anarchist Tassos Theofilou (2012-2018) and the case of anarchist and hunger striker Kostas Sakkas (2010-2016). In this light, this paper wishes to examine the characteristics, coherence and strategies of the solidarity movements that reacted to the condemnatory judicial decisions of the abovementioned cases, as well as to detect their perception of justice and the basis of their claims towards the overturning of the firsts instance Courts’ verdicts. Final goal of this paper is the observation of the dynamic dialogue between the two antagonizing, yet interwoven, narratives of the judiciary force and the social reaction in order to open up the possibility to reflect upon the constantly altering relationship between the legitimization of the judiciary and the claim for social change within the democratic societies of late modernity by processing on the habermasian communicative model, the fraserian notion of recognition and the butlerian approach of the politics of protest.

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