Edinburgh Law School Legal Studies Research Paper Series - December 2020
Fri 4 December 2020
The latest in the Legal Studies Research Paper Series (Vol. 8, No. 6: Dec 3, 2020) from Edinburgh Law School is now available.
View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN
Papers include:
The European Public Good and European Public Goods
Edinburgh School of Law Research Paper No. 2020/20
Neil Walker, Edinburgh Law School
Abstract: Historically, The EU project has focused more on the generation and satisfaction of discrete Public Goods – initially peace and prosperity but gradually extending to a wider range of material goods (e.g. environmental protection, health and safety) and social goods (e.g. non-discrimination, education) than on the endorsement and pursuit of a singular sense of the European Public Good – the idea of a shared commitment to the pursuit of a common sense of what is good for a self-recognised collective. In other words, the EU, unlike the state, has had more the characteristics of a ‘teleocracy’ (an association committed to the pursuit of specific ends) than of a ‘nomocracy’ (an association defined by commitment to a general framework of living in common). For a long time, various conceptions of European integration, and of the role of law in European integration, were predicated on the view that the pursuit of Goods would nevertheless in time lead to the generation of a holistic sense of the common Public Good. Indeed, this expectation and projection of an incrementally evolved sense of the common European Good could be seen as an important aspect of the supranational constitutional imaginary. The paper examines both the successes and the long-term limitations of such an approach, and analyses the difficulties and dangers associated with ongoing efforts to place Public Goods and the Public Good in a productive relationship at the supranational level.
On The Cusp Of Maximalist Incorporation of Children’s Rights in Scotland
Edinburgh School of Law Research Paper No. 2020/21
Kasey L. McCall-Smith, Edinburgh Law School
Abstract: Children’s rights have long featured in Scottish politics and have been a particular focus of the Scottish National Party’s platform since it became the majority governing party in 2011. In April 2019 the leader of Scottish Government pledged that the government would incorporate the CRC into national law during this parliamentary term, which ends in March 2021. This chapter explores the way in which this pledge and previous Scottish implementation efforts have supported a commitment to children’s rights. It begins with a brief overview of the legal settlement between the Scottish and UK governments and the growing attention on children’s rights post devolution. This is followed by an overview of key legal and non-legal measures implementing various aspects of the CRC in Scotland, including points of tension. How these measures have impacted judicial protection of children’s rights will then reveal the gaps that persist in Scots law. The chapter then moves on to consider the potential for further entrenchment of the CRC in Scotland through direct, maximalist incorporation as reflected in the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill that was introduced in Scottish Parliament on 1 September 2020.
The Application of EU Fundamental Rights During the Financial Crisis: EU Citizenship to the Rescue?
Edinburgh School of Law Research Paper No. 2020/22
Katerina Kalaitzaki, Edinburgh Law School
Abstract: The procedure of challenging austerity measures for EU fundamental rights violations during the financial crisis has revealed a serious ‘review gap’ due to the – often atypical – nature of financial measures and the Charter’s limited application. This article examines a different way to address the ‘review gap’ by focusing on EU citizenship’s role to provide the ‘way into’ EU law, allowing Charter rights to be invoked in a broader scope of application that would encompass austerity measures challenges. Specifically, Article 20 TFEU and the ‘substance of rights’ doctrine can provide that opening, when placed into a different jurisdictional test that also involves the ‘operationalisation’ of Article 2 TEU. This ‘inverse applicability of EU law’ test will allow further rights to be judicially incorporated into the list already expressly articulated in Article 20 TFEU, creating a bridge between what are traditionally conceived as ‘purely internal situations’ and establishing the necessary ‘connecting factor’ to EU law.