Allocating Authority : Who Should Do What in European and International Law?

The question of which European or international institution should exercise public authority is a highly contested one. This new collection offers an innovative approach to answering this vexed question. It argues that by viewing public authority as relative, it allows for greater understanding of both its allocation and its legitimacy. Furthermore, it argues that relations between actors should reflect the comparative analysis of the legitimacy assets that each actor can bring into governance processes. Put succinctly, the volume illustrates that public authority is relative between actors and relative to specific legitimacy assets. Drawing on the expertise of leading scholars in the field, it offers a thought-provoking and rigorous analysis of the long debated question of who should do what in European and international law. Contents List of Contributors 1: Introducing the Idea of Relative Authority I. Authority in Global Governance II. Towards Relative Authority: Comparative Institutional Assessments III. Normative Traction: Towards a Framework for Assessment IV. Iterations in Supra- and International Practices V. Relative Authority in European and International Law Part I: Empirical and Normative Traction 2: Democratic Legitimacy and Executive Rule-making: Positive Political Theory in Comparative Public Law I. Positive Political Theory II. Judicial Review and the Democratic Legitimacy of Executive Rule-making: Four Cases III. Review for Democratic Legitimacy—Old Habits and New Challenges 3: In Search of a New Model of Checks and Balances for the EU: Beyond Separation of Powers I. Introduction II. Reconsidering the European Union's Institutional Balance III. Autonomy and Accountability in the EU's System of Separated Powers IV. A Procedural Model of Checks and Balances? 4: Bolstering Authority by Enhancing Communication: How Checks and Balances and Feedback Loops can Strengthen the Authority of the European Court of Human Rights I. Theoretical Framework: Public Authority as Object of Empirical Inquiry II. Empirical Analysis: Instances of Controversy and Defiance of the ECtHR III. Pathways to Legal Diplomacy: The Cyprus Case IV. Head-On Collisions: Judicial Adaptations in France V. Irreconcilable Norms: Prison Votes and the Impossibility of Agreement VI. 'Constitutional Politics': The Brighton Declaration and its Consequences VII. Strengthening Authority by Enhancing Communication and Participation VIII. Conclusion 5: Authority Monism in International Organisations: A Historical Sketch I. The Authority Configuration in the First International Organisations II. The Evolution of the Authority-configuration in the Twentieth Century III. Conclusion-Controls through those 'Affected' by IO Policies 6: No Institution is an Island: Checks and Balances in Global Governance I. Introduction II. Types of Checks and Balances in Global Governance III. Examples of Select Types of Checks and Balances in Global Governance IV. Explaining the Scarcity of Horizontal Checks and Balances beyond the State V. Conclusion Part II: Iterations in Practice 7: The Role of the Court of Justice in Shaping the Institutional Balance in the EU I. Introduction II. Justification of Institutional Variation: The Treaties and Nothing But the Treaties III. Drawing the Borderline between Legislative and Administrative Action IV. Umpiring Disputes between the Political Institutions V. Legitimising 'Creative' Institutional Practice VI. Conclusion 8: Refining Relative Authority: The Judicial Branch in the New Separation of Powers I. Conceptualising Law-making's Diffusion II. What of the Elected Hierarchy? III. Blending Horizontal and Vertical Accountabilities IV. The Role of the Judicial Branch V. As Operationalised by the Court of Justice VI. Concluding Remarks 9: Judicial Review of EU Administrative Discretion: How Far Does the Separation of Powers Matter? I. Judicial Review of Administrative Discretion and Separation of Powers between the Legislature and the Executive II. Judicial Review of Administrative Discretion and Separation of Powers Between the Judge and the Administration III. Conclusion 10: First or Second Best? Judicial Law-making in European Private Law I. European Courts in Times of Societal Change II. Institutional Constraints: Dividing Powers among Legislatures and Judiciaries III. Institutional Realism: Judicial Law-making in European Private Law IV. Institutional Imagination: Rethinking the Role of the Judiciary V. Realists and Visionaries 11: Relative Authority in Global and EU Financial Regulation: Linking the Legitimacy Debates I. Global Regulation, the EU, and the New Separation of Powers II. A Preliminary Caveat: Global Financial Standards between Soft and Hard Law III. The Fragmentation of Powers in the Global Financial Regulatory Architecture IV. The Distribution of Powers in the EU Financial Regulatory Architecture V. Global Financial Governance and Legitimacy Concerns VI. The EU Financial Regulatory Architecture and the Global Financial Architecture: Source of Inspiration or Part of the Solution? VII. Concluding Remarks 12: Relative Authority and Institutional Decision-making in World Trade Law and International Investment Law I. Public Authority in Trade and Investment Rule-making II. Trade and Investment Rules, Decisions, and Authoritative Decision-makers III. Legitimacy Assets, Accountability, and Reform in Trade and Investment IV. Conclusion Index Introducing the idea of relative authority / Joana Mendes and Ingo Venzke -- Democratic legitimacy and executive rule-making : positive political theory in comparative public law / Susan Rose-Ackerman -- The new separation of powers / Deirdre Curtin and Eoin Carolan -- Bolstering authority by enhancing communication : how checks and balances and feedback loops can strengthen the authority of the European Court of Human Rights / Mikael Rask Madsen -- Authority monism in international organisations : a historical sketch / Jochen von Bernstorff -- No institution is an island : checks and balances in global governance / Andreas von Staden -- The role of the European Court of Justice in shaping the institutional balance in the EU / Bruno De Witte -- Refining relative authority : the judicial branch in the new separation of powers / Joseph Corkin -- Judicial review of EU administrative discretion : how far does the separation of powers matter? / Dominique Ritleng -- First or second best? : judicial law-making in european private law / Chantal Mak -- Relative authority in global and EU financial regulation : linking the legitimacy debates / Maurizia De Bellis -- Relative authority and institutional decision-making in world trade law and international investment law / Diane Desierto