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Keywords:

late-modernity and the limits of the law, revisiting the functions of the law, revisiting the characteristics of the law, the human condition and the limits of the law, how to deal responsibly with the limits of the law?, Social Sciences, Law, Government & Law

Abstract:

All contributors to Facing the Limits of the Law explored the limits of a specific legal field. In their capacity of legal scholars, criminologists, social scientists, or philosophers, they identified issues that challenged these fields of knowledge in their effectiveness and legitimacy. They opened new routes for fresh research in a diversity of branches ranging from private law, social law, economic law, criminal law, through European and international law, constitutional law, to human rights law and law and technology. The reader may perhaps feel a bit overwhelmed by such a plurality of voices and perspectives. Let us recall briefly these perspectives. Legal experts in private, social, and economic law, analysed the potentials and limits of open textured concepts or principles. Starting from the observation that judicial rulings increasingly appeal to principles and policies (besides formal legal sources), Marc Loth suggested a -law in context' approach which may result in a 'de'freezing' of legal dogmatics through an interdisciplinary study of the law (Chapter 2). Kurt Willems examined to what extent the law is able to regulate, or at least structure, morality without disordering the internal dynamics of morality, by using open'textured norms such as 'good faith' and 'natural obligation' (Chapter 3). Mathieu van Putten explored the limits of labour law by showing how the legal status of collective labour agreements has been contested from a private law perspective, and, subsequently, both from a constitutional law and a competition law perspective (Chapter 4). Bert Keirsbilck mapped the limits of EC general clauses in a system of decentralised enforcement, and paid particular attention to the EC general clauses prohibiting unfair, misleading, and aggressive commercial practices (Chapter 5). Criminal law specialists examined the limitations of key concepts in their discipline. Erik Claes and Michal Krolikowski examined to what extent the erosion of the principle of legality can be imputed to the characteristics and classic conceptions of the criminal law itself. They also identified a strategy to respond appropriately to the limits of criminal legality (Chapter 6). Mark Fenwick investigated to what extent concepts such as 'moral fault', 'criminal wrong', 'harm', and 'criminal sanction' can be successfully applied to corporate wrongdoing (Chapter 7). Criminologists also explored the limits of the law. Luc Robert addressed the limits to the regulatory ambitions of legal rules in the unusual social setting of a prison (Chapter 8). Tom Daems explored the limits of a new kind of victim' oriented consequentialism according to which we should strive towards 'healing victims' as a desired end (Chapter 9). Johan Deklerck explored the potentials and limits of the traditional criminal justice system and restorative justice (Chapter 10). Martha Vali'as examined the limited capacity of formal justice to rebuilding trust within society in the aftermath of mass atrocities (Chapter 11). In the field of European law expertise, Stefanie Dierckxsens explained why the European Union is confronted with a growing loss of legitimacy in the eyes of the public, even though the legal legitimacy of the European construction has increased considerably throughout several Treaty reviews (Chapter 12). Ren' Foqu' and Jacques Steenbergen sketched the broader economic, political, and sociological background against which legitimacy issues revolving around European law and European institutions could be further explained (Chapter 13). Legal scholars in international law assessed the limits of law when confronted with the play of political power in international relations. Cedric Ryngaert examined extraterritorial jurisdiction and harmonisation of substantive economic law in their limited ability to equally assure the rights of States and transnational economic actors (Chapter 14). Tom Ruys examined to what extent international law acts as a restraint on States' decisions to resort to the use of force against other States. To this end, he identified several rationalistic and reflective factors inducing compliance with international law and then applied those factors to the use of force among States (Chapter 15). Constitutional lawyers, legal historians, human rights specialists, and legal anthropologists pointed to the fragilities of fundamental and human rights instruments. David Haljan examined whether the rule of law is a limit to popular sovereignty (Chapter 16). Bram Delbecke explained how young Nation'states are urged to restrict civil liberties and to limit their protective function, in order to protect their fragile identity and self'understanding, and he related this difficult relationship between the symbolic and the protective functions of the law to the open texture of the law (Chapter 17). Aagje Ieven showed how the open texture of privacy rights as human rights, and the element of judicial interpretation by the European Court of Human Rights (ECtHR) necessitated by the former, can compromise the protective role of human rights (Chapter 18). Willem Verrijdt argued that the ever growing backlog at the ECtHR also undermines protective legality (Chapter 19). Wouter Vandenhole explored the limits of human rights law in a development context and contended that acknowledgement by human rights lawyers of these limits may determine and circumscribe as a whole the development potential of human rights law (Chapter 20). Stijn Deklerck et al. addressed the frailness of human rights law when faced with indigenous cultures, with religious legal sub'systems, or even with broader political transformations such as regionalism in Europe (Chapter 21). Finally, experts in law and technology also addressed the limits of the law. Geertrui Van Overwalle and Esther van Zimmeren showed how technological innovations uncover the limitations of legal instruments such as patents and licensing agreements (Chapter 22). Mireille Hildebrandt argued that the articulation of certain legal norms in new technological devices and infrastructures (for example, the so'called 'Internet of Things', or 'Ambient Intelligent environment') is important for otherwise we may run up against the end of the law. In addition, she argued that such technological articulation should be constrained by the central tenets of a constitutional democracy, lest we reach the end of the rule of law (Chapter 23). Hans Graux explained how the advent of true anonymous communication techniques ('darknets') could result in the creation of an 'information free'zone', in which the regulatory and pacificatory functions of the law are utterly lost. Additionally, he examined legal, technological, and philosophical approaches to dealing with the problems created by this development (Chapter 24). Over and above the sheer range of these topics, the authors also engaged in a common enterprise that lies at the foundation of this book: the ambition to revisit the law, in all its varieties, through the lens of its limits. The purpose of this concluding chapter, 'Facing the Limits of the Law', is to take stock of the many fruitful insights revealed in the contributions to Facing the Limits of the Law. These insights all contribute to answering the three research questions set out in 'The Limits of the Law (Introduction)'. The first research question asked, what types of limits of the law could be mapped throughout a variety of legal disciplines. 'The Limits of the Law (Introduction)' offered a conceptual 'umbrella' and a common frame of reference from which the contributors could borrow their concepts and methodology. This programmatic outline aimed primarily at facilitating 'limits of the law' research by the different contributors. All authors mapped (types of) limits of the law through an analysis of the law's functions and characteristics. Many authors, however, did much more than just illustrating the editors' conceptual framework and considerably refined and fine'tuned this framework. In doing so, they not only detected new types of limits of the law in their respective disciplines, but also improved the conceptual scheme against which the law's limits can be mapped in other legal fields (see sections 3 through 5 below). The second research question set out in the 'The Limits of the Law (Introduction)' read, 'What are the important social and cultural transformation responsible for our sensibility of the limits of the law' Many authors contributed substantially to getting a more comprehensive picture of evolving social and cultural transformations which are responsible for bringing the limits of the law to the fore in the shape of a collective experience shared by many lawyers and citizens in distinct legal fields and disciplines (see section 2 below). The third research question was how we can deal with the limits of the law in a justifiable way. Most of the contributors designed strategies to deal with the limits of the law identified through an analysis of the law's functions and characteristics. To this end, they most often exploited the ideals and aspirations that underpin the law's function of protective legality and reconsidered some of the law's most essential characteristics, such as the interaction of law and different societal spheres or the open texture of law (see section 6 below). © 2009 Springer-Verlag Berlin Heidelberg.