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2141 Citoyenneté, État, mobilisations du droit à l’heure de la mondialisation

AISLF-CR03

Room: C4.01

 

Chair: Julie Paquin

Simona Andrini | Università degli Studi di Roma Tre

Fedele Cuculo | Università degli Studi di Chieti G. D'Annunzio

Legal institutions and new citizenship: spaces and paths of the multitudes

 

Abstract


Within the framework of Western democracies - not just European ones - the time span of the last twenty years was the period in which law and citizenship have known profound reconfiguration processes.
Statehood - understood as a traditional paradigm of national laws - has been redesigning its functions and its borders, allowing itself to be flanked by alternative legal constructions that give rise to progressive hybridizations of the Hobbesian legal model.
Already for some decades - both in the scientific literature and the public discussion - it is debated on the hypothesis of the nation-states decline, a feared, opposed or desired perspective but still interpreted as a fatal outcome of social transformation one-directional and not reversible.
Yet we can see how this paradigm of statism - constitued by the patterns and values of representative democracies - is experiencing the erosion of its perimeters of domination, without however being able to reasonably sustain the actual declination of its definitive theoretical and historical decline.
The erosion of the statist model is the consequence of at least two concomitant phenomena: on one side, the construction of supranational juridical instances endowed with penetrating directive efficacy (we think, in particular, to the case of the European Union); on the other, the emergence of political ties and feelings of transversal belonging to the experience of the nation-state and intended to build further sharing forms than traditional ones.
In this evolutionary horizon, the mostly European popular masses - orphans of socialist utopias - propose the recognition of new self-affirmative instances, in a constructive way of organizational models of direct democracy.
At the crossroads of these complex phenomena the multitudes appear as social totalities oriented to overcome the constraints of national citizenship and to redraw the contemporary boundaries of statehood.

Francesca Caroccia | Università degli Studi dell'Aquila - DIIIE (dipartimento di Ingegneria e dell'Informazione e di Economia)

Ordre public and private law. Managing cultural conflicts in the age of mondialization

 

Abstract

 

Globalization lays down a big challenge to jurists: that is, the settlement of cultural conflicts, at different juridical levels. In every legal system, the circulation and the interaction (sometimes the fight) of different cultural models produces new political instances. In private law, those conflicts concern not only marriage, family, religion, but more in general the way of conceiving and managing social and economical relationships.
In these cases, law has to make up for the lack of political responses: the recourse to “public policy” seems to be the much shared solution, facing the need for new answers to new problems. In this context, the public policy clause, traditionally conceived as a limit (both between private autonomy and public spaces, and between national and foreign laws), seems to lose its original function, to become a bridge, used by judges in order to recognize foreign institutions and solve cultural conflicts in national legal systems, particularly when law does not offer prompt (or satisfactory) solutions.
Such a new function is coherent with the authentic nature of the “public policy” clause, which is an expression of a specific technique of regulation (by general clauses), characterized by producing rules having a high degree of vagueness and used by legislators to grant the legal system a necessary flexibility degree and to ensure the dialogue between law and society.
The main problem of the recourse to general clauses, however, is the risk of arbitrariness: hence, it is strongly necessary to fix the discretional level admitted in every legal system, and to identify the specific system of values used by the judge, not only to reduce the judicial discretional power, but also to understand the political weight of judicial statements. Very briefly, we can affirm that in national contexts, the most shared solution is a “juridification” of social parameters, connecting (or transforming) social parameters to legal norms, in particular to constitutional rules. But, what happens, when the context requires an enlargement of the traditional constitutional perspective, faced to the exponential growing of the social complexity, which strictly depends on the absence of certain socio-juridical parameters?
Through the “public policy”, the challenge for the interpreter is to rethink the national sources of law perspective, taking into account the need to guarantee fundamental rights.

Camara Fodé | Idetcom

Migrations "south north", from liquid right to solid borders. Portuguese and French examples

 

Abstract

 

The empirical object of this work is the mobility in the European Union of third-country nationals, especially nationals from sub-Saharan Africa; and the responses to it, studied in the example of France and Portugal. African migrations are characterized by a high degree of complexity and the increasing fluidity of roads to Europe, with a tendency towards the fragmentation of migrant travel outside and within the European area. We will focus on the movements within the European area, between France and Portugal, even if we do not completely exclude migratory movements located outside this space. Portugal is often seen as a country of emigration, even though Portuguese researchers have been working on immigration for several decades. These various issues have already been raised about twenty years ago by Pierre Guibentif (Guibentif, 1996).
The question of the mobility of immigrants from third countries between France and Portugal is overshadowed by the question of Portuguese immigration to France. As part of this work, the aim is to examine the mobility strategies of sub-Saharan Africa country nationals between France and Portugal. To define the strategies of the mobility of African migrants, we will use the metaphor of the liquid able to circumvent a legal obstacle or a physical obstacle. We will use the works of zygmunt Bauman, then those of Pierre Guibentif who worked on this notion in modern societies. Law in post-modern society manifests itself in the thinning and the acceleration of legal time. This term "liquid" can be considered in its conceptual and metaphorical dimension. We postulate that foreigners law and in particular migrants from third countries is more "liquid" in European societies.
Today, international migration can be similar to "liquid" phenomena, if we observe the multiplicity of connections and their intensification (Mbembe, 2016). It can be argued that migrations are now perceived by European societies as "break-ins", unwanted entries within the context of the contraction of border controls. In addition, their liquid nature allows them to bypass boundaries and laws, as water would do under a locked door. In a Luhmannian perspective, migrations cause systemic irritations in European societies. Hence the temptation to create invisible walls at the borders, by tightening the control of migration without forgetting the implementation of specific legislation that criminalize migrants inside european space.

Marta Roca i Escoda | Université de Lausanne

The recognition of homosexual filiation beyond the national framework: the legal actions of gay fathers in Spain

 

Abstract

 

In Spain, as elsewhere, the legal prohibition of surrogacy contracts has generated considerable controversy of a social and legal nature: what to do with children conceived by Spanish nationals in countries where surrogacy is legal? Is it possible for these children to gain access to the civil registry offices as Spanish children? More concretely, in Spain, surrogacy has become a topical legal-political issue since Law 13/2005, which opens marriage to homosexual couples, giving them the same legal effects as those that accompany the matrimonial institution, namely access to and recognition of filiation.
In this context, a legal debate has opened up following demands from gay couples who have gone abroad to benefit from an international surrogacy process, in countries where the legal framework permits. However, the consular registry offices did not want to recognize the resulting filiation, so that several couples started international legal proceedings, requiring legal recognition of the link between them and their newborns.
This contribution is intended to trace the actions of Spanish gay fathers to have their sons born abroad by surrogacy recognized for their filiation. To do this, we will trace the origin of the mobilization of these gay fathers and follow their legal actions.

Arnold Martial Ateba | Université de Yaoundé II/DReSPS

Implementing rights: the mobilization of the consumer protection associations in Cameroon

 

Abstract

 

This work investigates the action by the ‘Cameroon Consumers League’ and the ‘Cameroon Association for the Defence of Tax Payers Rights’ in making the consumers’ rights effective. Indeed, though the consumers’ rights are clearly endorsed by various laws, they seem to be strong provisions somehow above the State capability that the government policy emphasizes on negotiation and compromise. Therefore, it is a myth to think that spelling out consumers’ right sis enough to ensure they are being respected as there is a big gap between acknowledging such rights and making them effective. From and an empirical standpoint and backed with relevant literature review, this paper attempts to show how  consumers’ rights associations take action in fighting for the respect of laws regarding the consumer in a context where the latter seems not to master his/her rights and claiming them is being problematic.  Among the strategies being developed such as boycotting companies, services and products, vulgarising of rules and regulations on the consumers’ rights in various domains (trade, water and electricity supply, telecommunications, etc.), exhorting the government to take action, consumers’ associations in Cameroon happen to be the back bone of a consumer who knows less about his/her rights and a government whose agenda doesn’t include the implementation of these rights as a priority.  Taking into consideration the fact that the consumer in Cameroon is not absolutely passive and the associations fighting for his/her rights are working in a precarious context and therefore developing strategies aiming at surviving, this study makes use of the political sociology aspect of the law and the institutions ethnography to show how these associations’ actions take roots within the law and as well as they serve it.

 

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