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Online sexist and racist hate speech has been condemned by many and condoned by most. In this paper we explicate in private legal terms the harms caused by sexist and racist hate speech. By centring the experiences of women of colour through coded testimonies we seek to rethink harm in tort in order to make visible private harms, which have remained largely invisible in European private law discourse. We highlight two aspects of harm that private law structurally fails to make visible: health harms and relational harms in the context of persistent and structural gender and racial injustice. In this paper, we argue that these systemic injustices must inform how we think of tortuous harms that arise from sexist and racist hate speech in bilateral relationships. In this article we centre the knowledge of women of colour targeted by SR hate speech within legal knowledge production and to the ways that the legal community thinks about tort law and its purpose. Conceptualising the tortuous harms of sexist and racist hate speech is crucial for access to private law pathways for redress and damages.
This paper aims to question the dominance of human rights as the primary normative framework for European social media regulation, and academic research in this field. Analysing EU legislation and recent ECJ cases, it shows that issues like discriminatory content moderation, profiling, and promotion of stereotypes cannot adequately be addressed within a human rights framework. The centrality of individual rights in the EU legal regime not only fails to address collective issues, like platforms’ influence on culture and social norms, but cannot even offer effective, equal protection to individuals. In policy debates, the depoliticised and individualistic language of human rights can legitimise corporate activities and downplay important questions about the political economy of this privatised, highly-concentrated, advertiser-funded industry. The paper also considers interpretations of human rights as structural conditions or collective values, and argues that they cannot fully overcome the limitations discussed here. Given the entrenched role of fundamental rights in EU law, critics of social media cannot avoid relying on them. However, academics should also seek to develop more explicitly political critiques, based on alternative normative visions.
This Article sheds new light on one of the longest-running debates in the European Union (EU) citizenship literature: the concept of ‘reverse discrimination’ and the question of whether it is justified. Reverse discrimination has divided EU lawyers into roughly two distinct groups. One group believes that it constitutes an unjustified violation of the principle of equality; a second that it is inevitable in a Union governed by the constitutional principle of divided powers. This Article questions this by offering a typology of reverse discrimination. While most scholars assume that reverse discrimination is a singular phenomenon that demands a singular response, this Article shows that it is a variegated phenomenon that demands a variegated response. It distinguishes three types of reverse discrimination and explains that the proper response depends on the type we are considering. Type I is caused by the application of the principle of mutual recognition; Type II by an interaction between domestic federalism and internal discrimination; and Type III by the CJEU’s confusion over the aim of the right to free movement and residence. Through this typology, the Article shows that reverse discrimination is never a corollary of the principle of divided powers, nor is it always incompatible with the principle of equality. Finally, the Article shows that to the extent that reverse discrimination violates the principle of equality, the solution is not to equalise rights upwards but downwards to the lower (national or regional) level of government. This shows that the principle of equality and the principle of divided powers need not collide.
Transparency is widely acknowledged as a core value in the governance of artificial intelligence (AI) technologies. However, scholarship on AI technologies and their regulation often casts this need for transparency in terms of requirements for the explanation of algorithmic outputs and/or decisions produced with the involvement of opaque black-box AI systems. Our article argues that this discourse has re-interpreted and reshaped transparency in fundamental ways away from its original meaning. The target of transparency – in most cases, the provider of AI software – determines and shapes what is made visible to the outside world, and there is no external check on the validity and accuracy of such mediated accounts and explanations, opening transparency up for manipulation. Through a theoretically informed and critical analysis of the transparency provisions in the European Union’s AI Act proposal, the article shows that the substitution of transparency with mediated explanations faces important technical constraints, creates opportunities and incentives for both providers and public-sector users of AI systems to adopt opaque practices, and reinforces secrecy requirements that gag accountability in practice. An approach to transparency as disclosure thus becomes necessary, even if not sufficient in and of itself, to ensure the accountable development and use of AI technologies in the European Union. Transparency needs to be reclaimed as a core concept, accountability tailored and reinforced and the necessity for secrecy re-examined and cordoned off.
This Article considers the role of ideas in shaping law and policy processes, serving to facilitate certain actions or approaches while curtailing others. Using the development of the EU’s governance approach to online service providers and platforms, this Article demonstrates how ordoliberalism as a set of beliefs regarding the regulation of market activity through law have shaped the understanding of appropriate measures for combating hybrid threats such as disinformation. Highlighting the origins of the E-Commerce Directive and the influence of ordoliberalism in the application of a regulated self-regulation model, the Article explores how ordoliberal philosophical ideas have influenced programme and policy level ideas concerning EU cyberspace governance as it relates to online platform activities. Even where there has been discursive change regarding the role of online platforms in contributing to an environment of insecurity, there has nevertheless been ideational continuity in the approach to their regulation, dictating the legal response in the Digital Services Act.
The general principle of effective judicial protection grants the right to obtain a remedy in the fields covered by EU law and is an essential component of the EU enforcement toolkit. Recent jurisprudential developments have complexified the role of this principle, by transforming it into a vehicle for the enforcement of the rule of law in the EU. As a result, the principle of effective judicial protection appears as the factotum of the EU legal system: it acts as a fundamental right and is an expression of the EU rule of law; furthermore, it is a legal basis to influence national fundamental rights and to impose procedural obligations on the EU institutions. This overview Article offers a novel account of the evolution of this principle in the EU legal landscape. First, it reflects on the trajectory of this evolving principle in the EU case law and in the academic discourse. Second, it identifies conceptual issues surrounding the role of effective judicial protection in the EU legal order in the light of the latest jurisprudential developments.
Dialogue and debate: Symposium on Emilios Christodoulidis’s the Redress of Law
This short introduction to the symposium on Christodoulidis’s The Redress of Law highlights the reasons why the book will be relevant to readers interested in EU law. First, EU law is the main body of positive law by reference to which the author develops his argument. In the process, he offers a critical assessment of the state of EU law, which has played a key role as the main vehicle of the neoliberalisation of the legal systems of the Member States of the EU. Second, some of the key concepts elaborated and sharpened by the author can be used to build up a critical theory of EU law. This is illustrated by considering how a critical theory of the history of EU law could be written, and by showing that Christodoulidis offers us the elements with which to reconstruct how EU got transformed from the 1970s through the reverse engineering of some of the key institutions and substantive norms of democratic political constitutionalism.
In his monograph The Redress of Law, Emilios Christodoulidis provides a sophisticated genealogical study of the emergence of total market thinking in Europe. With market constitutionalism having sidelined political constitutionalism, the potential of law to organise the political community is significantly restricted. By examining the commodification of labour, processes of bargaining, unemployment, and strikes, Christodoulidis demonstrates the destructive consequences of law in the service of market rationalities as well as its potential for strategic action to build collective identity in the EU (European Union).
Yet, I argue that this book comes with two significant blind spots, namely a dated understanding of both law and labour. First of all, Christodoulidis’s systems theoretical understanding of law is neglecting the material conditions that law continuously re-produces in the course of globalization. Secondly, his vision of labour remains rather traditional, focused on unionised, white, and male workers. Both elements are central pillars of his analysis but do not reflect the current reality of the 21st century. In this Article, I challenge his conceptualization by situating his work in recent research on the role of law and labour regulation in global capitalism.
The debate on the posting of workers in the European Union (EU) shows no sign of resolution 15 years after the controversial Laval quartet of judgements by the ECJ. The majority view has it that the judgements gave social dumping the backing of EU law, thus undermining national achievements in the social sphere. From this perspective the 2018 Revised Posted Workers Directive is a step in the right direction. The critique from the periphery, on the other hand, alleges that what looks like social dumping from the centre amounts to equality of opportunity for workers of the periphery, thus seeing the judgements in a more ambiguous or even positive light. The Revised PWD is here seen as a reassertion of national dominance from the EU’s centre. In this paper I engage with Christodoulidis’s constitutional approach to this complex problem which he develops in The Redress of Law, arguing against his embrace of the majority position in Part 3 of his work while building on his radical democratic proposals from Part 4. From the latter’s perspective, both the majority view as well as the critique from the periphery are to be rejected, since the very opposition between the two options is inimical to workers’ rights in the EU. Radical democratic action is necessary to overcome this impasse, to open the space within which rights and interests of workers from across the Union can be properly protected and advanced.
In The Redress of Law, Emilios Christodoulidis explores the philosophical foundations of market constitutionalism and shows how its embedded rationality shapes global governance. The author delves into critical phenomenology to lift the veil of ignorance on the fact that market constitutionalism has replaced political rationality with economic reasoning. By grounding its theory in the continental critical theory, ranging from Marxism to Weil’s existentialism and Luhmann’s systems theory, the book shows how the redress of law is also a practice that could radically transform the global political economy. However, the challenge is to displace the modern thinking of market constitutionalism that is rooted in functional differentiation and privileges constituted rather than constituent power. Such market thinking has allowed global governance experts to simplify and reduce to numbers complex polical, cultural and social phenomena embedded in constitutional legal regimes. The disembedding of law from society through functional differentiation, and the sole preoccupation of legal experts with constituted power, have contributed to the depoliticisation of constitutionalism as both theory and practice. A quintessential example of market constitutionalism in practice are global governance indicators. These indexes entail comparisons among legal regimes that empower private market rules as the final arbiter of local redistributive policies while bracketing historical, genealogical and reflexive connections to law’s social realities. The book offers several strategies of ‘redress of law’ such as rupture, contradiction and open dialectic, aiming to foreground political rather than market constitutionalism and to revamp the dialectic between constituted power exemplified by constitutional texts and constituent power, exemplified by strikes. This Article praises Christodoulidis’s sophisticated theoretical framework grounded in critical phenomenology, but at the same time pushes the author’s argument beyond the book itself. By questioning the practical implications of the redress of law, the focus on legal assumptions in global governance shows how legal experts in a variety of legal fields beyond constitutionalism have reproduced existing inequalities defined in terms of market, social and colonial hierarchies.
This Article discusses Emilios Christodoulidis’s The Redress of Law as a major contribution to contemporary critical constitutional theory, with a focus on its relationship with other lines of critical thought; with systems theory and societal constitutionalism; and with legal pluralism and the global constitutionalism discourses. It argues that the most valuable contribution of The Redress of Law lies in its capacity to innovate current theoretical discourses, too often closed in on their conceptual assumptions, in turn modelled on liberal political theory.
The Article offers a summary of some of the major themes of Emilios Christodoulidis’s The Redress of Law. In addition, it engages critically with social systems theory by calling into question whether it provides us with an adequate perspective on constitutional law. The concluding observations address the deplorable state of the left-wing project at the beginning of the twenty-first century.
The Rejoinder offers a first response to the reviews of The Redress of Law, published in this issue of ELO, and further pursues certain lines of theoretical inquiry in engagement with the reviewers’ suggestions and objections.