Suzanne Andrea Bloks

National sovereignty has been the key consideration for basing judicial cooperation in the European Union on mutual recognition. More than one decade after the creation of the Area of Freedom Security and Justice (AFSJ), this contribution assesses whether mutual recognition-based EU legislation in civil and criminal law indeed respects national sovereignty. To this end, it studies the Framework decision on the European Arrest Warrant (EAW), the EU’s flagship instrument in the AFSJ. We distinguish two elements of national sovereignty: (a) the protection of the State and its basic structures (its statehood); (b) the State’s values, principles and fundamental rights (its statehood principles), and assess the EAW from a dynamic perspective: from its initial inception, in which mutual trust primarily implied little interferences with the laws and practices of issuing states, to the current state of affairs which is marked by what could be called a ‘mutual trust supported by harmonization’- approach. Especially in the judge-driven harmonization of the EAW and the dialogue between judicial authorities we witness important (and oftentimes overlooked) elements that impact national sovereignty. At the end, the findings of the article are put in the context of the current rule of law crisis in the EU.

Democracy is assumed to require the equal political inclusion of denizens, as sustained political inequalities between members of society seemingly undermine the democratic ideal of equal freedom. This assumption is prominently expressed by Walzer’s Principle of Political Justice, according to which democratic institutions must attribute equal political rights to denizens in order to sustain their equal protection from domination and the recognition required for free agency. This paper rejects this influential assumption. We argue that denizenship constitutes a social position in which equal freedom can be enjoyed without political inclusion on equal terms to citizens. Many denizens are citizens somewhere else, and enjoy status, rights, and protections in virtue of their external citizenship, which can protect them from domination and provide them with the recognitional basis of self-respect. The cross-border relationships between denizens and their home country, as well as between the host country and the home country, must therefore be considered when evaluating claims to political inclusion. Accepting the democratic legitimacy of the partial political inclusion of denizens allows us to focus on the most pressing political claims, such as those of refugees and stateless persons. Partial inclusion schemes can also make less restrictive immigration policies more rational and desirable for citizens.

Legislative gridlocks, driven by social partisan sorting, pose a significant threat to contemporary democracies. In this paper, I argue that this problem can be addressed by replacing geographic electoral constituencies, which group voters by area of residence, with heterogeneous electoral constituencies, which are based on random assignment and thus reflect the diversity of the entire electorate. I show that geographic electoral constituencies are likely to crystallise cleavages that reinforce geographic divisions, whereas heterogeneous electoral constituencies are likely to dilute deep social divisions. I argue that heterogeneous constituencies have this effect not because they suppress intergroup difference, as is commonly held, but rather because they encourage political parties to express cross-cutting social identities. The politicisation of cross-cutting social cleavages prevents social partisan sorting and moderates political conflict. Heterogeneous electoral constituencies should therefore be considered as part of an expressive institutional response to the democratic threat of legislative gridlock.

Legislative gridlocks, driven by social partisan sorting, pose a significant threat to contemporary democracies. In this paper, I argue that this problem can be addressed by replacing geographic electoral constituencies, which group voters by area of residence, with heterogeneous electoral constituencies, which are based on random assignment and thus reflect the diversity of the entire electorate. I show that geographic electoral constituencies are likely to crystallise cleavages that reinforce geographic divisions, whereas heterogeneous electoral constituencies are likely to dilute deep social divisions. I argue that heterogeneous constituencies have this effect not because they suppress intergroup difference, as is commonly held, but rather because they encourage political parties to express cross-cutting social identities. The politicisation of cross-cutting social cleavages prevents social partisan sorting and moderates political conflict. Heterogeneous electoral constituencies should therefore be considered as part of an expressive institutional response to the democratic threat of legislative gridlock.

In representative democracies, referendum voting and parliamentary elections provide two fundamentally different methods for determining the majority opinion. We use three mathematical paradoxes – so-called majority voting paradoxes – to show that referendum voting can reverse the outcome of a parliamentary election, even if the same group of voters have expressed the same preferences on the issues considered in the referendums and the parliamentary election. This insight about the systemic contrarieties between referendum voting and parliamentary elections sheds a new light on the debate about the supplementary value of referendums in representative democracies. Using this insight, we will suggest legal conditions for the implementation of referendums in representative democracies that can pre-empt the conflict between the two methods for determining the majority opinion.