Current Research Projects 2016
The following research projects/tracks have been discussed at different Centre meetings in the fall of 2014 and spring of 2015. They were finally confirmed at the Centre’s Workshop 23 April this year.
This track is oriented towards basic research and focuses on fundamental concepts, principles and patterns of thought in public law and related fields. This includes i.a. how these issues unfold themselves within the other tracks of the Centre. Both the legal system and the legal regulation are based on a number of fundamental or general principles and structures. This includes different ways of thinking or ways of understanding various legal questions. This foundation is more or less implicit in the prescribed/practical regulation and is moreover characterized and analyzed in legal science, including i.a. the understanding of legal method. A well-known and often discussed issue is the concept of administrative decision, which has previously been addressed within the framework of CORA.
The basic purpose of the research track is to make a critical analysis and evaluation of selected fundamental concepts etc. in order to obtain a deeper and more contemporary understanding and in this way contribute to a more modern discipline of legal science. Basic concepts etc. seem to have a built-in conservatism together with a long history. A critical reflection is therefore required in order to estimate their usefulness in contemporary law, which quite often seems to be different from the social / legal situation from which the basic concept originates.
The selected issues are determined by the specific research interests of the participants and as such they will function in an exemplary manner in relation to the general theme. Besides the individual analysis, the selected subjects will furthermore be synthesized into a contribution for the understanding of the legal basis of public law.
The following should be seen as an exemplification, as other or similar problem areas are foreseen to be included as the area is further explored:
• Public legal principles and structures as i.a. the principle of proportionality, the principle of equality and the official maxim. As relevant questions could be the significance of principles and patterns of thought of this nature to present law, including the impact from the Europeanized (EU) and internationalized law.
• Nullity as an administrative core concept of law in relation to review. In this context also the development of the legal interaction between the administration and the courts is included.
• Methods of public law. Developing an understanding of public law’s legal sources trying to grasp the specific sources and factors which determine when a rule of public law is “applicable”.
• The procedural/material administrative law. Differences and connections. The monitoring of legal sources is by tradition diverse with varying priorities of law and practice formation (judicial and the ombudsman). In this context, a critical review of selected principles of administrative law could be included, cf. the above.
• Forum / administrative law. Administrative law is traditionally influenced by the national legal culture and traditions. However administrative law is also conditioned by other forums or institutional frameworks such as the EU and various international organizations, which play an increasing role in the justice system. An obvious problem is to which extent administrative law is being formed through the impact of diverse traditions/legal cultures or whether this is or should be a question of different forms of sui generis concepts within administrative law.
• Mens rea. Public law aims at being enforceable including with regard to improper conduct. A basis for this assumption is an understanding of the behavior at issue, included the status of the actor (person, authority, collective entity). Focus is on the question of mens rea, e.g. forms of intentional and negligence and furthermore forms of objectified responsibility. This processing is specifically supported by theory of criminal law, especially related to the part of criminal law related to public regulation.
In addition, additional basic concepts deriving from other areas like media law and police law could be included, in so far they are being actualized within the Centre's other areas of focus and so to say are being "transferred" from here.
In conclusion, it should be emphasized that this focus area / research track is intended as a track in itself. The track is primarily dedicated to the development of theory combined with a critical reflection on whether the present basic concepts, typically with a long history, are still adequate in the context of both the present and the near future legal order.
Responsible: Professor, LL.D Peter Blume
Participants: Professor, LL.D Steen Rønsholdt; Professor, LL.D Niels Fenger; Professor, LL.D Carsten Henrichsen; Professor, LL.D Peter Pagh; Professor, PhD Michael Gøtze; Associate Professor, PhD Trine Baumbach; PhD Fellow Azad Taheri Abkenar.
This research track provides a basis for the study of the frameworks for law enforcement authorities and legal developments in what is here labelled the control society. The research track hereby branches itself into two sub tracks: a main track, centered on the classical control instruments, and a Meta track, where also other (more recent and more subtle) forms of control are brought into focus.
The authorities' law enforcement (Main track)
As a collective research field the Centre has worked with inspections and sanctions since 2013 including a book project. It has so far led to an anthology, A bang for their buck – Studies of jurisprudence of administrative sanctions, which has been published by Djøf Publishing in 2015.
The interest in this field of research is partly because the subject is relatively underexposed in the standard legal literature, and partly because the law enforcement activities of the authorities in charge, obviously has become increasingly important as legislation intervenes in more and more areas of life. This development draws the contours of a control society, which is the starting point of this focus area.
With the anthology a preliminary survey and study of this field of research has been done, including both concise and in-depth presentations of individual areas of law. However, there is clearly a need for more in-depth studies of the various forms of law enforcement. Also conflict management can be counted as a more informal approach to resolving legal conflicts with a possible law enforcement potential.
The control of law enforcement is often included as an integrated part of the authorities' legal regulation. However, it is characteristic that in some areas this can be delegated to specific authorities of control, including a right for intervention of coercive nature. This control itself is subject to rules that constitute both the legal basis and the scope of coercive intervention and this is where the application invokes special research interest. In addition, the project also envisages socio-legal studies of how and with what effect the regulators perform their duties.
The penalties for offenses depend on the rules of specific legislation that often give access to criminal prosecution and, when appropriate, require proceedings involving the courts. However, it is characteristic that legislation increasingly gives a legal basis for the use of purely administrative penalties that may be imposed out of court, which raises specific problems of legal certainty. The research interest here is i.a. related to questions about the legal limits on the use of the various types of sanctions, including the compatibility of administrative penalties with the principle of the separation of powers, the fiscal interests associated with fines, the preventive effects of the use of criminal sanctions, the application of administrative penalties in a decriminalization perspective, and the role of the police in the enforcement the law.
Although mediation is typically applicable to relations between private parties, such as in civil, criminal and family cases, mediation in a broader sense can also be used in the authorities application of the law for example in order to prevent complaints or as an alternative to the use of coercive measures and sanctions. The law does not oblige the authorities to use such tools and consequently it does not apply to a greater extent in practice. The research interest is therefore very much linked to the possibility of preventing offenses as well as the legal limits for the use of mediation.
The Centre's many academic skills in administrative law, environmental law, criminal law, police law, data protection law and conflict management provide excellent opportunities for further development of this research track. For the same reason, the Centre has decided to seek support for continued studies of law enforcement types through its application for funding through the Danish Council for Independent Research (DFF). It is expected that the majority of the Centre’s staff could be included as co-applicants on such an application. Furthermore, its current and former graduate students are expected to be interested in working on this research track.
The Control Society's legal development (Meta track)
As mentioned, law enforcement including control and sanctions are key elements of this research track. These are also the core tools of what can be understood as a 'society of control'. This concept is, however, obviously an empirical - social theoretical - basic concept that refers to the broader features of the current social development. Thus, the concept of social philosophy as an expression of the development of the industrial society, characterized by, i.a. (external) force and discipline at all levels are being superseded by requirements (internal) of guided self-management, self-development, self-monitoring and responsibility for finding a solution of one’s own conflicts etc.
Practical examples are the increasing use of performance contracts, employee interviews, review mechanisms and mediation. This management aspect illustrated by the so-called self-management etc. is typically carried out by action plans and the setting of aims, priorities, values and activities and the use of benchmarking, evaluation and accreditation as follow-up tools to control the process of development. That is - in other words - more subtle forms of control than the traditional tools such as coercive measures and sanctions.
The control society can be seen as a result of the emergence of the information and knowledge-based society in line with the emergence of the media society and risk society which constitute the starting point for the Centre’s other research tracks. In any case we are dealing with trends, which should be studied in light of the challenges caused by globalization. This is furthermore influenced by neo-liberal trends resulting in the so-called “competition state ", where the state finds itself in competition with other states. This includes the introduction of market principles in all matters where public authorities play a role as a necessary response to this development.
The control society and the competition state also mark the legal development in general, also known as the so-called “proceduralising regulation”. At the same time ethics of duty gain greater weight with the result that the individual is being subject to ever more extensive duties to act and /or are subject to ever more extensive monitoring and control. Similarly authorities and institutions are mobilized with accompanying official staff and frontline staff to serve the current government’s policy with the risk of infringement of the employees' professionalism and the democratic rights of the citizens.
From a legal and legal policy perspective this development raises the question of whether the control society and the competition state are on a collision course with the rule of law and fundamental values of a democratic state. These are the issues that are the focus of the research interest in this Meta track. Furthermore, in legal theory this phenomenon is being addressed in normatively justified notions stating that the legal system should appear as a legitimate order and be consistent with fundamental and democratic rights (Dworkin 1986).
A more detailed study of this Meta track depends on extended multidisciplinary and inter-faculty collaborations with other research in the field of social theory, political theory and legal theory. This also includes cooperation with other centers of the faculty with special expertise in the theory of law. In addition, the continued work with this meta-track depends on the recruiting of young researchers with an interest in such aspects of legal development. If so, it will be considered to include this research track in an application for funding as mentioned above.
Responsible: Professor, LL.D Carsten Henrichsen
Participants: Professor, LL.D Peter Pagh; Professor, LL.D Peter Blume; Professor, Dr. phil. Henrik Stevnsborg; Professor, LL.D. Vibeke Vindeløv; Professor, PhD Michael Gøtze; Ass. Professor, PhD Lin Adrian; Post Doc, PhD Trine Thygesen Vendius; PhD fellow Christian Klement; PhD Fellow Kristian Bruhn; PhD fellow Mette Volquartzen.
The regulation of freedom of expression and freedom of information has never been as crucial in modern democratic society as it is today. This is due to the character of the freedoms and to the amount of comments and information. Both freedom of expression and freedom of information are protected in Article 10 of the European Convention of Human Rights. As said by the European Court of Human Rights, freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for the development of every person and for the progress of the society. Thus freedom of expression is fundamental for gaining insight in to and control with the establishment. Freedom of expression, the practical and legal right to express oneself, and the limits of freedom of expression thus relate to a number of topics such as civilization, power and influence, the prevention of errors, corruption and abuse of power, equality and objectivity, inclusion / exclusion, etc. Beside the citizens as such, important actors are civil servants, politicians and – due to its crucial role in this area – not least the press.
Given the increasing amount and types of various platforms (especially social media), this also raises more and new legal questions regarding the legal boundaries to freedom of expression and regarding the difficulties to maintain the boundaries between private and public communication. In this connection, the protection of the right to privacy is also under pressure, just as the boundary between information in the proper sense of the word and other intended statements (including advertisements) has blurred.
The growing access to information through i.a. the internet has made it difficult to determine whether the obtained information is trustworthy. This is in particular the case with information from spin doctors and other sources with a specific (hidden) agenda as well as information from police sources (informants, agents etc.) and information available on the internet (e.g. Google and Wikipedia).
Freedom of expression has its philosophical background in the so called principle of truth. The uncertainty related to what is information in the proper sense of the word and to the reliability of information gives rise to careful scrutiny on the rationale behind freedom of expression and to put it into relief to the various democracy perceptions that rule in Denmark and those countries we normally compare ourselves with. In this respect a comparative study between Denmark and the US, Europe and the US or between the individual EU member states, could be profitable.
The increasing number of platforms has led to an internationalization of information. Likewise, the new opportunities for giving and receiving information have made the society borderless and global. This has led to new legal challenges for the individual and for the various jurisdictions. This as well, will make comparative studies profitable.
However, the increasing opportunities to collect information (i.a. via the internet) and to put forward expressions (i.a. via Facebook, blogs or unedited contributions to a debate on a newspaper home page) should not trick anybody into believing that all existing information is available just like that. As some kind of a paradox to the just mentioned about the increasing opportunities to collect information or to put forward expressions, the existing limitations and restrictions due to lack of candour within private and public enterprises must be observed. Add to this rules of confidentiality, legal interest, lack of access to internal working documents, the consideration for the political decisions-making process and the service to the minister, the investigation of crimes, national security, etc. which appear from, for instance, the derogatory provisions in the Public Access Act and other legal acts. In addition to this, the often complicated access to information from the public authorities, for instance the not yet established database of the courts’ case law.
Another relevant issue is the threat to freedom of expression caused by the terror attacks against freedom of expression. This has resulted in increasing self-regulation in the media and elsewhere. This will have consequences for the legal regulation in the area, including the protection of journalist sources.
On the other hand an unlimited freedom of information could also be queried. Is an unlimited access to information always in the best interest of the democratic society if it is seen in the light of the background for the freedom? This is a relevant question with regard to the protection of privacy as regulated in the criminal code and the above mentioned derogations provision in the Public Access Act.
Furthermore, it could be queried whether e.g. the authorities’ duty to proactive information (article 17 in the Public Access Act) should always be regarded as a universal good for the individual and the democratic society, or whether this obligations in certain conditions risks to function as a “smokescreen” for the proper and correct information. Similarly, the “right to be forgotten” can be queried in the light of freedom of expression.
Freedom of expression and freedom of information and the limits to these freedoms are regulated in different ways in Danish law. There is a wide range of legal bases, but still no comprehensive survey of the field has been conducted. As a core regulation among several other key regulations, stands criminal law. Criminal law regulates the common limits of freedom of expression (intrusion of privacy and defamation, hate speech etc.) and the sanctions, for instance, for public employees’ (including whistleblowers’) breach of confidentiality and violent acts committed due to the victim’s statements in the public debate. But criminal law also contains several other provisions which either by their nature constitute restrictions on freedom of expression or are related to freedom of expression and therefore should be applied in light hereof. In addition, a wide range of other laws contain provisions relating to freedom of expression. This applies particularly to the regulation in areas such as human rights law, EU law (the Charter on fundamental rights), administrative law, data protection law, media law, procedural law, discrimination law, labour law, marketing law, police law etc. This legislation has evolved over a long period of time and has never been subject to a comprehensive assessment and scrutiny – and certainly not in the light of the new types of media.
The research into “the law in a media society” can, as described, be seen as a track that includes both freedom of expression and freedom of information as part of the modern information society with all the new media and forms of communication etc. which affect society.
This research track contains both projects of basic research and application-oriented projects within selected subareas. The overriding purpose is to make a critical analysis and evaluation of the public law regulation of the boundaries of substantive law of freedom of expression in the light of the purpose of the freedom and freedom of information and its – not just formal – but also real significant implication for the democratic state ruled by the rule of law. The aim is thus to achieve a deeper knowledge of these legal phenomena’s significant influence of the society as such and of the individual actors in the field. As mentioned this research track puts its area into a broad public law context and as a consequence herald interdisciplinary research – both interdisciplinary research with main emphasis on the individual legal disciplines and interdisciplinary research where the various legal disciplines are on equal status. Some sub-projects, i.a. with specific media law aspects, in addition herald multidisciplinary e.g. with the involvement of media researchers and/or other researchers within the area of communication and media. Since the field of research of this track is not only of national interest, this research track, as already indicated, also contains a huge international potential.
Furthermore, this research track is well suited as a basis for applying for external funding through for instance The Danish Research Council (FSE). Likewise, it provides a suitable framework for the advertising of PhD topics.
Finally, the research track supports the research based education in media law, data protection law and additional courses, just as the research track will be inspirational in developing new courses.
Participants: Professor, LL.D Peter Blume; Professor, Dr. phil. Henrik Stevnsborg; Professor, LL.D Vibeke Vindeløv; Professor, Post Doc, PhD Trine Vendius.
The overall theme of this research track is the principle of sustainable development. Since the publishing of the UN report, "Our Common Future" this principle has found widespread support as the basis for a global response to the challenges of our time with regard to the balancing of the protection of the environment with considerations of economic development and individual freedoms. The principle thus concerns basic questions of how people can produce material wealth for recent generations without leaving an unaffordable burden to the future generations. Herein lies simultaneously that sustainable development does not give a clear or simple answer to how exactly import society matters must be answered but only that these considerations need to be balanced.
In a legal perspective, the main implication of the principle of sustainable development is that the principle adds a time perspective (future generations) and a greater weighting of the limited resources including ecosystems and other parts of the environment. However the principle simultaneously requires that these considerations are balanced against the interest of economic development and individual freedoms, and that the international aspect is given special attention. It is doubtful whether sustainable development can be described as a legal principle, but the principle certainly has legal implications, as it has been and still is motivating for the design of international law, EU law as well as Danish law.
This legal development has affected the content of fundamental rights such as property law and the protection of privacy. The legal implications of the principle of sustainable development is not confined to substantive law, but it also - in the light of the Aarhus Convention on the rights of citizens - directly affect access to information, the administration process and access to the courts (administrative appeal and the courts). This illustrates how traditional national domains such as the administrative process and access to the courts are influenced by international rules and EU law. This is fundamentally linked to the shift of the balance arising from the principle of sustainable development.
As a subject this research track embraces significant parts of the substantive law e.g. from the regulating of greenhouse gases including the trading of emissions, energy regulation (including renewable energy), agricultural food production, biodiversity and the protection of species and habitats, the management of water environment, pollution control, international trade, the regulation of chemicals, genetically modified organisms in addition to waste at all levels of regulation for environmental liability. Furthermore it comprises legislation regulation property including local pollution and neighbor disputes.
All of the above subjects are in different ways subject to ongoing research by the staff members of CORA. The purpose of this research track is thus to create synergy between already ongoing research projects. As a first step this could be done in the frameworks of three more limited areas of particular current interest. One is the environmental regulation of agriculture where members of the Center as a recent initiative are part of the inter-faculty research project 'Plants for a changing world' on genetic engineering in a sustainability perspective. Here the legal angle is concentrated on the precautionary principle and its legal implications respectively 'benefit sharing' under the Nagoya Protocol under the Convention on Biological Diversity, including a focus on genetic engineering and organic farming. However other projects on agricultural production and the environmental impact also will be initiated. The second area relates to the Aarhus Convention and its significance for the administration process and the access to courts and has connections to the second research track. Finally the third area concern energy and climate (greenhouse gases, emissions trading, renewable energy etc.) and the interaction with EU law on trade barriers and state aid. This also includes a project on Energy and Natural Resources Law: Distributing the Costs and Benefits of Development Activity under Academic Advisory Group.
Responsible: Professor, LL.D Peter Pagh
Participants: Professor, LL.D Peter Mortensen; Associate Professor Anita Rønne; Post Doc Wen Xiang, PhD Fellow Artem Arnyshchenko; PhD Fellow Zanetta Mikosa; PhD Fellow Eirini Tsifopoulou; PhD Fellow Valgerdur Solnes.