Papers by Gürkan ÇAPAR
Global Constitutionalism
The liberal international legal order faces a legitimacy crisis today that becomes visible with t... more The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural a...
(Il)legitimacy of international intellectual property regime?
Leiden Journal of International Law, Apr 27, 2023
Rivista Filosofia del Diritto, 2022
The question of how to legitimize authority is generally addressed with reference to Raz’s servic... more The question of how to legitimize authority is generally addressed with reference to Raz’s service conception of authority. Yet, his functional explanation does not concern itself with how authoritative institutions are empowered at the outset. Even though Raz’s monistic account of authority is coupled with input legitimacy and pluralized with Waldron’s analysis of the inter-institutional allocation of authority, it does not assist us in inter-legal situations. As inter-legality is a theory oriented towards finding legitimate ways of legal intersection, this article aims at showing how authorities between different legal orders may engage in a legitimate relationship. In doing so, it benefits from Roughan’s pluralistic and relational account of authority coupled with a conjunctive justification thesis.
From Conflictual to Coordinated Interlegality: The Green New Deals Within the Global Climate Change Regime
SSRN Electronic Journal, 2021
Climate change is one of the most wicked problems we have to deal with in the 21st century. No ne... more Climate change is one of the most wicked problems we have to deal with in the 21st century. No need to say, it is a problem of politics. The paper will first outline, taking a historical perspective, the institutional developments global climate change governance has been experiencing within the last two decades, with a particular focus on the contrast between Kyoto Protocol (KP) and Paris Agreement (PA) and their distinctive mode of governance. It is going to argue that the PA created an atmosphere not only for the flourishing of transnational and national actors but also for the popping up the Green New Deals all across the world. The conflictual relationship between different national legal orders is likely to turn to a more coordinated one thanks to the fertile mode of governance established with the PA. In its final part, the article will analyze this turn to cooperative relationship, upon having shown the deficiencies of GAL and mere political approaches, through the lenses of inter- legality.
Global Constitutionalism, 2022
Global regulatory competition is a recent phenomenon that confronts us in various different field... more Global regulatory competition is a recent phenomenon that confronts us in various different fields, ranging from food and chemical safety to climate change, and animal welfare to environmental law. The digital economy is not immune to this trend, and it seems highly unlikely that this will soon come to an end when we consider the radical differences between the European Union and the United States with respect to the importance they assign to the right to privacy and the right to freedom of speech. Nevertheless, despite their differences in content, it can be contended that they both tend to disregard the interest of others even though they have enough resources at their disposal to take them seriously. This becomes visible when the recent case law of the CJEU and the recent regulations such as the GDPR and the US CLOUD Act are taken into account. Their similar attitude to regulating for the globe raises the question of whether we are confronted with a new type of Eurocentrism, whic...
İstanbul Hukuk Mecmuası (Istanbul Law Review), 2021
In short, it will show how a rational and self-directed legal subject left its place to a subject... more In short, it will show how a rational and self-directed legal subject left its place to a subject capable of putting forward arguments, discussing and developing the meaning of law, say, before the courts.. It will discuss what law is before the courts. Finally, this study aspires to establish a connection between the shortcomings of the formal conception of RoL and its crisis that we are experiencing across the globe.
Italian Law Journal, 2021
Climate change is one of the most wicked problems we have to deal with in the 21st century. No ne... more Climate change is one of the most wicked problems we have to deal with in the 21st century. No need to say, it is a problem of politics. The paper will first outline, taking a historical perspective, the institutional developments global climate change governance has been experiencing within the last two decades, with a particular focus on the contrast between Kyoto Protocol (KP) and Paris Agreement (PA) and their distinctive mode of governance. It is going to argue that the PA created an atmosphere not only for the flourishing of transnational and national actors but also for the popping up the Green New Deals all across the world.
The conflictual relationship between different national legal orders is likely to turn to a more coordinated one thanks to the fertile mode of governance established with the PA. In its final part, the article will analyze this turn to cooperative relationship, upon having shown the deficiencies of GAL and mere political approaches, through the lenses of inter- legality.
The conflictual relationship between different national legal orders is likely to turn to a more coordinated one thanks to the fertile mode of governance established with the PA. In its final part, the article will analyze this turn to cooperative relationship, upon having shown the deficiencies of GAL and mere political approaches, through the lenses of inter- legality.
How (Not) to Compare?: Not Being Inside, Nor Outside
Global Jurist
Despite the clear clue given by Kim L. Scheppele as to the shortcomings of governance checklists,... more Despite the clear clue given by Kim L. Scheppele as to the shortcomings of governance checklists, it is surprising that comparative constitutional lawyers have not yet followed it up. In fact, what Scheppele hinted at is that the methodologies we have used so far fall short of detecting the interaction effect of the particular components; this is why we need new methodologies and new ways of seeing. To address this, this article will incorporate some tools, having already taken hold in legal philosophy, into the methods discussions in comparative constitutional law in particular and comparative law in general. Upon benefiting from the distinction between internal and external points of view and showing how hermeneutical one differs from the others, the article will make a discursive analysis of the 2010 constitutional amendment in Turkey through the lenses of these three points of view.
RIVISTA QUADRIMESTRALE DI DIRITTO DELL’AMBIENTE , 2021
The article highlights the particular role played by the PA in the global climate change governan... more The article highlights the particular role played by the PA in the global climate change governance institutional structure as an enabler of the global climate change litigations and global green new deals. In doing so, it benefits from the three-fold distinction provided by de Búrca, Keohane, and Sabel as integrated regimes, regime complexes, and global experimental governance. The article aims at analyzing the institutional evolution of the global climate change regime with these three different modes of governance, pointing out the importance of particular turning points such as the Rio Declaration, Copenhagen Accord, and the Paris Agreement (PA). On top of this, the article embeds this institutional evolutionary trajectory of the global climate change regime in the tensions among multilateralism, unilateralism, and transnationalism. Lastly, it argues that the mode of governance established with the PA can be nominated as soft multilateralism, for it not only needs the cooperation of non-state actors and NGOs but also distance itself from both mere unilateralism and Kyoto-style top-down multilateralism. In short, it seems fair to argue that global climate change regime is in the process of cooperation, dialogue and iterative integration.
Climate change is one of the gravest problems we have to deal with in the 21st century. No need t... more Climate change is one of the gravest problems we have to deal with in the 21st century. No need to say, it is a problem of politics. It forces us to face the ineffectiveness of the international legal order established after the Second World War and the failures of our way of tackling global collective action problems. This paper will first outline, by taking a historical perspective, the institutional developments global climate change governance has been experiencing within the last two decades, with a particular focus on the contrast between Kyoto Protocol and Paris Agreement (PA) and their distinctive mode of governance. This institutional revolution, stimulated by globalization and its pressure on our traditional, intergovernmental, and state-based international law paradigm, has provided a firm basis for coping with climate change problems. Paris Agreement, born into this climate change regime complex, incorporated these transnational institutions into the UN-led climate change system. Seen from this angle, Paris Agreement, which "is a bold move toward public problem solving on a global scale" 1 , created an atmosphere for the flourishing of transnational and national actors, in which the Green New Deals has recently begin to blossom across the world. In this global climate change complex, orchestrated by the UN framework, there are different national legal orders developing distinct but aligned climate change policies, among which the EU, the US and China bear significant importance. The paper argues that the conflictual relationship both between developing and developed countries, on the one hand, and between the US and the EU, on the other, will likely to turn into cooperative relationship. By doing so, it embraces an inter-legal approach upon having shown the deficiencies of GAL and mere political approaches.
Hukuk Kuramı, 2019
Özet: Kesişimsellik, Kimberle Williams Crenshaw'un 1989 ve 1990 yıllarında yazdığı iki makale ile... more Özet: Kesişimsellik, Kimberle Williams Crenshaw'un 1989 ve 1990 yıllarında yazdığı iki makale ile kavramlaştırılmıştır. Fakat hiç şüphesiz ki bu kavramda kendisini oluşturan tarihsel ve toplumsal süreçlerin bir sonucudur. Postmodernizmin modernizme yönelik eleştirilerinin hız kazandığı bir dönemde, siyah feminist hareketin mücadeleleri ve tecrübeleri sonucunda oluşan bu kavram, kesişimde oldukları için görünmez olanları görünür kılmayı amaçlamaktadır. Crenshaw kesişimi bir trafik kavşağına benzetir. Kavşakta bir kaza olur. Fakat tek eksenli yaklaşımlar kazanın sadece tek bir boyutunu görerek, kesişimde olanların kendilerine has durumunu göremezler. Kaza ya siyah olduklarından dolayı ya da kadın oldukları için gerçekleşmiştir, "siyah kadın" oldukları için değil. İşte kesişimsellik gerek liberal ve radikal feministleri gerekse de "antiracist" mücadeleyi bu tek eksenli yaklaşımlarından dolayı eleştirmektedir. Crenshaw kesişimselliğin sadece adaletsizlikleri ve eşitsizlikleri görmek için kullanışlı bir araç olmadığını aynı zamanda onun bu eşitsizliklerin arkasındaki iktidar ilişkilerine de odaklandığını belirtir. Kesişimdekileri görmemizi engelleyen yapıların da farkına vararak bunları dönüştürebilmemiz için bize kullanışlı bir araç sunar Crenshaw. Abstract: Intersectionality was conceptualized by virtue of two seminal articles written by Kimberle Williams Crenshaw respectively in 1989 and 1990. However, this term was also a consequence of the social and historical processes creating thereof. In an age when the criticism of postmodernism against modernism escalated, this term, which is evolved as a consequence of the quarrels and the past experiences of the black feminist movement, aim at making the non-visible, which is at the intersection, visible. Crenshaw likens intersectionality to an intersection. There happens an accident at the intersection. But one-dimensional approaches could see only one part of the accident without taking into account the singularity of the ones at the intersection. The accident results in either racism or patriarchy, but not both of them. This is the reason why intersectionality criticizes both feminist theory and antiracist politics due to their one-dimensional approaches. Crenshaw clearly explicates that intersectionality not only is a functional tool to grapple with the existing inequalities and injustices but also focuses on the power relations behind them. Crenshaw provides us an opportunity to unearth the structural inequalities and to subsequently transform them.
Books by Gürkan ÇAPAR
Dostane Bir Çözüm Yolu Olarak Hukuk Devleti
Adalete Yönelmiş Toplumsal Bir Düzen Olarak Hukuk: Prof. Dr. Yasemin Işıktaç Armağanı, 2020
Populism, Popular Sovereignty, and Public Reason, 2021
It is possible to construct a pluralist judicial review, which is not only strong enough to count... more It is possible to construct a pluralist judicial review, which is not only strong enough to counter the threats of abusive constitutionalism but also satisfactorily lenient to be accepted even by political constitutionalists. In this endeavor, the paper proposes a three-tiered pluralist judicial review whereby rights-based judicial review in its weak form and structural judicial review in its strong form will be at the disposal of the courts. What is more, the court may even resort to the UCA doctrine in case its independence is at stake. Drawing on this guideline, the paper aspires to show, by benefiting from the Turkish Constitutional Crisis spanning from 2007 to 2010, how pluralist judicial review may have been proven useful had it been available to the Turkish Constitutional Court.