scholarly journals Burning the Rechtsstaat: legal institutions and protection of the rule of law

2020 ◽  
Vol 17 (1) ◽  
pp. 105-131
Author(s):  
Christopher A. Hartwell ◽  
Mateusz Urban
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Political Institutions ◽  
Institutional Context ◽  
Economic Outcomes ◽  
Legal Institutions ◽  
Economic Literature ◽  
The Rule Of Law ◽  
The Past

AbstractThe economic literature is clear that transparent and impartial rule of law is crucial for successful economic outcomes. However, how does one guarantee rule of law? This paper uses the idea of ‘self-reinforcing’ institutions to show how political institutions may derail rule of law if associated judicial institutions are not self-reinforcing. We illustrate this using the contrasting examples of Estonia and Poland to frame the importance of institutional context in determining both rule of law and the path of legal institutions. Although starting tabula rasa for a legal system is difficult, it worked well for rule of law in Estonia in the post-communist transition. Alternately, Poland pursued a much more gradualist strategy of reform of formal legal institutions; this approach meant that justice institutions, slow to shed their legacy and connection with the past, were relatively weak and susceptible to attack from more powerful (political) ones. We conclude that legal institutions can protect the rule of law but only if they are in line with political institutions, using their self-reinforcing nature as a shield from political whims of the day.

Lawlessness in Russia? Rethinking the Narratives of Law

2016 ◽  
Author(s):  
Kathryn Hendley
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Institutions ◽  
The Rule Of Law ◽  
The Law ◽  
Fundamental Value ◽  
Soviet Russia ◽  
Willingness To Use ◽  
At Will

This book examines how ordinary Russians experience the law and the legal system. Russia consistently ranks near the bottom of indexes that measure the rule of law, an indication of the country's willingness to use the law as an instrument to punish its enemies. The book considers whether the fact that the Kremlin is able to dictate the outcome of cases seemingly at will—a phenomenon known as “telephone justice”—deprives law of its fundamental value as a touchstone for society. Drawing on the literature on “everyday law,” it argues that the routine behavior of individuals, firms, and institutions can tell us something more about the role of law in Russian life than do sensationalized cases. Rather than focusing on the “supply” of laws, the book concentrates on the “demand” for law. This introduction discusses the perceived lawlessness in Soviet Russia and the dualism that lies at the heart of Russians' attitudes toward law and legal institutions. It also provides an overview of the book's chapters.

Virtue and Law in Plato and Beyond

2017 ◽  
Author(s):  
Julia Annas
Keyword(s):  
Citizen Participation ◽  
Rule Of Law ◽  
Political Institutions ◽  
Political Thought ◽  
Way Of Life ◽  
Philo Of Alexandria ◽  
Good Society ◽  
Ideal Society ◽  
The Rule Of Law ◽  
The Past

The Laws is Plato’s second attempt to outline an ideal society. It does not, as often thought, introduce the rule of law as a rejection of the rule of virtue in the Republic. In the Laws the place of law in the development of virtue is rethought, and Plato tempers the importance of obedience to law with the need for citizens to understand their laws as structuring a virtuous way of life in which they actively participate. Plato now develops a fresh methodology for political thought, one which learns from the past, and recognizes the value in a good society of citizen participation, and of a number of modified Athenian political institutions, in which all citizens play a part, rather than most submitting to the expertise of a few. Less approachable than the Republic, the Laws is richer in political and ethical ideas and sets the project of an ideal society in a wider and richer context. One idea, namely that citizens should comprehend their laws as shaping a good way of life, is taken up and developed independently by Cicero and by Philo of Alexandria, who in different ways draw out some implications of the Laws.

Rule of law and the scope of interpretation of legislative provisions in the process of judicial and administrative review. Remarks against the background of the phenomenon of „lawmaking” of administrative courts

2021 ◽  
Vol 2(24) ◽  
pp. 373-387
Author(s):  
Przemysław Wilczyński
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Legal System ◽  
The Rule Of Law ◽  
Basic Criterion ◽  
Administrative Review ◽  
Administrative Courts ◽  
The Republic ◽  
Insight Into

The rule of law, as stipulated in article 7 of the Constitution of the Republic of Poland, is one of the fundamental principles shaping the functioning of public administration in the Republic of Poland. Legality of the functioning of public administration is also accepted as the basic criterion of judicial and administrative review of the actions taken by the administration. However, judgments of administrative courts often go outside the boundaries of findings that could be made based on linguistic interpretation of legislative provisions, by referring to the rules of the legal system, including in cases where no doubts exist with regards to the interpretation of provisions. The aim of this paper is to offer insight into the basis and nature of doubts encountered with regards to the admissibility of the use of non-linguistic interpretation by administrative courts where the use of such interpretation does not appear to be required.

scholarly journals In the Absence of the Rule of Law: Everyday Lawyering, Dignity and Resistance in Myanmar’s ‘Disciplined Democracy’

2018 ◽  
Vol 28 (5) ◽  
pp. 573-599
Author(s):  
Alex Batesmith ◽  
Jake Stevens
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
State Power ◽  
Human Experience ◽  
Legal Systems ◽  
Material Support ◽  
The Rule Of Law ◽  
Alternative Perspective ◽  
The Individual ◽  
Individual Human

This article explores how ‘everyday’ lawyers undertaking routine criminal defence cases navigate an authoritarian legal system. Based on original fieldwork in the ‘disciplined democracy’ of Myanmar, the article examines how hegemonic state power and a functional absence of the rule of law have created a culture of passivity among ordinary practitioners. ‘Everyday’ lawyers are nevertheless able to uphold their clients’ dignity by practical and material support for the individual human experience – and in so doing, subtly resist, evade or disrupt state power. The article draws upon the literature on the sociology of lawyering and resistance, arguing for a multilayered understanding of dignity going beyond lawyers’ contributions to their clients’ legal autonomy. Focusing on dignity provides an alternative perspective to the otherwise often all-consuming rule of law discourse. In authoritarian legal systems, enhancing their clients’ dignity beyond legal autonomy may be the only meaningful contribution that ‘everyday’ lawyers can make.

The New Legal Realism and The Realist View of Law

2018 ◽  
Vol 43 (02) ◽  
pp. 528-553 ◽  
Author(s):  
Hanoch Dagan ◽  
Roy Kreitner
Keyword(s):  
Social Science ◽  
Rule Of Law ◽  
Academic Discipline ◽  
Legal Discourse ◽  
Legal Institutions ◽  
Lingua Franca ◽  
Bottom Up ◽  
Legal Realism ◽  
The Rule Of Law ◽  
Realist View

New legal realism (NLR) furthers the legal realist legacy by focusing attention on both the pertinent social science and the craft that typifies legal discourse and legal institutions. NLR's globalized ambitions also highlight the potential of a nonstatist view of law. The realist view of law raises three challenges facing NLR: identifying the “lingua franca” of law as an academic discipline within which NLR insights on translation and synthesis should be situated; conceptualizing NLR's focus on bottom-up investigation, so that it does not defy the rule of law; and recognizing the normative underpinning for NLR's reformist impulse.

The Role of the Constitutional Court in the Development of the Rule of Law in Kosovo

2018 ◽  
Vol 43 (3) ◽  
pp. 274-313
Author(s):  
Enver Hasani
Keyword(s):  
Material Culture ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional History ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Past ◽  
History Of ◽  
Communist Countries

Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent history. The author uses a comparative analysis to discuss the role of the Court in light of the work and history of other European constitutional courts. This approach sheds light on the Court’s current role by analyzing Kosovo’s constitutional history, which shows that there has been a radical break with the past. This approach reveals the fact that Kosovo’s current Constitution does not reflect the material culture of the society of Kosovo. This radical break with the past is a result of the country’s tragic history, in which case the fight for constitutionalism means a fight for human dignity. In this battle for constitutionalism, the Court has been given very broad jurisdiction and a role to play in paving the way for Kosovo to move toward Euro-Atlantic integration in all spheres of life. Before reaching this conclusion, the author discusses the specificities of Kosovo’s transition, comparing it with other former communist countries. Among the specific features of constitutionalism in Kosovo are the role and position of the international community in the process of constitution-making and the overall design of constitutional justice in Kosovo. Throughout the article, a conclusion emerges that puts Kosovo’s Constitutional Court at the forefront of the fight for the rule of law and constitutionalism of liberal Western provenance.

scholarly journals Developing an Index of the Rule of Law: Sharing the Experience of Hong Kong

2007 ◽  
Vol 2 ◽  
pp. 1-19 ◽  
Author(s):  
Benny Y.T. Tai
Keyword(s):  
Hong Kong ◽  
Rule Of Law ◽  
Legal System ◽  
Downward Trend ◽  
Legal Systems ◽  
Major Aspect ◽  
The Rule Of Law ◽  
Qualitative And Quantitative

AbstractThe Rule of Law is considered a major aspect of modern governance. For every legal system, it is important whether the Rule of Law is attained and how far it has been attained. Though there are various indicators and indexes of the Rule of Law they all have their limitations. This paper reported a study conducted in Hong Kong in 2005, combining qualitative and quantitative methodologies, to assess the level of attainment of the Rule of Law in Hong Kong. It is found that the level of attainment is high but a downward trend is also discovered. A main objective of developing this new methodology in assessing Rule of Law, is that it could be used for tracking the development of the Rule of Law in a particular legal system and facilitating comparison between legal systems.

An International Rule of Law

2021 ◽  
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal System ◽  
Rule Based ◽  
The Rule Of Law ◽  
Globalizing World ◽  
International Legal System ◽  
Elusive Concept ◽  
International Rule ◽  
Selection Of

The “international rule of law” is an elusive concept. Under this heading, mainly two variations are being discussed: The international rule of law “proper” and an “internationalized” or even “globalized” rule of law. The first usage relates to the rule of law as applied to the international legal system, that is the application of the rule of law to those legal relations and contexts that are governed by international law. In this context, the term international rule of law is often mentioned as a catchphrase which merely embellishes a discussion of international law tout court. The international rule of law is here mainly or exclusively used as shorthand for compliance with international law, a synonym for a “rule based international order,” or a signifier for the question whether international law is “real” law. This extremely loose usage of the term testifies its normative and symbolic appeal although it does not convey any additional analytic value. The second usage of the rule of law in international contexts covers all other aspects of the rule of law in a globalizing world, notably rule of law promotion in its widest sense. The increasing interaction between national and international law and between the diverse domestic legal orders (through law diffusion and reception, often again mediated by international law) is a manifestation of the second form of the rule of law. The structure of this bibliography roughly follows this bifurcation of the Rule of Law Applied to the International Legal System and the Rule of Law in a Globalizing World. Next to these two main parts, three further, separate sections discuss questions that arise at the intersection of the two variants or are of crosscutting importance to the rule of law as a whole. This includes sections on the Rule of Law as a UN Project: A Selection of UN Documents on the Rule of Law, the Interaction between the International and Domestic Rule(s) of Law, and the (International) Rule of Law: A Tool of Hegemony?.

Is Rule of Law an Equilibrium Without (Some) Private Enforcement?

Privatization ◽  
2018 ◽  
pp. 246-275
Author(s):  
Gillian K. Hadfield ◽  
Barry R. Weingast
Keyword(s):  
Recent Work ◽  
Rule Of Law ◽  
Legal System ◽  
Use Of Force ◽  
Private Enforcement ◽  
Voluntary Participation ◽  
The Rule Of Law ◽  
Social Sanctions ◽  
Enforcement Authority ◽  
Social Orders

This chapter argue against the presumptive priority of government even in the domain of law: in recent work, the authors have developed a framework for analyzing law in which they suggest that the main distinction between legal and other social orders is the presence of an entity capable of changing rules. But an equilibrium in which these rules generate compliance does not require a centralized enforcement authority; indeed, the authors argue that fully centralized enforcement is in fact incapable of sustaining an equilibrium characterized by rule of law. Rather, the need to coordinate and incentivize voluntary participation under decentralized enforcement yields the normatively attractive legal attributes associated with the rule of law, and the authors draw on classical Athens to illustrate this model. On their account, private enforcement – in the sense of social sanctions and exclusion, limited use of force, and cooperation with authorized enforcers – are essential for a legal system to achieve the rule of law..

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