The Rule of Law

Author(s):  
Lisa M. Austin

This chapter argues that the relationship between private law and the rule of law has been underdeveloped, or ignored, by private law scholarship until recently. Indeed, until recently, there has been relatively little attention to what the rule of law, as a conceptual and critical framework, could bring to private law theory itself. Why this lacuna in the literature? The chapter offers two speculative reasons that take up some of the themes and concerns of the New Private Law. The first reason concerns the U.S. legal academy, while the second reason concerns private law theory in the commonwealth. The chapter then outlines potential critical pathways for reclaiming a rule-of-law perspective on private law that address some of the reasons for its underdevelopment. It also explains how a focus on the rule of law in general, and in relation to some of its specific commitments and virtues, provides an important critical lens in relation to understanding and responding to the way that private power operates in the twenty-first century within what can be called the “global data economy.”

2021 ◽  
pp. 43-75
Author(s):  
Ian Loveland

This chapter examines the various meanings that the ‘rule of law’ principle has been accorded in Britain’s post-revolutionary constitution. The chapter suggests that the idea of the ‘rule of law’ may be viewed as a vehicle for expressing ‘the people’s’ preferences about two essentially political issues. The first relates to the substance of the relationship between citizens and government. The second is concerned with the processes through which that relationship is conducted. More simply, the rule of law is concerned with what government can do—and how government can do it. This chapter analyses both the way in which the courts have addressed these issues in a series of seminal judgments, and also explores various critiques of the idea of the rule of law and the role it plays in the modern British constitution offered by legal theorists from the left, right, and centre of the mainstream political spectrum.


2017 ◽  
Vol 63 (2) ◽  
pp. 439-467 ◽  
Author(s):  
Sambuddha Ghatak ◽  
Aaron Gold ◽  
Brandon C. Prins

Scholars continue to disagree on the relationship between regime type and political violence, perhaps because the empirical evidence remains contradictory. To date, most studies generally explore the direct relationship between democracy and terrorism. Yet, we think the effect of regime type on terrorism is conditional on the presence of politically excluded groups whose grievances motivate them to challenge the state. We need to take into account both willingness/grievance and opportunity to understand political violence. Using a global data set of domestic terrorism between 1990 and 2012, we find that different regime-associated features of democracy relate differently to domestic terrorism. Higher levels of the rule of law tend to decrease terrorism, whereas electoral democracies tend to experience more domestic terrorism. However, domestic terrorism increases in every form of democracy in the presence of political exclusion. As such, an effective counterterrorism policy must address underlying grievances as democratization by itself may actually drive domestic terrorism up.


2013 ◽  
Vol 27 (1) ◽  
pp. 87-95
Author(s):  
Tabet Koraytem

Abstract Saudi Arabia is often defined as a country where the rule of law is challenged by archaism with reference to Islamic criminal punishments or by anarchy with reference to its pluralism combining Western and Islamic laws (and sometimes tribal customs). Both opinions are wrong thanks to two fundamental rules of Ḥanbalism (the Kingdom’s Islamic School of Law). The first rule says: “No obedience to a creature in the disobedience of the Creator”, and the second says: “The Rule in profane activities (muʿāmalāt) is lawfulness until one indication from the Sharīʿah Guides [i.e., Qurʾān and the Prophet’s sayings or Ḥadīth] dismisses it from [the application of] this Rule”. Thanks to these rules and the way in which they have been developed in public and private law, we will see that Saudi law finally appears less contradictory than laws in other Arab countries, and therefore less challenging to the rule of law.


2015 ◽  
Vol 2 (2) ◽  
pp. 301-322 ◽  
Author(s):  
Frank MUNGER

AbstractConflict among Thailand’s legal advocates for popular causes over the legitimacy of Thailand’s two twenty-first-century coups raises questions about the meaning of the rule of law. The general perception of inexorable globalization of an international interpretation of the rule of law and of cause lawyers as one of its important vectors runs counter to the experience of developing societies where rule of law is being adapted to the meaning of nation and individual identities informing everyday lives and the relationship between a society and its government. This essay uses career narratives of Thai cause lawyers to illustrate this point by examining sources of the rule of law’s meaning, including experiences shared by each generation of cause lawyers and communities of practice shaping individual careers and identities. Their career narratives suggest the importance of continuing relationships with social movement leaders on beliefs about Thailand’s readiness for democracy and meaning of a rule of law.


2021 ◽  
Author(s):  
Klaus Jaffe ◽  
Antonio Canova ◽  
Jose Gregorio Contreras ◽  
Ana Cecilia Soares ◽  
Juan Carlos Correa ◽  
...  

Author(s):  
Gabdrakhman H. Valiev ◽  
Sergey V. Kondratyuk ◽  
Natalia A. Prodanova ◽  
Irina A. Babalikova ◽  
Kermen I. Makaeva ◽  
...  

The problem of the relationship of law and order is relevant to any modern society. The article tries to analyze this relationship, taking into account judicial, police and other activities. The named concepts are closely interconnected, but are not identical. They are correlated as cause and effect: there is a rule of law, there is no rule of law. One suggests the other. The rule of law as concrete reality logically precedes the rule of law as a doctrine, the connection here is hard, causal. The process is one. Law and order: a real indicator of the state of legality, reflects the degree of compliance with the laws, the requirements of all legal regulations. It is concluded that the rule of law is the end result of the implementation of legal requirements and, at the same time, the objective of legal regulation, since it is for the formation and maintenance of the rule of law that laws are issued, thus like other regulatory legal acts, various institutions and bodies and, above all, the justice system, the control system, various human rights organizations and social movements.


2016 ◽  
Vol 10 (2) ◽  
Author(s):  
Vlatka Bilas ◽  
Mile Bošnjak ◽  
Sanja Franc

The aim of this paper is to establish and clarify the relationship between corruption level and development among European Union countries. Out of the estimated model in this paper one can conclude that the level of corruption can explain capital abundance differences among European Union countries. Also, explanatory power of corruption is higher in explaining economic development than in explaining capital abundance, meaning stronger relationship between corruption level and economic development than between corruption level and capital abundance. There is no doubt that reducing corruption would be beneficial for all countries. Since corruption is a wrongdoing, the rule of law enforcement is of utmost importance. However, root causes of corruption, namely the institutional and social environment: recruiting civil servants on a merit basis, salaries in public sector competitive to the ones in private sector, the role of international institutions in the fight against corruption, and some other corruption characteristics are very important to analyze in order to find effective ways to fight corruption. Further research should go into this direction.


2021 ◽  
Vol 22 (6) ◽  
pp. 1072-1097
Author(s):  
Atina Krajewska

AbstractThis article examines the relationship between reproductive rights, democracy, and the rule of law in transitional societies. As a case study, it examines the development of abortion law in Poland. The article makes three primary claims. First, it argues that the relationship between reproductive rights and the rule of law in Poland came clearly into view through the abortion judgment K 1/20, handed down by the Constitutional Tribunal in the middle of the COVID-19 pandemic. The judgment and the context in which it was issued and published are interpreted as reflections of deep-lying processes and problems in Polish society. Consequently, second, the article argues that analysis of the history of reproductive rights in recent decades in Poland reveals weak institutionalization of the rule of law. This is manifest in the ways in which different professional groups, especially doctors and lawyers, have addressed questions regarding abortion law. Therefore, third, the article argues that any assessment of the rule of law should take into account how powerful professional actors and organizations interact with the law. The Polish case study shows that reproductive rights should be seen as important parts of a “litmus test,” which we can use to examine the efficacy of democratic transitions and the quality of the democracies in which such transitions result.


2018 ◽  
Author(s):  
Toby S. Goldbach

49 Cornell International Law Journal 618 (2016).This Article explores international judicial education and training, which are commonly associated with rule of law initiatives and development projects. Judicial education programs address everything from leadership competencies and substantive review of human rights legislation to client service and communication, skills training on docket management software, and alternative dispute resolution. Over the last twenty years, judicial education in support of the rule of law has become big business both in the United States and internationally. The World Bank alone spends approximately U.S. $24 million per year for funded projects primarily attending to improving court performance. And yet, the specifics of judicial education remains unknown in terms of its place in the industry of rule of law initiatives, the number of judges who act as educators, and the mechanisms that secure their participation. This Article focuses on the judges’ experiences; in particular, the judges of the Supreme Court of Israel who were instrumental in establishing the International Organization of Judicial Training.Lawyers, development practitioners, justice experts, and government officials participate in training judges. Less well known is the extent to which judges themselves interact internationally as learners, educators, and directors of training institutes. While much scholarly attention has been paid to finding a global juristocracy in constitutional law, scholars have overlooked the role that judges play in the transnational movement of ideas about court structure, legal procedure, case management, and court administration. Similarly, scholarship examines the way legal norms circulate, the source of institutional change, and the way “transnational legal processes” increase the role of courts within national legal systems. There is little scholarly attention, however, to judges as actors in these transnational processes. This Article situates judicial education and training within the context of judicial functions as an example of judicial involvement in non-caserelated law reform. This Article challenges the instrumental connection between judicial education and the rule of law, arguing that international judicial education became a solution at the same time that the problem— a rule of law deficit— was being identified. This Article also explores whether international judicial education can stand as an instantiation of a global judicial dialogue. Judges have immersed themselves in foreign relations. They are, however, less strategic in pushing their ideological agenda than literature about judges and politics would suggest. This Article argues that judges experience politics as a series of partial connections, which resemble most legal actors’ engagement with the personal and the political.


2019 ◽  
Vol 19 (75) ◽  
pp. 11-19
Author(s):  
Pierre Legrand

Taking its cue from a remarkable institutional initiative owing to the Georgetown University Law Center, this essay contests some of the key assumptions that have informed liberalism’s cosmopolitan turn. In particular, the argument addresses the way in which liberal legal thought has handled a doctrine widely known as “the rule of law”. The text challenges the universalizing drive having informed the dissemination of “the rule of law” and the attendant marginalization of culture in the form of the decredibilization of local knowledge. The paper suggests that “comparative law” can offer a valuable opportunity for the liberal self to revisit its uniformizing ideological commitments  — although not “comparative law” of the mainstream brand.


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