scholarly journals The rule of law, arbitrariness and institutional virtue

2019 ◽  
Vol 44 (2) ◽  
pp. 159-163
Author(s):  
Keith Thompson
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Ancient Philosophy ◽  
Decision Makers ◽  
Judicial Decision ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Human Characteristic

This article summarises Professor Martin Krygier's work on the rule of law and his view that arbitrariness is its core and is under-theorised. From ancient philosophy, the author suggests that our rule of law settlement feels tentative because arbitrariness is a human characteristic that cannot be completely fixed with institutional checks and balances. The author observes that a variety of rule of law virtues are already expected of judicial decision-makers and suggests that these institutional virtues should be transferred into the administrative, executive and corporate decision-making space to advance the rule of law project.

Compliance: Conceptualizing, Measuring, and Explaining Adherence to Judicial Rulings

2013 ◽  
Vol 38 (04) ◽  
pp. 803-835 ◽  
Author(s):  
Diana Kapiszewski ◽  
Matthew M. Taylor
Keyword(s):  
Decision Making ◽  
Causal Inference ◽  
Rule Of Law ◽  
Judicial Decision ◽  
Public Authorities ◽  
Feedback Effects ◽  
Judicial Decision Making ◽  
The Rule Of Law ◽  
Analytic Methods ◽  
Political Outcomes

Public authorities' compliance with judicial dictates is central to legality and constitutionality, may influence broader policy and political outcomes, and can have powerful feedback effects on judicial decision making, independence, and power. As such, it has crucial implications for interbranch relations and the rule of law. Effectively measuring compliance with judicial rulings and clearly explaining when and why elected leaders adhere to courts' mandates present a range of inferential challenges. Building on the groundwork laid in the burgeoning literature on the topic, this article advances two analytic frameworks (one for measuring and one for explaining compliance), offers strategies for grappling with the problems of descriptive and causal inference that arise in studying compliance, and advocates the use of multiple analytic methods to generate and test hypotheses regarding compliance.

scholarly journals Regulatory discretion: structuring power in the era of regulatory capitalism

Legal Studies ◽  
2021 ◽  
pp. 1-20
Author(s):  
Rebecca Schmidt ◽  
Colin Scott
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Black Box ◽  
Decision Makers ◽  
The Rule Of Law ◽  
League Tables ◽  
Novel Approach ◽  
Decision Making Processes ◽  
Changing Patterns ◽  
Automated Decision Making

Abstract Discretion gives decision makers choices as to how resources are allocated, or how other aspects of state largesse or coercion are deployed. Discretionary state power challenges aspects of the rule of law, first by transferring decisions from legislators to departments, agencies and street-level bureaucrats and secondly by risking the uniform application of key fairness and equality norms. Concerns to find alternative and decentred forms of regulation gave rise to new types of regulation, sometimes labeled ‘regulatory capitalism’. Regulatory capitalism highlights the roles of a wider range of actors exercising powers and a wider range of instruments. It includes also new forms of discretion, for example over automated decision making processes, over the formulation and dissemination of league tables or over the use of behavioural measures. This paper takes a novel approach by linking and extending the significant literature on these changing patterns of regulatory administration with consideration of the changing modes of deployment of discretion. Using this specific lens, we observe two potentially contradictory trends: an increase in determining and structuring administrative decision, leading to a more transparent use of discretion; and the increased use of automated decision making processes which have the potential of producing a less transparent black box scenario.

scholarly journals Checking the Other and Checking the Self: Role Morality and the Separation of Powers

2021 ◽  
Vol 30 (4) ◽  
pp. 45-54
Author(s):  
Hillary Nye
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Decision Makers ◽  
Constitutional Democracy ◽  
Moral Concept ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Role Morality ◽  
Moral Ideals ◽  
The Relationship

The concepts of the rule of law, the separation of powers, and checks and balances are related in complicated ways. Jacob T Levy brings this to light in his thought-provoking McDonald Lecture, “The Separation of Powers and the Challenge to Constitutional Democracy.”1 In this response to Levy’s paper I want to further explore the relationship between these three ideas. I will argue that, when thinking about the rule of law, we must consider the idea of “role morality” and its place in constraining power. We should think of the constraints on power that stem from role morality as “internal” as opposed to “external” checks on power. I also suggest that we would do well to broaden our understanding of what the rule of law requires, and to think of it not just as a matter of ensuring impartiality and formal legal equality in the sense that the law applies to all actors within the system. We might benefit from thinking of the rule of law as a weightier moral concept that demands that decision-makers comply with moral ideals, and not just with the rules as laid out.

Decision-Makers and Decision-Making in the English Criminal Law, 1750–1800

1984 ◽  
Vol 27 (1) ◽  
pp. 25-58 ◽  
Author(s):  
Peter King
Keyword(s):  
Decision Making ◽  
Eighteenth Century ◽  
Rule Of Law ◽  
Criminal Law ◽  
Decision Makers ◽  
Legal Process ◽  
The Rule Of Law ◽  
Selective System ◽  
Bureaucratic Procedure ◽  
The Law

In theory the eighteenth-century criminal law was a rigid, fixed and bloody penal code laying down the penalty of death for a broad range of property crimes. In practice it was a flexible and highly selective system. The legal process had no effective police force to provide an organizational core and it was therefore a private and negotiable process involving personal confrontation rather than bureaucratic procedure. All the major published studies of the administration of the criminal law in this period have stressed its highly discretionary nature. They have also shown that the law was important as ideology. The widely held notions that every freeborn Englishman was protected by the rule of law and that all were equal before the law both constrained authority and legitimized and strengthened it.

Justice as Checks and Balances

2021 ◽  
pp. 1-62
Author(s):  
Edgar Franco-Vivanco
Keyword(s):  
Rule Of Law ◽  
Indigenous Population ◽  
Colonial Mexico ◽  
Decision Making Process ◽  
Checks And Balances ◽  
Endogenous Factors ◽  
Local Elites ◽  
The Rule Of Law ◽  
Administration Of Justice ◽  
State Agents

ABSTRACT The centralization of conflict resolution and the administration of justice, two crucial elements of state formation, are often ignored by the state-building literature. This article studies the monopolization of justice administration, using the historical example of the General Indian Court (gic) of colonial Mexico. The author argues that this court’s development and decision-making process can show us how the rule of law develops in highly authoritarian contexts. Centralized courts could be used strategically to solve an agency problem, limiting local elites’ power and monitoring state agents. To curb these actors’ power, the Spanish Crown allowed the indigenous population to raise claims and access property rights. But this access remained limited and subject to the Crown’s strategic considerations. The author’s theory predicts that a favorable ruling for the indigenous population was more likely in cases that threatened to increase local elites’ power. This article shows the conditions under which the rule of law can emerge in a context where a powerful ruler is interested in imposing limits on local powers—and on their potential predation of the general population. It also highlights the endogenous factors behind the creation of colonial institutions and the importance of judicial systems in colonial governance.

LEGAL JUSTICE IN PRESIDENTIAL IMPEACHMENT PRACTICE BETWEEN INDONESIA AND THE UNITED STATES OF AMERICA

2021 ◽  
Vol 9 (3) ◽  
pp. 465
Author(s):  
Hanif Fudin
Keyword(s):  
United States ◽  
Rule Of Law ◽  
House Of Representatives ◽  
The United States ◽  
Scientific Article ◽  
Constitutional Court ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Basic Law ◽  
Republican Government

The constitution is approved as a law capable of guaranteeing human rights and protection of the constitution and past coordination, as well as being the corpus of the administration of the rule of law entity itself. Regarding the state of Indonesia and the United States, if examined by these two countries, they have similarities in the form of republican government or presidential system of government. However, on the contrary, in the impeachment transition, the two countries appear to be dichotomous both formally and materially. Therefore, this scientific article discusses reviewing the impeachment provisions of the Presidents of the two countries who agree to develop agreements and principles in checks and balances in trying to actualize the value of the country's legal justice. Therefore, in approving the discourse of research methods, descriptive-comparative methods are used with normative-philosophical and comparative-critical discussions. On that basis, this study discusses the practice of presidential impeachment in Indonesia to consider more legal justice, because it is through a legal process involving the Constitutional Court which implements practices in the United States that only involve the Senate and the House of Representatives which incidentally is a political institution. It considers the constitution in the basic law of the country.

The Impact of covid-19 Measures on the Rule of Law in the Western Balkans and the Increase of Authoritarianism

2021 ◽  
pp. 1-33
Author(s):  
Andi Hoxhaj ◽  
Fabian Zhilla
Keyword(s):  
Civil Society ◽  
Comparative Analysis ◽  
Bosnia And Herzegovina ◽  
Rule Of Law ◽  
Western Balkans ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
State Capture ◽  
The Impact ◽  
The Eu

Abstract This article offers a comparative analysis of the covid-19 legal measures and model of governance adopted in the Western Balkans countries (Albania, Bosnia and Herzegovina, North Macedonia, Montenegro, Serbia and Kosovo) and its impact on the state of the rule of law, and ability of parliament and civil society to scrutinise government decisions. The article assesses the governments’ approaches to introducing and enforcing covid-19 legal measures, and shows examples of how covid-19 has exposed more openly the weaknesses in the existing system of checks and balances in the Western Balkans. The article offers new insights into how covid-19 presented a new opportunity for leaders in the Western Balkans to implement further their authoritarian model of governance in undermining the rule of law. This article offers suggestions on how the EU could respond, through its accession conditionality instruments and civil society, to redirect this trend towards more state capture.

Presidential Autocracy and the Rule of Law

Worldview ◽  
1973 ◽  
Vol 16 (3) ◽  
pp. 5-12
Author(s):  
D. L. Robinson
Keyword(s):  
Rule Of Law ◽  
Full Scale ◽  
American Democracy ◽  
Checks And Balances ◽  
Henry Kissinger ◽  
The Rule Of Law ◽  
The People ◽  
The City

The year 1972 seemed fateful to those who cherish the commitment of American democracy to the tradition of checks and balances. Indeed, as the year ended, the realization was beginning to dawn that the nation was on the edge of a full-scale constitutional crisis.Nineteen seventy-two was the year when President Nixon reopened the door to China, then mined Haiphong harbor and bombed the city of Hanoi; when he visited Moscow, concluded a treaty limiting strategic arms and directed Henry Kissinger to announce that peace was "at hand," then suddenly renewed and intensified the bombing, suspended it for thirtysix hours at Christmas, renewed it, then stopped it again—all without explanation to the people on whose behalf he was acting.

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