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..

The Rights Revolution in the Age of Obama and Ferguson: Policing, the Rule of Law, and the Elusive Quest for Accountability

2015 ◽  
Vol 13 (3) ◽  
pp. 657-679 ◽  
Author(s):  
Lynda G. Dodd
Keyword(s):  
Civil Rights ◽  
Political Science ◽  
Rule Of Law ◽  
Use Of Force ◽  
Private Enforcement ◽  
Constitutional Rights ◽  
Court Cases ◽  
Police Use Of Force ◽  
The Rule Of Law ◽  
The Impact

Recent political science scholarship examining the institutional features of the rights revolution has highlighted the importance of the private enforcement of civil rights. This article discusses a less well-known line of Supreme Court cases concerning government liability that have undermined effective private enforcement of constitutional rights. I examine the impact of the Court’s “procedural assault” on private civil rights enforcement and possible responses to the recent protests in Ferguson, Missouri, and elsewhere across the country regarding police use of force. After identifying the ways in which the Court has undermined a core strand of the rights revolution, I assess the challenges confronting the Obama administration and civil rights leaders as they respond to these developments.

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.

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.

The State and Violence

2010 ◽  
Vol 8 (1) ◽  
pp. 293-296 ◽  
Author(s):  
Larry Diamond
Keyword(s):  
Conceptual Framework ◽  
Political Science ◽  
Rule Of Law ◽  
The State ◽  
Political Order ◽  
The Political ◽  
Modern State ◽  
Human History ◽  
The Rule Of Law ◽  
Social Orders

Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History (Cambridge 2009) offers a theory of the evolution of the modern state and an even more ambitious framework “for interpreting recorded human history.” The book raises fundamental questions about the political structuring of violence, the functions of the rule of law, and the establishment and maintenance of political order. In doing so, it speaks to a range of political scientists from a variety of methodological and subfield perspectives. We have thus invited four prominent political science scholars of violence and politics to comment on the book: Jack Snyder, Caroline Hartzell, Jean Bethke Elshtain, and Larry Diamond.

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?.

18 Art. 20 GG: Preface

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
German State ◽  
The Rule Of Law ◽  
Structural Principles ◽  
The Republic ◽  
Principle Of Proportionality

This chapter provides an overview of three of the central structural principles of the German state and legal system that are found in Art. 20 of the Grundgesetz (GG): the republic principle, the democracy principle, and the federalism principle. Also included in this group of general principles is the rule of law principle, which is implicitly contained in Art. 20 para. 3 GG. The structural principles and state goals articulated in Art. 20 GG serve three primary functions: first, as foundational norms which serve as a catch-all standard for evaluating subjects not specifically regulated by GG; second, as interpretive guidelines for other provisions of GG and for the application of (statutory) laws; and third, as classification categories to which sub-principles are assigned, including the principle of proportionality. These structural principles and state goals are often in tension; a means of reconciling them is by using the concept of practical concordance.

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.

scholarly journals El recurso directo: entre protección jurídica y constitucionalidad objetiva = Directation: between legal protection and objetive constitutionality

2014 ◽  
pp. 319
Author(s):  
Otto Pfersmann
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Judicial Review ◽  
Direct Action ◽  
Legal Protection ◽  
Fundamental Rights ◽  
Constitutional Rule ◽  
The Rule Of Law ◽  
Constitutional Judicial Review

La posibilidad de que los individuos dispongan de un «recurso directo» para cuestionar normas del sistema jurídico ante el juez de la constitucionalidad no constituye un elemento necesario del Estado constitucional de Derecho. La institución de los «derechos fundamentales», no requiere, en cuanto tal, que la protección de los mismos deba corresponder al juez de la constitucionalidad de las leyes. Lo que permite distinguir los diferentes modelos es el grado en que concentran y distribuyen estas tareas (protección de derechos fundamentales y control de constitucionalidad de la ley, básicamente). Esto depende de varios factores: el grado de exhaustividad del control de la constitucionalidad de las normas, el tipo de supervisión (preventivo o correctivo), el número de órganos encargados del control y el número de componentes del mismo. Se plantea así el problema de la limitación que aqueja al Estado de Derecho, pues cuanto más exhaustiva pretende ser la realización del mismo, menos intensa resulta produciendo un paradójico debilitamiento del derecho fundamental y del principio de exhaustividad. Asistimos, pues, a una mutación del principio «monomicrodicástico» y exhaustivo de jurisdicción constitucional.The possibility for individuals to have a «direct action» to challenge the norms of the legal system before the judge of the constitutionality is not a necessary element of the constitutional Rule of law. The institution «fundamental rights» does not require, as such, that the judge of the constitutionality of the parliamentary statutes should grant their protection. What allows distinguishing the different models is the degree of the concentration and distribution of these basic tasks: protection of the fundamental rights, constitutional judicial review. This depends upon various factors: how exhaust the constitutional judicial review should be, what kind of constitutional supervision may be (preventive or corrective), the number of the organs charged with this task, and the number of its components. The question of the limitation of the Rule of Law is risen, because the more exhaustive its implementation is intended, the less intense, generating a paradoxal weakness of the fundamental right and the completeness principie. A phenomenon appears: the mutation of the «monomicrodicastic» principie and the completeness of the constitutional judicial review.

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