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This chapter is the main theory chapter. It elaborates the logic of selective property rights in authoritarian regimes. I show that profit-maximizing property holders may find it more profitable to conduct their businesses in countries where property rights are protected selectively. It then delineates how private entrepreneurs use legislative office as a new strategy to secure property rights in China. It ends with a description of testable implications derived from the theory.
This paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights. What remains of the formal/substantive dichotomy is, in fact, a distinction between conceptions of the rule of law which guarantee the substantive justice of each and every law and those which entail some commitment to basic requirements of justice while nevertheless leaving room for unjust laws. Ultimately, the only significant distinction between competing theories of the rule of law concerns the nature of the connection between legality and justice, not whether there is any such connection at all.
In the Southern Mediterranean region, the European Union (EU) supports the establishment of rule of law, pressuring for both the adoption of institutional guarantees of judicial independence and the enhancement of court administration capabilities. Drawing on a set of interviews with key EU and domestic actors, this study compares Morocco and Jordan, examining changes adopted at the institutional and administrative level since the ‘Arab Spring’ broke out. The findings show that external incentives for change penetrated only the administrative level of domestic judicial systems, while a path-dependent effect persisted at the institutional level. The evidence confirms the thesis that in areas of low politics even a mere normative pressure is able to drive rule adoption, whereas in more sensitive policy areas, as in the case of institutional judicial guarantees, the higher costs of adaptation make veto players resistant to external influences for change.
The ruling of the Spanish Supreme Court in Judgment No. 1263/2018, recognizing, for the first time, the binding character of the Views of the Committee on the Elimination of Discrimination against Women (CEDAW Committee), augmented the normative authority of the Views of the human rights treaty monitoring body, not only at the domestic level, but also within the international legal sphere. In the Judgment, the Spanish highest court held that the government must comply with the Views of the CEDAW Committee as a matter of the state's constitutional mandate as well as its international obligations. The Court's interpretation in this case meets the expectation of human rights treaty monitoring bodies that states are obligated to respond to their Views concerning individual communications, despite some states parties’ claims to the contrary.
The international rule of law is a somewhat ubiquitous concept yet, as idea, it is marred by ambiguity and disagreement and, as ideal, constantly frustrated by the institutional conditions of the decentralised international legal order. Rather than necessarily undermining the concept, however, I argue that these structural conditions cause a kind of conceptual rupture, resulting in seemingly opposed or contradictory idealisations. On the one hand, the international rule of law can be understood as what Terry Nardin has called the ‘basis of association’ in international relations. This understanding places importance on the legal form as an end in itself, whereby the structural or institutional autonomy of international law is critical to the peaceable conduct of international relations. On the other hand, however, the rule of law exists as an unfulfilled promise of an order to come: it is distinctly anti-formalist in nature, stressing the functional capacity of international law to actually constrain political actors (primarily states) and thus seeking to develop more effective international institutional mechanisms. Although these competing idealisations give rise to a certain contradiction and inherent tension, their conceptual opposition is, I believe, critical to an understanding of authority and accountability dynamics in an era of ‘global governance’.
The corruption of the rule of law is an ambiguous phrase. It can refer either to the corruption of the value of the rule of law or to the corrupting effect that the commitment to the rule of law produces. This essay explains how both can be the case. The rule of law is one of a cluster of values that liberal political theory requires a morally legitimate government to exemplify. Thus, the rule of law is a component part of a just political structure. However, the phrase "the rule of law" is often used colloquially to refer to most or all of the cluster of liberal values. When used in this way, a duty to obey the law often attaches itself to the concept of the rule of law. It is the association of this duty with the concept of the rule of law when used in its narrow, literal sense to refer to only one of the liberal values that corrupts both those who are committed to the rule of law and the respect for the value itself.
A growing number of states have modified constitutionally determined presidential term limits or adopted a flexible interpretation of relevant constitutional provisions to allow incumbent leaders additional terms in the highest office. This article investigates African Union (AU) responses to attempts to overturn or weaken term limits on executive power, one of the most tenacious constitutional trends in Africa. Inspired by the AU's well-established discourse on “unconstitutional changes of government” under the African Charter on Democracy, Elections and Governance, the article frames the manipulation of presidential term limits as “undemocratic changes of the constitution”. From this perspective it argues for a more active role for the AU in monitoring and enforcing constitutionalism and respect for democratic standards by member states when they amend their constitution. It concludes with a tentative set of principles to guide processes of constitutional change in Africa.
In this article, James Harper of LexisNexis UK outlines the company's bi-centenary, and its contribution to the ‘rule of law’. The article will describe the fascinating development of UK law during this period, focusing on key milestones in arguably the largest and most exponential increase in the quantity of English language law the world has seen. It will also outline the range of legal industry innovations which LexisNexis and its companies have spearheaded over the years.
In recent years, the Chinese Communist Party has declared that its governance
must dominate over all aspects of law-making and enforcement, declaring that its
leadership must be implemented across the entire process of governing the
country in accordance with the law. Contemporaneous to this new way of thinking
about the law-Party nexus is a propaganda push to integrate moral values into
the law. This paper is about moralizing governance in the Xi Jinping era. It
explores the ideology behind the promotion of this morals–law
integration, focusing on the Socialist Core Values in the legal realm under the
current Xi Jinping administration. We do so from two interrelated perspectives.
The first examines the relationship between law and morality. Here, we argue
that the Party’s calls for a law–morality amalgam can be
understood as a form of “pan-moralism.” The second looks at the
supremacy of Party rule, extending the theory of the “Leviathan”
proposed by Thomas Hobbes to take into account the Party’s morality push.
This two-pronged argument enables us to assert that the Xi Jinping
administration is creating a “virtuous Leviathan.”
In recent years, the academic field of international institutional law has taken a clear ‘constitutional’ turn. In this normative endeavour, liberal ‘rule of law’ ideals are being reinvigorated, translated and projected onto international organizations. This article trades this well-trodden path for a socio-legal inquiry into how the ‘rule of law’ is produced, practiced and performed in the everyday political and operational life of one specific international organization (the World Bank) during one contentious historical episode. To grasp what it means for ‘law to rule’, I argue, we need to expand our archives to the daily praxis of legality: the actors that embody it; the consciousness that drives it; the politics that rely on it; and the fragile institutional balances that give it meaning. Grounded in this pragmatist perspective, I retrace the intervention of legal expertise during the Bank’s turn to state reform in the wake of the Cold War. Descending from principles to practices, from norms to acts, from abstract heights to situated performances, the article not only strives for an enhanced understanding of the ‘rule of law’ within the World Bank, but also aims at a critical methodological intervention in the field of international institutional law.
Central America’s Northern Triangle is infamous for high levels of violent crime and human rights abuses, producing “impunity states” in which violence typically goes unpunished. That violence reflects the broader impunity or “transitional injustice” that has persisted since the peace accords and transitions to democracy of the 1980s and 1990s. Several “posttransitional” trials for past human rights violations in recent years in Guatemala were made possible by institutional strengthening efforts in the prosecutorial agency, led by a unique United Nations commission. Significant progress away from broad impunity may also be seen in the 2015 “Guatemalan Spring,” in which a sitting president was forced to resign and submit to prosecution in connection with a corruption scandal. Comparisons of Guatemala, El Salvador, and Honduras suggest that institutional strengthening is necessary before “posttransitional justice,” or an end to impunity more generally, can be possible.
In his recent book, Ian Hurd argues that international law is pervasive and foundational in international affairs and that the international rule of law is hegemonic over states. While the book is provocative and compelling, it fails to convince on two core points. First, Hurd does not offer a real alternative to international relations realism. Indeed, the book could unwittingly reinforce the realist stance that international law is simply power politics in disguise. Second, the book offers a problematic conception of international rule of law. What Hurd describes is at best a rule by law, or perhaps more appropriately qualified as a travesty of the rule of law.
Millions of China's ethnic minority citizens remain subject to competing legal standards, even as state officials strive to strengthen a unified notion of state law. Minority customary law continues to bind many minority citizens in both civil and criminal arenas and often conflicts directly with state law. What happens when these laws conflict? Based on fieldwork in Yunnan, this article shows how local officials and communities navigate legal pluralism and what legal and policy provisions guide them. Granting local judges discretionary authority to set aside state law in favour of customary law, although seemingly undermining law enforcement, may in the long run be the best path to strengthening rule of law in China's minority regions.
In the 1990s, Japan officially launched its first legal-assistance projects in Asia, becoming the first Asian donor to offer bilateral assistance in the legal field in the post-Cold War profileration of rule-of-law assistance movements. This paper reviews the process of re-shaping the Overseas Development Assistance (ODA) policies in Japan leading up to the adoption of the ODA Charter in 1992 and its subsequent amendments which underlie the changes in importance and relevancy of legal assistance in the overall Japanese foreign-aid policy over the years. The paper also argues that Japan’s rule-of-law assistance projects were initially launched with pragmatic considerations but had to be continuously justified for their sustainability with increasingly sophisticated philosophical foundations and practical responses to respond to the changing trends of international co-operation and national political pressures.
This chapter considers the constitutional foundation of judicial review in Hong Kong. It begins with an overview of the constitutional foundation of judicial review under UK sovereignty, before turning to its foundation under PRC sovereignty. The PRC Constitution and the Basic Law are considered as potential constitutional foundations of review, along with a consideration of judicial review in the context of ‘one country, two systems’. The relationship between judicial review and both the common law and the rule of law is then explored, along with a brief consideration of whether and to what extent legislative supremacy might offer a potential constitutional foundation in Hong Kong. The chapter concludes with an overview of constitutional review, its relationship with administrative review, and human rights.
“Developed” states tend to reflect their own development experience in their dealings with “less developed” states, encouraging replication of their own solutions and processes. This is “recursive” law and development (LAD). This article examines the role of Singapore in LAD processes in the ASEAN region. It finds that Singapore’s LAD efforts are recursive and focused on rule-of-law and governance training, including especially anti-corruption methods. These are conducted not via a special agency, but via co-operation that is multilevel, multidimensional, and untrumpeted. LAD can learn lessons from this approach.
As the idiom goes, birds of a feather flock together. This ancient proverb is frequently used to portray the phenomenon of people associating with those with have similar characteristics and tastes. However, in the name of weiquan lawyers, myriad lawyers flock together with different beliefs and diverse values. Within this pool of lawyers, in addition to those lawyers who are driven by public interest, some lawyers who have eagerly labelled themselves as weiquan lawyers are profit-oriented in nature. This paper aims to provide a new typology to present a better understanding of the role of weiquan lawyers, by jointly taking into consideration the lawyers’ motivations and adaptive strategies. In this regard, weiquan lawyers in China can be categorized into four ideal types: routine practitioners, rational activists, progressive reformers, and cynical criticizers.
The purpose of this article is to examine the interaction between the court and alternative dispute resolution (ADR) in the legal administration of civil justice. It addresses the following questions. What is the relationship between ADR and the concept of justice? How do we make sense of the anti-ADR views, in particular the serious threat to the rule of law? What role does, and should, the court play in alternative processes? It argues that integrating ADR into the court system broadens the notion of justice and its access, and that, under the rule of law, judges should play a more central role to ensure the use, quality and integrity of alternative processes. This paper extends our understanding of the relationship among justice, ADR and the court from an internal perspective. It also points out the need to expand the case management responsibilities of judges, and their delegates in the Online Court, on ADR.
The positive effects of rule of law norms and institutions are often assumed in the peacebuilding literature, with empirical work focusing more on processes of compliance with international standards in war-torn countries. Yet, this article contends that purportedly ‘good’ rule of law norms do not always deliver benign benefits but rather often have negative consequences that harm the very local constituents that peacebuilders promise to help. Specifically, the article argues that rule of law promotion in war-torn countries disproportionately favours actors who have been historically privileged by unequal socio-legal and economic structures at the expense of those whom peacebuilders claim to emancipate. By entrenching an inequitable state system which benefits those with wealth, education, and influence, rule of law institutions have reinforced structural, social, and cost-related barriers to justice. These negative effects explain why war-torn societies avoid the formal courts and law enforcement agencies despite substantial international efforts to professionalise and strengthen these institutions to meet global rule of law standards. The argument is drawn from an historical, comparative, and empirical analysis of the UK-funded justice sector development programme in Sierra Leone and US-supported rule of law reforms in Liberia – two postwar countries often cited as prototypes of successful peacebuilding.
Drafters of legislation occupy an important position of constitutional significance, involving the translation of political will into legal form. They help clarify and refine the instructions from politicians and create statutory schemes which are internally coherent and have external coherence with wider legal and constitutional values. They begin the process of disciplining and refining political will through application of constitutional reason, which is then continued at the stage of interpretation of statutes by the courts. Drafters of legislation thus contribute to the formal rule of law values of predictability and certainty and also to more substantive values of fairness and respect for constitutional principles and rights. The better the drafting of legislation, the smoother the integration of democracy and the rule of law and the less need there is for interstitial law-making by judges in the interpretive exercise.