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This chapter shows how the Chinese commercial legal system has improved significantly over the past two decades, to the extent that in most cases it compares favorably in dispute resolutions outcomes with legal systems in most liberal democratic nations. However, it falls short of a "rule of law" system in certain types of cases due to three distortions interfering with decision-making by courts: political interference by local and sometimes central government officials; corruption; and guanxi (personal relationships) involving judges or senior court/government officials. The chapter uses the case of Judge Wang Linqing and the Shaanxi Billion Yuan Mining Rights dispute to demonstrate that these distorting elements have infected legal institutions right up to the Supreme People's Court and involve senior Chinese Communist Part leaders within China's anti-corruption agency and Politburo, making the problems very difficult to stamp out.
The Introduction familiarizes the reader with the main subject of the book, the economic governance of the Eurozone and the metamorphosis it underwent over the past decade of crises, and the author’s motives for exploring this topic. The Introduction then clarifies the analytical framework on which the book rests, by substantiating the understanding of the rule of law it favors and identifying the operational criteria on the basis of which the analysis will be conducted.
Drawing on archival materials, Michael Ng challenges the widely accepted narrative that freedom of expression in Hong Kong is a legacy of British rule of law. Demonstrating that the media and schools were pervasively censored for much of the colonial period and only liberated at a very late stage of British rule, this book complicates our understanding of how Hong Kong came to be a city that championed free speech by the late 1990s. With extensive use of primary sources, the free press, freedom of speech and judicial independence are all revealed to be products of Britain's China strategy. Ng shows that, from the nineteenth to the twentieth century, Hong Kong's legal history was deeply affected by China's relations with world powers. Demonstrating that Hong Kong's freedoms drifted along waves of change in global politics, this book offers a new perspective on the British legal regime in Hong Kong.
The Eurozone and the European Union have recently been confronted with a number of existential threats. The sovereign debt crisis and the COVID-19 pandemic have forced European decisionmakers to pass important reforms which have radically transformed the nature and scope of the Union's powers in the field of economic and fiscal policy. As the new economic governance of the Eurozone emerges as the main driver of integration in today's Europe, this book seeks to assess the solidity of the constitutional foundations supporting that system, and its compliance with the Union's core founding value: the rule of law. Using competence allocation, regulatory quality, access to external review and fundamental rights sustainability as analytical benchmarks, this book argues that the recent metamorphosis of Eurozone economic governance has not been accompanied by a parallel strengthening of its constitutional settlement, leading to a problematic misalignment between the Union's action and its governing principles.
The African Growth and Opportunity Act (AGOA) was signed into law in May 2000 to encourage increased trade and investment between the United States and Sub-Saharan Africa (SSA). It provides eligible countries with duty free access to the US market for over 1800 products in addition to those available under the Generalized System of Preferences (GSP). The benefits extend through 2025. This study explores the link between US trade preferences under AGOA and beneficiary country exports. Using a large US import database, the study examines the extent to which AGOA influences export performance. It also examines the moderating roles of rule of law and foreign direct investment. The results largely indicate that AGOA has a positive and significant effect on beneficiary country exports. It also shows that rule of law moderates the relationship between AGOA and export performance. We believe that AGOA will target foreign direct investment (FDI) to SSA from other advanced regions such as the EU to take advantage of the US market. However, the role of FDI appears to be weak in moderating the relationship between trade preferences (tariff concessions) and exports from beneficiary countries to the US market.
Since 2012, judges and prosecutors in Benin have repeatedly protested against political interference and demanded compliance with their statutorily guaranteed independence. In 2014 and 2017, magistrates demonstrated in their judicial robes in the streets, protesting against the government's bill to deprive them of their right to strike and other freedoms. Benin has been described as a ‘success story of democracy’ (Stroh and Never, 2006, p. 1) and even as a ‘model democracy’ (cf. Kohnert, 1996, p. 78; Magnusson, 2001, p. 211; Bierschenk, 2009) since its peaceful transition to democratic conditions and its participation in a national conference in 1990/91. So why were magistrates in Benin demonstrating in the streets for the first time in the history of their profession? Based on fieldwork in Benin in 2009 and 2015 and archival research in 2017 in France, my paper analyses the change in the style of interactions between parts of the executive and parts of the judiciary in the history of the profession – a change from political negotiation to confrontation. Through their strikes and industrial action, magistrates fought for judicial independence; yet, at the same time they constructed legality and strengthened democracy because their actions emphasised the rule of law. My paper also considers the specifics of their strikes in the context of other striking civil servants. When magistrates, as bureaucrats, become politically active, it marks a transformation in their self-conception, as they are usually reserved and withdraw themselves from political and public spheres.
Chapter 8 provides an introduction to civil rights in contemporary Latin America. It proposes a definition of civil rights that encompasses four classes of rights: equality rights, liberty rights, security rights, and due process rights. Relying on data about these rights, it characterizes the state of civil rights in Latin America as mixed. The politically powerful have had to answer for past abuses of human rights; and many rights of women, indigenous peoples, Afro-descendants, and LGBTQ+ people have been legally recognized. However, many democracies are corrupt, discriminatory, semi-free, violent, and unjust. This state of affairs is explained in terms of multiple factors. Democracy has served as a stepping stone for some improvement of civil rights, especially when an active civil society has pressed for certain rights. But the impact of democracy is muted because Latin American democracies are not high-quality democracies. Moreover, the judiciary has not been a consistent promoter of civil rights, and the state has also not been capable enough or state agents have not been committed enough to enforce the law uniformly throughout the full territory of a country.
Chapter 1 focuses on the state as a distinct form of political organization, and analyzes the formation and capacity of states in Latin America. It initially considers the states created by indigenous peoples in pre-Columbian times and the states subsequently imposed by the Spanish and Portuguese colonial rulers. It next shows how modern states were formed in Latin America after independence from Spain and Portugal. It argues that Latin America pursued a trade-led model of state formation and that the resulting states were weak, patrimonial states – that is, states that were treated by rulers, partially at least, as their private property and did not enforce the rule of law. Moreover, it holds that state weakness has been a persistent problem in Latin America, as a discussion of Mexico and Uruguay shows, and that contemporary states are unable to impose their rule in a uniform manner throughout the territory they claim to control. It maintains that Latin America has modern states, but also that these states are weak.
This chapter captures the substance and range of the EU’s toolbox in tackling democratic backsliding in its Member States. It also discusses the limitations of these tools. The chapter shows how deterioration of democracy and the rule of law have had significant consequences in the migration context. It goes on to evaluate the EU’s toolbox against democratic decay in a migration context and discusses how the EU is currently bringing new initiatives forward to strengthen its democracy and legitimacy. The chapter concludes with a number of suggestions de lege lata and de lege ferenda on how the EU’s toolbox could become more effective.
In essence, democracy in the workplace and the promotion of trade union representation are central to the survival of a democratic society.4 As a labor lawyer, I tend to think that law has a special role to play in this process. Yet my experience derived from Washington and Sacramento, both as a scholar and a practicing lawyer, convinces me of the limits of law. Law is subordinate to other factors, including union devotion to resources, the necessary expenditures involved, and the creation of strategic tactics and vision in organizing the unorganized – as well as foreign competition, American investment abroad, and technological innovation. Law is subordinate and can only play a symbiotic role in the proper promotion of collective bargaining by a reorganized movement. Law, however worthy of reform, has never been the solution in the past and is unlikely to be so now.
This chapter focuses on the link between the rule of law and migration in the poisonous context of democratic decay and rule of law backsliding in the EU. The analysis draws on the Hungarian case study, where overall institutional changes introduced since 2010 have led to the establishment of a regime described as ‘illiberal’ and as ‘authoritarian’. The chapter argues that Hungarian asylum policy is essentially designed with one key goal in mind: to deprive people of the right to seek asylum in breach of the international obligations of Hungary and of EU law. This is a direct result of a broader process of rule of law backsliding. The Hungarian case study proves that unresolved issues of rule of law backsliding in some EU Member States affects both the practical implementation of EU basic values (e.g., solidarity) and the proper functioning of EU policies (e.g., asylum policy). The chapter’s conclusion is that the rule of law is not secured sufficiently, either in the EU or by the EU, causing all concerned to lose face.
Judicial review is central to the Constitution-in-practice, and in the American system of vertical precedent this necessarily gives the Supreme Court, because it is the final voice in the primary American process of articulating constitutional law, the most important role in solving constitutional problems. It does not follow, however, that all constitutional questions are to be answered by the Supreme Court or that all constitutional answers are the ones that a majority of the justices think are correct in the abstract. The practice of constitutional law involves a web of principles, doctrines, and practices that make the perspective from which one is addressing a question a significant factor, much of the time, in the reasoning the constitutional lawyer should employ.
We will explore the EU’s relationship to values in three main steps. First we look at the content of the values: where do these values come from, which fundamental rights exist, and who do they protect? The chapter also assesses how values inform and influence EU law and governance. What are the main mechanisms by which norms like human rights shape the way EU institutions and policies develop? Finally, we will consider the limits of EU values, both in terms of their application vis-à-vis national understandings of fundamental rights and in vis-à-vis other objectives of the EU, paying particular attention to the rule of law crisis of the 2020s.
A small but influential number of States or their subdivisions have put substantial resources into establishing courts that operate outside of or have a special status within their traditional judicial systems. In instances, the judges of these courts are not citizens of the seats of the respective courts. The courts typically apply foreign law and do so in English. Why the removal of certain cases from local courts and local law or the establishment of new specialized courts within existing systems? An argument is that the new courts enhance the rule of law, both in the location of the court as well as regionally and even internationally. This chapter examines court rules and practices to assess the influence of international commercial courts on the rule of law.
Chapter 9 proposes a normative and historical evaluation of the book's findings. It first considers how lawyers compare to other ghostwriters of institutional change, suggesting that what distinguishes lawyers is their capacity to wield a mediatory, boundary-blurring agency to seize opportunities for change that may be lost upon actors shackled to single institutional settings. It then addresses the ethics of lawyers’ ghostwriting, submitting that while concealed actions pushing the bounds of the acceptable are often necessary to jump-start institutional change, Euro-lawyering became more normatively problematic as it corporatized and stratified access to transnational justice. Finally, the chapter concludes by taking stock in light of the contemporary challenges plaguing the rule of law in Europe. As a wave of illiberalism and constitutional breakdowns has swept some EU member states, Euro-lawyers have gained a new raison d’être in the struggle to reclaim the elusive liberal promise of the judicial construction of Europe.
The rule of law embodies two basic metaphors: the tool and the causeway. Under the tool metaphor, the rule of law is applied more as an instrument of power, while in the causeway metaphor, the law emphasizes a form of relationship between state and society where “ground rules” are established, not just for electoral politics but for the daily transactions and commercial necessities of individuals. The choice between these two metaphors has always been crucial for the legal and political development of democratic states. This article argues that in many African states, the rule of law is presently used as a tool, and contends that if this superficial perception is discarded, in favour of concentrating instead on the more expansive causeway metaphor, the continent will stand the chance of building more modern democratic states that can compare favourably with other consolidated democracies across the globe.
The European Union is often depicted as a cradle of judicial activism and a polity built by courts. Tommaso Pavone shows how this judge-centric narrative conceals a crucial arena for political action. Beneath the radar, Europe's political development unfolded as a struggle between judges who resisted European law and lawyers who pushed them to embrace change. Under the sheepskin of rights-conscious litigants and activist courts, these “Euro-lawyers” sought clients willing to break state laws conflicting with European law, lobbied national judges to uphold European rules, and propelled them to submit noncompliance cases to the European Union's supreme court – the European Court of Justice – by ghostwriting their referrals. By shadowing lawyers who encourage deliberate law-breaking and mobilize courts against their own governments, The Ghostwriters overturns the conventional wisdom regarding the judicial construction of Europe and illuminates how the politics of lawyers can profoundly impact institutional change and transnational governance.
Support for a common cause typically engenders a high degree of collegiality amongst lawyers but, even when united in pursuit of a political goal, closer examination tends to reveal internal divisions along the familiar fault-lines of race, ethnicity, class, age, and gender. Reflecting on what Jessie Bernard refers to as the ‘stag effect’ in much of the existing literature on cause lawyers – a disproportionate focus on the activities of men and ‘masculine’ causes – this chapter places a particular spotlight on gender. It draws mainly (though not exclusively) on interviews with female lawyers to explore personal motivation; paradoxical opportunities; the gendered consequences associated with ‘taking on’ legal work; how gender intersects with other variables for women lawyers in such contexts; and the ways in which gender equality is imagined and sometimes manipulated by the state during periods of conflict, authoritarianism and transition. In the final section, we reflect on how the women lawyers we interviewed asserted their agency in the face of significant structural and gendered constraints.
This chapter, utilizing an interactional legal theory framework, considers the legal legitimacy implications of international criminal law’s aesthetic biases. This assessment is important for two reasons. First, the need to protect ICL’s legal legitimacy is often presented as a reason why ICL accountability should not be pursued for nontraditional modalities of atrocity commission. Second, in a more general sense, such an examination helps us to understand how unacknowledged biases affect the legal legitimacy of ICL. Through an analysis of how the aesthetic biases of ICL affect adherence to a selection of Fuller’s criteria of legality, this chapter demonstrates that, from an interactional perspective of international lawmaking and legality, rather than protecting the legal legitimacy of ICL, the continuing myopic focus on aesthetically familiar forms of atrocity commission actually impairs ICL’s legitimacy as a putative international legal regime.