To send content items to your account,
please confirm that you agree to abide by our usage policies.
If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account.
Find out more about sending content to .
To send content items to your Kindle, first ensure email@example.com
is added to your Approved Personal Document E-mail List under your Personal Document Settings
on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part
of your Kindle email address below.
Find out more about sending to your Kindle.
Note you can select to send to either the @free.kindle.com or @kindle.com variations.
‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi.
‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
The concluding chapter of Saving the International Justice Regime identifies how scholars, activists, stakeholders, and supporter states can help to save the international justice regime. It identifies three main ways to bolster international justice: (1) managing public opinion by engaging in targeted and effective self-marketing campaigns as a way to make their case to a broader audience; (2) improving the rule of law and the functioning of the tribunals as judicial institutions; and (3) reaffirming the fundamental norm(s) of criminal accountability and human rights. The chapter concludes with a discussion of a future research agenda based on the definition, typology, and theoretical framework set out earlier in the book.
This article discusses the rationale of adeia (immunity) in the fifth-century Athenian legal system. It argues that adeia was designed to grant a temporary suspension of the effect of a law in exceptional circumstances without allowing for any permanent legal change. This article explores the origin of adeia and the relevant ideology underpinning the legal procedure. It provides a comprehensive reconstruction of the legal procedure and analyses the extensive use of adeia for collecting information during the investigation of the profanation of the Mysteries and the mutilation of the herms in 415 BC. This article also discusses the implications of the use of adeia for public investigation and emergency powers in Classical Athens.
This chapter explains the notion of the rule of law which Victorian jurists associated with the English constitution. It examines the role of habeas corpus in securing personal liberty, and explains the debates over martial law which followed the Jamaica revolt of 1865, in which common lawyers sought to subject emergency rule to the rule of law. Despite this strong commitment to the rule of law at home, British rulers in the empire regularly introduced emergency regimes or detained political prisoners through ad hominem legislation, as was done in 1877 in the case of Abdullah, Sultan of Perak. Whereas in India, general legislation was passed to allow the detention of political prisoners and the introduction of martial law, in most of Africa, the colonial authorities used either specially enacted ad hominem ordinances or uncodified martial law powers. This was done even in East Africa, when Mwanga of Buganda and Kabagera of Bunyoro were detained and deported, even though legislation following Indian forms had been passed there. This chapter considers questions raised by the use of such emergency legislation for British perceptions of and fidelity to the rule of law.
This chapter explores the various reasons why an imperial power ostensibly committed to the rule of law frequently resorted to detention without trial in Africa. In some cases, the use of ad hominem laws reflected jurisdictional ambiguities, when the authorities were unsure over their jurisdiction to put political prisoners on trial. In others, they were a means of giving formal validity to acts of executive power, in order to prevent prisoners making habeas corpus applications. While imperial acts often went against a substantive notion of the rule of law, officials sought to give them formal legal validity, and not justify them as acts of state. This chapter reflects on what this tells us about Victorian and Edwardian understandings of the rule of law. For lawyers in the metropolis, the formal and substantive versions of the rule of law were not in tension: the sovereign lawmaker would pass emergency legislation or indemnity acts only in cases where a common lawyer would agree to its necessity. In the empire, however, the tension between the rule of law and rule by law became evident: and how far the rule of law prevailed depended more on politics and culture than on law itself.
Between the mid-1990s and the mid-2010s, the Chinese government was distinctly open to the Western offer of democracy-assistance programs. It cooperated with a number of Western organizations to improve the rule of law, village elections, administrative capacity, and civil society in China. Why did the Chinese government engage with democracy promoters who tried to develop these democratic attributes within China? The author argues that the government intended to use Western aid to its advantage. The Chinese Communist Party had launched governance reforms to strengthen its regime legitimacy, and Chinese officials found that Western democracy assistance could be used to facilitate their own governance-reform programs. The article traces the process of how the government’s strategic intention translated into policies of selective openness, and includes evidence from firsthand interviews, propaganda materials, and research by Chinese experts. The findings show how democracy promoters and authoritarian leaders have different expectations of the effects of limited democratic reform within nondemocratic systems. Empirically, reflecting on the so-called golden years of China’s engagement with the West sheds new light on the Chinese Communist Party’s survival strategy through authoritarian legitimation.
Today’s central banks wield extraordinary powers, both monetary and regulatory, and with a capacity to substitute for elected governments tempted to pass the buck. Debates about central banking’s powers and legitimacy barely touch, however, on whether and how monetary independence fits with the values that drive constitutionalism. It turns out that, for modern economies using fiat money, independence is a corollary of the higher level separation of (fiscal) powers between the legislative and executive branches. Even though independence is necessary, it needs to be carefully constrained by a “money-credit constitution.” Those general arguments, applicable in liberal democracies, do not carry across cleanly to the euro area. A principled case can be made for the ECB’s mandate being specially tight, but that is in tension with its de facto role as the emergency economic actor for the euro area. Facing up to that will be necessary sooner or later.
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.
The chapter addresses the complex relationships between law and identity as a jurisprudential problem and as a constitutional concern. It examines several conceptual aspects of identity right claims without taking a stance in the identarian–dignitarian moral and political debate. It sheds light on a neglected facet of identity right claims: the feasibility of the notion of identity as a foundation for constitutional rights. The conceptual feasibility of identity right claims is independent of and unconcerned with the validity and accuracy of moral ideologies. The chapter discusses whether identity right claims are conceptually defensible on the basis of constitutional reasoning. It argues that the notion of identity not only is definitionally vague, but also is a metamorphic concept that suffers from unsteadiness.
The legal system under the rule of law binds authority. Problematically, however, this same authority, which is supposed to be limited, creates and applies the law. The rule of law requires that the ruled and ruler be subject to the same law. “It just happens” in illiberal democracy that this same law favors the ruler. Here is where illiberal democracies depart from constitutional democracies. Of course, bending the law occurs often in the latter, but this is not systematic, and even if it were, there are effective (legal) means of correction. If such correction fails this is sufficiently known, demonstrated, and condemned, and once legal self-correction fails, democracy may provide it by electing more rule of law-committed rulers. That is not the case in illiberal democracies, where for purposes of power aggrandizement the authorities will twist legal structures, including application of the law. This does not mean that laws will fail to protect expectations nor that results cannot be foreseeable, but that they enable bias and favoritism, in violation of equality and reasonableness.
The rule of law is the epitome of anthropocentrism: humans are the primary subject and object of norms that are created, interpreted, and enforced by humans – made manifest in government of the people, by the people, for the people. Though legal constructs such as corporations may have rights and obligations, these in turn are traceable back to human agency in their acts of creation, their daily conduct overseen to varying degrees by human agents. Even international law, which governs relations among states, begins its foundational text with the words ‘We the peoples…’. The emergence of fast, autonomous, and opaque AI systems forces us to question this assumption of our own centrality, though it is not yet time to relinquish it.
This chapter turns to the possibility that the AI systems challenging the legal order may also offer at least part of the solution. Here China, which has among the least developed rules to regulate conduct by AI systems, is at the forefront of using that same technology in the courtroom. This is a double-edged sword, however, as its use implies a view of law that is instrumental, with parties to proceedings treated as means rather than ends. That, in turn, raises fundamental questions about the nature of law and authority: at base, whether law is reducible to code that can optimize the human condition, or if it must remain a site of contestation, of politics, and inextricably linked to institutions that are themselves accountable to a public. For many of the questions raised, the rational answer will be sufficient; but for others, what the answer is may be less important than how and why it was reached, and whom an affected population can hold to account for its consequences.
The aim of this chapter is to cast light on the interplay between mutual recognition and fundamental rights in Europe’s area of criminal justice. Focusing particularly on the framework decision on the European arrest warrant, the chapter begins by placing the application of the principle of mutual recognition within the context of the objective of effective interstate cooperation in criminal matters. The chapter then examines the extent to which fundamental rights have emerged as a limit on automatic mutual recognition both in secondary EU law and in the case law of the CJEU. The chapter analyses the extent to which harmonisation of fundamental rights in EU secondary law can provide a basis for enhancing mutual trust and thus facilitate the operation of mutual recognition in criminal matters. In this manner, the chapter assesses the extent to which EU law has moved from ‘blind’ to 'earned' trust in Europe’s area of criminal justice.
National Contact Points (NCPs), which support the OECD Guidelines for Multinational Enterprises, are often invoked as a reliable state-based mechanism for holding transnational corporations accountable for business-related human rights abuses. The objective of this article is to scrutinize the ability of NCPs to offer effective remedy through the lens of an often-quoted success story (the case of the post-colonial brewery Bralima-Heineken at the Dutch NCP) and through a few existing studies that examine factors that curtail or enhance the possibility of NCP mechanisms to deliver effective remedy. Based on these findings, we suggest specific ‘actions for effectiveness’ in the form of recommendations for improving NCPs as a tool to deliver effective remedy. Zooming out, we extend some general observations on how our findings illustrate that NCPs are expressions of a larger systemic problem surrounding the role of law within market globalization and the impact of economic liberalization on the making of norms, changing legal authority and basic fairness under conditions of stark power imbalance. Supporting this approach are historical factors which make the OECD Guidelines and NCPs ripe for such conceptualization.
It was the trial of a century in colonial Hong Kong when, in 1931–33, Ho Chi Minh - the future President of Vietnam - faced down deportation to French-controlled territory with a death sentence dangling over him. Thanks to his appeal to English common law, Ho Chi Minh won his reprieve. With extradition a major political issue in Hong Kong today, Geoffrey C. Gunn's examination of the legal case of Ho Chi Minh offers a timely insight into the rule of law and the issue of extradition in the former British colony. Utilizing little known archival material, Gunn sheds new light on Ho Chi Minh, communist and anti-colonial networks and Franco–British relations.
The introduction mirrors the volume’s overall structure. It begins with a review of the literature on post-2013 legal institutional reforms before turning to the context and content of procedural law changes and court reforms. The chapter then discusses the role of the Supreme People’s Court as an initiator of criminal procedure amendments and promoter of legal institutional reform. The most significant change in the judicial structure, which is caused by the introduction of the supervision commissions, is examined from the perspective of ongoing court reforms and the balance of power amongst the various actors within the judiciary. The introduction then turns to the criminal procedure law reforms enacted in 2012 and 2018, discussing the new mechanism of pretrial detention, the criminal justice reform goal of ‘trial-centredness’ and criminal reconciliation in public prosecution cases. As the contextual factors of criminal trials often have a decisive impact on the trial outcome, such factors as performance evaluations of courts and judges and media scrutiny of criminal cases are subsequently analysed. It concludes with a summary of the key issues and findings of the volume as a whole.
The chapter begins by outlining three stages of China’s judicial reform journey. The first stage, marked by the Western-oriented reforms launched in the late 1970s, featured judicial activism within uncertain boundaries. The second stage is often depicted as constituting a U-turn. This relatively brief stage was characterised by the revival of the mediation system and redistribution of power within the political–legal system. Finally, the third stage comprises the grand changes introduced since the 4th Plenum of the 18th Party Congress. The chapter then turns to the major reform measures introduced in the current round of reforms and uses empirical data to evaluate the extent to which they constitute a deviation from the previous reform path. Although the greater judicial transparency, personnel reforms, soft-centralisation of the judicial organs and ongoing supervision reform seen during this round have effected a fundamental overhaul of judicial power, they remain influenced by deeply embedded political constraints. The final section of the chapter summarises the Chinese characteristics of the pursuit of rule of law in a one-party state, including the ongoing populist turn, selective adoption of Western experiences, development of a distinct dispute resolution system, cycles of decentralisation and centralisation, and persistent party leadership.
Twenty years after the outbreak of the threat posed by international jihadist terrorism, which triggered the need for democracies to balance fundamental rights and security needs, 9/11 and the Rise of Global Anti-Terrorism Law offers an overview of counter-terrorism and of the interplay among the main actors involved in the field since 2001. This book aims to give a picture of the complex and evolving interaction between the international, regional and domestic levels in framing counter-terrorism law and policies. Targeting scholars, researchers and students of international, comparative and constitutional law, it is a valuable resource to understand the theoretical and practical issues arising from the interaction of several levels in counter-terrorism measures. It also provides an in-depth analysis of the role of the United Nations Security Council.
This paper advances a functional analysis of the UK constitution. It explores how the UK constitution discharges three minimum ‘constituting’, ‘legitimating’ and ‘limiting’ functions that citizens living in modern liberal democracies may legitimately expect all constitutions – irrespective of form – to perform. This functional enquiry breaks with dominant trends in the legal scholarship that remain focused on theorising the constitution's underlying political or legal nature or, likewise, identifying its ultimate source of authority. In addition to offering a richer descriptive account of constitutional practice, this paper identifies, normatively, an institutional responsibility for Parliament to discharge the UK constitution's three minimum functions. Recognising that institutional responsibility unlocks fresh insights into two constitutional conundrums: the legitimacy of judicial review and the status of ‘constitutional statutes’. At the same time, it also exposes deficiencies and tensions in relation to the quality of Parliament's institutional performance on matters of minimum constitutional functioning.
Contrary to the general perception of legal regression under Xi Jinping, this volume presents a more nuanced picture: It combines a wide range of analytical perspectives and themes in order to investigate questions that link institutional changes within the court system and legal environment with developments in criminal procedure law. The first part of the book investigates topics that contextualise institutional and procedural aspects of the law with a focus on various actors in the judiciary and other state and party organs. The second part of the book shifts the perspective to three controversial themes of criminal procedure reform: pre-trial custody review, live witness testimony in court and criminal reconciliation. By shedding light on performance evaluation of judges and interactions of courts and media the final part of the book introduces two sets of contextual factors relevant to the adjudication of criminal cases.