{"title":"Creative Destruction: How Capitalism Undermines Rule of Law","authors":"R. Holcombe","doi":"10.2139/ssrn.3942914","DOIUrl":"https://doi.org/10.2139/ssrn.3942914","url":null,"abstract":"Joseph Schumpeter described capitalism as a system of creative destruction. Innovative new ideas, new products, and new production methods displace the old. This works to the advantage of entrepreneurial individuals who bring innovations to market, enabling them to get ahead by producing more value for consumers. After those entrepreneurs get ahead, the forces of creative destruction work against them, threatening to displace them in the economic hierarchy. The system that helps those who want to get ahead threatens those who want to stay ahead. An examination of the institutional framework that supports capitalism shows that it contains incentives for the political elite to cooperate with the economic elite for their mutual benefit. An extensive literature on rent-seeking, rent extraction, regulatory capture, and interest group activity explains why the legal system that supports capitalism is susceptible to capture itself, for the benefit of the elite. Capitalists are the biggest threat to capitalism.","PeriodicalId":346878,"journal":{"name":"PSN: Rule of Law (Topic)","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114667854","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Resurgent Authoritarianism and the International Rule of Law","authors":"Wayne Sandholtz","doi":"10.2139/ssrn.3444799","DOIUrl":"https://doi.org/10.2139/ssrn.3444799","url":null,"abstract":"Modern rule of law and post-war constitutionalism are both anchored in rights-based limitations on state authority. Rule-of-law norms and principles, at both domestic and international levels, are designed to protect the freedom and dignity of the person. Given this “thick” conception of the rule of law, authoritarian practices that remove constraints on domestic political leaders and weaken mechanisms for holding them accountable necessarily erode both domestic and international rule of law. Drawing on political science research on authoritarian politics, this study identifies three core elements of authoritarian political strategies: subordination of the judiciary, suppression of independent news media and freedom of expression, and restrictions on the ability of civil society groups to organize and participate in public life. According to available data, each of these three practices has become increasingly common in recent years. This study offers a composite measure of the core authoritarian practices and uses it to identify the countries that have shown the most marked increases in authoritarianism. The spread and deepening of these authoritarian practices in diverse regimes around the world diminishes international rule of law. The conclusion argues that resurgent authoritarianism degrades international rule of law even if this is defined as the specifically post-Cold War international legal order.","PeriodicalId":346878,"journal":{"name":"PSN: Rule of Law (Topic)","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123897666","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"When Law & Economics Violates the Rule of Law: Three Illustrations","authors":"Aurélien Portuese","doi":"10.5339/ROLACC.2018.5","DOIUrl":"https://doi.org/10.5339/ROLACC.2018.5","url":null,"abstract":"Law & Economics scholarship movement continues to be an important methodological approach to the positive and normative analysis of law since its inception in the second half of the 20th century. However, Law & Economics has been criticized on various grounds, from its over-reliance on consequentialist arguments against deontological arguments to its indifference towards the fundamental concepts of law such as the Rule of Law. This latter argument is scrutinized and further illustrated in this article. Here, we demonstrate that despite the common theoretical underpinnings between Law & Economics and the Rule of Law (I), it is argued that Law & Economics conflicts with the Rule of Law principles on three major instances, namely the Coase theorem, the theory of efficient breach of contracts and the influential rule of reason in the field of competition law and policies (II). We therefore conclude that there cannot be a practical convergence between Law & Economics and the Rule of Law at the universal level unless Law & Economics revisits some of its normative conclusions that conflict with the Rule of Law as exemplified in this article.","PeriodicalId":346878,"journal":{"name":"PSN: Rule of Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130811994","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Rule of Law","authors":"Rosolino Candela, E. Piano","doi":"10.1007/978-1-4614-7753-2_421","DOIUrl":"https://doi.org/10.1007/978-1-4614-7753-2_421","url":null,"abstract":"","PeriodicalId":346878,"journal":{"name":"PSN: Rule of Law (Topic)","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132974282","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Illiberal, Democratic, Non Arbitrary. Epicentre and Circumstances of a Rule of Law Crisis","authors":"G. Palombella","doi":"10.2139/ssrn.2961940","DOIUrl":"https://doi.org/10.2139/ssrn.2961940","url":null,"abstract":"The diverse threats to the Rule of law (RoL), in more than one country, have been under the attention of the European Commission in the last years and have been focussed in relation to art 7 TEU procedure. The paper argues that EU oversight should be considered having regard to its internal premises and credibility; the question of a EU censorship partakes in a creeping weakness characterising the present relations between States and regional or supranational orders, whose authority is met at times with resisting arguments. Zooming out from the daily threats to the Rule of law in so called illiberal or populist governments, the article puts under scrutiny some usual theoretical tools and conceptual frames, namely, the connection between arbitrariness and the RoL on one side, and on the other the RoL and the overall idea of public law. It suggests that the present crisis is part of a seismic shifting of the main components of the idea of public law that underpins the modern and contemporary state. After disclosing a further case and evidence of (non-)arbitrariness - that exceeds the rule of law features -, the article challenges the conviction that a generic notion of arbitrariness can capture the problem of illiberal governmental actions, or justify the European Union attitude in responding to a ‘rule of law crisis’.","PeriodicalId":346878,"journal":{"name":"PSN: Rule of Law (Topic)","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115510807","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Rule of Law, Legal Pluralism, and Challenges to a Western-Centric View: Some Very Preliminary Observations","authors":"Peer C. Zumbansen","doi":"10.2139/ssrn.2869190","DOIUrl":"https://doi.org/10.2139/ssrn.2869190","url":null,"abstract":"Despite hundreds of “Rule of Law” projects at the World Bank and a host of research into the foundations and content of the Rule of Law, we are still nowhere near an altogether satisfactory definition. While the Rule of Law is repeatedly being referred to in ‘legal assistance’ and ‘law reform’ projects and lives as a guiding principle in constitutions around the world, we don’t seem able to settle on a commonly agreed-upon approach to its nature and institutional form. In this context, the Rule of Law provides an opportunity to engage critically with the differences in perception and bias from which participants in the debate define and situate the principle and its underlying values. This short paper argues for a legal pluralist understanding of the Rule of Law as a set of selective institutional experiences and normative contentions which look very different when studied across time and space. Complementing some of the work that has been done in post-colonial studies and by TWAIL (Third World Approaches to International Law) scholars in law, the ‘transnationalization of the rule of law’ might be one of the important next frontiers in deconstructing Western and Northern narratives of legal ordering.","PeriodicalId":346878,"journal":{"name":"PSN: Rule of Law (Topic)","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131386604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Luciana Gross Cunha, Fabiana Luci de Oliveira, L. Ramos
{"title":"Compliance to Law and Effectiveness of the Rule of Law in Brazil","authors":"Luciana Gross Cunha, Fabiana Luci de Oliveira, L. Ramos","doi":"10.2139/ssrn.2362260","DOIUrl":"https://doi.org/10.2139/ssrn.2362260","url":null,"abstract":"The goal of this paper is to debate the degree of effectiveness of the rule of law in Brazil, through a survey measuring perceptions, attitudes and habits of Brazilians in regard to compliance to law. The survey conducted in Brazil is based on the study conducted by Tom R. Tyler in the United States, entitled Why People Obey the Law? (New Haven, CT: Yale University Press, 1990). The main argument of Tyler´s study is that people obey the law when they believe it’s legitimate, and not because they fear punishment. We test the same argument in Brazil, relying on five indicators: (i) behavior, which depicts the frequency with which respondents declared to have engaged in conducts in disobedience to the law; (ii) instrumentality, measuring perception of losses associated with the violation of the law, specially fear of punishment; (iii) morality, measuring perception of how much is right or wrong to engage in certain conducts in violation of the law; (iv) social control, which measures perception of social disapproval of certain types of behavior in violation of the law, and (v) legitimacy, which measures the perception of respect to the law and to some authorities. Results indicate that fear of sanctions is not the strongest drive in compliance to law, but more than legitimacy, indicators of morality and social control are the strongest in explaining why people obey the law in Brazil.","PeriodicalId":346878,"journal":{"name":"PSN: Rule of Law (Topic)","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126218206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Law as a Precondition for Religious Freedom","authors":"C. Engel","doi":"10.2139/ssrn.1803254","DOIUrl":"https://doi.org/10.2139/ssrn.1803254","url":null,"abstract":"Throughout history, people have suffered for the sake of their religion. Religious organisations have been forbidden or governments have tightly controlled them. The constitutional protection of freedom of religion is a necessity. In a religiously pluralistic world, granting the guarantee is also in the state’s best interest. Yet religions have been hesitant to embrace the guarantee. It implies secularism. Religious freedom is balanced against other freedoms, and against legitimate state interests. Government is faced with social forces that are grounded in eternity and that cannot be proven to be wrong. Seemingly the constitutional protection is a threatening for religions and the state as it is beneficial. Yet the essentially pragmatic nature of law overcomes the tragic dilemma – albeit only at the price of acknowledging that jurisprudence is policy-making.","PeriodicalId":346878,"journal":{"name":"PSN: Rule of Law (Topic)","volume":"198 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122355565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Tax Avoidance, the Rule of Law and the New Zealand Supreme Court","authors":"M. Littlewood","doi":"10.2139/ssrn.1726165","DOIUrl":"https://doi.org/10.2139/ssrn.1726165","url":null,"abstract":"This paper examines the approach that the New Zealand Supreme Court, which was established in 2004, has taken to the problem of tax avoidance. In particular, it examines Ben Nevis Ltd v Commissioner of Inland Revenue (which concerned the General Anti-Avoidance Rule – or GAAR – contained in the Income Tax Act) and Glenharrow Ltd v Commissioner of Inland Revenue (which concerned the GAAR contained in the Goods and Services Tax Act). These cases lend weight to the theory that the idea of tax avoidance is not susceptible to coherent explication and that rules against it are therefore inescapably problematic – to the extent, even, that they constitute a departure from the rule of law. The cases also suggest, however, that having a GAAR is nonetheless better than not having one. It seems clear, too, that the Supreme Court has already, in these two cases, both clarified the law and taken a tougher line against tax avoidance than did the Privy Council.","PeriodicalId":346878,"journal":{"name":"PSN: Rule of Law (Topic)","volume":"214 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114762817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Compatibility Dialectic: Mediating the Legitimate Coexistence of Islamic Law and State Law","authors":"Abdullahi Ahmed An-Nacim","doi":"10.1111/j.1468-2230.2009.00782.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2009.00782.x","url":null,"abstract":"Islamic Law is not now and cannot be the state law of any state, whether Muslims are the majority or minority of the population. This view does not dispute the religious authority of Islamic Law for Muslims, which exists only outside the framework of the state. Still, some principles of Islamic Law should be relevant to the public discourse, provided the argument is made in terms of what the author calls ‘civic reason’ and not simply by assertions of religious conviction. While the two are different types of normative systems, each based on its own sources of authority and legitimacy, there are possibilities of compatibility and mutual influence between Islamic Law and state law as complementary normative systems, without requiring either to conform to the nature and role of the other. This lecture examines the requirements, scope and dynamics of this dialectic relationship, whether Muslims are majority or minority.","PeriodicalId":346878,"journal":{"name":"PSN: Rule of Law (Topic)","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133613717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
求助内容：
应助结果提醒方式：
京公网安备 11010802042870号
