Hague Journal on the Rule of Law最新文献

How to Assess Rule-of-Law Violations in a State of Emergency? Towards a General Analytical Framework 如何评估紧急状态下的违法行为？建立总体分析框架

IF 2.2 2区社会学

Hague Journal on the Rule of Law Pub Date : 2024-09-02 DOI: 10.1007/s40803-024-00244-1

Zoltán Szente

{"title":"How to Assess Rule-of-Law Violations in a State of Emergency? Towards a General Analytical Framework","authors":"Zoltán Szente","doi":"10.1007/s40803-024-00244-1","DOIUrl":"https://doi.org/10.1007/s40803-024-00244-1","url":null,"abstract":"According to conventional wisdom, we are living in an era of constant emergencies. The subsequent crises cannot always be handled effectively within the normal legal system, so many countries have introduced some type of emergency, i.e., a special legal regime, to deal with them. However, exceptional power per se poses a threat to democracy, as those in government can use it for their own political gains, curb civil liberties, and subvert the rule of law. The article takes the principled position that emergency situations can be legally regulated, and argues that certain standards of the rule of law should not be waived even in a special legal order. The article discusses how to assess whether the exceptional power is being abused, i.e. whether it is illegitimately limiting the rule of law. For this purpose, it proposes an assessment framework whose criteria can be used in any constitutional democracy to check the legality of the extraordinary power exercised in a state of emergency. The study examines also the possible counter-arguments that could question the success of such an undertaking, and provides answers to these challenges. After that, it explains in detail the rule of law standards for the exercise of exceptional power, the separation of different emergency powers, the requirements of legality, temporariness, purpose-limitation, necessity and proportionality, and controllability, as well as those areas that are untouchable even for the extended power. The justification of these criteria also receives special attention in the study.","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142222922","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Shifting Landscape of Judicial Independence Criteria Under the Preliminary Reference Procedure: A Comment on the CJEU’s Recent Case Law and the Trajectory of Article 267 TFEU 初步参考程序下司法独立标准的变迁：欧盟法院近期判例法评述及《欧盟运作条约》第 267 条的发展轨迹

IF 2.2 2区社会学

Hague Journal on the Rule of Law Pub Date : 2024-08-19 DOI: 10.1007/s40803-024-00243-2

Beatrice Monciunskaite

{"title":"The Shifting Landscape of Judicial Independence Criteria Under the Preliminary Reference Procedure: A Comment on the CJEU’s Recent Case Law and the Trajectory of Article 267 TFEU","authors":"Beatrice Monciunskaite","doi":"10.1007/s40803-024-00243-2","DOIUrl":"https://doi.org/10.1007/s40803-024-00243-2","url":null,"abstract":"The preliminary reference procedure forms the foundation of judge-to-judge dialogue in the EU, which has been imperative to the inclusion of member state courts in the Union’s judicial system. In response to the Union’s ever-growing rule of law problem, the CJEU strengthened judicial independence criteria to fortify the Article 2 TEU value of the rule of law. Now, it seems the CJEU’s fight to save judicial independence is spilling over into the preliminary reference mechanism as it overhauls its judicial independence standards under Article 267 TFEU. In particular, the CJEU has chosen to treat traditional and non-traditional courts in a divergent way and introduced significant reliance on judicial decisions emanating from outside the immediate CJEU court structure; this multi-dimensional change to the operation of the preliminary reference mechanism has far-reaching consequences. As this article highlights, the most notable consequences are to the uniform application of EU law, the principle of subsidiarity and autonomy of EU law. Perhaps the most important point raised is the effect of the new limitation on Article 267 TFEU references on EU citizens and our right to access the ‘natural judge’ (the CJEU) in matters concerning EU law.","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142222923","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Rule of Law and Corporate Actors: Measuring Influence 法治与公司行为者：衡量影响力

IF 2.2 2区社会学

Hague Journal on the Rule of Law Pub Date : 2024-08-14 DOI: 10.1007/s40803-024-00242-3

Olena Uvarova

{"title":"The Rule of Law and Corporate Actors: Measuring Influence","authors":"Olena Uvarova","doi":"10.1007/s40803-024-00242-3","DOIUrl":"https://doi.org/10.1007/s40803-024-00242-3","url":null,"abstract":"This article proposes an approach for conceptualizing and assessing the extent to which corporate actors impact the rule of law environment in different societies. To achieve this, the methodology for the Corporate Actors and the Rule of Law Index is developed based on a reimagined methodology derived from the Rule of Law Index by the World Justice Project, originally conceived in a state-centric manner. The methodology proposed in this article includes the following factors: preventing corporate capture and corporate contribution to structural inequality, corporate integrity and transparency, meaningful stakeholder engagement; order and security; impact on the regulatory sphere; corporate accountability for human rights abuses; access to grievance mechanisms. Measuring the influence of corporate actors on the rule of law and indicating the dynamic of this influence significantly contributes to the overall understanding of the rule of law environment. The absence of such measurement distorts the comprehension of the balance of power in a society, impedes the development of legal regulation, obstructs the identification of problematic issues in ensuring the rule of law, and hinders efforts to address them.","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142222924","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Rebuilding the Rule of Law in the Era of Democratic Backsliding 在民主倒退的时代重建法治

IF 2.9 2区社会学

Hague Journal on the Rule of Law Pub Date : 2024-08-08 DOI: 10.1007/s40803-024-00238-z

L. Tiede

引用次数: 0

EU Lawlessness Law at the EU-Belarusian Border: Torture and Dehumanisation Excused by ‘Instrumentalisation’ 欧盟-白俄罗斯边境的欧盟无法治法：以 "工具化 "为借口的酷刑和非人化

IF 2.2 2区社会学

Hague Journal on the Rule of Law Pub Date : 2024-08-01 DOI: 10.1007/s40803-024-00237-0

Sarah Ganty, Aleksandra Ancite-Jepifánova, Dimitry V. Kochenov

{"title":"EU Lawlessness Law at the EU-Belarusian Border: Torture and Dehumanisation Excused by ‘Instrumentalisation’","authors":"Sarah Ganty, Aleksandra Ancite-Jepifánova, Dimitry V. Kochenov","doi":"10.1007/s40803-024-00237-0","DOIUrl":"https://doi.org/10.1007/s40803-024-00237-0","url":null,"abstract":"This paper engages with the routine normalisation of mass violations of human rights at the EU–Belarusian border. The direct and indirect victimisation of the racialised ‘other’ on the Eastern border of the Union is a direct extension of the EU-sponsored war on the racialised passport-poor in the Mediterranean. Together, the two form one clear and coherent picture of flagrant mass rights abuse. This EU law approach has claimed more than 27,000 lives over the last eight years and left more than 120,000 innocent people captured and imprisoned, or enslaved and sold for ransom by the criminal proxies enlisted by the EU and its Member States. This dramatic situation has not arisen by chance. An array of legal techniques is deployed by the EU, specifically by FRONTEX, the European Commission and, albeit incidentally and to a lesser extent, the European Court of Justice—to make sure that the full brunt of the denial of the right to life and other vital rights of non-citizens is never presented as a violation of EU law. We call these legal techniques ‘EU lawlessness law’. Focusing on the situation at the EU–Belarusian border allows us to zoom in on the bespoke lawlessness solutions crafted and deployed there by the EU and its Member States. The gross violations of the law are rhetorically justified by the alleged instrumentalisation of migrants by the dictatorial Belarusian regime. Paradoxically, the latter emerges as a de facto partner of the EU and its Member States, in torturing numerous people in complete disregard of any of the legal guarantees that the Union professes to provide.","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141870007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Confused Constitutionalism in Hungary—New Assessment Criteria for Recognising a Populist Constitutional Court 匈牙利混乱的宪政--承认民粹主义宪法法院的新评估标准

IF 2.2 2区社会学

Hague Journal on the Rule of Law Pub Date : 2024-07-18 DOI: 10.1007/s40803-024-00239-y

Fruzsina Gárdos-Orosz

{"title":"Confused Constitutionalism in Hungary—New Assessment Criteria for Recognising a Populist Constitutional Court","authors":"Fruzsina Gárdos-Orosz","doi":"10.1007/s40803-024-00239-y","DOIUrl":"https://doi.org/10.1007/s40803-024-00239-y","url":null,"abstract":"The starting point of the paper is that the early constitutional changes after the populist transformation of Hungarian majority state politics (from 2010) and the application of the new Fundamental Law (since 2012) have created difficulty in achieving constitutional justice by judicial means. The fundamental populist constitutional transformation and, within this, the transformation of the regulation of the Constitutional Court have created great challenges for constitutional adjudication. Scholarship on the transformation of the Hungarian Constitutional Court regards the change of jurisprudence as a consequence of the constitutional environment, which ended up in institutional state capture. Basing my arguments on the classic competence-related issues of constitutional justice, activism and deference, I argue here that for constitutional courts, there is always a limited room for manoeuvre by interpretation except for in a ‘hard’ dictatorship. Populist Hungarian jurisprudence is, therefore, not only a consequence of constitutional change but a contribution per se—a cause of the construction of a populist constitution. This job has been done by constitutional interpretation in an activist or deferent manner with regard to specific politically sensitive issues. EU- and emergency-related constitutional conflicts are used here as examples to explain the proposed assessment criteria. The conclusion is that either the Court is activist or deferent, it contributes actively to the populist construction by constitutional interpretation.","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141744355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Crisis, Reinterpretation, and the Rule of Law: Repurposing ‘Cohesion’ as a General EU Spending Power 危机、重新诠释与法治：将 "凝聚力 "重新用作欧盟的一般支出权

IF 2.2 2区社会学

Hague Journal on the Rule of Law Pub Date : 2024-06-24 DOI: 10.1007/s40803-024-00234-3

Peter L. Lindseth, Päivi Leino-Sandberg

{"title":"Crisis, Reinterpretation, and the Rule of Law: Repurposing ‘Cohesion’ as a General EU Spending Power","authors":"Peter L. Lindseth, Päivi Leino-Sandberg","doi":"10.1007/s40803-024-00234-3","DOIUrl":"https://doi.org/10.1007/s40803-024-00234-3","url":null,"abstract":"The EU Treaties contain no provision akin to the clause in the United States Constitution empowering spending in the ‘general Welfare’, i.e., for the general public good. Nonetheless, supporters of a broad reading of the cohesion flexibility clause, Article 175(3) TFEU, now claim that the EU, in effect, already has that power. The claim is inspired by that clause serving as the sole legal basis for the Recovery and Resilience Facility (RRF). This is the cornerstone of the NextGenerationEU (NGEU) Programme, the EU’s massive borrowing and spending initiative that has directed a large amount of money to national priorities to address not just economic consequences of Covid but also longer-term issues of climate change, energy transition, and digitalization. This contribution critically assesses whether Article 175(3) TFEU can serve as the basis for general spending authority in the EU, particularly at the expense of its traditional role in regional development in Europe’s economic periphery. The analysis draws on the historic purposes of cohesion policy, the existing case law on the limited scope of the cohesion flexibility clause, as well as legal opinions of the Council Legal Service on the same question. This contribution concludes that the crisis-driven reinterpretation of Article 175(3) TFEU not only undermines cohesion as developmental tool for the periphery, but it also raises serious concerns about democratic legitimacy and the rule of law at Europe’s core. The EU may well need a general spending power, but the way to achieve it is not through institutional lawyers engaging in strained crisis reinterpretation outside of public scrutiny. Instead, what is needed is democratic politics pure and simple, i.e., Treaty change.","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141548180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Pre-enlargement Reform Failures in the Western Balkans: Social and Economic Preconditions of the Rule of Law 西巴尔干地区扩大前的改革失败：法治的社会和经济先决条件

IF 2.2 2区社会学

Hague Journal on the Rule of Law Pub Date : 2024-06-19 DOI: 10.1007/s40803-024-00235-2

Nedim Hogic

引用次数: 0

Friends or Foes: Is Unamendability the Answer to Democratic Backsliding? 朋友还是敌人？不可修正性是民主党倒退的答案吗？

IF 2.2 2区社会学

Hague Journal on the Rule of Law Pub Date : 2024-06-12 DOI: 10.1007/s40803-024-00233-4

Silvia Suteu

引用次数: 0

Well-Tempered Power: ‘A Cultural Achievement of Universal Significance’ 好脾气的力量》："具有普遍意义的文化成就

IF 2.2 2区社会学

Hague Journal on the Rule of Law Pub Date : 2024-06-11 DOI: 10.1007/s40803-024-00226-3

Martin Krygier

引用次数: 0