Hague Journal on the Rule of Law最新文献

{"title":"The Rule of Law Under Pressure: A Transnational Perspective","authors":"Gregory Shaffer, Wayne Sandholtz","doi":"10.1007/s40803-024-00210-x","DOIUrl":"https://doi.org/10.1007/s40803-024-00210-x","url":null,"abstract":"<p>In a period of rising threats to constitutional government within countries and among them, it is a crucial time to study the rule of law in transnational context. This article defines core concepts, analyzes the relation of national and international law and institutions from a rule-of-law perspective, and assesses the extent to which rule-of-law practices are shifting at the domestic and international levels in parallel. Part I explains our conceptualization of the rule of law, necessary for the orientation of empirical study and policy responses. Following Martin Krygier, we formulate a teleological conception of the rule of law in terms of goals and practices, which, in turn, calls for an assessment of institutional mechanisms to advance these goals, given varying social conditions and contexts. Part II sets forth the ways in which international law and institutions are important for rule-of-law ends, as well as their pathologies, since power also is exercised beyond the state in an interconnected world. Part III examines empirical indicators of the decline of the rule of law at the national and international levels. It notes factors that could explain such decline, and why such factors appear to be transnationally linked. Part IV discusses what might be done given these shifts in rule-of-law protections. We then conclude, noting the implications of viewing the rule of law in transnational context for conceptual theory, empirical study, and policy response.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141259985","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}

{"title":"Corruption and Separation of Powers: Where do Prosecutors Fit?","authors":"Mariana Mota Prado, Fabio Kerche, Marjorie Marona","doi":"10.1007/s40803-024-00229-0","DOIUrl":"https://doi.org/10.1007/s40803-024-00229-0","url":null,"abstract":"<p>While much attention has been paid to the fact that corruption investigations and prosecutions may jail politicians and high echelons of the civil service, there has been less discussion about the institutional arrangements that may create incentives for prosecuting authorities, and whether and how these fit with the rule of law principle. The status of public prosecutors within the separation of powers principle varies from country to country, and so does the level of de jure and de facto independence. In most countries, prosecutors are part of the executive branch. This arrangement may be associated with lower levels of independence and less incentive to prosecute elected officials, raising a series of concerns about political influence in prosecutorial decisions. In contrast, if public prosecutors are independent from the executive branch, and are insulated from political influences, concerns with prosecutorial decisions that disregard their political, economic and social consequences come to the fore. In addition, different levels of discretion can be combined with different levels of independence, creating a multitude of possible scenarios that determine the incentives that may guide decisions to prosecute members of government for corruption. Brazilian public prosecutors’ offices illustrate how arrangements with high levels of independence and discretion raise concerns about the role of prosecutors in a rule of law system. We show how the institutional framework for Brazilian prosecutors impacted incentives to pursue corruption cases against politicians and high-ranked civil servants in the case of Operation Car Wash (<i>Operação Lava Jato</i>) in Brazil.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141258950","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}

{"title":"The Rule of Law: A Slogan in Search of a Concept","authors":"Martin Loughlin","doi":"10.1007/s40803-024-00224-5","DOIUrl":"https://doi.org/10.1007/s40803-024-00224-5","url":null,"abstract":"<p>Regularly invoked but rarely defined, ‘the rule of law’ has over the last few decades been converted from a legal term of art into one of the most ambiguous slogans of contemporary public policy. Political scientists claim it as a crucial test of a regime’s legitimacy. Economists maintain that it provides an essential foundation of a flourishing market economy. Philosophers suggest it captures the essence of the state as a moral association. Historians acknowledge that, even if they might distrust such an abstract notion, the imposition of effective inhibitions on power is an ‘unqualified human good’. And lawyers, of course, have treated it as the foundation of their discipline ever since the mid-thirteenth century when Bracton asserted that ‘there is no rex where will rules rather than lex’. Those who extend its usage beyond the confines of professional legal discourse commonly give it a positive valence. But the rule of law also has its detractors. These critics assert that it promotes purely formal, individualistic values at the expense of substantive justice, or that it is a smokescreen preventing us from seeing the impact of recent global developments that signal the rule of lawyers. Some anthropologists even denounce it as an imperial ideology that legitimates European conquest and the plunder of the rest of the world. But given the fact that almost every state in the world now claims to act in compliance with the rule of law, these critics seem to have done little to dent its appeal. Yet, the sheer range of views and perspectives that now exist about the meaning, purpose, and value of the rule of law considerably complicates any inquiry into its current standing. In this paper, I will try to bring some clarity to the issue by providing a sketch of the main varieties of ways in which the term is being invoked. The paper comprises five sections, which each address a specific aspect of the term’s usage: (1) its coinage in English law, (2) the adoption of a superficially similar terminology in the German concept of the <i>Rechtsstaat</i>, (3) the jurisprudential innovations that complicate its meaning, and finally its most recent invocation (4) first in development work and (5) secondly in constitutional rejuvenation.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141258952","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}

{"title":"From Liberal Democracy to Illiberal Populist Autocracy: Possible Reasons for Hungary’s Autocratization","authors":"Gábor Halmai","doi":"10.1007/s40803-024-00231-6","DOIUrl":"https://doi.org/10.1007/s40803-024-00231-6","url":null,"abstract":"<p>The paper looks for the main reasons of how was the Hungarian government of the Fidesz Party lead by Prime Minister Viktor Orbán able to within 13 years undermine the independent checks on their power so that it could convert what had looked like a stable but imperfect democracy into an autocracy? After listing the most obvious reasons the paper looks particularly at, how much is the way of a mostly elite-driven democratic transition using the tools of ‚legal constitutionalism‘and ‚undemocratic liberalism‘without real historical traditions of a liberal democratic constitutional culture and with the regionally determined value system is to blame. This also leads to the question, how to allocate the responsibility for the backsliding between the elites and the citizens, influenced and often manipulated by the leaders.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141172300","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}

{"title":"Reinforcing Institutional Power: The Discourse of Normalcy in European Union Governance","authors":"Petr Agha","doi":"10.1007/s40803-024-00232-5","DOIUrl":"https://doi.org/10.1007/s40803-024-00232-5","url":null,"abstract":"<p>This paper examines the notion of normalcy within the discourse of the European Union (EU), with a focus on its response to transformative dynamics and challenges, especially post-2008. I analyse how the EU, facing diminishing ideological supremacy, has reinforced its institutional power through the framework of normalcy. By emphasizing constitutionalisation and integration through legal means, bodies such as the European Court of Justice (ECJ) have expanded their roles, promoting \"integration through law\" to counter alternative political projects invariably labelled as populist, thereby giving rise to anti-populism as a discursive tool. Drawing on crisis discourse and diagnostic practice, this paper explores how normalcy legitimises and perpetuates existing power structures within EU governance, subtly coercing member states and citizens into accepting its norms and values, thus shaping perceptions of normalcy and also inevitability. At the core of this framework lies the rule of law (RoL), which establishes legal boundaries in the first place, but in the same move shapes political contexts.</p><p>My paper argues that the exclusive focus on legalistic interpretations obscures the underlying structural factors perpetuating power dynamics and economic disparities among member states, constraining adaptive responses. I examine the narrative of \"growing up to democracy\" and its impact on the European project discourse, particularly in Central and Eastern European (CEE) countries. I then scrutinise the roles of experts and the “juristocracy” in reinforcing this narrative while simultaneously masking underlying inequalities and power differentials. Furthermore, the paper explores the strategic deployment of language and discourse by EU institutions during crises, highlighting their implications for public understanding, political action, and outcomes. Finally, it investigates the EU's strategic use of crisis discourse and diagnostic practices, focusing particularly on the ascendancy of the judiciary, but also highlighting how this trajectory may also have negative influence of legislative and executive bodies as their role diminishes in the process.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141172143","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}

{"title":"Rule of Law and the Criteria for Appointment of Judges: A Case for Judicial Virtues","authors":"T. Widłak","doi":"10.1007/s40803-024-00227-2","DOIUrl":"https://doi.org/10.1007/s40803-024-00227-2","url":null,"abstract":"","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141118031","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}

{"title":"Preserving the Rule of Law Through Transnational Soft Law: The Cooperation and Verification Mechanism","authors":"Oana Ștefan","doi":"10.1007/s40803-024-00222-7","DOIUrl":"https://doi.org/10.1007/s40803-024-00222-7","url":null,"abstract":"<p>This contribution reflects on the role of soft law instruments to address the rule of law crisis, a topic of high relevance in the context of this special issue. Indeed, the EU-15 enlargement towards the ‘periphery’ proceeded also through soft law instruments, perceived to allow greater flexibility in monitoring. Soft law – or rules of conduct that have no legally binding force but may have legal and practical effects (Snyder 1993, 64) have been considered inappropriate by the literature in dealing with the regulation of values in EU law. However, a closer look at the career of soft law issued for Romania under the Cooperation and Verification Mechanism appears to suggest a more nuanced picture. Whilst time is not yet ripe for a full assessment of the effectiveness of the tools, there are signs that show that the reports issued by the Commission within the Cooperation and Verification Mechanism process have had an influence in fostering change. They did so by catalysing litigation and, as a result, informing and fuelling an institutional dialogue on the rule of law at the transnational level.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140938863","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}

{"title":"Quick Fix Solutions-Anticorruption as Core/Peripheral Modality of the ‘Rule of Law’","authors":"Bogdan Iancu","doi":"10.1007/s40803-024-00220-9","DOIUrl":"https://doi.org/10.1007/s40803-024-00220-9","url":null,"abstract":"<p>Anticorruption has become the fulcrum of conditionalities for unstable democracies. In the EU, antigraft packages formed the common denominator of stabilization policies for Romania, Bulgaria, the Western Balkans, Moldova, and Ukraine. Union conditionalities trailed broader international trends and campaigns. The shift led to a crescendo of institutional innovations. Discursively, it generated a degree of conceptual overlap: anticorruption, for peripheral stabilization purposes, equates with the rule of law. I argue that the exclusive stress on anticorruption as a panacea for the (semi)periphery is fraught with perplexities. Paradoxically, in systems that can be reliably described as corrupt, the policy has a propensity to be derailed from its ostensible purposes. This danger results partly from categorial tensions between RoL normativity, on the one hand, and, on the other, the ethical purism and policy quantification inextricably linked with anticorruption. In the context of peripheral crusades, tendencies towards legal instrumentalism and populist emotionalism are exponentially higher than in stable jurisdictions. Consequently, unidirectional attempts to stabilize such systems by way of repressive anticorruption backfire. Likelier results are instability or forms of stability that might not correspond to central, received understandings of how a rule of law liberal-democratic system should operate. By the same token, in the integrated transnational constitutional system located at the intersection of EU and Council of Europe guarantees, “reverse conformities” tend to upset core tenets and representations of the rule of law. The paper argues that anticorruption policies, albeit eminently useful, should be fettered by rule of law constraints, not equated with the notion of the rule of law.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140887123","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}

{"title":"EU Enlargement Policy Goes East: Historical and Comparative Takes on the EU’s Rule of Law Conditionality vis-à-vis Ukraine","authors":"Maryna Rabinovych","doi":"10.1007/s40803-024-00223-6","DOIUrl":"https://doi.org/10.1007/s40803-024-00223-6","url":null,"abstract":"<p>The article discusses a unique case of the EU’s application of rule of law conditionality vis-à-vis Ukraine, while the latter is in active war with Russia. It is demonstrated that the EU utilized momentum, created by the confluence of the invasion and Ukraine’s EU candidateship, to apply ambitious rule of law conditionality in its relations with Ukraine. Despite the unique strategic and political context, the conditionality is path-dependent, strongly relying on the achievements and outstanding tasks of the EU’s pre-war rule of law promotion in Ukraine. Also, both the design and substance of EU conditionality vis-à-vis Ukraine strongly resemble the one the EU applied vis-à-vis Western Balkans. This concerns specifically the contents of conditionality, focusing on building effective anticorruption institutions and judicial reform. Current geostrategic pressures have not yet led to major changes in the philosophy behind the enlargement process or the EU’s framing of the rule of law concept. Yet, changes to be underscored include the EU’s focus on specific benchmarks within pre-defined realms and strong alignment between political and financial instruments.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140887126","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}

{"title":"Courts and Populist Electoral Politics – the Case of Hungary","authors":"János Mécs","doi":"10.1007/s40803-024-00218-3","DOIUrl":"https://doi.org/10.1007/s40803-024-00218-3","url":null,"abstract":"<p>Elections are devices, through which the abstract concept of representation gains its specified institutional form, therefore they are highly relevant for populists. The paper examines the illiberal-populist project of redesigning the legal framework of elections in Hungary after 2010, focusing on the role of the Hungarian Constitutional Court (HCC) in reviewing electoral law as well as interacting with the ordinary courts through electoral adjudication. It is argued that although a distinct ‘populist imagination’ (Müller) of elections is discernible, there is no special populist electoral politics, rather the ‘inherent authoritarianism of democracy’ (Pildes) is exacerbated. In Hungary the electoral legislation was shrewdly tailored to the governmental parties’ needs, and electoral politics is constantly subjected to instrumental changes. It is argued that although apex courts could be key players in checking electoral manipulation, the HCC did not protect effectively the integrity of electoral law, and at a later stage it even intervened in an arbitrary and arguably politically biased manner. The paper argues that the Hungarian example underscores the need for enhanced court activism in terms of electoral law, especially when populists already came to power.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140887037","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}