Hague Journal on the Rule of Law最新文献

{"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":"10 1","pages":""},"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":"287 1","pages":""},"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":"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":"138 1","pages":""},"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":"8 1","pages":""},"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":"115 1","pages":""},"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":"149 1","pages":""},"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}

{"title":"The Special Procedures of the UN Human Rights Council and the Catalan Secession Process","authors":"Patricia Arias B.","doi":"10.1007/s40803-024-00215-6","DOIUrl":"https://doi.org/10.1007/s40803-024-00215-6","url":null,"abstract":"<p>The Special Procedures of the Human Rights Council fulfil their mandates by performing certain tasks as independent experts, with the responsibility to investigate human rights situations wherever they occur. They are required to take measures to monitor and respond quickly to allegations of human rights violations on behalf of the international community. Catalonia’s pro-sovereignty process and the referendum held there on 1 October 2017 – despite having been declared illegal and suspended by Spain’s Constitutional Court – had several judicial consequences, including trials, arrests and detentions. As a result, several sources submitted information to certain Special Procedures for them to communicate to the government of Spain their allegations of violations of the human rights of persons subject to judicial persecution. The Spanish government responded to each of these communications, consistently noting that the allegations referred to judicial actions ordered within the framework of the Spanish Constitution and laws, in accordance with Spain’s status as a democratic state governed by the rule of law.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"33 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2024-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140836085","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":"Militant Rule of Law and Not-so-Bad Law","authors":"András Sajó","doi":"10.1007/s40803-024-00221-8","DOIUrl":"https://doi.org/10.1007/s40803-024-00221-8","url":null,"abstract":"<p>The article provides intellectual arguments and tools from legal dogmatics that can help to counter the rule of law backlash. It argues that resilience can be boosted by a systemic militant rule of law approach. When it comes to restoring the rule of law, legal theory turns to the Radbruch formula (supra-statutory law). This approach remains contested by lawyers who are convinced – following the tradition of positivist legal theory – that invoking this formula is unacceptable because it violates a fundamental requirement of the rule of law, namely that of legality. Irrespective of the value of this concern, Radbruch’s formula is not applicable to the current demise of the rule of law, as the law resulting from cheating and abuse in illiberal regimes does not result in evil law (though it may facilitate such developments). Instead of evil law, we face not-so-bad law. Legal imperfections exist in every legal system, and militant rule of law necessitates the systemic revision of these shortcomings in order to preempt the abuses of an anti-formalistic populist regime. In illiberal regimes, the self-corrective mechanisms of the rule of law are gradually eliminated, but the name of the game remains the rule of law. It means that judges still have (some) power to counter the backlash using extant interpretive techniques (for a while). This article will begin by introducing the concept of not-so-bad (NSB) law as an imperfection of the rule of law. In Part Two, the validity of NSB laws is discussed by relying on the source theory. It argues that even if validity is a matter of conformity to the source, the source can be understood to contain a legal merit component as determined by the rule of law, and falling short on this legal merit component can constitute a ground for declaring the norm’s invalid. Part Three describes the abuses of the rule of law in illiberal democracies and describes how the NSB law of illiberal regimes does not satisfy the validity requirements of legal positivism. Part Four discusses the opportunities open to judges for resisting or undoing NSB law using existing techniques of legal interpretation and without violating rule of law principles.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"65 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2024-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140835565","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":"Spain as a Democratic State Governed by the Rule of Law and the Catalan Secessionist Process","authors":"Juan María Bilbao Ubillos","doi":"10.1007/s40803-024-00207-6","DOIUrl":"https://doi.org/10.1007/s40803-024-00207-6","url":null,"abstract":"<p>This work begins by recalling the characteristic features of the political system and model of territorial division of power established in the 1978 Spanish Constitution after a complicated but successful process of transition to democracy. Spain was constituted as a politically decentralized, social and democratic state governed by the rule of law, a compromise solution between the centralist tradition and the demands of peripheral nationalisms. Although this original formula has been progressively deployed with clearly positive results, it has come under threat from the challenge posed by the secessionist forces in Catalonia and the Basque Country, seriously endangering coexistence. In this regard, the work first analyses the Ibarretxe Plan, the confederal proposal of the president of the Basque government approved in 2004 by the Basque Parliament and rejected by the lower house of the Spanish Parliament. It then examines the most relevant sequences of the secessionist process that has unfolded in Catalonia over the last decade and which culminated in October 2017 in an illegal referendum and the unilateral declaration of independence approved by the regional parliament. It also analyses the response of Spanish institutions to attempts at constitutional rupture and its possible impact on the democratic quality of Spain and its reputation as a state governed by the rule of law.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"49 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2024-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140581990","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":"Public International Law and the Catalan Secession Process","authors":"","doi":"10.1007/s40803-024-00203-w","DOIUrl":"https://doi.org/10.1007/s40803-024-00203-w","url":null,"abstract":"<h3>Abstract</h3> <p>This article briefly identifies the aspects of public international law related to the Catalan secession process, bearing in mind that Spain is a constitutional social and democratic state governed by the rule of law and a member of both the European Union (EU) and the Council of Europe (CoE). Over 6 years ago, on 27 October 2017, the regional Catalan Parliament proclaimed the independence of the Autonomous Community of Catalonia. From the start, the most recondite stratum of the Catalan pro-independence strategy has consistently invoked <em>international</em> law considerations with no real basis. Here we explain why. First, given the function of state sovereignty (today humanized and, in the context of the EU and CoE, democratized), under international law, these events can only be classified as a secession process (<em>stricto sensu</em>), that is, a revolutionary act in the constitutional order of the state of Spain with undertones that are far from peaceful. Second, we address the facet of the Catalan pro-secession strategy – typical of populist policies today – consisting of abusing terms and concepts, a language policy that, in our view, was and still is intended to win the minds of both the Catalan population and any other uninformed external observers. Finally, we examine how statehood is acquired under international law and its relationship to the 2017 declaration of Catalan independence and the present-day situation.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"23 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2024-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140202575","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}