Rule of Law

Platón y Aristóteles tienen algo que decir respecto de lo que se denomina "Estado de Derecho" o "Rule of law". Ambos se preguntan si es mejor el gobierno de la ley o el gobierno de los hombres y abordan las alternativas de solución sobre la base de consideraciones antropológicas que resultan válidas aun hoy. Entienden que es preferible el gobierno de la ley porque esta es "razón sin apetito", es decir, una regla impersonal y objetiva insusceptible de sufrir los desvíos de la esfera pasional y afectiva, ineludiblemente presente en el animal humano.

"The question this attempts to answer is how the Lisbon Treaty, cherishing diversity in EU development at the expense of the idea of unity, and more devoted to national interests could foster European identity and make an Union that is closer to its citizens?
In particular, our aim is to demonstrate that the efforts of the Lisbon Treaty to make the Union more democratic, by enhancing the role of national parliaments, the early warning mechanism and principle of subsidiarity, the European Citizens’ Initiative and the new rules on transparency, have built a framework in which  European Identity could take a shape. We would like to point out a certain visibility of the current Treaty. Even without symbols, the Lisbon Treaty carries its manifesto, endowing the Union with the necessary mechanisms. It is now up to the citizens what use they will make of them."

The paper analyses qualitative the conception of quality democracy with an emphasis on public (dis)trust towards political institutions and rule of law and tests main research question, whether relatively low public trust towards Slovenian political institutions is related to the relatively low trust towards the rule of law, especially when compared to other countries in the EU. General trust in the country is also reflected in the trust in major political institutions. There is some minor deviation in the measurements between the years, but it is not very significant all the way until 2010, when the level of trust in all five major political institutions in the country drops quite significantly. Similar trend can be observed when analysing public (dis)trust towards rule of law. Compared to the police, the level of trust to the judiciary ranks much lower, but it is still the highest of the three branches of government. Data shows that levels of trust remained relatively stable from 1991 to 2007, but then began to fall quite rapidly (from 37 per cent in 2006 to the 15 percent in 2011); this phenomenon is most likely connected to the inflow of new cases and judicial backlogs.

"This report presents findings and recommendations related to an investigation by the South African Human Rights Commission of government responses to the 2008 attacks on non-nationals across South Africa. It focuses on issues of the rule of law and justice, without which there can be no meaningful protection of human rights or redress of violations. Key among the findings were:

1) Various challenges resulting from lack of preparation for a complex disaster, and a subsequent failure to adequately preserve institutional memory of the 2008 social conflict disaster with a view to improving responses in the case of a recurrence.

2) Some progress has been made to prevent or prepare for the eventuality of future attacks, but the activities of different government entities need further development, coordination and, in the case of disaster management, evaluation and consolidation at national level.

3) Poor infrastructure and housing conditions in informal settlements creates a context in which both everyday crime and public violence are unmanageable. This resonates with research that has identified accumulated service delivery frustrations as a key characteristic of wards at risk of violence.

4) Poor relationships between communities, police and elected local leaders such as councillors undermine human security and encourage withdrawal from the justice system and indirctly promote ‘self-help’ solutions such as popular justice. Local leaders often pursue personal agendas instead of those of the community, or are simply indifferent to community concerns. This finding seems to support research that identifies the micropolitics of local communities as a factor that distinguishes communities that fall victim to social conflict.

5) Social cohesion plays an important role in the protection of non-nationals, which relates to research linking attacks to communities of high population heterogeneity.

6) So-called 'reintegration' of persons displaced during the 2008 violence was not carried out in a consistent and systematic way and is not being adequately monitored. Nor have existing plans to address future attacks dealt with the issue of a sustainable exit strategy to a social conflict displacement.
"

"This retrospective paper challenges the favourable view about Russia's commercial courts (arbitrazhnye sudy) held by Kathryn Hendley and her colleagues. Their argument - based on a quantitative analysis - was presented in their highly cited paper “Law, Relationships and Private Enforcement: Transactional Strategies of Russian Enterprises” in Vol. 52, No. 4, Europe-Asia Studies in 2000. In this paper I use quantitative data from the late 1990s to test the validity of Hendley's claims, and conclude that an unfavourable view of the state of the courts is warranted. The proposed explanation (social mechanism) makes sense of the finding that those who trust the courts tend to believe that corruption is a fact of life and an acceptable method for getting things done.

Global Crime, Vol.14, No.1, 2013, pp. 82-109.

Published online by Taylor & Francis: 7 February, 2013."""

"Speaking about dialectical methods in an international meeting of compared law may surprise, because in our exchanges, the object is to confront independent laws: and the doctrinal works
seem a little remote. Indeed, at first, our meeting is to realize comparative approaches, based on the statement of contents. Nevertheless, the subject of development law pushes me to re-release old problems, not to offer or give solutions but to ask new questions.
Research in compared law, indeed, invites us to an ontological thinking: fifty years ago the doctrine were interested in the «systems of law» as the determining element of compared law.
This doctrinal effort was particularly intense in Europe during half a century but was erased, little by little, by the European Union law and the globalisation: the insidious idea that this is a universal way to resolve the problems, generating more transposition of law than legal overview or syncretism. But, on the contrary, the dialectical one is not either a new approach in legal doctrines, even if it is sometimes implicit; many authors refer thereto, even if today the place occupied by ontological work is reduced.
Initially, I propose to point out how the dialectical one can characterize the mode of production of legal provisions in the developed countries: it can be summarized through the fertile contradiction opposing the State to the civil society during a very long history.
In the second place, I will try to take advantage of this dialectical approach to understand the difficulties encountered by the developing countries in the construction of the State of law, and this, in spite of big efforts of modernization and assistance; The dialectical structure seems to be very different from our social system. On the other hand, another type of relation may appear explaining some syncretic forms of the laws in these countries.
"

""İlk olarak “The Rule of Law and the
Legitimacy of Constitutional Democracy”
başlığıyla Southern California Law Review’da
(Vol. 74, 2001, ss. 1307-1352) yayımlanan
makalenin çevirisi yazarın izniyle
yayımlanmaktadır.

The original article first appeared at Southern
California Law Review (Vol. 74, 2001, pp.
1307-1352) with the title “The Rule of Law
and the Legitimacy of Constitutional
Democracy” and this translation has been
published with the permission of the author.

Translated by
Volkan Aslan
""

What is the Biketawa Declaration and why is it important here? It is a statement of principles of governance that was accepted by the members of the Pacific Islands Forum in 2000. Among those principles is a commitment to maintaining the rule of law; indeed 'upholding…the rule of law and the independence of the judiciary' are expressly stipulated in point three of the document.

""This book develops a sociologically informed theory of constitutionalism in the global realm, addressing both national and transnational forms of constitutional ordering. The book begins with the argument that current approaches to constitutionalism remain tied to a state-based conception of constitutions, and overlooks underlying structural transformations that trigger the emergence of constitutional forms of ordering. Poul F. Kjaer aims to address this shortcoming by offering a sociological and historically informed analysis of the evolution of constitutionalism in the face of globalisation. The analysis contextualises on-going constitutional developments through the use of a long-term historical perspective, which is capable of highlighting the impact of deeper structural transformations unfolding within society.
The book looks at the ways in which national and transnational legal forms have evolved alongside one another. It demonstrates that the formation of global constitutions has not resulted in a corresponding decrease in the power of nation states, but instead, legal and political aspects of both the nation state and the transnational have been reconfigured and intensified in a mutually supportive manner.
In combining insights from a range of fields, this interdisciplinary book will be of great interest to students and scholars of constitutional law, sociology, global governance studies, and legal, social and political theory.

List of Content
Introduction: The Metamorphosis of Constitutionalism
Part 1: Structural Transformations
2. The Implosion of the Euro-Centric World
3. The Multiplicity of Normative Orders in World Society
Part 2: Re-configurations of Law and the Political
4. The Law within and in-between Normative Orders
5. The Political within and in-between Normative Orders
Part 3: Constitutional Stabilisation
6. The Breakdown of Constitutional Ordering through Globalisation-induced Crises
7.The Transmutation of Constitutional Ordering
8.Re-calibrating the Constitutional Concept
9. Conclusion

""

This qualitative study examines the role of clients in petty corruption by analyzing actual corrupt exchanges between ordinary citizens and low level public and private employees in post-communist Hungary. Using a grounded theory approach, interviews reveal how clients from different social strata deal with low-level agents in corrupt situations. Findings suggest two contrasting forms of low-level corruption: transactions where the client and the agent do not have a prior relationship and where external factors dominate the relationship; and cases with stronger social ties between the actors, where the client has more freedom to structure the transaction. However, a client's social background frequently determines the form of corrupt transaction and the form of resources illegally exchanged in the deal.

"Oppressive regimes sometimes use judges to carry out their repression. Judges in such situations sometimes violate fundamental rights of national and international law as part of their enforcement of the law. In our recent history we have seen examples where the courts and the judges have been engaged in systematic oppression: in Nazi Germany, in South Africa during apartheid and in Latin America under the military dictatorships of the 1970s and 1980s.1 All these are examples of how judges educated in a Western legal system based on the rule of law and recruited by democratic rulers have lent their services to authoritarian rulers who engage in persecution and oppression through legal means.

There are limits to how far the excuse of following the law can exonerate judges engaged in oppression and persecution. The Nuremberg trials showed that judges can be held responsible under international law, not only for war crimes, but also for administering the law against a country’s own nationals. As a result of the findings of the US Military Tribunal in the Justice Case, judges can be held accountable under the Rome Statute of the International Criminal Court. Based on the Statute, judges can be guilty of genocide and crimes against humanity also when applying and enforcing the municipal law.

According to Article 7(2)a, an attack against any civilian population means a course of conduct “pursuant to or in furtherance of a State or organizational policy to commit such attack”. On this background, enforcing the laws of the regime cannot be a defence, but is, on the contrary, an argument to substantiate that the condition of furtherance of a state policy is being fulfilled. The case of the Nazi judges, how they judged and how they were later judged, thus has a significant bearing on the question of the responsibility of judges for contributions to oppression and oppressive regimes. The German experience shows that judges can be held accountable by successor regimes and transition trials for their judicial functions in upholding oppressive laws.
"