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Article

Prosecutors: A Cross-National Political Perspective  

Stefan Voigt

Over the past decades, prosecutors have become more and more powerful within criminal justice systems. Yet, there is still relatively little empirical research on prosecutors. Most of the literature focuses on the analysis of the prosecutorial system of a single country. Cross-country analyses are close to nonexistent. From a comparative perspective, the various possible means to establish the independence of prosecutors from government and at the same time securing their accountability to the law are of paramount interest. Regarding the former, appointment procedures, possible career paths, and the degree to which prosecutors are subject to orders both from within the prosecution agency as well as from without (e.g., the ministry of justice) are of special concern. With regard to prosecutorial accountability, it is the legality principle (also known as mandatory prosecution), the issue whether prosecutors enjoy a monopoly in the prosecution of criminals, whether decisions not to prosecute a suspect are subject to judicial review, and the transparency of the behavior of prosecutors that are key. Regarding the organizational design choices of prosecution agencies that have been implemented across countries, four different clusters can be identified. The four clusters perform markedly different in terms of the rule of law levels associated with them. The consequences of institutional design choices are surprisingly small. The de facto organization of prosecutors turns out to be far more relevant for outcomes than what is prescribed de jure. Countries in which prosecutors enjoy a high degree of de facto independence suffer significantly less from corruption than countries in which this is not the case. Given that the institutional design choices of prosecutors are of limited relevance for their de facto situation, the question is: What factors determine the de facto independence and accountability of prosecutors? It turns out that some rather stable and immutable factors are decisive: Common law legal systems do better than those belonging to the civil law legal families. Generalized trust also plays an important role. If most people believe that others can be trusted, very specific rules for the behavior of prosecutors may seem unnecessary. A number of trends regarding the organization of prosecutors can be observed in many countries, among them the increased reliance on trial waiver systems, bonus payments to incentivize prosecutors, the founding of prosecutorial councils, and prosecutorial activism. It is questionable whether the first three of these trends will increase the efficiency of prosecution agencies; rather, they are likely to lead to a deterioration in the overall rule of law score of those countries relying on them.

Article

Revolutions and Constitutional Crisis  

Johannes Vüllers

Revolutionary actions and constitutional crises are closely linked. However, research mainly looks at the two phenomena as distinct from each other. While studies on revolutionary actions are interested in the agency and the impact of the actions on the country’s institutions, legal research focuses on the constitution itself. The separation of the two strands leads to a limited understanding of their dynamics and complexity. What do we know about the relationship between revolutionary actions and constitutional crisis, and vice versa? The first question is how revolutionary actions trigger constitutional crisis, defined as a moment in which decision makers are unwilling or unable to manage the societal conflicts within the confinement of the constitutionally provided boundaries. Different types of revolutionary behavior—such as elite-led military coups, civil wars, and nonviolent resistance movements—trigger constitutional crises in many cases. They can lead to a new constitution with diverse implications for the political system. Whether the opposition or the old regime prevails in the constitutional crisis is a question of the power resources of both parties to the conflict. In some cases, the opposition movements succeed in making the political system more democratic. However, there are also cases where the constitutional crisis ultimately leads to more power for the ruling class. The relationship also works vice versa: a constitutional crisis can trigger revolutionary actions. Constitutional coups, and processes of democratic backsliding and constitutional rot, can trigger violent and nonviolent revolutionary actions. Political elites can try to change constitutional norms for their own benefit, such as extending the presidential term of office. This often leads to a storm of public protest and can become a real threat to the regime’s survival. A constitution can enter a crisis phase for a long time if it no longer serves the needs of parts of society. The injustices that thus arise within society can be a strong motive for revolutions. The combination of agency and constitutional processes is a promising avenue for future research that could help analyze the complex relationship between constitutional crises and revolutionary actions. In addition to innovative theoretical approaches, new empirical data is needed to examine the process of constitutional negotiation in more detail.

Article

The EU Migration Crisis: A Crisis Analysis Case Study  

Peter Slominski

The European Union (EU) migration crisis has been part and parcel of a conglomerate of crises that have affected the EU since the late 2000s, as have the financial and sovereign debt crisis, “Brexit,” the Russia–Ukraine conflict, as well as tensions within transatlantic relations. Scholarship on the EU has devoted much attention in assessing what the migration crisis means for EU integration at large. In particular, EU scholars are interested why the migration crisis has led to political gridlock and a renationalization of border controls rather than a deepening of integration. While they differ in their explanations, these explanations shed light on different aspects of the crisis and are far from mutually exclusive. Scholars who are more interested in the area of EU Justice and Home Affairs (JHA) largely agree with EU theorists that the field suffers from an incomplete governance design, the dominance of EU member states, and weak supranational capacities. Their analysis also focuses on intra-EU dynamics but offers a more nuanced empirical assessment of relevant EU institutions and decision-making in the course of managing the migration crisis. This growing body of research produces valuable insights and largely confirms existing scholarship, including that on the growing securitization and externalization of EU asylum and migration policy. The EU’s understanding as a norm-based power is particularly challenged by the migratory movements in the wake of the crisis. A small but growing scholarship analyses how the EU is balancing its non-entrée policy with its legal obligation, and what kind of governance arrangements result from that. While this scholarship has enriched our understanding of the EU migration crisis, it has not generated a major refinement of the standard approaches of EU theorists and JHA scholars. To further enrich the literature on the migration crisis, scholars should go beyond studying the dynamics of EU decision-making and the role of EU institutions. Such an approach should engage more systematically with international actors and institutions that have the capacity to influence EU migration policy. At the same time, global phenomena such as war, poverty, or climate change should also be taken into account in assessing the EU’s room for maneuver in handling migratory pressures. Future research on the migration crisis as well as on migration challenges should thus not only connect with other subfields of political science, such as policy analysis or international relations, but also open up to other disciplines such as law, demography, or environmental studies.

Article

Constitutions in Latin American Politics  

Jonathan Hartlyn and Alissandra T. Stoyan

Constitutions have been an important part of Latin America’s history since independence. While exhibiting frequent change, there have been continuities primarily regarding their republican form and presidentialism. Extensive scholarship exists on the origins of constitutions, their evolving design, and their effects concerning democratic stability and rights, particularly with regard to trends and patterns since the third wave of democratization in the late 1970s. Large-scale “refounding” constitutional reforms have gained traction with citizens and civil society groups, and populist leaders have promoted them as a solution for socioeconomic and political exclusion. Politicians have also favored both large- and small-scale changes as ways to continue in office, concentrate power, gain or maintain support, or defuse crises. With frequent changes and longer and more complex texts, sharp distinctions between constitutional moments defining the rules and ordinary politics occurring within the rules have blurred. The research on these issues regarding constitutions confronts challenges common to the analysis of weak institutions in general, including particularly endogeneity to existing power distributions in society and thus seeking to understand when and why key actors respect constitutional rules of the game. Some scholarship advances actor-centered linkage arguments connecting the origin, design, and effects of constitutions in a causal progression, on topics such as presidential powers, unequal democracies emerging from authoritarian regimes, or judicial independence. These arguments differ regarding the direct impact they ascribe to constitutions compared to other factors, particularly with more extended time horizons. They typically examine the narrow strategic interests of the key players while also considering when they may contemplate broader goals, especially when no one player is dominant. Though diffusion has played a role in constitutional process and design in the region, most scholars downplay its relative importance. Since the 1990s, there has been a significant expansion in a unidirectional, path-dependent fashion in the incorporation of social, economic, and cultural rights, as well as decentralization and participatory mechanisms. Unlike presidential re-election and presidential powers, which have seen more frequent and sometimes mixed evolution, once these rights and mechanisms are granted they are not formally reversed in subsequent reforms. Yet, their effective realization has been partial and uneven, typically requiring some combination of societal mobilization and institutional activation. Thus, other endogenous or exogenous factors are typically incorporated into explanations regarding their possible effects. Future research in many areas of constitutionalism could be enhanced by a more systematic cross-national multidimensional data collection effort, facilitating further quantitative and multi-methods empirical work. This will assist scholars in addressing the theoretical and methodological challenges in this field common to institutional research generally. At the same time, it is critical not to lose sight of the normative dimension of constitutionalism, given its symbolic and aspirational value as well as practical importance for democracy.

Article

Federalism and LGBT Politics and Policy in the United States  

Jami K. Taylor, Donald P. Haider-Markel, and Daniel C. Lewis

The LGBT policymaking process in the United States is fragmented and LGBT citizens face different policy contexts depending on which local government and state they reside in. With a lack of national consensus on LGBT rights and the country’s federal political system, which allows states to have substantial policymaking authority, policymakers have created a diverse and decentralized set of policies. Indeed, this governmental system significantly shapes the opportunity structure for the adoption of LGBT inclusive policy. It allows for remarkable LGBT rights advances in some states and localities, but little to no progress in others. States in the Northeast and on the West Coast tend to have more LGBT inclusive policies than those in the South or Midwest. In some instances, localities in states that lack inclusive policies engage in compensatory policymaking to provide added LGBT protections. However, the ability of localities to do this is shaped by state law concerning home rule authority and whether the state legislature has decided to proscribe such action. When trying to advance LGBT rights policy, advocates must venue-shop for favorable policymaking circumstances. Favorable circumstances commonly include institutional control by Democrats or municipalities with greater diversity, higher education levels, and more people engaged in management, business, science, and arts occupations. Opponents to LGBT rights are engaged in venue-shopping as well, but they normally hold the defensive advantage of maintaining the status quo. Both proponents and opponents of LGBT rights have used the court systems of states and the national government to shape LGBT rights related policy.

Article

Citizenship of the European Union  

Willem Maas

Citizenship is usually conceptualized as a unitary and exclusive relationship between an individual and a sovereign state; yet the European Union (EU) has developed the most advanced form of contemporary supranational citizenship. Citizenship of the European Union guarantees EU citizens and most members of their families the right to move, live, and work across the territory of the EU. It also guarantees the right to vote in local and European elections in the member state of residence, the right to consular protection outside the EU when the member state of nationality is not represented, the right to access documents or petition Parliament or the Ombudsman in any of the official languages, and the right to be treated free from nationality-based discrimination. Though on the political agenda since the postwar origins of European integration, EU citizenship was not formalized into EU law until the Maastricht Treaty. Since then, the Court of Justice of the European Union (CJEU) has declared that “EU Citizenship is destined to be the fundamental status of nationals of the Member States” and there are ongoing discussions about the relationship between EU and member state citizenship. In terms of identity, increasing numbers of Europeans see themselves as citizens of the EU, and questions of citizenship are at the heart of debates about the nature of European integration.

Article

Europeanization  

Søren Dosenrode

Europeanization refers to the mutual influence of the European Union (EU) and its member states, to interactions within and between member states driven by the EU, and to the effect of the EU on EU applicant states. It affects domestic politics, policy, and polity and therefore is relevant for citizens and businesses. Europeanization effects also raise an issue of legitimacy: who bears responsibility, the member states or the European Union? In the broadest sense, analysis of Europeanization began with the theories of regional integration in the 1950s, which explained what was to become the early 21st-century EU and how it began and developed—the making of a polity. In the narrow and more common use of the concept, studies of the effect of what was then known as the European Community began at the end of the 1980s and the beginning of the 1990s under the name of “adaptation.” It was not until 1994 that Robert Ladrech used and defined the term “Europeanization” for analyzing the effect of the European Community on its member states. Thus, in its most encompassing sense, a complete typology of Europeanization includes five types, each with its own primary mechanisms at work: (a) meta-Europeanization, the processes whereby the member states that have created the EU have set the overall frame, that is, the EU; (b) downloading, which implies a pressure on EU member states’ policies and governmental structures to adapt to EU standards (but this does not lead to “uniformity,” as the member states have diverse histories and traditions); (c) uploading, whereby the member states contribute to the EU’s further development by making policy suggestions to the EU and its institutions; (d) cross-loading, whereby the EU creates frames for the member states to exchange best practices and experiences, with little or no involvement from the institutions; and (e) export Europeanization, whereby the EU makes potential members comply with the Union. In a narrow sense, Europeanization is about downloading, uploading, and cross-loading. Studies on Europeanization have contributed greatly to our understanding of how the EU works and how it influences its member states and vice versa (not to mention its influence on subnational actors as well as on interest organizations and neighboring countries). In the early 21st century, Europeanization studies expanded to policies that were previously not sufficiently considered: for instance, the Common Foreign and Security Policy, the Common Security and Defence Policy, and social movements.

Article

The American Judicial Process and Why It Matters  

Lisa M. Holmes

The American judicial system is not a static, simple, or mechanical entity. Rather, it is a complex organization that is developed and staffed in response to changing caseload and societal pressures through a process that is inherently political. The key personnel who help the judiciary function bring varied backgrounds and perspectives with them that influence the work they do. As is the case with any political system, understanding American politics and policy making requires an understanding of the judiciary’s role in the American political system. In addition, on a daily basis, courts function to resolve disputes. While most cases have little direct impact on American policy or society broadly speaking, the resolution of these cases is important to those who turn to the courts of law to resolve their disputes.

Article

Europe’s Supranational Courts and LGBT Rights  

M. Joel Voss

Europe has some of the most powerful human rights legal institutions in the world including two supranational human rights courts—the Council of Europe’s European Court of Human Rights and the European Union’s Court of Justice (hereafter, together—the Courts). After decades of relative quiet, the Courts have begun hearing more cases concerning LGBT rights. Judgments of the Courts have advanced some facets of LGBT rights like anti-discrimination in the workplace while disappointing gay-rights advocates in other areas, for example family life and asylum. Scholarship on European courts and LGBT rights is not as developed as scholarship on norm advocacy or policy diffusion within states in Europe. The research that does exist looks at how decisions by the European Court of Human Rights and the European Court of Justice deal with current European law, how the institutions are designed, or how the supranational courts may act as agents of change or status quo institutions in shaping wider European behavior. This lack of newer research on the Courts presents ample opportunity for new avenues of research that examines not only how decisions are made at the Courts but also how states implement decisions and how states view the legitimacy of each Court.

Article

Judicial Controls Over the Bureaucracy  

Calliope Spanou

Judicial control over the bureaucracy is a means to defend the rule of law and important principles of democratic governance. It refers to the power of the courts to consider whether the actions of public authorities respect the limits prescribed by law. Regimes of judicial control vary in legal and administrative systems. Two major traditions can be mainly distinguished. The first characterizes continental Europe. It assigns judicial review to specialized administrative courts and involves a special branch of law, that is, administrative law. The second relies on ordinary courts and characterizes the Anglo-American system of common law. The two traditions also differ regarding the role of the courts and particularly their possibility to shape rules (common law tradition) or to apply rules (continental tradition). The expansion of state activities, including economic and social regulation and welfare service provision, has blurred the old politics–administration distinction since more and more decisions are delegated by parliaments to the administration, endowing it with wide discretionary powers. These developments have added a new meaning to the implementation of the rule of law. When the content of decisions is bound by a legal rule, legal compliance is more straightforward than when there is a margin of appreciation and choice. Circumscribing administrative discretion passes first and foremost from regulating the process of decision-making. Procedural standards have indeed been an area of primary concern for courts. Increasingly, nevertheless, substantive aspects of the administrative decision-making process and even service provision come under judicial scrutiny. Its extent inevitably differs from one legal system to another. The intensity of judicial review and its impact on (a) administrative operation and (b) policy decisions raise critical questions: how is it possible to achieve a balance between managerial flexibility, efficiency, and responsibility on the one hand and legal accountability on the other? To what extent may the courts substitute their own judgment for that of policymakers and the administrative or expert opinion underlying the decision under examination? How far do they go in scrutinizing policymaking and implementation? Judicial control involves constraining as well as constructive effects on the administration. It may contribute to an institution-building process (e.g., strengthening of Weberian-type features, increasing formalization, etc.) and to the agenda-building process, and it may influence policymaking. In certain contexts, courts even tend to become political actors. The reverse side is that they may step into matters of management and policymaking for which they are not prepared or institutionally responsible. This points to potential tensions between the administration (the executive) and the judiciary but also underlines the limitations of judicial control. Delicate issues regarding the separation of powers may emerge. Furthermore, cost, delays, the degree of administrative compliance with judicial decisions, and the ability of courts to integrate into their reasoning issues of efficiency and effectiveness constitute growing challenges to judicial control.