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Article

John P. Kastellec

Crucial to understanding the behavior of judges and the outputs of courts is the institutional context in which they operate. One key component of courts’ institutional structure is that the judiciary is organized as a hierarchy, which creates both problems and opportunities for judges. For instance, one problem for judges at the top of a hierarchy is how to best exercise oversight of lower court judges, whose decisions are often not reviewed by higher courts. One opportunity is that higher courts can reverse errors by lower courts; another is that, as new legal issues emerge, hierarchy provides opportunities for judges to learn from one another. Scholars of the judicial hierarchy have pursued two broad approaches. The “team perspective” begins by assuming that all judges in a hierarchy have the same values or principles, and thus care only about achieving the correct outcome in a given case. In the team approach, the key problem in adjudication is informational. All judges agree on the correct outcome of a case, conditional on understanding the relevant facts, but may lack this understanding due to resource constraints or informational advantages enjoyed by litigants. The agency approach, by contrast assumes that judges in the hierarchy have differing preferences, and the key problem is how higher courts can ensure compliance by lower courts. Despite these different foundational assumptions, the team and agency approaches have both been employed successfully to study core questions regarding the judicial hierarchy, including: why hierarchy exists; how higher courts can best oversee lower courts; how learning takes place both within and across the levels of the judiciary; and how collegiality influences judicial decision-making. Yet, while our understanding of the judicial hierarchy has greatly increased in recent years, many questions remain, such as how judges learn and how to measure legal doctrine.

Article

During the anticolonial struggle and immediately after independence, African political leaders were preoccupied with the creation of a “nation-state.” As a result, many of postcolonial African leaders not only promoted national unity but also instituted centralized governance. Unity and centralization were considered important antidotes to the challenges of consolidating postcolonial states, which by and large were created by the partitioning of the continent by colonial powers. As a result, many of the postcolonial leaders were hostile to federalism in general and power-sharing in particular. This explains why many of the federal arrangements, which were created by departing colonial powers, were dismantled within the first few years after independence. In contrast to the earlier periods, the 1990s could be regarded as a turning point for federalism and devolution of power in the continent. Among African states, Nigeria, Ethiopia, and South Africa could be considered fully fledged federations, which have constitutionally devolved power to different tiers of governments. There is also an ongoing attempt to establish a federal system in war-torn Somalia. Some argue that, although federalism does not have a stellar record in postcolonial Africa, it is possible to contend that in the foreseeable future the importance of federalism will grow in the continent given the challenges that many African countries face in the management of their ethnolinguistic diversity. This is evidenced by the increasing application of the federalist principles of decentralization by several African countries.

Article

Clement Fatovic

Despite scholarly disagreements over the meanings of both the rule of law and emergency, there is broad agreement that emergencies often invite and justify departures from the formal requirements and substantive values identified with the rule of law as a normative ideal. It is often argued that strict adherence to existing laws, which are typically enacted during periods of normalcy in order to prevent arbitrary forms of rule associated with tyranny, could inhibit the government’s ability to respond quickly and effectively to the often unexpected and extraordinary challenges posed by an emergency such as war or natural disaster. Consequently, the temporary use of extraordinary measures outside the law has been widely accepted both in theory and in practice as long as such measures aim to restore the normal legal and political order. However, understandings of the tension between emergency and the rule of law have undergone a significant shift during the 20th century as emergency powers increasingly get codified into law. The use of extralegal measures that violate the formal and procedural requirements of the rule of law is still considered a dangerous possibility. However, as governments have come to rely increasingly on expansions of power that technically comport with standards of legality to deal with a growing list of situations characterized as emergencies, there is concern that extraordinary exercises of power intended to be temporary are becoming part of the permanent legal and political order.

Article

The variety in climate, vegetation, and population density in Central Africa is enormous, but some of the main features of policymaking and informal rules of politics—at first sight at least—appear quite similar between N’Djaména and Kinshasa, between Libreville and Bangui, in a vast territory bigger than the European Union: clientelism, personalization of power, politicized ethnicity, the impact of external intervention, and a legacy of repeated political violence establish some constant features. On the other hand, the variable size of countries (from island states in the Gulf of Guinea to large territorial states) has also come with various challenges. Also, Central Africa features land-locked countries such as Chad and Central African Republic, which negatively impacts economic development, in contrast to countries located at the Gulf of Guinea with an easy access to maritime trade routes. At closer inspection all of the eight countries have a specific history, but this overview article rather stresses the commonalities. Featuring in this contribution are the countries of Cameroon, Central African Republic (CAR), Chad, Congo, the Democratic Republic of the Congo (DRC), Equatorial-Guinea, Gabon, and São Tomé and Príncipe. The limited achievements of pro-democracy movements in Central Africa in the 1990s have enduring consequences on politics in Africa. Authoritarian regimes have consolidated their grip on power after surviving severe crises in most Central African states. Big man politics continue to prevail, only few opposition parties have upheld their initial strength and lack internal democracy. Enduring violent conflicts in DRC and CAR (and arguably to a somewhat lesser extent in Chad), have undermined conviviality between groups and state capacities in providing public goods with dramatic consequences on effectiveness and legitimacy of the state and its representatives. Prospects for a future allowing for more participation, truly competitive elections, and a peaceful change of government are therefore also grim. However, both violent and peaceful forms of contestation since about 2015 are also signs of renewed mobilization of citizens for political causes across Central Africa. New topics, including consumer defense and ecological issues, plus now-ubiquitous social media, may all be drivers for a new episode of engagement after two decades of frustration. The limited achievements of regional integration and the lack of dynamism of subregional organizations means that Central Africa is still a much less consolidated subregion compared to, for example, West Africa.

Article

Natalia Cuglesan

The accession of Romania and Bulgaria to the European Union (EU) is portrayed as one of the most challenging enlargement waves in the history of the EU Integration Process. A member of the EU since 2007, Romania had to overcome significant obstacles to qualify for EU membership. Not fully prepared for EU accession, Romania required post-accession monitoring through the Cooperation and Verification Mechanism in order to stimulate compliance in the fields of corruption, the judiciary, and the rule of law. The problems of the unfinished transition have impacted on its positive post-accession evolution in the first 10 years of EU membership. It has accomplished limited results in the field of democratic consolidation, combating high-level political corruption and experiencing episodes of democratic backsliding. Also, in this period, it has failed to materialize strategic opportunities; it proved unsuccessful in its efforts to join Schengen or in adopting the currency. Playing a more substantial role in EU policymaking proved to be another shortcoming of the Romanian political elite, stressing the incremental pace of Europeanization. Still, despite this pessimistic account, in many respects, Romania has not fallen behind. It had a general compliant behavior with EU legislation, in line with other EU member states; support for the EU has remained high throughout the decade, an indication of the benefits it has brought to broad categories of people. It is not surprising, as more than 3 million people work in an EU member state. Economic growth was another positive side of the first 10 years—despite the adverse effects of the economic crisis—with a substantial GDP growth rate. And not to be dismissed , a great benefit was the consolidation of civil society.

Article

Mark Hallerberg

The topic of fiscal politics includes taxation and spending, budget balances and debt levels, and crises and the politics of austerity. The discussion often focuses on how some variable—such as the international environment, or political institutions—constrains “politics” in this realm. Almost omnipresent concerns about endogeneity run through this research. While this is a “big” policy area that deserves study, tracing causation is difficult.

Article

Nick Sitter and Elisabeth Bakke

Democratic backsliding in European Union (EU) member states is not only a policy challenge for the EU, but also a potential existential crisis. If the EU does too little to deal with member state regimes that go back on their commitments to democracy and the rule of law, this risks undermining the EU from within. On the other hand, if the EU takes drastic action, this might split the EU. This article explores the nature and dynamics of democratic backsliding in EU member states, and analyses the EU’s capacity, policy tools and political will to address the challenge. Empirically it draws on the cases that have promoted serious criticism from the Commission and the European Parliament: Hungary, Poland, and to a lesser extent, Romania. After reviewing the literature and defining backsliding as a gradual, deliberate, but open-ended process of de-democratization, the article analyzes the dynamics of backsliding and the EU’s difficulties in dealing with this challenge to liberal democracy and the rule of law. The Hungarian and Polish populist right’s “illiberal” projects involve centralization of power in the hands of the executive and the party, and limiting the independence of the judiciary, the media and civil society. This has brought both governments into direct confrontation with the European Commission. However, the EU’s track record in managing backsliding crises is at best mixed. This comes down to a combination of limited tools and lack of political will. Ordinary infringement procedures offer a limited toolbox, and the Commission has proven reluctant to use even these tools fully. At the same time, party groups in the European Parliament and many member state governments have been reluctant to criticize one of their own, let alone go down the path of suspending aspect of a states’ EU membership. Hence the EU’s dilemma: it is caught between undermining its own values and cohesion through inaction on one hand, and relegating one or more member states it to a second tier—or even pushing them out altogether—on the other.

Article

During the 20th century, seizures of power led by military officers became the most common means of imposing new dictatorships. The consequences of military rule have varied, however, depending on how widely power has been shared within the military-led government. Most military-led dictatorships begin as relatively collegial, but the dictator’s position in collegial military regimes is inherently unstable. His closest collaborators command troops and weapons with which they could, if they are dissatisfied with his policy choices, oust him without ending the regime. This vulnerability to ouster by close allies both constrains the dictator to consult with other officers in order to keep them satisfied and gives him reasons to try to protect himself from coup plots. Common means of protection include taking personal control of the internal security police, in order to spy on officers as well as civilian opponents, and creating paramilitary forces recruited from personal loyalists. Dictators build new paramilitary forces to defend themselves from attempted coups staged by the regular army. A military dictator who can withstand coup attempts need not consult with other officers and can concentrate great power in his hands. Military dictators who have to share power with other high-ranking officers (juntas) behave differently than military rulers who have concentrated power in their own hands (strongmen). These differences affect the well-being of citizens, the belligerence of international policy, the likelihood of regime collapse, how military rule ends when it finally does, and whether it is followed by democracy or a new dictatorship. In comparison to junta rule, strongman rule tends to result in erratic economic decision-making and high rates of corruption. Strongmen also behave more aggressively toward their neighbors than do juntas. Nevertheless, regimes led by strongmen last longer, on average, than do juntas. When faced with widespread opposition, juntas tend to negotiate a return to the barracks, while strongmen often must be overthrown by force. Negotiated transitions tend to end in democratization, but forced regime ousters often result in new dictatorships.

Article

Binnur Ozkececi-Taner

Countries differ in size, socioeconomic development, and political regime. They also vary in their political institutionalization and societal structures, military and economic capabilities, and strategic cultures. In addition, public opinion, national role conceptions, decision making rules and belief systems, and personality traits of political leaders vary from one state to another. These differences directly affect both foreign policymaking process and foreign policy decisions. Whereas the extant literature on foreign policy analysis (FPA) lacks a grand theory as to how domestic factors influence foreign policy and under what conditions these factors become more important, a large body of work shows that a state’s foreign policy relies heavily on unit-level characteristics, and it is not completely shaped by systemic-structural constraints and opportunities based on distribution of power and military capabilities.

Article

Robert Ralston and Ronald R. Krebs

The field of international relations has long focused on understanding and explaining the causes of war. In contrast, scholars have devoted relatively little attention to war’s consequences. However, scholarly literature on the consequences of violent conflict, including its effects on liberal democracy, has burgeoned and improved in recent decades, since the 1990s. Existing research shows that security threats, mobilization, and warfare are neither entirely negative nor entirely positive with respect to liberal democracy. On the one hand, in the short run, these pressures erode liberal institutions and values. On the other hand, large-scale mobilization and warfare—both interstate and civil—encourage broader and more intense participation at the individual level and strengthen participation’s structural foundations. However, despite recent advances, there remains much that we still do not know, which suggests promising avenues for future research. The existing literature has not sufficiently or systematically distinguished among the effects of threat/insecurity, mobilization, and warfare. It has been stronger on empirical findings than on developing the mid-range theories and causal mechanisms that would make sense of those findings. It has been firmer on conflict’s impact on individual attitudes and predilections than on how and when violence reshapes larger political processes and structures. It has had more to say about conflict’s short-run effects than its long-term effects, especially with respect to contestation. The impact of violent conflict on liberal democracy remains a rich soil for future research.

Article

Lisa Hilbink and Matthew C. Ingram

Under what conditions can courts be effective and the rule of law be meaningful in developing countries? A vast literature has emerged over the past several decades seeking to understand the factors that support or impede healthy judicial functioning in developing countries, as well as those that account for its stagnation and erosion. Scholars analyze four phenomena that shape the judicial role in politics: empowerment, activation, behavior, and impact. Works on judicial empowerment analyze identifiable moments of change in formal, de jure rules governing the jurisdiction, independence, accessibility, and efficiency of legal institutions, whether at the constitutional or at the legislative level. Studies of activation examine when, how, and why actors identify particular harms or grievances as legal wrongs and pursue litigation as a means of redress. Judicial behavior studies address how and why judges vote on issues or rule on cases, either individually or collectively as collegial bodies, with a particular eye to the factors that enable or constrain independent judicial decision-making. In developing countries, scholars have also begun analyzing off-bench judicial behavior. A final category of research on courts in developing countries seeks to assess the impact of judicial behavior on political processes, policy outcomes, and society at large. Compliance is a major focus of such works, but scholars also seek to understand how court decisions transform the way social actors frame their struggles and mobilize politically, and to assess the promise and pitfalls of the judicialization of politics. The great variation within and between the vast category of developing countries greatly complicates the task of building general theory on any of the four outcomes. This variation reveals that the assumptions of dominant theories hold more tenuously in less- institutionalized contexts, where information is less clear or complete and is under shorter time horizons, and where the costs are lower for flouting the law or interfering with courts. These observations signal the need to delimit or moderate theoretical arguments about core relationships of interest according to political and economic conditions and contexts. Yet insights regarding developing countries might become increasingly relevant for understanding judicial politics in developed countries, as politics in developed countries take on features more common to developing countries, including polarization, populism, and even authoritarian tendencies like open attacks on political opponents, press, courts, and independent investigative agencies.

Article

The Council of Ministers, officially known as the Council of the European Union (EU), is a single legal composition of national ministers who meet in policy-specific formations to negotiate and adopt EU policies and laws. The Council is more than just the ministers; they depend on an infrastructure of preparatory bodies and specialist working groups, as well as rotating and permanent leadership positions and an internal bureaucracy, the General Secretariat of the Council (GSC). Over time, the Council has undergone formal restructuring, such as sharing colegislative authority with the European Parliament (EP), now called the “ordinary legislative procedure” (OLP), and redesigning how majority voting works. The Council has also witnessed informal organizational change, especially in internal pecking-order dynamics and techniques to reach consensus-based outcomes. EU Council research has documented formal and informal decision-making dynamics, especially related to voting and consensus practices, although there is no real agreement on how formal and informal rules interact to influence the context of negotiations. There is still a divergence of interpretation in how the Council actually works, such as whether consensus is a “culture” of mutual accommodation subject to group standards or is instead a façade of relative power. As an institution, the Council deliberately promotes clublike networks of like-minded national policy specialists and experts who meet in repeat, face-to-face interactions and make collective decisions in mostly nontransparent (in camera) settings of insulation from domestic audiences. However, in the post-Maastricht era of EU politics since the early 1990s, the way the Council works is also increasingly debated in terms of transparency, accountability, and legitimacy.

Article

Bulgaria joined the EU in 2007, yet neither its road to membership nor its time in the Union have been easy. In the 1990s and 2000s, the accession process provided an impetus for political and economic reforms, but the EU’s famed transformative power worked unevenly. Bulgaria started its journey later than other countries in post-communist Europe, and had to deal with worse domestic and external political and economic impediments, and thus failed to close the gap with the wave of nations entering the EU in 2004. The sense of unfinished business paved the way to a post-accession conditionality regime, subjecting Bulgaria and Romania to special monitoring and regimenting them into a special category apart from other members. Despite efforts by successive governments in Sofia, the country has not made it into either the Schengen area or the eurozone’s antechamber, the Exchange Rate Mechanism (ERM-2). The limited progress in reforming the judiciary and combatting high-level corruption and organized crime has prevented Bulgaria from continuing its journey to the core of Europe, unlike some of the 2004 entrants from Central and Eastern Europe. Being part of the Union has not made a profound difference when it comes to deep ingrained ills such as state capture, and the lack of accountability and transparency in policymaking. Some critical areas have witnessed serious backsliding—notably the national media, where the EU has few formal competences or levers of influence. Yet, Bulgaria’s EU membership should not be written off as a failure. On the contrary, it has delivered enormous economic benefits: increased growth, expanded safety nets in times of recession (especially after 2008), improved economic competitiveness, new opportunities for entrepreneurship, cross-border labor and educational mobility, and transfer of knowledge and skills. As a result, EU membership continues to enjoy high levels of public support, irrespective of the multiple crises it has gone through during the 2010s. Political parties by and large back integration, though soft Euroscepticism has made inroads into society and politics. While the EU has had, caveats aside, a significant domestic impact, Bulgaria’s imprint on common institutions and policies is limited. It lacks the resources and political clout to advance its interests in Brussels. That generates risk in light of the growing divide between a closely integrated core and a loose periphery, likely to expand in the wake of Brexit. Bulgaria is affected by decisions in the eurozone but has little say over them. The absence of leverage is particularly striking in external affairs. Despite its geographic location, next to the Western Balkans and Turkey and in proximity to Russia and Ukraine, Bulgaria has rarely, if ever, been on the forefront of major decisions or policies to do with the EU’s turbulent neighborhood. At the same time, Bulgaria has been exposed to a series of crises affecting the Union, notably the antagonistic turn in relations with Russia after the 2014 annexation of Crimea and the influx of asylum seekers from the Middle East.

Article

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.

Article

Hungary became a member of the European Union (EU) alongside nine other, mainly East-Central European (ECE) countries in 2004. Although Hungary was one of the leading candidates from the former Soviet bloc to join the EU after the transition in 1989–1990, this positive view and the advantage that the country enjoyed seemed to gradually disappear by the mid-2000s. Hungarian experience with the EU is quite ambivalent. Economically speaking, on the one hand there is a slow but steady convergence to the EU average, which is largely due to the net beneficiary status of the country within the Community, and employment levels have increased considerably. On the other hand, the Country-Specific Recommendations (CSRs) point to shortcomings related to competitiveness, and labor productivity, which indicate some missed opportunities. Similarly, although budgetary deficit and public debt have been under control lately, sustainability concerns still remain. Additionally, even though the country’s prospects to join the common currency area are quite promising, political willingness is still lacking to make a lasting commitment to the Euro. While the socio-economic expectations of EU membership before accession were quite high and rather unrealistic, although economic growth decreased the level of overall poverty, socioeconomic inequalities have increased lately because of government policies. As far as politics is concerned, even the consensus of the political elite to support liberal democracy as a political system and further integration of the EU as a policy strategy have been questioned by the main governing party lately. Instead, a more Eurosceptic tone and an incremental democratic decline characterizes everyday politics, which has led to recurring criticism within the Community, and the eventual triggering of an Article 7 Procedure.

Article

One reason why dictatorships flourished in Africa until the 1990s was that constitutions concentrated excessive powers in presidents. The democratic revival of the 1990s led to the introduction of new or substantially revised constitutions in a number of countries that for the first time sought to promote constitutionalism, good governance, and respect for the rule of law. A key innovation was the introduction of provisions providing for separation of powers. However, in many cases the reintroduction of multipartyism did not lead to thorough constitutional reform, setting the scene for a subsequent struggle between opposition parties, civil society, and the government, over the rule of law. This reflects the complex politics of constitutionalism in Africa over the last 60 years. In this context, it is important to note that most of the constitutions introduced at independence had provided for some degree of separation of powers, but the provisions relating to this were often vaguely worded and quickly undermined. Despite this, the doctrine of separation of powers has a long history, and the abundant literature on it shows that there is no general agreement on what it means or what its contemporary relevance is. Of the three main models of separation of powers, the American one, which comes closest to a “pure” system of separation of powers, and the British, which involves an extensive fusion of powers, have influenced developments in anglophone Africa. The French model, which combines elements of the British and American models but in which the executive predominates over the other two branches, has influenced developments in all civilian jurisdictions in Africa, particularly those in francophone Africa. The common denominator among the models is the desire to prevent tyrannical and arbitrary government by separating powers but doing so in a manner that allows for limited interference through checks and balances on the principle that le pouvoir arrête le pouvoir. The combined Anglo-American (common law) and French (civil law) models received during the colonial period remain applicable today, but despite its adoption in the 1990s, the effectiveness of the doctrine of separation of powers in limiting governmental abuse has been curtailed by the excessive powers African presidents still enjoy and the control they exercise over dominant parties in legislatures. South Africa in its 1996 Constitution, followed by Kenya in 2010 and Zimbabwe in 2013, entrenched a number of hybrid institutions of accountability that have the potential not only to complement the checks and balances provided by the traditional triad but also to act where it is unable or unwilling to do so. The advent of these institutions has given the doctrine of separation of powers renewed potency and relevance in advancing Africa’s faltering constitutionalism project.

Article

In a liberal conception of democracy, courts play an important role in facilitating the rule of law by controlling the abidance to rules and by holding the political branches of government accountable. The power of constitutional review is a crucial element for exercising horizontal accountability. Courts across Africa are vested with the power of constitutional review, and, generally speaking, their independence has substantially increased since the beginning of the 1990s—although African courts enjoy overall less independence than the global average for courts’ independence. Within the African region, the level of judicial independence varies widely, between contexts that rarely allow judicial independence and contexts where courts have more power to challenge the government. Furthermore, across the continent, African courts experience undue interference—which frequently takes place informally. Informal interference can occur through the biased appointments of judges, verbal and physical threats, violent attacks, the payment of bribes, or the ouster of sitting judges. Informal networks—held together by ties based on shared educational trajectories, common leisure activities, religion, kinship relations, or political affiliations—are the channels through which such pressure can be transmitted. Yet judges also can actively build informal networks: namely, with the legal community, civil society, and international donors, so as to insulate themselves against undue interference and to increase institutional legitimacy. Research has shown that the agency of judges and courts in signaling impartial decision-making, as well as in reaching out to society, is crucial to constructing legitimacy in the African context. In contrast, the explanatory power of electoral competition as an incentive for power holders to support judicial independence is not straightforward in the context of Africa’s political regimes, where the prospect of losing office is associated with financial, and in some cases even physical, insecurity. However, research on judicial politics in Africa is still only preliminary, because the field requires more comparative studies in order to fully reveal the political repercussions on Africa’s judiciaries as well as to delineate the scope conditions of the prominent theories explaining judicial independence.

Article

Kerry A. Chase

Government policies to protect and promote national culture are a perennial issue in the trading system. Controversy over trade and culture, in almost every instance, swirls around entertainment media—mainly movies, television, video, and music. The object of contention is that many states employ an assortment of financial, trade, and regulatory measures to subsidize locally produced entertainment, restrict imports, and favor national content over foreign content. Such measures often impede trade, pitting commercial interests in open markets and free choice against calls for state action to mitigate trade’s social repercussions. Differing perspectives on the motives behind these policies typify disputes over trade and culture. In one view, state regulation of entertainment media is cultural policy, an essential means of preserving a nation’s identity, culture, and way of life. From another vantage point, these policies are backdoor protectionism, a handout to local business and labor under the guise of cultural preservation. The problem of trade and culture therefore raises basic questions about politics: Why do states subsidize production and restrict imports? What drives political demands for trade protection and government aid? How can variation in policy responses be understood? In the World Trade Organization (WTO), disputes over trade and culture center on two related issues. The first is inclusion of a “cultural exception” in trade rules to green-light, on cultural grounds, state actions that interfere with trade in entertainment media. Although there is no cultural exception in the WTO, pressure to accommodate the “specificity” of entertainment media as a cultural phenomenon has complicated trade negotiations and at times required give and take to placate the opposing sides. The second issue is policy liberalization in entertainment media, which has lagged behind market opening in many other goods and services. Deadlock over trade and culture has inspired some WTO members to explore other options: the European Union (EU) and Canada spearheaded the push for a Convention on Cultural Diversity, and the United States has pursued policy liberalization in a series of free trade agreements. Important political questions again crop up: Why has culture stalemated the WTO, and why haven’t trade linkages like those for health safety standards been institutionalized for trade and culture? Why do international political alignments on this problem form as they do? What explains the design of trade rules for entertainment media, and what is the trade regime’s impact on state policy? The age-old conflict over trade and culture continues to play out and shows no signs of abating.

Article

Ireneusz Paweł Karolewski and Maciej Wilga

Multifaceted in its character, the relationship between Poland and the European Union is now more than a quarter of a century old. After the breakdown of the Eastern bloc, Poland signed the Association Agreement with the then European Communities in December 1991, which led up to an EU membership application three years later. Not yet a member, the country had some impact on the Union in the Nice Treaty negotiations (2000–2001), as well as on the European Constitutional Convention proceedings (2001–2003). After a successful EU membership referendum in 2003, reflecting a great deal of societal support, Poland, along with nine other newcomers, became a fully-fledged member of the EU. Once within the bloc, Warsaw was at pains to develop a more coherent EU policy, as it often changed its positions between more collaborative approaches and veto threats, but also absolving a successful rotating EU Council presidency in 2011. The country collaborated with other member states in Central and Eastern Europe—in the Visegrád framework and with the older member states—through the Weimar Triangle, for example, however with sometimes mixed results. Poland has prioritized a number of issues in the EU such as the energy sector, security and defense, and the Eastern partnership, the latter focusing on the EU Eastern neighbors, including Ukraine and Belarus. In particular, during the Ukraine-Russia conflict of 2014–2015, Poland was one of most active actors in the EU foreign policy. However, since 2015 Poland has become a subject of controversy within the EU, regarding the rule of law standards that were criticized by the European Commission and Warsaw’s rejection of a relocation scheme in the EU refugee and migrant policy.

Article

Axel Tschentscher

Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system. Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.