Law and economics is an important, growing field of specialization for both legal scholars and economists. It applies efficiency analysis to property, contracts, torts, procedure, and many other areas of the law. The use of economics as a methodology for understanding law is not immune to criticism. The rationality assumption and the efficiency principle have been intensively debated. Overall, the field has advanced in recent years by incorporating insights from psychology and other social sciences. In that respect, many questions concerning the efficiency of legal rules and norms are still open and respond to a multifaceted balance among diverse costs and benefits. The role of courts in explaining economic performance is a more specific area of analysis that emerged in the late 1990s. The relationship between law and economic growth is complex and debatable. An important literature has pointed to significant differences at the macro-level between the Anglo-American common law family and the civil law families. Although these initial results have been heavily scrutinized, other important subjects have surfaced such as convergence of legal systems, transplants, infrastructure of legal systems, rule of law and development, among others.
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Law, Economics, and Courts
Nuno Garoupa
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Romania and the European Union
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.
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Emergencies and the Rule of Law
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.
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The Separation of Powers in African Constitutionalism
Charles Manga Fombad
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.
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Military Justice in Film
Ann Ching
Military justice films occupy a unique space in film and legal studies, marrying two popular genres—courtroom dramas and military-themed films. This article examines the military justice film as a distinct genre in popular culture depictions of crime and punishment. First, it provides a brief overview of the history of the military justice film, from Classical Hollywood to the present. It then examines what sets military justice films apart from civilian courtroom dramas—the context, hierarchies, procedural rules, and broader implications of justice in the military context. It discusses why military justice films remain an enduring genre, with their appeal to universal themes and archetypal narratives. It further describes how military justice films have paralleled military history and serve as a critique of military, political, and national security policies. The article concludes by examining contemporary depiction of military justice in film, analyzing how the genre has changed since its inception, and discussing how military justice films may continue to evolve to keep pace with shifting norms of both law and warfare.
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Democratic Backsliding in the European Union
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.
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Natural Theology and Natural Law in Martin Luther
Knut Alfsvåg
For Luther, the understanding of the world is determined by his theology of creation, according to which the world is created as an expression of the creative love of the eternal God. Natural theology, then, is the ability to interpret all created phenomena as gifts of the Creator, and natural law is the ability to align one’s life with this principle of lovingly serving everything created.
However, in a sinful world afflictions and anxiety makes it impossible to maintain an attitude of unconditional trust toward God based on natural reason. In spite of the possibility of reaching a fairly correct understanding of God as the giver of gifts, one will therefore never learn through natural reason alone to trust God as one’s savior.
The re-creation of a trusting attitude toward God is only possible through God’s presence in the life, death, and resurrection of Jesus. The creative power of the gospel message thus entails the rediscovery of the significance of the natural knowledge of God and morality. A full appreciation of the natural is therefore dependent on having one’s trust in God re-established by an action of unconditional divine love. From within this perspective, natural law retains its traditional and positive significance.
In this way, Luther integrates aspects of late medieval theology without being fully aligned with any of its prevailing schools of thought. Like the nominalists, he understands God as activity, not as substance, but not in the sense that God can be seen as arbitrary. For Luther, the trustworthiness of God’s promises is what anchors Christian theology. Luther’s understanding of the hidden God is therefore quite different from the nominalist idea of God’s absolute power.
For Luther, theology’s dialogue with philosophy is important. He maintains, however, that rationality that is not explicitly grounded in a theology of creation will never develop an adequate worldview. Following his emphasis on the theology of creation, in his evaluation of the natural Luther was always looking for thought structures that would let the discontinuity of grace be fully appreciated.
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Benito Juárez and Liberalism
Guy Thomson
Benito Juárez was born on March 21, 1806, in San Pablo Guelatao, a Zapotec-speaking hamlet in Sierra de Ixtlán (renamed the Sierra de Juárez on July 30, 1857) in Mexico’s southeastern state of Oaxaca. He died in the National Palace on July 18, 1872, as President of the Republic, an office he had occupied since January 1858, when, as President of the Supreme Court, he had succeeded the moderate Liberal Ignacio Comonfort, who had been driven into exile by a Conservative military revolt. During his fifteen years as president, a younger generation of Liberals, few of whom could remember the revolution of Independence (1808–1821), radically transformed Mexico’s laws and institutions. In October 1855, when Juárez was the minister of justice in the newly formed Liberal government, he implemented the “Law of Restriction of Corporate Privileges,” which is credited with setting in motion the wider Reform movement.
Between 1855 and 1860, in what was at the time called La Revolución but soon became known as La Reforma (the Reformation), Mexico moved from being a “Catholic Nation,” in which many of the social and racial hierarchies and corporate privileges of colonial rule still held sway, to becoming a secular federal republic regulated by a liberal constitution based on the sovereignty of the people and equality before the law, reducing the legal immunities and special privileges of the army and the Catholic Church and establishing a single system of civil law that guaranteed a wide range of freedoms and social rights. In the face of a Conservative uprising in January 1858, which broadened into the Three Years’ War (1858–1861), Liberals pressed ahead with an ambitious project of religious and civil disentailment (desamortización) that abolished corporate or communal property in favor of individual private ownership. The Liberal revolution was further strengthened in 1859 by the “Laws of Reform,” which ordered the wholesale nationalization of Church wealth and the closure of nunneries and monasteries; barred Roman Catholicism, the national religion until 1857, along with any other religion, from external manifestations of the cult; and established a civil registry and a strict separation of church and state.
Conservatives, undeterred by their defeat in the Battle of Calpulalpan, in December 1860, and in spite of Juárez receiving his first full popular mandate in the elections of March 1861, redoubled their resistance to the Reform by encouraging Napoleon III’s colonial ambitions, efforts that culminated in January 1862 in the occupation of Veracruz by forces from France, Britain, and Spain and the imposition of Maximilian Habsburg as emperor in April 1864. Juárez now led the defense of the Liberal republic on two fronts, and he retreated to northern Mexico, from where he coordinated resistance to the Empire.
Following the defeat of the Second Empire, which culminated in the execution of Maximilian alongside the principal Conservative generals at Querétaro on June 19, 1867, Juárez returned to the national capital wearing the twin laurels of Liberal law giver and savior of the nation. Although at his death, in 1872, he faced many enemies, especially in the Liberal camp, Juárez soon became enshrined as Liberal Mexico’s undisputed founding father and moral guide, much in the mold of his contemporaries Giuseppe Garibaldi and Abraham Lincoln. Under his leadership, liberalism had become insolubly fused with patriotism in the republican victory over European monarchy—Mexico’s second revolution of independence. La Reforma is recognized as a major watershed in Mexico’s history on a par with the revolution of Independence from Spain and the Revolution of 1910–1917.
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Democracy in the Crucible of Conflict
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.
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History of the U.S. Supreme Court
Timothy S. Huebner
The Supreme Court of the United States stands at the head of the nation’s judicial system. Created in Article III of the Constitution of 1787 but obscured by the other branches of government during the first few decades of its history, the Court came into its own as a co-equal branch in the early 19th century. Its exercise of judicial review—the power that it claimed to determine the constitutionality of legislative acts—gave the Court a unique status as the final arbiter of the nation’s constitutional conflicts. From the slavery question during the antebellum era to abortion and gay rights in more recent times, the Court has decided cases brought to it by individual litigants, and in doing so has shaped American constitutional and legal development. Composed of unelected justices who serve “during good behavior,” the Court’s rise in stature has not gone uncontested. Throughout the nation’s history, Congress, the president, and organized interest groups have all attempted to influence the Court’s jurisdiction, composition, and decision making. The Court’s prominence reflects Americans’ historically paradoxical attitudes toward the judiciary: they have often been suspicious of the power of unelected judges at the same time that they have relied on independent judicial institutions to resolve their deepest disputes.
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arbitration, Greek
Edward Harris and Anna Magnetto
One of the most important decisions a litigant could make was the choice whether to submit his dispute to a private arbitrator or to go to trial. Private arbitration had several advantages because it provided a more flexible procedure and afforded the possibility of compromise solutions aimed at promoting good relations between the parties. By contrast, a trial was an all-or-nothing procedure, which created winners and losers. Nevertheless, there were disadvantages to private arbitration: the arbitrators might be reluctant to vote against a friend, or one of the parties might not agree to arbitration. Because public officials were not involved, documents might be lost. The institution of public arbitrators retained the advantages of private arbitration but avoided several of the disadvantages. Above all, it aimed to promote good relations between the parties and to avoid a bitter fight in court.
Interstate arbitration is identified by the sources as a genuine Greek tradition, attested to be from the Archaic period, that was employed and fostered by other powers, such as the Hellenistic Kings and Republican Rome. It allowed two parties in conflict to solve disputes by resorting to the judgment of a third party agreed upon by both. Its use contributed to the establishing of forms of international law, encouraging the poleis to identify a set of shared principles and rules, at least for territorial disputes, the most common kind of controversy.
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The Judiciary and the Rule of Law in Africa
Charlotte Heyl
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.
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Courts and Rule of Law in Developing Countries
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.
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Hungary and the European Union
Robert Csehi
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.
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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.
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Bulgaria and the European Union
Dimitar Bechev
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.
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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.
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Constitutional Law
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.
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Constitutions and the Rule of Law in Asia
Victor Ramraj, Maartje De Visser, and Arun Thiruvengadam
In the modern world, formal constitutions are ubiquitous as the legal foundation of the state, standing at the apex of the legal order. As they emerged in a North Atlantic context, constitutional law and the ideal of constitutionalism came to be associated with a liberal model of government in which the state, composed of its leaders and public officials, was limited by law. This model of a constrained government became encapsulated in the ideal of “rule of law”—distinguishing between autocratic systems that were ruled by “men,” on the one hand, and systems in which political leaders were constrained by law, on the other hand. In this model, the courts typically play a critical institutional role in keeping state power within constitutional boundaries. Although this “liberal” model of constitutionalism and the rule of law continue to dominate legal and political thought, the proliferation of postcolonial legal and political regimes, and competing understandings of government and the role of the state, have challenged the dominant liberal understanding of constitutions and the rule of law. Many of these challenges come from Asia, which encompasses a stunning variety of political regimes that shape the environment in which constitutionalism and the ideal of the rule of law acquire meaning. This makes Asia an ideal site from which to explore the contested notions of constitutions, constitutionalism, and the rule of law as powerful explanatory tools and, in some cases, important normative correctives to the liberal model.
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Poland and the European Union
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.
