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What is the Rule of Law (and is Not)?
Abstract
Along with other major concepts in political science, such as democracy (Collier and Levitsky 1997; Munck and Verkuilen 2002), ideology (Gerring 1997), and populism (Weyland 2001), the rule of law seems to be an essentially contested concept (Gallie 1956; Collier, Hidalgo and Maciuceanu 2007). Several contesting conceptions of the rule of law have been provided by Fuller, Finnis, Raz, and Dworkin, with as few as eight dimensions (Fuller 1981) and as many as fourteen (Lauth 2001). Consensus on this essentially contested concept may not be rapidly forthcoming. However, an important first step to have a concept is "distinguished A from whatever is not A," (Sartori 1984:74). In a second step, a full-fledged concept should have a defining set of necessary attributes (Adcock 2005; Sartori 1975 and1984). This paper tries to contribute to the logically starting point of this task: a framework to defining a matrix of potential meanings of the "background concept" (Adcock and Collier 2001) of the rule of law.
... Holt (1992) offers the most authoritative analysis of Magna Carta, the great charter, and 1215 English law, politics and administration. Dicey Marmor (2004), Sarsfield (2010), Tyler & Trinkner (2017), Hayek (1944), Joireman (2001) and Tyler (2006) all speak to the importance of trust and rule of law and their importance to economic growth. Skinner et al. (2013) and Crews et al. (2012) showed that transgenerational epigenetic inheritance can negatively impact future generations of an organism. ...
... It is measured by D. Ridley, A. Nelson DOI: 10.4236/tel.2022.126103 trust and confidence in the laws, deference to the laws, the protection of property rights, enforcement of contracts, the control of corruption, and the prevention of crime and violence (see also Braithwaite (2021), Wallace & Goodman-Delahunty (2021), Johnston (2006), Marmor (2004), Sarsfield (2010), Tyler & Trinkner (2017)). These factors have become goals of various worldwide organizations such as the United Nations, the European Commission, the World Justice Project, and other organizations interested in economic development in developing countries. ...
... The entire documentation of RL debates since 2010 can be followed in Euractiv (2017a), including the large numbers of infringement proceedings in the EU at the end of 2016. About the recent discussions of the infringement process seeSarsfield (2010). ...
After the global crisis the Core-Periphery Divide has deepened in the EU between the most developed Core countries and the East-Central European (ECE) countries that has been most manifest in the violations of rule of law (RL) by Poland and Hungary. This process of confrontation with the EU rules and values has been termed in the paper as De-Europeanization that has been analysed in its historical trajectory from the “Copenhagen Dilemma” to the “Juncker Paradox”, as both of them have encouraged the ECE autocratic regimes by their neglectence. Namely, the paper argues first that the Copenhagen criteria have not been well prepared for regulating the accession of the New Member States (NMS), since the EU has not elaborated a proper facilitating mechanism for the sustainable Europeanization of NMS. Therefore, the Copenhagen Dilemma has emerged in the EU, which means that after the accession the EU has not had the legal tools to correct the divergence from democracy in NMS. The legal toolkits – the infringement process and the Article 7 procedure – have not been effective to enforce RL in ECE, as the increasing conflicts with Poland and Hungary have demonstrated. Moreover, for second, due to the “polycrisis”, the Juncker Commission has focused on the priorities of the Core and it has neglected these violations of EU rules and values. This neglectence and inaction has been counterproductive because it has increased the RL conflicts and has given manoeuvring room for the hard populist ECE regimes that has been described in this paper as the Juncker Paradox. The main reason for the ECE divergence from the EU mainstream has been their failure in the catching up process to produce competitive economy and sustainable democracy. In order to achieve this stage both the EU needs to reconstruct is legal toolkits as part of its new integration strategy and the ECE states have to overcome their current socio-political crisis that has produced these hard populist regimes.
... The entire documentation of RL debates since 2010 can be followed in Euractiv (2017a), including the large numbers of infringement proceedings in the EU at the end of 2016. About the recent discussions of the infringement process seeSarsfield (2010). ...
East Asia is an area with high number of political militarized conflicts, but also with high biodiversity and fast environmental degradation. A decade ago there emerged the idea that environmental cooperation is able to initiate and sustain a dialogue between the parties of a conflict and facilitates conflict transformation and peace building. This article tests on the three case studies from East Asia two hypotheses and asks one question to find out more about the origin and functioning of environmental cooperation in areas of political conflicts. The article shows that environmental cooperation can emerge even during a political conflict, but only at a time when the intensity of the violence is low. The emergence and development of environmental cooperative projects also depends on the support of external actors. We conclude that the intensity of environmental cooperation in conflict-prone areas remains weak even after many years and even when the process is strongly supported by many external actors.
... The entire documentation of RL debates since 2010 can be followed in Euractiv (2017a), including the large numbers of infringement proceedings in the EU at the end of 2016. About the recent discussions of the infringement process seeSarsfield (2010). ...
One of the inherent elements of democracy is citizens' participation in public life. The most frequent ways of realization of political participation are universal elections and direct democracy institutions. The aim of this article is to compare the level of application of direct democracy mechanisms at the local and national level in Poland. The research was inspired by diverse institutional positions of direct democracy instruments in the Polish political system. The national ones are based on the Constitution of 1997, which gives them the status of high significance. But on the other hand, especially regarding formal conditions, it functionally limits their possible application. Local direct democracy
institutions are normatively based on lower order acts (laws), which are much easier to amend. Hence, they are more adaptable to changing political and social conditions. The authors’ research confirmed the thesis that the use of direct democracy mechanisms
is more intensive at the local level. As a continuation of their research, the authors reflect on the determinants of this situation, making six hypotheses.
... Although the reflection on the rule of law goes back to the classical political theory (i.e., Plato, The Republic; Aristotle, Politics) and this concept accounts with a long tradition in philosophy, in legal studies and in political science (i.e., Fuller 1969, Raz 1977Dworkin 1977), recent years have seen a noticeable increases in the work on its conceptualization (i.e., Sunstein 1996; Given the controversial nature of this concept (Tamanaha 2004), from the outset I must make explicit the definition I will propose here. This conceptualization stems from the tradition that conceives the rule of law as a political outcome (Maravall & Przeworski 2003;Sánchez-Cuenca 2003), and not only as a set of characteristics of the legal system (Fuller 1969;Raz 1977), which it is a necessary but not a sufficient condition for the rule of law exists (Sarsfield 2010b) 3 . This concept is here defined as the prevalence of law as a mechanism for processing and resolving disputes over two other analytically possible mechanisms: illegal behavior and violence. ...
This chapter addresses the evolution process of the law of economic competition in Mexico, with special emphasis on the so-called structural reforms of 2013 and the enactment of a new Federal Law of Economic Competition. The aims of this writing are to highlight the aspects which have contributed to the consolidation of the rule of law, as well as to identify some tasks to be attended to, including not only potential legislative reforms, but also a proper implementation, the coordination of public policies, and the creation of precedents that will provide greater legal certainty.
Like many major targets of social inquiry, the rule of law seems to be an essentially contested concept (Gallie, 1956; Collier, Hidalgo, and Maciuceanu; 2007, Waldron, 2002). The literature teems with definitions of the rule of law, emphasizing attributes ranging from formal legality and checks and balances to order, democracy, and individual rights (Møller and Skaaning, in this issue). And while surveys of competing
definitions exist, scholars have yet to converge on a systematized concept amenable to operationalization. One fundamental debate concerns “thick” versus “thin” definitions of the rule of law (Møller and Skaaning, in this issue). Another unsettled question is whether we should only consider legal-based attributes or whether political behavior-based attributes should be included as well (Sarsfield, 2010).
As poliarquias desenvolvidas do Ocidente condensam influências de três tradições políticas distintas: a liberal, a republicana e a democrática. As tradições liberal e republicana são as responsáveis pela "accountability horizontal", um traço crucial dessas poliarquias que está ausente das novas democracias. Discute-se o significado diso, e como a accountability horizontal poderia ser criada nestas últimas.The poliarchies developed in the western world have been shaped by three different political traditions: the liberal, the republican and the democratic. The liberal and republican traditions foster horizontal accountability, a crucial feature of those poliarchies wich is not to be found in the new democracies. After discussing what this absence implies ways of generating horizontal accountability in the latter are suggested.
A comprehensive and integrated framework for the analysis of data is offered and used to assess data sets on democracy. The framework first distinguishes among three challenges that are sequentially addressed: conceptualization, measurement, and aggregation. In turn, it specifies distinct tasks associated with these challenges and the standards of assessment that pertain to each task. This framework is applied to the data sets on democracy most frequently used in current statistical research, generating a systematic evaluation of these data sets. The authors’ conclusion is that constructors of democracy indices tend to be quite self-conscious about methodological issues but that even the best indices suffer from important weaknesses. More constructively, the article’s assessment of existing data sets on democracy identifies distinct areas in which attempts to improve the quality of data on democracy might fruitfully be focused.
WHAT DEMOCRACY IS ... AND IS NOT Philippe C. Schmitter & Terry Lynn Karl Philippe C. Schmitter is professor of political science and director of the Center for European Studies at Stanford University. Terry Lynn Karl is associate professor of political science and director of the Center for Latin American Studies at the same institution. The original, longer version of this essay was written at the request of the United States Agency for International Development, which is not responsible for its content. For some time, the word democracy has been circulating as a debased currency in the political marketplace. Politicians with a wide range of convictions and practices strove to appropriate the label and attach it to their actions. Scholars, conversely, hesitated to use it -- without adding qualifying adjectives -- because of the ambiguity that surrounds it. The distinguished American political theorist Robert Dahl even tried to introduce a new term, "polyarchy," in its stead in the (vain) hope of gaining a greater measure of conceptual precision. But for better or worse, we are "stuck" with democracy as the catchword of contemporary political discourse. It is the word that resonates in people's minds and springs from their lips as they struggle for freedom and a better way of life; it is the word whose meaning we must discern if it is to be of any use in guiding political analysis and practice. The wave of transitions away from autocratic rule that began with Portugal's "Revolution of the Carnations" in 1974 and seems to have crested with the collapse of communist regimes across Eastern Europe in 1989 has produced a welcome convergence towards a common definition of democracy. ~ Everywhere there has been a silent abandonment of dubious adjectives like "popular," "guided," "bourgeois," and "formal" to modify "democracy." At the same time, a remarkable consensus has emerged concerning the minimal conditions that polities must meet in order to merit the prestigious appellation of "democratic." Moreover, a number of international organizations now monitor how well Journal of Democracy Vol.2, No.3 Summer 1991 76 Journal of Democracy these standards are met; indeed, some countries even consider them when formulating foreign policy. 2 What Democracy Is Let us begin by broadly defining democracy and the generic concepts that distinguish it as a unique system for organizing relations between rulers and the ruled. We will then briefly review procedures, the rules and arrangements that are needed if democracy is to endure. Finally, we will discuss two operative principles that make democracy work. They are not expressly included among the generic concepts or formal procedures, but the prospect for democracy is grim if their underlying conditioning effects are not present. One of the major themes of this essay is that democracy does not consist of a single unique set of institutions. There are many types of democracy, and their diverse practices produce a similarly varied set of effects. The specific form democracy takes is contingent upon a country's socioeconomic conditions as well as its entrenched state structures and policy practices. Modern political democracy is a system of governance in which rulers are held accountable for their actions in the public realm by citizens, acting indirectly through the competition and cooperation of their elected representatives. 3 A regime or system of governance is an ensemble of patterns that determines the methods of access to the principal public offices; the characteristics of the actors admitted to or excluded from such access; the strategies that actors may use to gain access; and the rules that are followed in the making of publicly binding decisions. To work properly, the ensemble must be institutionalized that is to say, the various patterns must be habitually known, practiced, and accepted by most, if not all, actors. Increasingly, the preferred mechanism of institutionalization is a written body of laws undergirded by a written constitution, though many enduring political norms can have an informal, prudential, or traditional basis. 4 For the sake of economy and comparison, these forms, characteristics, and rules are usually bundled together and given a generic label. Democratic is one; others are autocratic, authoritarian, despotic, dictatorial, tyrannical, totalitarian, absolutist, traditional, monarchic, oligarchic, plutocratic, aristocratic, and sultanistic) Each of these regime forms...
The question of whether particular types of legal institutions influence the effectiveness of the rule of law has long been answered with conjecture. Common law lawyers and judges tend to believe that the common law system is superior. This opinion is based on the idea that the common law system inherited from the British is more able to protect the rights of the individual than civil law judicial systems. Quite the opposite point of view can be found in lawyers from civil law countries, who may view the common law system as capricious and disorganised. This paper compares the effectiveness of the rule of law in common law and civil law countries in Africa, through a cross-national statistical comparison using Freedom House and Political Risk Services data. The comparison reveals that common law countries in Africa are generally better at providing ‘rule of law’ than are civil law countries.
Although the concept of Rule of Law has been revived and developed vigorously by mid-twentieth century conservative political theorists, contemporary legal positivists have not been impressed. The author reviews this confrontation, outlines the logic for a strong theory of Rule of Law, and surveys the leading attempts to provide compelling grounds for such a theory.
China has enjoyed considerable economic growth in recent years in spite of an immature, albeit rapidly developing, legal system, a system whose nature, evolution and path of development have been poorly understood by scholars. Drawing on his legal and business experience in China as well as his academic background in the field, Peerenboom provides a detailed analysis of China's legal reforms. He argues that China is in transition from rule by law to a version of rule of law, though most likely not a liberal democratic version as found in economically advanced countries in the West. Maintaining that law plays a key role in China's economic growth, Peerenboom assesses reform proposals and makes his own recommendations. In addition to students and scholars of Chinese law, political science, sociology and economics, this will interest business professionals, policy advisors, and governmental and non-governmental agencies as well as comparative legal scholars and philosophers.
The paper posits the existence in Hungary of three levels of legalism, defined as legal consciousness and legal compliance: the constitutional level, the level of relations between state and citizen, and the level of citizen-to-citizen interaction. The sociological analysis of all three levels, based on opinion polling and on the analysis of constitutional complaints, legal verdicts, and other considerations, permits us to identify a difference between the high degree of constitutional legalism and the low degree of compliance found in other legal relations. The authors follow the distribution of legalism in Hungarian society and describe the relations among the various levels. They capture the dynamism and complexity of the legal transition in Hungary.
This book gathers together leading scholars in the field to assess key literatures shaping the discipline today and to help set the direction of research in the decade ahead. The study of law and politics is one of the foundation stones of the discipline of political science, and it has been one of the most productive areas of cross-fertilization between the various subfields of political science and between political science and other cognate disciplines. The book provides a comprehensive survey of the field of law and politics in all its diversity, ranging from such traditional subjects as theories of jurisprudence, constitutionalism, judicial politics, and law and society, to such re-emerging subjects as comparative judicial politics, international law, and democratization.
Law and politics is one of the many "law and..." movements that have arisen in recent years, the most notable of which, of course, is law and economics. If we accept the vision of law and politics as a movement of political scientists who use their knowledge of the discipline of law to improve their scholarly performance as political scientists, we lunge into the definitional vagaries and boundary uncertainties of the subfields of political science. It would be most convenient to view law and politics as involving two overlapping but not coterminous specializations; one, law and politics, that, growing out of the historical concern of political scientists with public law, brings an expertise in law to the political science study of highly legally constrained government behavior; the other, law and courts, which consciously throws off the public law boundaries to study all of the behavior of courts.
General Pinochet warned in October 1989, a few weeks before Chile's first democratic elections after the 1988 referendum, that “if someone touches one of my men, the rule of law is over” (si me tocan a uno de mis hombres, se acabó el Estado de Derecho). There seems to be something profoundly paradoxical about the general's subtle warning. It implies that the existence of the rule of law depends on the will of a single person, but part of the meaning of the rule of law is precisely that the institutional order is something other than the product of a single will. This is usually misunderstood by those who discuss the rule of law. They often affirm that the point is to institute “a government of laws, not of men.” Yet this statement is at best ambiguous. A government cannot consist of laws. A government of laws can only mean that the rulers are bound by what the law establishes, that is, that a government of men complies with the laws. The underlying confusion is also apparent in other, equally misleading phrases that people link to the rule of law, such as “the sovereignty of the law” or “the supremacy of the law.” All this is empty rhetoric. The law, being a human creation, must necessarily be subject to human will. In fact, the very term “the rule of law” is in itself rhetorical. The law cannot rule. Ruling is an activity, and laws cannot act.
The problem of obedience may look strange to a legal scholar. Lawyers deal not with obedience but with obligation. The question they ask is not, What behavior does effectively take place? but What behavior ought to take place? According to leading theories, actual behavior has no effect on the validity of a rule. In other words, a rule is binding or not binding independently of the fact that it is being obeyed (or disobeyed). This is just another way of expressing the difference between is and ought and the law deals only with what ought to be, not with what actually is or will be. Moreover, it is generally agreed that there can be no causal relation between what is and what will be. The fact that something ought to happen does not cause it to happen and the fact that something actually happens has no influence on its being mandatory or forbidden. In other words, the validity of a rule does not depend on its efficacy. Indeed it can be said that the specificity of a rule, as distinguished from a law of nature, lies in its capacity to be violated. Lawyers and legal scholars therefore leave to sociologists and psychologists the question why men obey the law. True, those who make the rules must have some idea of what makes men obey. If they make and publish those rules, they must assume that knowing the existence of a rule will have some sort of psychological effect on actual behavior and they draft them according to the behavior they expect.
Should we associate the rule of law only with democratic legal systems or can we conceive of the rule of laws as an independent phenomenon that may equally be associated with other forms of regime? In particular, can we speak of an autocratic or dictatorial rule of law? In this chapter, I discuss two notions of the rule of law and argue that in principle, under specific conditions, both are compatible with nondemocratic forms of rule. Although this association may not be historically all that common, I analyze one case, the military dictatorship in Chile (1973–90), and try to show that a form of rule of law was operative within the regime, particularly during the last nine years of military rule. In developing this argument, I hope to elucidate some general properties of the rule of law and specify conditions under which rules can have force even upon their own makers. Two Notions of the Rule of Law The term “rule of law” is used quite widely in contemporary theoretical and political discussions. Nevertheless two broad conceptions are prominent. One, variously referred to as a “narrow,” “formal,” or “instrumental” conception of the rule of law, examines the formal characteristics that law must have if a legal system is to provide a nonarbitrary framework around which subjects can form expectations and live their lives. This notion of the rule of law essentially concerns the character of law as a mechanism of mediation between state authorities and social actors.
Today, the traditional view according to which democracy implies majority rule in the form of parliamentary supremacy has come under growing criticism. In Europe since World War II, democratic regimes have increasingly incorporated substantive constraints to what the parliamentary majority can do. Not only must public authority be exerted within general rules, but citizens are deemed to be entitled to fundamental rights, whose exercise must remain outside the will of the majority. Therefore, submitting the performance of public functions to the scrutiny of independent judges becomes an effective and essential check on the exercise of political power, ensures the supremacy of the law, and guarantees citizens' rights (Stone 2000). There is some ambiguity in the concept of judicial independence (Russell 2001). On one hand, judicial independence is understood as institutional independence, that is, as the guarantees judges enjoy vis-à-vis the political branches of government. On the other, the term refers to the behavior of the judges, that is, to their independence on the bench. However, if, as a rule, in order to behave independently, a judge needs to be independent from the parties at the case (and, therefore, also from the executive), it does not follow that institutionally independent judges will automatically behave in an independent way, a point to which we return later. Historically, in democratic countries, the level of judicial independence as well as the role played by courts in the political system has varied.
An international group of specialists from the fields of law, politics, economics, and philosophy address the question of why governments act or do not act according to laws. The authors interpret the rule of law as a strategic choice of actors with powerful interests, rather than as an exogenous constraint on politicians. The rule of law emerges when no group is strong enough to dominate the others, and political actors seek to resolve their conflicts by recourse to law. Law is thus deeply rooted in politics.
The rule of law is a broad concept that encompasses many areas including judicial autonomy, access to justice, human rights, and property rights. It entails the equality of all citizens under the law and predictability in the application of rules and regulations. The past decade has witnessed a growing recognition by political scientists that an independent judiciary can bolster both political and economic development. As nations struggle to consolidate democracy, we have witnessed a surge of promising new scholarship on the conditions under which the rule of law emerges and endures. Judicial independence and the rule of law constitute important bulwarks against the erosion of democratic institutions. According to the separation of powers approach, the rule of law becomes possible when no single actor or group of actors has sufficient power to dominate. In addition, the burgeoning literature on the construction of the rule of law includes impressive scholarship on the key role of nonstate actors, particularly of civil society and the international community.
Although it is currently the most important political ideal, there is much confusion about what the 'rule of law' means and how it works. Brian Tamanaha outlines the concerns of Western conservatives about the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book's examination of the rule of law on a global level concludes by deciding whether the rule of law is a universal human good.
One cannot seem to get through a foreign policy debate these days without someone proposing the rule of law as a solution to one problem or another. The rule of law is undeniably important to peaceful, free, and prosperous societies, but it is no quick fix. Imparting the rule of law to a society with no history of it involves changing the attitudes of masses and elites and creating a political culture in which nobody is above the law. Unfortunately, proponents of rule-of-law reform tend to have simpler, less lasting things in mind, like writing legal codes and sprucing up courts.
The rule of law has become a favored solution to crucial substantive problems in the social sciences. Measures of the concept have proliferated over the past decade, yet scholars commonly question their validity. We argue that measurement validity concerns are largely a result of disagreement over the concept being targeted. We suggest that the broad, multidimensional concept of the rule of law should not guide empirical research, even if the individual concepts from which it is constituted should. Focusing on judicial independence, a central component of the rule of law, we evaluate the validity of thirteen measures. We find support for the validity of a number of de facto measures of judicial independence, and less support for de jure judicial independence measures. Critically, we highlight a significant missing data problem in these data and suggest how this problem is compounded by common practices used to demonstrate robustness.
Populism has traditionally been defined as a cumulative concept, characterized by the simultaneous presence of political, economic, social, and discursive attributes. Radial concepts of populism offer a looser way of spanning different domains. Criticism of modernization and dependency theory, which assumed tight connections between different domains, and the emergence of new types of personalistic leadership that lack some traditional attributes of populism have made cumulative and radial concepts of populism problematic. Populism can be reconceptualized as a classical concept located in a single domain, politics. Populism can be defined as a political strategy through which a personalistic leader seeks or exercises government power through direct, unmediated, uninstitutionalized support from large numbers of followers.
This article offers a comparative review of seven rule of law measures. It demonstrates that the measures differ in both form and appropriateness and that the differences have consequences for the empirical results. The shortcomings are, among others, restrictions in scope and availability of disaggregate data, insufficient codebooks, and unjustified aggregation procedures. In most cases, the task of conceptualization is not grounded in theory, and key principles of the rule of law are left out while more inappropriate elements are included. These findings suggest that more precaution is required in the construction and employment of rule of law measures.
This chapter elaborates a highly stylized and simplified account of the emergence of two features of the rule of law as commonly understood: predictability and equality. Legal historians would stress the role of economic, demographic, technological, scientific, religious, and cultural factors in bringing about and stabilizing institutional innovations as startlingly novel as legal certainty and equality before the law. When describing the role of important social actors in promoting or inhibiting such developments, they would weave into their story a variety of factors, including ideology, irrational passions, improvisation within inherited institutions, and the unexpected consequences of habitual behavior in a changed setting. My objective, in what follows, is both more modest and more theoretical. I aim to clarify the reasons why powerful political actors might furiously resist or warmly embrace the rule of law. We cannot explain why the rule of law does or does not emerge in a specific historical context by invoking nothing but the strategic calculations of powerful political actors. But the self-interested reasons why powerful members of a society might encourage or discourage such a development are undoubtedly relevant and deserve a focused treatment. I ask, first, why governments, with the means of repression in their hands, might be induced to make their own behavior predictable. For help in answering this question, I turn to Machiavelli. His thesis, essentially, is that governments are driven to make their own behavior predictable for the sake of cooperation.
Similarity and analogy are fundamental in human cognition. They are crucial for recognition and classification, and have been associated with scientific discovery and creativity. Successful learning is generally less dependent on the memorization of isolated facts and abstract rules than it is on the ability to identify relevant bodies of knowledge already stored as the starting point for new learning. Similarity and analogy play an important role in this process - a role that in recent years has received much attention from cognitive scientists. Any adequate understanding of similarity and analogy requires the integration of theory and data from diverse domains. This interdisciplinary volume explores current developments in research and theory from psychological, computational, and educational perspectives, and considers their implications for learning and instruction. Well-known cognitive scientists examine the psychological processes involved in reasoning by similarity and analogy, the computational problems encountered in simulating analogical processing in problem solving, and the conditions promoting the application of analogical reasoning in everyday situations.
“To have mastered ‘theory’ and ‘method’ is to have become a conscious thinker , a man at work and aware of the assumptions and implications of whatever he is about. To be mastered by ‘method’ or ‘theory’ is simply to be kept from working.” The sentence applies nicely to the present plight of political science. The profession as a whole oscillates between two unsound extremes. At the one end a large majority of political scientists qualify as pure and simple unconscious thinkers. At the other end a sophisticated minority qualify as overconscious thinkers, in the sense that their standards of method and theory are drawn from the physical, “paradigmatic” sciences.
The wide gap between the unconscious and the overconscious thinker is concealed by the growing sophistication of statistical and research techniques. Most of the literature introduced by the title “Methods” (in the social, behavioral or political sciences) actually deals with survey techniques and social statistics, and has little if anything to share with the crucial concern of “methodology,” which is a concern with the logical structure and procedure of scientific enquiry. In a very crucial sense there is no methodology without logos , without thinking about thinking. And if a firm distinction is drawn—as it should be—between methodology and technique, the latter is no substitute for the former. One may be a wonderful researcher and manipulator of data, and yet remain an unconscious thinker.
This comparative analysis of the judiciaries in Tanzania and Zambia finds that neither one has developed a strong accountability function vis-à-vis the government. It goes on to address why judges in the two countries rarely have restrained the government in politically significant cases, identifying three sets of factors that may explain why the judges perform as they do: the legal culture; the institutional structure; and the social legitimacy of the courts. The study concludes that there are signs in the Tanzanian judiciary of a certain willingness to hold the government accountable in politically salient cases, but that their opportunity to do so is limited, due to institutional, social and political factors restricting the flow of constitutional cases. The Zambian courts have more political cases and opportunities for fulfilling an accountability function vis-à-vis the executive, but are reluctant to assert such authority. This is attributed to the legal culture and to political pressure.
Journal of Democracy 9.4 (1998) 100-114
It is rare that a new political institution performs beyond expectations, especially when one of its main tasks is to hold accountable rulers who have power and seek more of it. Yet among such remarkable successes one must count the performance over the last decade of the new constitutional courts of Eastern Europe. Since the Second World War, the nations quickest to establish constitutional tribunals have been those that had previously lived under authoritarian regimes or worse. Germany, Italy, Spain, and Portugal all established constitutional courts as soon as they became nascent democracies, and the countries of Central Europe followed the same path after the fall of communism. The record of these postcommunist courts has by no means been unblemished, and some of them have become mere tools of the regime. Most, however, have done remarkably well.
Although judicial review had its origins in the United States, these new courts diverge significantly from the American model, and it is essential to understand the ways in which they do so. Unlike the United States Supreme Court, the new European courts are not conventional appellate bodies presiding over hierarchies of general courts and charged primarily, like those lower courts, with the adjudication of particular "cases and controversies" and only incidentally with the power of constitutional interpretation. Except in Estonia, the new European courts reflect a different notion of what a constitutional tribunal should be, a notion that originated with the great legal theorist Hans Kelsen's design for a specialized constitutional tribunal for Austria just after the First World War. It is Kelsen's model that spread through Western Europe after the Second World War and that has now been adopted by the postcommunist countries.
The primary function of the U.S. Supreme Court is to adjudicate disputes presented in a traditional legal form: A "complainant" brings a "defendant" before the court seeking to use the power of the state to order -- and if necessary, to force -- the defendant to do or not to do something. To persuade the court to issue such an order against the defendant, the complainant must show that the defendant violated some legal norm that represents a valid exercise of state power. The validity of the norm can always be called into question, and since modern law is a hierarchical system, all norms must comport with the highest legal norm -- the constitution. Thus any U.S. court, no matter how lowly, may rule on a constitutional question if necessary to a decision of the case before it. For example, in a traffic court a motorist may claim that the police officer's stop was unjustified, violating his constitutional right to privacy.
The key point is that in the American system all judicial decision making is for one purpose only -- to decide the specific dispute between the interested parties that is before the court -- and nothing else. If the complainant drops his suit or the parties settle the case before the court issues a decision, the court will dismiss the case regardless of the importance of the constitutional question at issue. The U.S. Supreme Court prohibits the federal courts from issuing advisory opinions -- that is, whatever is not necessary to decide the specific controversy being litigated. Moreover, in addressing a constitutional question, the court is always aware of the delicacy of its task, which may involve overturning the action of a popularly elected institution. For this reason, U.S. courts try to avoid deciding questions on constitutional grounds if they can legitimately resolve the case on some other basis. Various techniques for avoiding a decision on constitutional grounds have been developed: limiting the right to bring suit to those with a specific kind of direct injury; identifying "political questions" inappropriate for judicial treatment; and allowing the Supreme Court virtually complete discretion over which cases it chooses to hear.
By contrast, the new European courts take the resolution of constitutional questions as their primary mission. They do not treat this task as incidental to lawsuit adjudication, and do not first seek nonconstitutional grounds of decision. While the U.S. Supreme Court's exercise of judicial review, despite the wide public...
Book InformationDemocracy: The Rule of Law and Islam. Edited by Eugene Cotran and Adel Omar Sherif. Kluwer Law International. The Hague. 1999. Pp. 612. Hardback, £131.00, 9041111859.
The Inter‐American Democratic Charter fails to specify the meaning of an “unconstitutional alteration or interruption of the democratic order.” Arguing that the principle threat to democracy in Americas is the violation of the separation of powers by democratically elected leaders, five conditions are outlined to specify when such an alteration has occurred. The crisis in Peru in 2000 is examined to show how the presence of these conditions gave rise to the Charter, and the crisis in Venezuela in April 2002 is used as a test of the Charter. The paper concludes with recommendations for strengthening the Charter. La Charte démocratique interaméricaine omet de donner la signification de la mention “altération ou interruption inconstitutionnelle de l'ordre démocratique” qu'elle contient. Postulant que la menace la plus grave pour la démocratie dans les Amériques est la violation du principe de la séparation des pouvoirs par des dirigeants démocratiquement élus, l'auteur avance cinq conditions permettant de conclure à une altération de l'ordre démocratique. Il analyse la crise qui a secoué le Pérou en 2000 en montrant que ces conditions ont été à l'origine de la Charte, et il réfère à la crise d'avril 2002 au Venezuela pour valider celle‐ci. Le texte se termine par une série de recommandations destinées à renforcer la Charte.
The past decade has brought an unprecedented boom in the study of courts as
political actors in Latin America. We examine the extraordinary diversity of
academic research on judicial politics in the region, identifying the key
questions, findings, and theoretical debates in the literature, highlighting
important conceptual disjunctions, and critiquing the research methods scholars
of judicial politics in Latin America have employed in their work. We close by
suggesting new avenues of inquiry to help advance the collective effort to
understand the roles courts play in Latin American politics.
During the latest decade, empirical research on the causes and consequences of the rule of law has expanded and, in the process, become extremely influential. However, we show that a number of widely used indices of the rule of law are not interchangeable. This lack of interchangeability is reflected in the fact that they are based on different defining attributes, to some extent cover distinct empirical scopes, do not correlate highly with each other, and support different explanatory factors. Until a consensus has been established with respect to the conceptualization of the rule of law, scholars are thus not free to opt for the measure that fits their data requirements best regarding spatial and/or temporal scope. Instead, they must carefully assess the content validity vis-à-vis their stipulated definition of the rule of law. Given the amount of money and time poured into the rule of law agenda, the problems identified reflect the lack of maturity of ‘good governance’ research.