Part III Regimes and Doctrines, Ch.38 Theories of Transitional Justice: Cashing in the Blue Chips

Author(s):  
Nesiah Vasuki

This chapter examines the utopias called forth by the marriage of human rights accountability mechanisms on the one hand, and, on the other, arguments about the practical significance of these initiatives as preconditions for development, democracy, and political society. Transitional justice is seen to marry the ethical charge of the human rights field’s march against impunity, with an instrumental potential facilitating transition from the rule of violence into the rule of law. If the normative theories and agendas implicated by this marriage are advanced as being in the interests of justice, the accompanying instrumental theories and agendas are advanced in the interests of transition. Justice and transition operate here as allied and mutually reinforcing aspirations of and rationales for transitional justice institutions. Thus, this chapter identifies and analyses the stakes that attend this marriage of ‘ethics’ and ‘expertise’ in constituting the utopian political imagination of transitional justice.

2020 ◽  
Vol 20 (2) ◽  
Author(s):  
Nkatha Kabira ◽  
Robert Kibugi

On 27 August 2010 Kenyans celebrated the promulgation of a new Constitution. This Constitution aimed at fundamentally transforming the governance framework through far-reaching institutional, administrative, legal and policy reforms. Ten years later this Constitution was put to the test when the government of Kenya reported the first COVID-19 case. In this article the authors argue that even though Kenya put in place a transformative Constitution intended to consolidate the rule of law, democracy, human rights and governance, the government's response to the COVID-19 pandemic questioned the transformative character of the Constitution and exposed inherent contradictions embodied in the Constitution. The article demonstrates that the Constitution is a double-edged sword, a site of tension and contradiction, on the one hand, and a site of hope and transformation, on the other.


2020 ◽  
pp. 174387212097533
Author(s):  
Johan van der Walt

This short article on Peter Fitzpatrick’s conception of “responsive law” analyzes the ambiguous temporality that Fitzpatrick discerned in modern law. On the one hand, law makes the claim of being fully present and therefore already and completely contained in itself. This aspect of law reflects the law’s claim to “immanence,” that is, its claim of always being able to rely strictly on its own operational terms without having to take recourse to any consideration not already contained within itself. It is this aspect of law that renders the ideal of the “rule of law” feasible. On the other hand, the law’s claim to doing justice to every unique and therefore every new case also demands that it takes leave of that which is already settled within it. This aspect of law can be called its “imminence.” The imminence of the law concerns the reality that law always finds itself on the threshold of that which has not yet been said and must still be said. The article shows how Fitzpatrick relied on Freud’s concept of the totem to explain the “wondrous” unity of its immanence and imminence.


2019 ◽  
Author(s):  
Hsi-Ping Chen

The German Law on public procurement remedies, implementing the EU Remedies Directives into national law, has to engage in a balancing act between effective legal protection of bidders and the necessary acceleration of the award procedure. The book develops solutions for conflicts between the abovementioned opposing interests, which are consistent with the pluralistic paradigm of the European legal area, and the standards of assessment of the EU primary substantive law on public procurement. The Europeanisation of the German Law on public procurement remedies is analysed in detail. The work deals with the establishment and improvement of effective legal protection of bidders on the one hand and, on the other hand, shows that the acceleration of the award procedure within the framework of the procedural system is bounded by the rule of law. The book carves out strengths and deficits of the German Law on public procurement remedies.


2021 ◽  
Vol 27 (2) ◽  
pp. 116-120
Author(s):  
Teodora Aurelia Drăghici ◽  
Gabriel Cătălin Predescu

Abstract The legal significance of the right to health care, in particular and of other fundamental rights in general, on the one hand unknown to citizens and on the other hand known, minimized or ignored by state authorities and institutions, will certainly lead to abuses of law coming from the latter, abuses that cannot be tolerated by the rule of law.


2021 ◽  
Vol 17 (4) ◽  
pp. 723-741
Author(s):  
Krisztina Juhász

Abstract The study, leaning on the concept of ‘authoritarian equilibrium’ introduced by R. Daniel Kelemen on the one hand, and new intergovernmentalism as a fresh theoretical approach of the European integration on the other hand, investigates if we can talk about the disruption of the ‘authoritarian equilibrium’ as a consequence of the split up between Fidesz and the EPP, and the adoption of the rule of law conditionality mechanism. In other words, whether we can talk about an initial authoritarian dis-equilibrium? Or can we rather talk about a converse process due to the mechanisms of new intergovernmentalism resulting in the further stabilisation of authoritarian governments and the ineffectiveness of the EU measures devoted to the protection of rule of law? Using qualitative resource analysis of the relevant secondary literature and the documents and legal acts of the EU and its institutions the paper comes to the conclusion that while we have witnessed efforts to disrupt the partisan and the financial support of the Hungarian governing party, these efforts were neutralised by the mechanisms of new intergovernmentalism and as a consequence we still cannot talk about an initial authoritarian disequilibrium in the EU.


2020 ◽  
pp. 243-266
Author(s):  
Ioannis E. Tzamtzis

The contrast between Rome’s difficult and bloody conquest of Crete on the one hand and the absence of any conflicts after the island’s integration into the Roman imperium on the other has not escaped the notice of modern scholars. It has often led to the suspicion that the conquerors had, from the start, disempowered the institutional idiosyncrasies of the conquered. However, careful scrutiny of the literary and epigraphic sources allows for the development of a more complex picture. That picture depends partly on the density of political, military, and institutional events that befell Crete in the last third of the first century BCE, and partly on the interaction between Roman legal culture and a Dorian mentality profoundly rooted in the island’s population. From the artificial creation of a provincia Creta-Cyrenaica (following a twofold military campaign and a conflict between Q. Metellus and Cn. Pompeius) to the experience of the confederative Creta libera, led by a Kretarchas, under the triumvirate; from the conservation of the ‘Gortyn code’ at the turn of the first century CE to the syssitia of Lyttos at the end of the second; from the introduction of the Campanian factor on the territory of Cnossos by Octavian to the persistent memory of a semi-proprietary system for the agricultural exploitation of the Messara plain: the composition of the Cretan legal landscape in the time of the Late Republic and the Principate is reminiscent of a Mediterranean fresco. This composition will be outlined in this chapter in order to give a more nuanced picture of Crete’s legal culture.


2021 ◽  
Vol 43 (2) ◽  
pp. 281-293
Author(s):  
Jakub Hudský

The growing influence of populists on the exercise of power in many European countries made it necessary to analyze populism also in the context of its relation to law and jurisprudence. Populism as an anti-liberal structure introduces a different view on many demoliberal legal institutions, including the key concept of the rule of law. The first part of the article focuses on the concept of populism and its analysis to the extent that is justified by the chosen topic. Investigating the current scientific discourse allows the thesis that populism has a dualistic character. On the one hand, it can be seen as a set of ideas, based on specific “material” assumptions, but on the other hand, it is a specific modus operandi used to promote any ideology. The second part of the article attempts to analyze the concept of the rule of law and focuses on its goals as well as the role it plays in the structue of liberal democracy. In this context, it should be noted that the meaning of the rule of law cannot be reduced solely to the principle that not only citizens, but also authority can act only within the limits of valid and binding law. For the rule of law — by clearly delineating the boundaries of power — also creates a broader context for the functioning of the system: specific “rules of the game” which define the way and rules of its functioning. In this sense, the rule of law is a key element of liberal democracy, which, although based on the power of the poeple, constitutes procedures and mechanisms that prevent its implementation to an unlimited extent. The third part of the paper summarizes the theses indicated in previous parts. Among the basic ideological tenets of populists is the pursuit of institutional unlimited power of the people. However, such a belief is incompatible with the basic demoliberal assumption that all power and its functioning should be subject to a rigid procedural framework, the violation of which is unacceptable. would seem that the rule of law — which is, after all, the realization of those restrictions within the liberal democracy framework — will be rejected by populists in advance. However, the populists do not deny the necessity of the rule of law existing, but modify it in such a way that complies with their tenets. Populists emerge from the agonistic conviction that the rule of law in the demoliberal discourse — although presented as politicaly neutral — in fact served only the interests of the elites and the establishment. With populist views gaining real influence on power, the time comes for the rule of law to be an instrument in the hands of the people, serving only the realization of their free will in the greatest possible extent.


2020 ◽  
Vol 2 (1) ◽  
pp. 1-15
Author(s):  
Ivan Geshev ◽  
Nikolay Marin

The article aims to reveal the nature and specifics of the alternative method of modern banking ‘Hawala’, which makes it on the one hand, extremely convenient for use by organized criminal groups, and on the other, difficult to be investigated and proven. The authors trace Hawala’s historical roots, referring to the ancient customary law, and point out the strict rules on which it operates. It highlights that, with the development of information technologies, the Hawala systems’ principles have found a new application, from which organized criminal groups benefit. The article clarifies how the Bulgarian legislation incriminates money laundering and the possible use of the ‘Hawala’ system for this and other criminal activities. Attention is paid to the Bulgarian experience in the investigation of a network of persons involved in the use of the Hawala method for concealing, particularly serious crimes. The conclusion is made that the Hawala phenomenon poses a serious threat to the rule of law in any country, and the Bulgarian legislation needs to be adapted in order to provide effective mechanisms to counter such non-conventional type of crime.


Author(s):  
J. M. Bernstein

This chapter analyzes the concept of rule of law. It examines Gustav Radbruch's theory since his argument against the extremes of Nazi law was a pivotal moment in the re-emergence of antipositivist conceptions of legality. It then elaborates Lon L. Fuller's account of eight constitutive, formal features of law that, he contends, begin to get at the “inner morality of law.” Next, the chapter offers a version of Caesar Beccaria's argument that the formal and procedural elements constituting the rule of law should be conceived as, on the one hand, generating the necessary conditions for relations between the citizen and the state and, on the other hand, among citizens themselves that will be sufficient to free individuals from coercive, force-based relations both among themselves and between themselves and the state.


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