Alternative for Germany

The rule of law is a traditional concept much used but little examined in its current magnitude. It is a cornerstone of contemporary constitutional democracy as underscored by its paramount role in cementing all of the transitions from authoritarian or totalitarian regimes to constitutional democracy. Moreover, rule of law is one of the three essential elements of modern constitutionalism with protection of human rights and limitation/separation of government powers. However it is not clear what precise characteristics the rule of law must possess to ensure a working constitutional democracy. Thus there is no consensus on what rule of law stands for, even if it is fairly clear what it stands against. In order to determine how the rule of law might contribute to establishing the legitimacy of constitutional democracy in a contemporary pluralistic society, I shall first focus on the essential jurisprudential characteristics of the conception of rule of law in three different legal traditions German, French and Anglo-American and then on the contrast between procedural and substantive safeguards. Secondly I will try to point out the apparent convergence which has occurred between these different traditions. Finally I will describe how rule of law could reconcile the need for predictability with that for fairness in its “globalized” formula, which has been recently shaped by sovranational hard law and soft law rules with particular reference to the Venice Commission activity . The idea of the rule of law as the foundation of modern states and civilizations has recently become even more talismanic than that of democracy, but what does it actually consist of? So far, on one hand scholars have ascertained that, in the broadest terms, the rule of law requires that the state only subject the citizenry to publicly promulgated laws, that the state’s legislative function be separate from the adjudicative function and that no one within the polity be above the law. Moreover, that rule of law is one of the three essential elements of modern constitutionalism with protection of human rights and limitation/separation of government powers. We’ve also realized that in absence of the rule of law constitutional democracy would be impossible and that the rule of law is a cornerstone of contemporary constitutional democracy as underscored by its paramount role in cementing all of the transitions from authoritarian or illiberal regimes to constitutional democracy1. Still, on the other hand we’ve found a paradox at the heart of the rule of law, since that ideal demands certainty and condemns ambiguity in the law, but the ideal itself appears unclear and somehow uncertain. As a matter of fact “there is no consensus on what the rule of law stands for even if it’s fairly clear what it stands against”2. Like the concepts of equality or liberty the descriptive meaning of the rule of law is dependent on the prescriptive meaning one ascribes to it. Consistent with this, the rule of law has come to mean different things within different legal traditions, even within a single tradition it is often not clear whether the rule of law ought to be largely procedural or substantive and a few constitutional texts make express reference to the concept German, Turkish, Spanish and some of the new East-European constitutions . Then, in order to determine whether and how the rule of law might contribute to establish the legitimacy of constitutional democracy in the contemporary pluralistic society it is necessary to deal with the following issues. Firstly we have to observe the connection between rule of law and constitutional democracy and modern concept of the rule of law in three different legal traditions. Secondly we will explore the progressive convergence which has occurred between these notions during the 20th century due to the increasing internationalization and transnationalizations of the rule of law. Thirdly we will evaluate the usefulness of addressing the rule of law as a practical legal concept still able to guide and to constrain the exercise of democratic power.

Sovereignty and the National Interest Erik Jones (bio) Much of the world today is torn between national populists and liberal democrats. The national populists put the nation first; the liberal democrats argue for something closer to multicultural multilateralism. In doing so, they offer distinct visions of how sovereignty and the national interest interact. For national populists, sovereignty is an expression of the national interest; whoever wields sovereign authority should ensure that the national interest is served. For liberal democrats, sovereignty is the responsibility to determine what is in the nation's best interests and then to reconcile competing claims and distribute scarce resources accordingly. The two groups also offer contrasting views of world order. The national populists focus on self-help and mutual respect. The liberal democrats emphasise integration, cooperation, and solidarity. Viewed side-by-side, the two worldviews present irreconcilable differences in the constitution of political authority and the structure of international relations. Hence it is tempting to argue that the interaction between national populists and liberal democrats should be limited, particularly when national populism threatens to descend into authoritarianism. But there is a narrow path along which interaction between national populists and liberal democrats can be beneficial, when national populists promise to reconnect members of society who have lost representation within liberal democratic politics. Reconnecting those who fall away from politics is essential to the stability of liberal democracy over the longer term. Indeed, the same point applies for populists from all parts of the political spectrum, and not just the nationalist right that is so prominent in Europe, Turkey, Brazil, India, and the United States today. The question is whether and how populists can effectively represent their constituents while at the same time adapting to liberal democratic norms for reconciling competing interests. That question has not received much attention in the scholarly literature.1 We know a lot more about the origins [End Page 392] and nature of populism, and about how populism can lead to authoritarianism by undermining democratic norms and institutions, than we know about how populists become something closer to mainstream liberal democrats. Research on populists in power is still in its infancy.2 The key to striking a beneficial relationship between national populists and liberal democrats lies in reinforcing the formal and informal institutions that underpin the liberal democratic connection between sovereignty and the national interest. The 'rule of law' debate in Europe and the United States is about protecting those institutions that frame the exercise of sovereignty and ensure that the national interest is defined within the context of liberal democratic politics. So long as those institutions are resilient, national populists will have little choice but to learn how to exercise sovereignty to identify the interests of the nation, rather than bending sovereignty to the service of a national interest they take as given. A study in contrast This relationship between sovereignty and the national interest seems abstract when presented at the start of an essay, but it comes across concretely when laid out in political speeches. Consider the contrast between Donald Trump and Barack Obama. When Donald Trump gave his first address to the General Assembly of the United Nations in September 2017, his message was simple. True patriots everywhere should invest their sovereignty – a word he used twenty-one times during the speech – in the pursuit of the national interest. As Trump explained, 'if we do not invest ourselves, our hearts, and our minds in our nations, if we will not build strong families, safe communities, and healthy societies for ourselves, no one can do it for us'. His only qualification to this notion of self-help is that 'in fulfilling our obligations to our own nations, we also realize that it's in everyone's interest to seek a future where all nations can be sovereign, prosperous, and secure'.3 Trump left open the question how those sovereign nations should reconcile competing claims with one another. Trump's UN speech was different from any given by a United States president to the General Assembly. When Barack Obama spoke at the United Nations the year before, he never mentioned the term sovereignty. There is no question for Obama that the...

In most versions of its history, the Cold War ends with the dissolution of the Soviet Union in 1991. But on the Korean Peninsula, two states remain in a relationship of hostility that has resisted efforts to repair it. The North’s militarized and hereditary communist regime is the main obstacle to normal relations, eventual unity, and liberal democracy on the Peninsula. Nor is liberal democracy entirely secure even in the South, where questions persist about respect for individual rights, adherence to the rule of law, and the possible recurrence of authoritarian rule. South Korean politics is highly polarized, in part because of differences over how to manage its difficult neighbor. Cold War politics in Korea, then, is not only about relations between North and South but also about how the South can strengthen its liberal democracy while coping with a totalitarian North.

Today the most liberal regimes in the world, those of the advanced Western countries, are typically referred to either as liberal democracies or, more often, simply as democracies. This reflects one of the most striking ways in which twentieth-century liberalism differs from the older liberalism that emerged in the late seventeenth and eighteenth centuries. Today, wherever one finds liberalism (understood as constitutional and limited government, the rule of law, and the protection of individual rights), it is almost invariably coupled with democracy (understood as the selection of government officials by universal suffrage). converse proposition, however, has in recent decades been becoming less and less true. With the downfall since 1975 of scores of authoritarian regimes and their replacement by more or less freely elected governments, there are now many regimes that can plausibly be called democratic but not liberal. As a result, the relationship between liberalism and democracy has once again become a subject of intense intellectual and policy debate. Perhaps the most prominent example of this is Fareed Zakaria's 1997 article in Foreign Affairs on The Rise of Illiberal Democracy. 1 Zakaria emphasizes a point that had already been made by other observers more sympathetic than he to the struggles of new would-be liberal democracies in the postcommunist and developing worlds: Even among those regimes that have succeeded in holding genuinely free elections, many have compiled a poor record in terms of such criteria [End Page 121] of liberalism as the rule of law and the protection of individual rights. more sympathetic observers tend to stress the importance of consolidatin g these new democracies, preserving their electoral achievements while strengthening their liberal features. Zakaria, however, concludes that the liberal deficit of these regimes has emerged not in spite of, but in some measure because of, their adoption of the democratic mechanism of popular elections. He thus questions the wisdom of encouraging countries to elect their rulers before the foundations of liberalism are firmly in place. Zakaria puts heavy emphasis on the distinction between liberalism and democracy. Making it clear that he views the former as more important than the latter, he argues for the superiority of liberal autocracy over illiberal democracy. This in turn has prompted discussion of the viability of liberal autocracy (or, more generically, nondemocratic liberalism) in the contemporary world, for the only explicit twentieth-century example of liberal autocracy that Zakaria provides is Hong Kong under British colonial rule. His primary example is the constitutional monarchies of nineteenth-century Europe, which certainly did have many of the elements of liberalism in place before they adopted universal manhood suffrage. But it is also noteworthy that all of these pre-twentieth-century liberal nondemocracies have now become democratic. This raises the question of why liberal regimes have all tended to evolve in a democratic direction. Is it due merely to adventitious circumstances or extraneous factors, or is it somehow related to the intrinsic principles of liberalism? That is the issue I wish to explore.

This essay contrasts the respect for “thick” rule of law displayed in the 2001 Judicial System Reform Council (JSRC) Report with the attack on thick rule of law embodied in revisions to Japan’s Constitution proposed by Japan’s dominant political party (the Liberal Democratic Party or “LDP”). When the JSRC considered its reform agenda, it did so with the knowledge that Japan’s democratic Constitution, which emphasizes respect for individual rights, had provided a stable foundation for law and politics for more than five decades. The JSRC proposals tend to strengthen the protection of individual rights and exercise of popular sovereignty that lie at the core of this Constitution.Some LDP proposals for constitutional revision would have the opposite effect, restricting individual rights and transferring greater authority to government officials. (The most recent comprehensive LDP program for such revisions are included in “Draft Reform if the Constitution” (kenpo kaisei soan) published in March 2012.) The LDP proposals suggest that the understanding and belief in rule of law held by the drafters of its “Draft Reform” is dramatically different from that possessed by JSRC members and by advocates for a thick rule of law around the world.

The Constitution of the Republic of Albania has provided as government order the Parliamentary Republic. This means that our state has decided to support a free democratic regime, excluding any arbitrary or authoritarian rule. Among others, one of the essential elements of the functional democracy is the recognition and enforcement of the requirements of the rule of law’s principle. The rule of law is a universal principle. The essence of this principle is to guarantee the fundamental rights and freedoms of individuals. According to the aforementioned principle, the state has the responsibility to act appropriately to safeguard the rights of individuals, which fulfills through the establishment and functioning of the courts. The rights of individuals have subjective character. Violation of those rights, despite the reason, entitles a person to approach the competent authorities to require restitution, or restore them. During the exercise of their authority, these bodies should effectively protect the rights of individuals without prejudice to their rights (Article 1/c of the Law No. 49/2012 “For Administrative Court in Albania”). The most important thing that we have to underline is the fact that the competent authorities (administrative courts), during exercising their competency for defending in effective way the rights of individuals, must apply the law in a right manner, in order not to prejudice the rights of other individuals. This paragraph shall constitute the purpose and objectives of this paper The methodology used is qualitative, comparative and analytical between all the principles of administrative trial, especially in Albania. This paper will serve to other studies of the field ongoing since the Administrative Court is a new court in the Republic of Albania. And for that fact, books or publications in this field are few in number in Albania. DOI: 10.5901/mjss.2015.v4n1p389

This volume is designed to mark the outstanding legacy of Professor Wojciech Sadurski’s scholarship in the field of comparative constitutional law. It provides a rich palette of chapters that aim to rethink the state of the art in this field, in light of the latest challenges to the foundations of liberal constitutionalism. Edited by former doctoral students of Professor Sadurski, the volume transcends the celebration of his major academic contributions by linking his pioneering writings, inter alia on Central and Eastern Europe (CEE), to core dilemmas in the turbulent state of the rule of law in western democracies. It consolidates contributions by numerous current and former students, as well as colleagues and friends around the globe in admiration of his didactic style, tireless work, civil dedication, and priceless commentary influencing the work of generations of constitutional scholars. Besides drawing on Wojciech’s fields of interest, the book aims to provide a full overview of the crucial dilemmas in dealing with the current decline of liberal democracies and populist challenges to the rule of law throughout Europe—events that he predicted early on in his writings about the Jörg Haider affair in Austria and the introduction of Article 7 TEU by the Amsterdam Treaty. The major themes of the chapters are thus as follows: 1. Populism and democratic decline in CEE; 2. The EU role: Article 7 TEU vis-à-vis the rule of law in Hungary and Poland; 3. Constitutional review and militant democracy: between public reason and new forms of populism.

It would not be unreasonable to argue that very little is left unsaid regarding the rule of law. Thousands of books and research works are published across the globe, arguing a multitude of theories and concepts in this regard. Academia worldwide has tiresomely grappled with defining the rule of law and establishing its conceptual framework, including the function's scope, but without much success. Colonization of this concept by the Western scholarship is one of the serious problems faced by the essence of the rule of law. Western academia essentially connects the rule of law with liberal democracy as its motherly creator. It believes that rule of law walks in lockstep with liberal democracy; hence, it argues that no other than liberal democracy can nurture the rule of law. Due to this reason, in many, academia has been sharply divided between sections appreciating it as a boon to liberal democracy and suspecting its congenital relation with it. Certain scholars claim that the rule of law is an offspring of Western liberalism. However, some view that the rule of law and liberal democracy do not necessarily walk in lockstep. Certain critics have pointed out that the Western approach overlooks the cultural component of the rule of law. Going further ahead, they contend that the concept of the rule of law is often deceitfully used by Western democracy as an instrument of encouraging influence on those having different political systems. Consequently, the concept of the rule of law, particularly in its connotation presented by Western scholars, has faced many critics, comments, and views. As a result, it has become academically vague, functionally deluded, and politically dubious. This article intends to examine the contending arguments and cultural elements of the rule of law for promoting the approach of decolonizing the concept.

Introductions. Theory and critique of the rule of law, Danilo Zolo. The rule of law: an historical introduction, Pietro Costa. Part I: The European and the North-American historical experiences. The rule of law and the 'liberties of the English'. The interpretation by Albert Venn Dicey, Emilio Santoro. Popular sovereignty, rule of law and 'rule of judges' in the United States of America, Brunella Casalini. Rechtsstaat and individual rights in German constitutional history, Gustavo Gozzi. Etat de droit and national sovereignty in France, Alain Laquieze. Rechtsstaat and constitutional justice in Austria. Hans Kelsen's contribution, Giorgio Bongiovanni. Part II: The contemporary theoretical debate. The rule of law between past and future, Luigi Ferrajoli. Beyond the rule law: tyranny of judges or anarchy of lawyers?, Pier Paolo Portinaro. Rule of law and gender identity, Anna Loretoni. Machiavelli, the republican tradition and the rule of law, Luca Baccelli. Rule of law and spontaneous order. Bruno Leoni and Friedrich von Hayek's criticism of the Euro-continental rule of law, Maria Chiara Pievatolo. Part III: Rule of law and colonialism. Rule of law and natives in North America, Bartolome Clavero. The colonial model of the rule of law: the African constitution in Guinea, Carlos Petit. Part IV: Rule of law and Islamic culture. Islamic perspectives on constitutionalism, Raja Bahlul. The rule of morally constrained law. The case of contemporary Egypt, Baudouin Dupret. Part V: Rule of law and oriental cultures. 'Asian values' and the rule of law, Alice Ehr-Soon Tay. The rule of law and Indian society. From colonialism to post-colonialism, Ananta Kumar Giri. The Chinese legal tradition and the European spirit of the rule of law, Wu Shu-chen. Modern constitutional development in China, Lin Feng. Human rightsand the rule of law in contemporary Chinese legal philosophy and political practice, Wang Zhenmin and Li Zhenghui. Appendix. Bibliographical essay, Francesco Paolo Vertova. The authors. Name index.

Lincoln: A Very Short Introduction explores the problems that confronted Lincoln and liberal democracy — equality, opportunity, the rule of law, slavery, freedom, and reconciliation. These problems and Lincoln's responses to them are set against the larger world of American and trans-Atlantic liberal democracy in the nineteenth century. Lincoln is shown to be an Enlightenment figure, who struggled to create a common ground between a people focused on individual rights and a society eager to establish a certain moral, philosophical, and intellectual bedrock. Lincoln insisted that liberal democracy had a higher purpose, which was the realization of a morally right political order.

As is well known, the rule of law is the principle that power should be exercised based on laws enacted and revised by the legislature. Therefore, the rule of law is a principle that power cannot be arbitrarily exercised or exercised by a person in power, but must be exercised only on the basis of law. In other words, the rule of law is to prevent abuse of power by limiting the arbitrary and subjective exercise of power by requiring the exercise of power to be based on the law. However, opinions are still divided as to why the rule of law is necessary and what it means. The rule of law is a principle to prevent and limit abuse of power by requiring the exercise of power to be based on the law, or guarantee and protect individuals' freedom and rights by limiting the exercise of power to be based on the law. These various views on the rule of law are related to what the national community wants to achieve through the rule of law. I think that the exercise of power is to prevent abuse of power and to guarantee and protect individuals' freedom and rights by demanding that it be based on the law. In other words, when the exercise of power is arbitrary and subjective by the person in power, it only brings about the expansion of power, but individual freedom and rights are bound to be limited. Therefore, the rule of law should be exercised on the basis of 'law' rather than the subjective will of individuals or power, and infringement of individual freedom and rights by powerful people or power groups should not be recognized without the basis of law. However, given that the law is enacted by the power group and reflects the subjective will of the power group, it is problematic to call it the rule of law if the exercise of power is based on the law. This is because if power is exercised based on the law only by the arbitrary and subjective will of the powerful person or the power group, it can be reduced to a tool that can suppress individual freedom and rights. In other words, if power is exercised based on laws only for power people or power purposes, it can mean the expansion of power, not the restriction and abuse of power. Therefore, if the purpose of the rule of law is to guarantee and protect individuals' freedom and rights, the law for the rule of law should be recognized only when power is exercised based on the law that is recognized as having practical effect to guarantee and protect individuals' freedom and rights.

Historically, modern conception of rule of is integrally related to rise of liberal democracy in West. Indeed, for many, the rule of law means a liberal democratic version of rule of law. There is, however, little support for liberal democracy, and hence a liberal democratic rule of law, among state leaders, legal scholars, intellectuals or general public in China. Accordingly, if we are to understand likely path of development of China's system, and reasons for differences in its institutions, rules, practices and outcomes in particular cases, we need to rethink rule of law. We need to theorize rule of in ways that do not assume a Western liberal democratic framework, and explore alternative conceptions of rule of that are consistent with China's own circumstances. To that end, I describe four competing thick conceptions of rule of law: Statist Socialism, Neo-Authoritarian, Communitarian and Liberal Democratic. In addition, I contrast all four variants of rule of with rule by law, and suggest that China is in transition from rule by to some version of rule of law, though probably not a Liberal Democratic one. I then address a number of thorny theoretical issues that apply to rule of theories generally and more specifically to applicability of rule of to China. For instance, can minimal conditions for rule of be sufficiently specified to be useful? Should China's legal system at this point be described as rule by law, as in transition to rule of or as an imperfect rule of law? How do we know that goal of legal reforms in China is rule of as opposed to a more efficient rule by or some third alternative? Given many different interpretations of rule of law, should we just stop referring to rule of altogether, or at least reserve rule of for Liberal Democratic rule of states? Finally, turning from theory to practice, are non-Liberal Democratic rule of systems sustainable?

The rule of law is often said to be a liberal ideal, intrinsically associated with the enlightenment and, being necessary for each, supplying the link between liberalism and constitutionalism. In this paper, that idea is challenged. The rule of law, even in its most “formal” conception embraced by Lon Fuller, cannot be severed from an account of law which is thoroughly infused with moral purpose and value. The specific values which inform this principle are often portrayed as confined to action guidance, restraint of state power, and the protection of individual rights. Framed as such, the rule of law often conflicts with the moral and political obligation of political authority to preserve the conditions necessary for the community to survive and flourish. An alternative conception of the rule of law, rooted in the classical legal tradition, sees no conflict here and can thus provide the intellectual framework needed to explain how inaction on behalf of public authority can be as much of a threat to the rule of law as abusive action. With this in mind, the duty upon the state to respond to threats such as climate change or the COVID-19 pandemic is itself best understood as one arising from the requirements of legality. Analysis of state action or inaction in the face of such threats must thus begin with this duty in mind as a constitutive aspect of the rule of law. The threats posed by the environmental emergency are best viewed by reference to the communal underpinnings of the rule of law. The liberal desire to frame all moral issues in the language of individual rights should therefore be resisted. The framework of an individual right to a liveable climate may be the best way for liberal constitutionalism to frame the climate crises, but it is by no means the only way. Indeed, it is a manifestly impoverished attempt to concretise what can only be understood as a threat to the common good itself, grounded within the needs of the global community as a whole.

When we understand the ontological, political and legal underpinnings associated with the concept of freedom, liberty and rights, we understand the relationship between rights and laws. Rights can be understood as liberties or as laws. Liberties can be understood as de facto rights or as de jure rights. It is de jure rights that are recognized as laws that provide the basis for the rule of law. It is the rule of law that provides the basis for equal rights and equal justice in an ideal republic. Rights, laws and the rule of law are distinct. Rights are self-evident truths. Laws are imperatives backed by sanctions (John Austin). The rule of law is a principle that purports that the recognition de facto and de jure rights provide the basis for political, social and economic justice. People live by the rights recognized by law. As such, the rule of law advocates two fundamental underpinnings in a republic: (1) the recognition of rights as the basis for equal rights and equal justice, and (2) the recognition of law as the basis for governance. (H.L.A. Hart). However, since the recognition of law is the recognition of rights, the recognition of rights precedes the governance by law principle. What is fundamental to the rule of law is that it recognizes rights, legitimizes political rule and administers equal/blind justice (Meyers, 1213). As such, no branch of government can weaponize laws to terminate recognized individual rights. The maxim of the republic should be – while anyone can be the ruler, everyone lives as free as the ruler. Majority rule and protection of self-evident individual rights is fundamental to an ideal republic. Keywords: law, equal rights, equal justice, impunity, rule of law

This essay tracks the concept of militant democracy in the jurisprudence of the European Court of Human Rights, where it has migrated from a principle that authorizes a state to act in a militant manner to preserve democratic processes to one that entitles a state to establish perimeters and guard against threats of a different kind. Militant democracy now authorizes a state to assume a militant stance toward the exercise of religious freedom that threatens substantive conceptions of democracy instantiated in its constitutional order. The essay identifies four substantive conceptions of democracy – liberal democracy, secular democracy, republican democracy, and conservative democracy – to which militant democracy has migrated in recent years. It argues that militant democracy’s migration signals an ominous shift in the way in which the European Court of Human Rights comprehends the relationship between religion and state power.