The Conservative Case for Precedent

Whereas lawyers usually pay only attention to the added value of majority judgments in courts, we have taken an interest in the separate opinions of the European Court of Human Rights (the Court). The jurisdiction of this court stretches from Westport (Ireland) to Wladiwostok (Russia), and from Iceland to Cyprus. Member States of the Council of Europe have a right to select a national for the Court, and are politically expected to accept the Court's jurisdiction. The Preamble of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) states that the participating European countries have ‘a common heritage of political traditions, ideals, freedom and the rule of law’. Article 51(2) ECHR entitles any judge to deliver a separate opinion, and pursuant to Article 43 the judge of the State in the dock sits ex officio. These two articles taken together inspired us to hypothesise about the separate opinion: does a judge dissent more often if the majority finds a violation of the Convention by his/her own country? A separate concurring opinion might be understood if we consider the judge as an intermediary between the international court and national audiences. Both ways, separate opinions are seen as expressions of a national orientation. On the basis of a quantitative research of the voting pattern from 1991 to 1995 we may conclude that the Court has become a truly international court, since it does not show any impact of national backgrounds. However, underneath the surface of figures we found some striking examples of national bias in separate opinions. In the second half of this article we bring them together under the heading of conservatism and judicial restraint – a separate undercurrent of the Court's mainstream of liberalism and judicial activism. There is not just one rule of law in Europe, there are many rules of law. But to see them you have to look beyond the majority judgment.

Any discussion of European Union counter-terrorism law poses challenges. There is a challenge for the conservative observer that sees the former economic community with power akin to that of a sovereign state. For the liberal observer, the substance of much EU counter-terrorism law is so far-removed from European ideals of respect for human rights and the rule of law as to be rather alarming. In the present context, a book exploring judicial review of counter-terrorism action, there are also challenges. In the first half of this paper the idea that the ECJ is an appropriate institution for review of counter-terrorism law is subject to challenge. The ECJ has been the subject of much praise for its judicial review of counter-terrorism law – but that praise often overlooks the Court’s limitations. In earlier work it was possible to speak of ‘the difficult position of the European judiciary’. In that work the analysis set out the problem the Court faces in striking an appropriate balance between rules of EU constitutional law on division of powers and the protection of human rights. In this chapter the analysis takes a further look at the Court’s work in light of its history and practices. A key question is whether the Court of Justice conducts review in a manner appropriate to counter-terrorism law. The substantive challenge for the Court of Justice in more recent cases has been to reconcile overlapping rules of counter-terrorism law with legal principles such as the rule of law. Thus, the second half of the paper turns to the Court’s emerging counter-terrorism jurisprudence. That jurisprudence, in particular the line of cases dealing with restrictive measures, now ranks amongst the most discussed judgments in its history. After its judgment in Kadi I the Court is seen as a bastion of the rule of law in the face of executive power that has a global reach. That judgment was undoubtedly a positive one for the rule of law but it left many questions without answers. These questions – on intensity of review, secret evidence, and due process – have since been the subject of litigation in Kadi II and other cases. The central aim of this paper is to challenge the complacency in much European legal debate that courts – and the Court of Justice in particular – can be relied upon to control executive power. The paper argues that although they are a necessary part of a system of constraint they are by no means sufficient by themselves.

Constitutional right to social security

Protection of constitutional identity in light of the jurisprudence of the Constitutional Court of the Republic of Poland – a comparative study

Today, the concept of law and order is reproduced through close attention in the scientific literature. This integrated interest, first of all, requires a precise definition of this category in the theory of law, its detailed and comprehensive review and determination according to practical necessity. Law and order is a necessary condition for the functioning of all social services, the stabilization of sociopolitical processes and the formation of true democracy. Legal order is a complex formation, its research should be carried out using a system of methods. In this case, the analysis of law cannot be limited to the �legal method� developed by analytical jurisprudence, which consists of a dogmatic in nature qualification of legally significant situations. The study of the problem of law and order, their unambiguous interpretation is extremely important due to the fact that all without exception, the branch of legal sciences, within which various aspects of law and law enforcement process are studied with its provision. The legal culture of the population is manifested in respect laws, their knowledge, observance and implementation. It provides citizens with the ability to defend their rights and be accountable for their responsibilities. The relevance of the study is due to the fact that today there are virtually no scientifically sound mechanisms for automatic extrapolation of constitutional and legal knowledge into the content of legal norms. In view of this, it is necessary to scientifically comprehend and generalize the practice of the Constitutional Court of Ukraine, which is the legal basis for developing mechanisms of constitutionalization. The modern interpretation of the rule of law is a combination of the provisions of the theory of legal positivism and the ideology of natural law. The legal order in the general context is considered, first of all, as a reflection of legal existence, one of the means of functioning and reproduction of the existing law. The phenomenon of constitutionalization is the most important means of ensuring the rule of law and is a characteristic (condition, requirement) of activities related to lawmaking, due to the formation of the domestic socio-normative system. It is expedient to consider the rule of law as a supra-sectoral (inter-sectoral) phenomenon that cements the leading branches of national law. The problems raised are quite complex, multifaceted and cannot be studied within a single scientific investigation and require further scientific research, which will result in new scientific knowledge about the rule of law and the process of its constitutionalization. The vast majority of these problems were outlined by the author of the article in a single monograph. However, the declared provisions may be the subject of new scientific discussions, contribute to qualitative changes in general theoretical jurisprudence and constitutional law, and thus be a guide in the constitutional, judicial and other reforms currently underway in Ukraine.

Much mainstream legal comment on human rights law presents an unhelpfully crude picture of disagreement concerning the significance that should be attached to human rights in particular cultural co...

The study proceeds from the study of the nature of the constitutional judiciary as a work with political dimensions, ie, legal work with political implications. Legal frameworks, that is, it regulates political activity with legal rules, which led the Authority to think about creating a judicial body to monitor the constitutionality of laws that can deter the legislative authority and commit them to walk within the constitutional framework and achieve the principle of legality and prevent the legislative authority from abuse Stamal powers and the emphasis on the rule of law. Therefore, the descriptive approach was used in dealing with the research topics and details based on the different sources. The research was divided into a preface, two demands, and a conclusion. The first one dealt with the political control over the constitutionality of the laws, which is either by assigning the task of oversight to the legislature, On the constitutionality of laws, and dealt with the second demand judicial control over the constitutionality of laws and chose the model of judicial control in the United States and then Egypt, which established the Supreme Constitutional Court and Iraq, which established the Federal Court, which is the subject P Search in the Constitution of Iraq in 2005

Acknowledgments.- Introduction Imer B. Flores and Kenneth E. Himma.- The Concept of the Rule of Law Courtney Taylor Hamara.- Plato and the Rule of Law Brian Burge-Hendrix.- Kantian Re-construction of Intersubjectivity Forms: The Logic of the Transition from Natural State to the Threshold of the Civic State Andrzej Maciej Kaniowski.- Radbruch's Formula, Conceptual Analysis, and the Rule of Law Brian H. Bix.- Law, Liberty, and the Rule of Law (in a Constitutional Democracy) Imer B. Flores.- The Rule of Law: Is the Line between the Formal and the Moral Blurred? Gulriz Uygur.- Political Deliberation and Constitutional Review Conrado Hubner Mendes.- The Rule of Law and Human Rights Judicial Review: Controversies and Alternatives Tom Campbell.- The Rule of Law, Judicial Supremacy, and Legal Positivism Kenneth Einar Himma.- Retroactive Application of Laws and the Rule of Law Juan Vega Gomez.

The rule of law is considered by common consent to be a 'good thing'. It is one of those essentially contested concepts every theorist, advocate, and political protagonist wants to claim for her or his own. This is not surprising, for in common political debate 'rule of law' is a shorthand expression of important values concerning protection from tyranny and what is less often emphasised equality.1 This equality has two dimensions of state and citizen, and of personswith no special treatment accorded higher classes or status groups as was the case in feudal society. The English law of persons which, as Maitland put it, at one time comprised nobles, clerics, monks, serfs, slaves, excommunicates and outlaws2 (not to mention children and women), came to know virtually only the abstract individual as bearer of universal legal rights and duties. This transformation was part of a broader social and ideological movement, for the rule of law is the fundamental legal component of the political philosophy of liberalism; and as with all liberal concepts, at one time it had a sharp progressive cutting edge. The difficulty is that formal equal treatment of those who are substantively unequal perpetuates, and may indeed compound, substantive inequality. This understanding might have been reached by classical philosophy; if justice consists in treating equals equally and unequals unequally, as Aristotle said in the Politics, then surely it is a logically inevitable conclusion that it is unjust to treat unequals equally. But this leap requires a prior determination: that inequalities of wealth, opportunities, and educational and occupational skills are contingent and are matters of societal concern. For much of human history those inequalities were regarded as inevitable, and indeed by some people as reflecting inherent and ineradicable personal differences. Attempts to interfere with them were seen charitably as fatuous or at worst as contrary to divine or natural law. It is one of the central moral insights of socialism, which has reoriented even the politics of its opponents, that such inequalities

The Independent Judiciary in an Interest-Group Perspective

In modern conditions, the study of the sources of constitutional law of foreign countries is extremely relevant. The scientific article determined that judicial precedent is the main source of constitutional law of the states of the Anglo-Saxon legal system and an auxiliary source of constitutional law in the Romano-Germanic legal system. The scientific article also focuses on the fact that on February 23, 2006, a fundamental Law was adopted in Ukraine – the Law of Ukraine «On the Implementation of Decisions and Application of the Practice of the European Court of Human Rights». It was determined that the adoption of the above-mentioned legislative act had at one time not only a theoretical significance for legal science, but primarily a practical significance for the functioning of the courts, since the requirement of this legislative act is the strict implementation of the decisions of the European Court of Human Rights, which in turn recognizes precedential law. The work also determined that earlier, court precedent in Ukraine was not a universally recognized source of constitutional law. However, over time, court precedent began to take on extremely important importance, and domestic courts increasingly operate with the practice of higher courts when making certain decisions. Therefore, the scientific article substantiates the importance of the study of judicial precedent as a source of constitutional law in foreign countries, since the relationship to this source of constitutional law in common law states and continental law states is fundamentally different. Also, in the scientific article, special attention is paid to issues related to the practice of applying judicial precedent in each of the modern legal systems. In particular, it is determined what influence the court precedent had on the development of constitutional law, whether courts act as subjects of judicial law-making or not, the main aspects of the court precedent and its relationship with judicial practice are determined. The scientific article also highlights how judicial precedent is applied in France, Germany, Great Britain, as well as specific features of its application in Ukraine. As a result, it was determined that judicial precedent is determined by law as a special source of constitutional law of foreign countries, and therefore for Ukraine it should also occupy a particularly important place in the system of sources of constitutional law, although at the same time it is inferior to the normative legal act as a fundamental source of constitutional law - the German legal system, which includes Ukraine.

The Questionnaire forms the basis for the twenty-nine national reports which were prepared as part of the research project ‘The Role and Future of National Constitutions in European and Global Governance’, funded by a five-year European Research Council grant. The Questionnaire contains three main parts, which address the following issues: (1) constitutional culture and constitutional amendments regarding EU membership; (2) constitutional/fundamental rights, the rule of law and constitutional adjudication regarding EU measures such as the Data Retention Directive, European Arrest Warrant and ESM Treaty; and (3) novel challenges that are increasingly highlighted in the wider context of global governance (i.e. beyond the classic international treaties that advance human rights, peace and environmental protection) in relation to democratic participation, judicial review and the rule of law. The different parts of the Questionnaire each start with a brief background outlining the specific constitutional issues or challenges encountered in some Member States, and subsequently invite the national constitutional law experts to explore these in relation to their respective countries. Whilst the mainstream English language European constitutional discourse has typically focused on autonomous EU constitutional law, the Questionnaire seeks to make available case law, doctrine and constitutional debates from the perspective of a multitude of national constitutional systems. It should be noted that the Questionnaire was prepared in 2013-14 when critical scholarly and public discussion about EU and transnational governance was generally rare; the Questionnaire does not address the recent illiberal trends.

Political change, or transition, coming after conflict and repression, raises a multitude of challenges such as how to deal with the past while seeking to build a future of more than just hopes for peace, prosperity and a good life for all. This requires social change. The herculean task of making that change positive and far reaching requires the concerted effort of many institutions of governance, civil society and private citizens. Judges are among those with a critical role in processes of dealing with the past to take a country forward. As will be shown in this paper, judges can, and do, assume a range of functions during transitions and beyond. The end game for the judges should always be about justice and rule of law; social engineering has never been their concern. However, as we know, law and society do not operate in parallel universes, and what happens in a legal process can have major ramifications beyond the parties and the immediate issue. We also know that the law needs to fulfil certain needs of a society in order to have legitimacy. As this paper demonstrates, in times of political change or transition, the traditional judicial role can morph and extend into work that relates to wider projects for establishing or re-establishing rule of law and respect for law. This paper, using a comparative international approach, aims to address the role of judges in dealing with the baggage of armed conflict, repression and human rights violations, and to focus on the judicial contribution to rule of law. We begin with a general consideration of rule of law, moving on to the role of judges in a changing society. Bearing in mind our understanding of rule of law, we address the primary ways that judges engage in dealing with the past, ranging from fact-finding to legal proceedings and then to vetting and lustration. This is about judges being instruments of wider social change, vehicles of transformation. Our next section considers the issue of judges as subjects for change, where they themselves come under scrutiny. Finally, we sum up with an overall analysis of what judges can offer to rule of law and wider society in these situations, and how the concept of rule of law itself evolves in these unusual times. Our focus is on judges as judges, so we will not be studying their role as victims or in their private capacity.

I have been invited to write about abuse of the rule of law. This is not an altogether comfortable assignment, since I have long believed that the rule of law is a very good thing. Without it, at least in conditions of modernity, life is immeasurably worse than where it is secure. But then families are good things too, yet we know bad things can happen in families. So perhaps the rule of law also has dark sides. This chapter explores that possibility. It begins by sketching an approach to the rule of law that I have elaborated elsewhere and that differs from some. In particular, it does not offer, as lawyers typically do, a general definition that picks out characteristics of laws and legal institutions supposedly necessary, if not sufficient, for the rule of law to exist. Rather, it begins with teleology and ends with sociology. I then enumerate and discuss several ways in which the rule of law might be associated with abuse. I speak of verbal abuse, harms to and through the rule of law, and misuse. Though abuses are not hard to find, I do not think that every apparent abuse of the rule of law is rightly so called. In the course of discussion, I have something to say about what the rule of law requires in order to be used well, as well as what constitutes abuse of it. I also seek to dispel some misconceptions about what it is, what it depends upon, and what violates it. In other terms, and in terms of my invitation, not all abuse of the rule of law shows its dark side. Other things are going on. But there are dark sides also, and I will discuss some of them.

Consistency in decision-making is generally considered to be a good thing. It is largely considered to be a paradigm of good decision-making. Investment arbitrators often rely on this idea to cite prior cases (precedents, in a non-technical meaning), and follow some of them. But is consistency really such a good thing? Is it actually unconditionally a good thing - always and in any context a good thing? Could it not be that, in fact, the pursuit of consistency does more harm than good - not in a single case, where the question is fairly obvious, but at the level of an entire dispute resolution system? The author argues that, indeed, consistency is not an unconditional positive, just as the rule of law and law itself are not an unconditional positive. And in the context of investment arbitration, there are reasons why we may believe that the conditions for consistency to be a good thing are actually not met: in investment arbitration the pursuit of consistency may well do more harm than good. It follows that investment arbitrators should not see themselves as law-makers, should not attempt to advance the rule of law, to consolidate rules. There is a high risk that as law-makers they do more harm than good, given that creating law, filing gaps, furthering the rule of law, pursuing predictability is not always a good thing to do. Precise, consistent rules, forming a regime that meets the requirements of the rule of law, are not inherently preferable to vague, inconsistent rules forming a regime that does not meet the standards of regulative quality which partake of the rule of law. There is nothing inherently good in furthering the rule of law.