Upholding civil rights through commitment to the rule of law in advocacy

Introduction PART 1: THE PRIVATE LAW CONTRIBUTION TO THE RULE OF LAW 1. Fidelity in Law's Commonwealth 2. The Rule of Law and Private Law 3. The Rule of Law as the Rule of Private Law 4. Liberty and Legal Form 5. Unseating Unilateralism 6. Torts and the Rule of Law 7. Private Law Pluralism and the Rule of Law PART II: THE RULE OF LAW CONTRIBUTION TO PRIVATE LAW 8. Strict Duties and the Rule of Law 9. Some Rule-of-Law Anxieties about Strict Liability in Private Law 10. Property, Equity, and the Rule of Law 11. Equity and the Rule of Law 12. The Power of the Rule of Law 13. Boilerplate: A Threat to the Rule of Law? 14. The Rule of Law and Time's Arrow

The legal reform has become the major category of international aid, as it has been recognized that the institutional reform matters in development (World Bank 2002). Now the development can be restated as the comprehensive reform of institutional structure in the developing societies. The rule of law has become the symbol of the institutional reform and the rule-of-law projects have been undertaken all over the world. However, the outcome of those projects is now questioned: what has been brought about through the rule-of-law projects? If we focus on the relevant problem of the relationship between the rule of law and economic development, discussions continue between the opposite views. On the one hand, there is a belief that the rule of law facilitates the economic activities and it is a necessary precondition for economic growth (see 2 (1) below). On the other side of the view, it is criticized that the rule of law is not “a path to development” but “a highly desirable result of development” (Upham 2001). This chicken-or-egg like question seems to depend ultimately on the definition of the rule of law. According to the formal definition1 , the rule of law is measured by some objective criteria such as the existence of a set of legislations, the fair execution of law by the executive, the independent and impartial judiciary, etc., and it can be an instrument to be made and used for the promotion of economic transactions and other activities of the people. On the other hand, if we rely on the substantive definition, the rule of law is regarded as the rule of good law which is normatively just and fair (Dworkin 1985). In this sense the rule of law is postulated as the objective to be sought rather than the mere instrument and is valued as such rather than is measured by incidental outcomes. The functional definition of the rule of law focuses on “how well the law and legal system perform some function” such as constraining the government discretion, making legal decisions predictable, etc. (Stephenson 2001b). It seems to be the instrument, but may be the objective depending on the contents and degree of the function to be required. Whatever the definition we will use and whatever the contents we will require of the rule of law, however, it is worthwhile to make clear the causal relationship between the rule of law and economic development. For we must be certain whether and how the rule of law would lead to development before we embark on the rule-of-law project. In this paper various views on the causal interaction between the rule of law and economic

Defining the practice of the ‘rule of international law’ as a global public good is, with some exceptions, surprisingly scarce in the literature. Yet, an effective ‘rule of law’ at the international level may be considered a ‘meta’ or ‘core’ global public good, and as an equally fundamental part of global society, as it currently is in domestic, democratic societies. Furthermore, international rule of law is not only a key global public good in itself; it would also support both the provision of ‘classical’ global public goods and the preservation/management of global commons, and the very process of achieving it would be a common good. However, there is something disturbing about a governance system in which core actors (i.e., states) on the one hand can year after year adopt a range of new international norms and goals encased in those norms (e.g., binding multilateral treaties, as well as ‘soft law’ statements), in what might be considered as a manifestation of unity of thought and purpose in global undertakings; yet on the other hand, year after year, allow those core actors to escape (in large part) any formal accountability mechanisms for what they have not done to implement those norms and achieve those goals. Such a circumstance is antithetical to well-accepted governance norms which link legitimate governmental authority, normally associated with democratic forms of government, with the operation of the rule of law and the accountability of subjects to the law. This chapter will first elaborate definitions, in part based on statements made in United Nations’ fora on the subject, to provide an anatomy of components of the rule of (international) law, including perspectives on conceiving of the rule of law as a core global public good. It will then discuss two suggested accountability trajectories associated with building a meaningful global rule of law – ‘input’ and ‘output’ accountability – between states and other relevant actors, identifying some of the associated challenges and proposing various pathways to address them. This chapters suggests that strengthening such accountability trajectories would signal a further ‘democratization’ of the international order.

In this Statement before the 6th Committee of the UNGA, the Chinese representative comments on the practices of the UN and of China with regard to the international rule of law, the ways and means to build the rule of law at the international level, and those to build the rule of law at the national level.

I INTRODUCTION In common-law legal orders, public power is supposed to be exercised in accordance with the rule of law. Administrative law, the law that governs the exercise of power by public officials, is the body of rules and principles developed by judges to ensure that when public officials act, they act in accordance with the rule of law. Severe tensions can arise within the common-law understanding of administrative law when a legislature enacts a law that meets the legal order's formal criteria for validity, yet purports to exempt officials from the requirements of the rule of law. If those officials' decisions are challenged before a court, should the court declare them invalid simply on the basis that they fail to accord with the rule of law? Judges who adopt positivistic theories of law will generally answer no to this question, while judges of a more natural law bent will tend to answer yes. The former will determine a law's validity based only on the criteria explicitly set out in the positive law of their order, while the latter will think that there is more to the question than positive law--namely, the transcendent moral values of the rule of law. Although judges of a natural-law bent will likely appreciate the tensions better than positivistically inclined judges, a more sophisticated response to the problem is available than one that simply reduces it to a question of whether a law offensive to the rule of law is or is not a law. That response presupposes a natural-law understanding of the rule of law, one which holds that the value content of the rule of law transcends what any formal source of law declares the law to be. However, such a response does not require that a law is always invalid when it fails to comply with the values of the rule of law. Rather, all it requires is that the tensions created by such a law are understood as tensions internal to legal order, tensions which must be resolved in order for that legal order to sustain its claim to be such--an order constituted by law. Thus, judges are not necessarily always able or even often best suited to resolve such tensions. An exploration of this response begins with an account of how judges in common-law legal orders have found the norms of international law, in particular international human rights law, helpful in elaborating their understanding of their role in upholding the rule of law. Indeed, international human rights law has helped greatly to clarify the idea of the rule of law on which the judges rely, both in terms of the interactions among its components and the assumptions that hold it together. Judges have found international law particularly useful in ensuring that the rule of law is respected in an area in which traditionally positivistic judges have deemed the rule of law inapplicable--namely, in the exercise of public power, which is based, not on law, but on the prerogative of the executive to deal with immigration and national security as it sees fit. Natural-law judges have been amenable to the influence of international law because their understanding of law and the rule of law rejects positivistic assumptions that lead to the marginalization of international law, even to its very claim to be law. However, international legal bodies have proven capable of introducing the same sorts of tensions--tensions often created in the areas of national security and immigration. One might say that these natural law judges, working within the common law tradition, have paid international law the compliment of not only recognizing its claim to be law, but also of considering it to be constitutive of their understanding of the rule of law or legality, so that public officials must comply with international law if they are to abide by the rule of law. Thus, it is incumbent on the international bodies charged with making decisions affecting the interests of individuals subject to their legal regimes to repay the compliment. …

The obligation of judges to uphold rules of positive law and possibly conflicting ethical values in context: The case of criminalization of homelessness in Hungary This article examines the tension between the constitutional obligation of judges to uphold rules of positive law and possibly conflicting standards of conduct arising from professional-ethical values. The theoretical analysis will be illustrated by the case of Hungary, an EU member state experiencing rule of law challenges since 2010 and where the 2018-2019 criminalization of homelessness exemplifies the studied tension. Inspired by the theories of Philip Selznick and Martin Krygier, rule of law will be viewed as a value that requires progressive realization and context-specific implementation. By contextualizing the relevant Hungarian constitutional framework with the content of the judicial code of ethics and judicial practice, it will be shown how the legitimate space for Hungarian judges to distance themselves from legislation possibly in conflict with rule of law values is reduced. Theoretical suggestions for addressing such rule of law regressions will be made.

Over the last ten or so years, the rule of law has experienced a marked rise in popularity. As many have observed, after the end of the Cold War and by the middle of the 1990s the rule of law was being advanced by all kinds of strange bedfellows as a panacea for the world’s ills – from Russia to China, from Rwanda to Bosnia, its implementation was seen as a ‘rising imperative of the era of globalisation’. And although widespread faith in its international dimension seems to have diminished somewhat since the inauguration of the ‘war on terror’, the embrace of the rule of law by the development institutions and associated aid machinery has, if anything, tightened rather than slackened. Around the end of the 1980s the World Bank in particular, as well as the International Monetary Fund (IMF), began to take an interest in ‘governance’ and institutions – including law generally – and their role in the promotion of development. Not long after this already significant shift, the rule of law was directly invoked for the first time as both cause and result of development in the 1997 issue of the World Development Report, the Bank’s flagship publication.

The article is devoted to the elucidation and exposition of the concept of the «international rule of law», the analysis of approaches to its definition and the formulation of its definition. It is emphasized that the international rule of law is among those concepts that have been consistently «hanging in the air» to some extent since the post-World War II period. It is noted that, unlike in the case of defining the «classic» (domestic) rule of law, there is a lack of consensus within the scientific community regarding the definition of the international rule of law. The trends on which a certain unanimity is forming within the scientific and scholarly community are identified. The limits of the influence of the domestic rule of law theory on the international rule of law theory are revealed. The approaches to defining the concept of the international rule of law, as well as its «narrow» and «broad» meanings, are analyzed. It is stated that despite inconsistencies in the scientific doctrine, full adherence to the international rule of law is an «ideal,» and this «ideal» is associated with a human being, their rights, and freedoms. It has been proved that the narrow concept in the era of human rights law cannot be fully considered to be the «international rule of law», since human rights are an integral element of the latter. It is stated that contemporary theories of the rule of law and constitutionalism converge on the idea that human dignity, freedom, and human rights form the basis of all other obligations of the state. It is noted that the international analogue of the «rule of law, not individuals» would be the «rule of law, not states», which implies two aspects: it is not only about the impossibility for the hegemonic state to arbitrarily dictate its will to other states, but also the impossibility to dictate it to individuals. The authors distinguish between the concepts of «international rule of law», «rule of international law», and «rule of law in international relations». The requirements of the international rule of law in the practice of international bodies are highlighted. Based on the analysis of scientific approaches and the practice of international bodies, the authors’ own definition of the «international rule of law» is provided as a civilization-wide conceptual tool that represents a set of values, doctrines, and principles, the main requirement of which is the restrictions arising from the dignity, freedoms, and fundamental rights of every individual, in order to delineate the limits of power of states concerning an individual - both at the level of relations between subjects of international law and at the level of relations between certain subjects of international law and certain individuals.

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.

The Rule of Law and Judicial Independence in Newly Democratic Regimes John E. Finn (bio) Just as it is easier to hold elections than to root liberal democratic principles in newly independent states, it is easier to export constitutions and to create courts than to install the rule of law.1 There is an important distinction between those societies that can profess legality and those that advance the rule of law more generally.2 But is the rule of law a necessary or even a desirable component of democratization? In the abstract, it is not especially difficult to imagine how the rule of law might contribute to democratization. Most understandings of the rule of law, at whatever level of normative abstraction, have at their center a concern with the accountability and principled exercise of governmental power. The rule of law, as I have argued elsewhere, is less about the imposition of limits on power than developing the sense that any exercise of public power must be defensible against a set of stable, knowable, and public norms.3 Published principles of law contribute to democratic design by providing standards of accountability against which citizens may assess the policies and principles of democratic regimes.4 In this sense, the rule of law complements principles of democratic accountability by prohibiting the exercise of arbitrary power.5 Put another way, the rule of law is a mechanism for democratizing power by disciplining power. Perhaps less obviously, the rule of law may also contribute to democratization by increasing the capacity of newly democratic regimes to govern. In many respects, rule of law values promote governmental efficiencies by ensuring the consistent and uniform application of rules, guarding against governmental corruption, and by making governmental actions transparent. In short, the rule of law can facilitate the actual process of governing. Long experience suggests that the survival and strength of nascent democracies depends in some measure on the ability of those governments to fulfill the mandates of any government: to secure order and promote the public weal. An understanding of the rule of law that sees it first as a set of limits on power obscures the ways in which the rule of law complements and enables power. It also risks making the rule of law seem less attractive to elites, who whether acting on the basis of self-interest or public purpose are unlikely to see the "limiting" aspects of the rule of law as a useful device for new regimes concerned with the creation and maintenance of stable governments. Understanding how the rule of law promotes energetic and effective governance will make it more appealing as a principle of constitutional design and as a live feature of democratic states. Related, and no less important, the rule of law can contribute to democratic stability and maintenance by shaping civic society, by reinforcing citizens' commitment to democracy itself. At the most basic level this can occur by persuading citizens that the rule of law and democratic regimes actually do promote effective governance — that such regimes can govern effectively and materially improve the quality of their citizens' lives. The rule of law can contribute to constitutional and democratic maintenance by augmenting what Linz and Stepan term the "attitudinal component of democracy," or the extent to which citizens value democracy in its own right.6 The rule of law in newly democratic regimes can thus be instrumental in the creation and maintenance of civic society.7 All of which begs the question: How do we construct the rule of law in newly democratic states? The particulars of constitutional design are a critical part of that process, but constitutional draftsmanship alone is more a promise than a guarantee. The question is not whether we can compose institutions that promote the rule of law on paper, but rather can we find ways to make them take hold in the polity. How do we give concrete expression to the rule of law? As a matter of constitutional arrangement, most of the new democracies have relied heavily on the judiciary to realize the rule of law. Indeed, many of us have been involved in the design and constitutional (re-)construction of newly independent states...

This chapter discusses privity rules. Privity rules in contract law prevented obligations created by a contract from protruding on third parties, while privity rules in tort law prevented obligations to third parties that might otherwise be imposed by tort law from “indenting” upon a contract. Contract no longer is an impregnable circle of obligation. But contract law still has a privity requirement that prevents a contract from protruding negatively on nonparties. Meanwhile, in tort law, the function of preventing negligence law from indenting upon a contract has devolved to rules that preclude a negligence claim for pure economic loss. Moreover, there are rules in property law and the law of restitution that perform the same functions as the old privity rules in contract law and negligence. These include bona fide purchaser rules in property law and rules in the law of restitution that preclude claims for indirect enrichment and that preserve the priority of contract as a mechanism for resolving problems of unjust enrichment.

This article unpacks the concept of the rule of law by distinguishing five distinct meanings of the term. These are: (1) the rule of practical wisdom, (2) the rule of the law, (3) rule by law, (4) the rule of law as a principle of constitutionalism, and (5) the rule of law as a power-building technique. It suggests that unless the particular meaning being used is clarified, discussion of the concept is likely to generate more heat than light.

The rule of law is not a transcendent principle or objective fact but a regulative ideal. The core of this ideal is that different legal subjects are mutually constrained by noninstrumental obligations. Stated somewhat differently, the rule of law means that there are certain legal ends that cannot be legitimately sacrificed or used for some other's purpose(s). Paradoxically, the rule of law is employed or used for different purposes in world order, whether acknowledged or not or whether directly intended or not: The ideal of noninstrumental obligations can function to secure rather instrumental, yet by all means principled, goals. This article examines one of the overlooked and, indeed, masked purposes of the rule of law: regulating or managing (the effects of) inequalities. The rule of law has a complicated relationship to inequality. On the one hand, it promotes the liberal myth of formal equality as constitutive of legal subjects as ends; on the other hand, the rule of law is blind to substantive inequalities among legal subjects. In other words, the rule of law tends to accept and reinforce some forms of (in) equality as given; legal equality is an inherent property of a normatively appropriate system, and substantive inequalities are--indeed, they must be--viewed as facts that are fundamentally and causally outside of that system. To claim that the rule of law is a regulative ideal is to recognize its potential and even power in supporting different political orientations toward world order. There are at least three distinct models of the global rule of law, Westphalian, liberal legalist, and critical. Section 1 of this article outlines and contrasts these distinct models, highlighting how the rule of law functions in different arguments about the nature of legal obligations in world order. The Westphalian and liberal-legalist models assume that a noninstrumental rule of law creates an order in which legal subjects are free from illegitimate coercion or abuse. They differ most fundamentally, however, on who the most important legal subjects ought to be, sovereign states or human beings; additionally, they diverge on whether certain powerful legal subjects ought to be granted exceptional discretionary powers and privileges. By contrast, a critical model is skeptical that the rule of law is really (or solely) about noninstrumental legal relations; it instead focuses on how ideals, and the institutions they support, have purposes that are rooted in prevailing political, social, and economic forces. (1) Drawing from critical models, section 2 examines how the rule of law functions in relation to the inequalities of world order. The rule of law can function in ways that are more conservative or more progressive, even in the context of Westphalian and liberal-legalist models. More conservatively, the rule of law is used simply to manage and to contain (the effects of) substantive inequalities that are assumed to reside outside of the formal requirements of legality. Arguably, however, more progressive visions of the rule of law are possible: The critical realization that the rule of law is seriously undermined, delegitimized, and threatened by substantive and other inequalities potentially leads to extralegal efforts at promoting a fairer or more just distribution of wealth and social power. In other words, the liberal postulates within Westphalian statist and liberal individualist conceptions of the global rule of law are conceivably made sensitive to the contradictions and tensions that underlie the political order and individual freedoms that the rule of law legitimizes. Section 3 extends this analysis by way of examining the fledgling International Criminal Court (ICC). Although normally cast as simply a principled triumph of liberal legalism over the Westphalian model, the ICC is, I argue, also a function of changing perceptions of how the rule of law relates to larger problems of global inequality. …

What is so interesting about the rule of law is that although the concept is 'elusive', people from around the world all think they know what it means. People from all corners of the globe use the phrase without feeling the need to add any explanation. For example, the rule of law is enshrined in the preamble of the European Convention on Human Rights and in Article 5 of the Constitution of the People’s Republic of China. It was stressed by many a statesman during the debates at the United Nations General Assembly in September 2003. Yet, the literature shows that at least among the scholars and thinkers there are significant differences of opinion on what the rule of law is. I will begin my inquiry by describing and critiquing three commonly-found, but incomplete (in my view) formulations of the idea of the rule of law: the rule of law as a shield against governmental authority (the Dicey view); the rule of law as the rule of higher and just law; and the rule of law as the rule of rules or the law of rules. I will then make my own attempts (more or less my own, but based on the raw materials of others) at giving more 'complete' accounts of the concept by presenting: two formulations of the imperfect rule of law - the coercive rule of law and the extra-legal rule of law - and what I consider to be the perfect rule of law - the rule of law as law serving as the ultimate reason for voluntary action. The central tenets of each view are presented, critiqued (to some extent anyway), and then applied to the international circumstances. The 'perfect rule of law' formulation states that law is complied with simply because it is law, serving as the ultimate reason for voluntary action. The perfect rule of law requires that the existence of law or the concept of law coincides with the law as the ultimate reason for action and with the state of affairs called the rule of law. This coincidence of various factors centers on law serving as the ultimate reason for voluntary action. This formulation takes better account of the need to give meaning to both the word 'rule' and the word 'law' in the phrase 'the rule of law'. Admittedly such a formulation at present only describes an ideal state of affairs that we can only strive for, both in a national society and in international society.

Starting from the assumption, that rules of “public international law” are not a priori different from other rules of law, inasmuch as they may directly have legal effects similar to those of, e.g., the rules of municipal law, there are some analogies, at least in technique, between the relationship public international law — municipal law and the rules of conflict of laws. In dealing with the problem of combining international law rules — particularly those laid down in treaties — and rules of the municipal legal system one should be careful to take into account the difference in “environment” of the two groups of rules, in order to avoid either under-, or overrating the effect of each of those groups of rules in situations where both are applicable. In particular the recognition of international law as “higher” law should not be considered as implying a duty of the municipal courts to apply its rules beyond their actual scope. Examples are given of such overrating in recent commentaries of some authors. On the other hand, a possible tendency to underrate the effect of international law rules is illustrated by examples drawn from a recent judgement of the Netherlands Supreme Court and from the jurisprudence of the German Bundesverfassungsgericht . It is submitted that a conflict may sometimes be avoided (or solved) by adaptation of the application of rules of municipal law in cases where the application of international law is also involved. The direct application of international law rules is distinguished from its application by national courts in respect of “incidental questions”, i.e. in cases where a rule of municipal law makes a legal relationship, not governed by international law, dependent upon another legal relationship, determined by rules of international law. In such cases municipal law adds to the rules of international law a legal effect, not contemptated by those rules. The interpretation according to which articles 65 and 66 of the Netherlands Constitution would envisage a general “addition” of this kind is discussed and rejected.