Liberal Rule Research Articles

Governing through markets: Multinational firms in the bazaar economy

AbstractThis article highlights a counterintuitive dynamic of neoliberal globalization. India has controversially liberalized foreign investment rules in the politically sensitive food retail sector. Critics argue that India bowed to pressure from multinational corporations, consistent with a common view that under neoliberalism markets eclipse state power. We suggest by contrast that policymakers seek multinational firms to strengthen their capacity to govern food markets that for centuries have been dominated by networks of local traders. These traders use informal conventions of market governance that have long proven resistant to centralized state control. Global retailers promise to transform these opaque, “traditional” systems into transparent, “modern,” supply chains that comply with liberal rule of law principles. Thus we argue the turn to multinational capital should neither be understood simply through the logics of state capture or welfare economics, but rather also as a political governance project that illustrates how different kinds of markets produce different conceptions of the state.

Outlawing Opposition, Imposing Rule of Law: Authoritarian Constitutionalism in Cambodia

AbstractCambodia's Constitution, promulgated in September 1993, was to be the foundation of a transition to liberal, multiparty democracy. Yet, despite the document's seeming commitment to those very principles, constitutional provisions are frequently used to undermine liberal rule of law and to impose restrictions on political processes, freedoms, and rights. Focusing on the events of 2016–2017, including the jailing of opposition politicians, controversial legal reforms, and the dissolution of the country's foremost opposition party, this article demonstrates how authoritarian practices in Cambodia are framed in terms of adherence – even fidelity – to the Constitution. Further, it explores how ideas of ‘stability’ and ‘law and order’ often elide with those of rule of law in discourses and practices that simultaneously exalt and hollow out the normative power of the Constitution. This article posits that a socio-legal approach that pays particular attention to discourse can shed new light on the empirical fact of authoritarian constitutionalism, but also the processes of meaning-making that accompany, facilitate, and legitimize its practice. Far from merely a sham, then, Cambodia's Constitution – like many others – is imbricated in a complex web of contestation and legitimation that extends far beyond the walls of any courtroom.

The Precarious Position of Developing Countries in the Application of Customary International Law to Expropriation of Foreign Properties

This article examines the precarious position of the developing nations of the world in the application of customary international law to expropriation of foreign properties. International custom as a source of International Law as well as the concept of expropriation, its variants and the requirements for a lawful expropriation are discussed in the article. The article further attempts to discuss critically the effect of the international custom on expropriation on the developing economies. The article is concluded by maintaining that customary rules relating to expropriation of properties by the developing countries should be substituted with more liberal rules of International Investment Agreements that take care of the economic development needs of the developing countries rather than a strict application of international customs that the parties have not consented to.

Liberalism, legal revolution and Carl Schmitt

This article reflects on William E Scheuerman’s The End of Law and the value of the liberal rule of law. It puts Scheuerman’s concerns about Schmitt’s attacks on the liberal rule of law in dialogue with Schmitt’s theory of ‘legal revolution’. It argues that, although Schmitt was neither a liberal nor a democrat, his work on legal revolution can help liberals respond to populist attacks on liberal constitutional essentials.

‘Most Potent and Irresistible Moral Influence’: Public Opinion, Rhetorical Coercion, and the Hague Conferences

AbstractInternational relations scholars debate whether the current liberal order can adapt to power shifts among the great powers. Yet historically, contestation among the great powers has often revolved around the question of whether the international system should be organized along liberal and institutional lines in the first place. In this paper, I examine great power negotiation strategies at the 1899 and 1907 Hague conferences, an often overlooked yet critical episode of liberal order‐building. As rising powers shuffled the great power ranks, many hoped that the Hague conferences would prevent arms racing, reduce the barbarity of war, and promote peaceful solutions to international crises. Champions of liberal rules and institutions used principled persuasion, appealing to shared norms and collective identities. They also engaged in rhetorical coercion, seeking at times to shame potential obstructionists. Yet the conferences revealed the profound limitations of these soft‐power based negotiation strategies. For a brief moment in 1899, circumstances allowed champions of the Hague system to persuade states to sign on to the laws of war and to embarrass states into accepting arbitration. Yet by 1907, conditions had changed and obstructionists were able to mobilize broad coalitions to block significant change. The Hague conferences highlight the importance of interstate coalitional networks in institutional adaptation.

Kant i Rousseau. Logika prawa a logika uczestnictwa, czyli dwie konieczności

The aim of the article is to compare two concepts of the social contract – formulated by Immanuel Kant and Jean Jacques Rousseau respectively – in the context of their philosophical diagnoses regarding human nature, culture, politics and the historical dynamics of civilization. The author focusses on the essence of the impact Du contrat social has on Kant and the extent to which he manages to overcome the tension between the modern Republican idea – which he develops on this basis – and the tradition of classical liberalism, which he continues to follow. He considers Rousseau’s model with regard to the conflict between the democratic principle of people’s sovereignty and the Republican rule of law in discussions with Hegel, Arendt, Habermas and in reference to the French Revolution. Next, he conducts a critical analysis of the Kantian project of Rechtsstaat in light of its conceptual dependence on Rousseau – the founding of this project on the liberal tradition turns out to be problematic and burdened with ideological symptoms. Since Kant’s thought lies at the root of the modern concept of liberal rule of law, these symptoms show the limitations of Rechtsstaat resulting from its own normative assumptions.

Prisoners and the Law: Rethinking Prisoners’ Rights and Implementation Challenges in Kenya’s Justice System

International Organizations such as the Council of Europe and the United Nations have developed several legal provisions on prisoners’ rights. These liberal rules are intended to improve how various actors handle incarcerated offenders in the criminal justice system. Local legislations have similarly been developed by various countries to protect and safeguard the right of prisoners. This review will examine various international legal provisions and the local statutory requirements available under the Kenyan justice system. In particular, the requirements of the United Nations Standard Minimum Rules for the Treatment of Prisoners (UNSMR) will be examined and compared to various local legal provisions in the Penal code and the Prisons Act (CAP 90 of the Laws of Kenya). Additionally, the examination will cover some of the challenges that hinder the effective implementation of local and international rules on prisoners’ rights in the Kenyan context.

Group identification: An integrated approach

Consider social decision rules identifying two or more groups by aggregating individual opinions on who belong to which group. We search for rules respecting cross-group independence in the aggregation process. This independence axiom or its variants, together with other implicit constraints in the two models by Miller (2008) and Cho and Ju (2017), characterize a restricted family of rules; the only “democratic” rule in this family is the liberal rule. Our new framework provides a unified perspective on the main results of the two papers and uncovers implicit constraints in their modeling. Once those constraints are weakened, there emerge a richer family of independent rules including the consent rules (Samet and Schmeidler, 2003). The standard majority rule and many other democratic rules lying between the majority and liberal rules are examples. We also provide a characterization of the consent rules.

Governmental-Funded Religious Associations and Non-Discrimination Rules: On Immunity and Public Funding

Many religious associations exhibit internal norms that differ from liberal norms and rules. Such norms often directly contradict the non-discrimination norms and rules that are part and parcel of the liberal democracies in which these associations operate. Religious associations often are considered, in both legal and scholarly writings, exempt from at least some of these norms and rules. This tension between broad societal non-discrimination1 rules and the norms of specific religious associations has won the attention of scholars and courts.2 In many such debates, the background assumption is that these religious groups are voluntary associations functioning within a model of separation between religion and state; that is, such associations operate through the free choices of their members and individuals are as free to leave the associations as they were to form them.3 While theorizing about non-discrimination rules and whether they apply to religious associations that are funded via the contributions of their members is of obvious importance, this article examines a distinct problem: that of discrimination within religious associations that are directly supported by democratic governments. Recent research on religion-state relations4 has pointed out that, in many democratic countries, religious associations are funded by the government to a considerable extent. The tension between non-discrimination norms and the presumed rights of the state-funded religious associations to be exempted from such rules, however, is neglected in the literature. Perhaps this is because the most prominent legal cases of this kind were tried at the European Court of Human Rights5 and the U.K. Supreme Court,6 rather than the more conspicuous U.S. Supreme Court. This article asks the following question: in what way, if at all, does receiving governmental funding change the presumed right of religious associations to be exempted from non-discrimination rules? The ‘immunity thesis’—the idea that religious associations enjoy the right to be exempted from non-discrimination rules—is not challenged here: this article argues that if there is such a right to immunity, receiving governmental funding does not necessarily eliminate it. Much depends on how each case maintains the balance between the autonomy of religious associations7 and the protection of individual citizens from discrimination that impacts important civil interests such as access to jobs or high-quality education. Of the suggested variables identified to test this balance, three are internal to the associations’ structure: the centrality of the potentially illiberal norm to the funded religious association; the kind of violation of non-discrimination rules (either internal or external discrimination, see below); and the willingness of the religious association to internalize the cost of the discrimination. Two additional variables that can be used to test the balance of competing social values are external to the association and depend on the political-legal environment in which the association functions: the quantity of funding that the government makes available to the association, and the process by which potentially competing religious associations can become eligible for recognized and funded status. A multivariable ‘test’ is required in order to determine whether and how governmental funded religious associations can still claim immunity when practicing discriminatory norms.

Bioethics and the Rule of Law: A Classical Liberal Theory.

Heated debates over healthcare policy in the United States point to the need for a legal framework that can sustain both moral diversity and peaceful cooperation. It is argued that the classical liberal Rule of Law, with its foundation in the ethical principle of permission, is such a framework. The paper shows to what extent the current healthcare policy landscape in the United States diverges from the rule of law and suggests how the current framework could be modified in order to better approximate that ideal. Two objections are then answered. The first is that the rule of law cannot be realized due to the structure of legislatures. The second objection is that government should guarantee both liberty and all of the necessary conditions of autonomy.

Pretrial Beliefs and Verdict Accuracy: Costly Juror Effort and Free Riding

AbstractIf jurors care about reaching the correct verdict, but also experience costs to paying attention during the trial, even a small effort cost generates interesting interactions between pretrial beliefs and verdict accuracy. I demonstrate the existence of a strong free riding effect; jurors respond to a more informative prior by reducing their probabilities of paying attention, to the extent that over a non-empty range, a more informative prior will be associated with poorer verdicts. Pretrial beliefs can depend on several factors: I consider two – the extent of discovery during the pre-plea bargaining process, and the efficiency of the police. My results imply that more liberal discovery rules, which result in a less noisy plea bargaining process, will actually be complemented by greater juror effort over a range, resulting in more accurate verdicts. In contrast, greater police efficiency will, over a range, elicit a sufficient drop in juror effort such that verdicts are less accurate. Thus, improving discovery has added benefits over a range, while the benefits of exogenous improvements in policing may be dampened. I briefly extend the model to cases where attentive jurors receive an imperfect public signal instead of a perfect one, and to cases where jurors’ utilities from convicting a guilty defendant differ from their utilities from acquitting an innocent one.

Fictional Utopias, Dystopias, and the Problem of Evil

Fictional utopias of the early modern time, as an alternative and an opposite to classical social contract theories, and fictional dystopias of the 20th century, as the opposite of the democratic and liberal rule of law, remain a major reference or for our contemporary political debates when it comes to characterize warn against considerable dangers entailed in political options, regimes, opinions etc. Today, classical utopias are mostly overwhelmingly considered in a negative way, although there were initially designed to be a more comprehensive solution for the problem of political evil than the social contract theories. From the beginning, dystopias were designed as the greatest political evil ever. Yet, both are not only fictional, but also radically impossible to ever b realized, for reasons that have not been really analyzed yet. In the following, I enquire into these reasons.

Хагският трибунал – дипломатическо задкулисие и политическо правосъдие “ad hoc”

The Hague tribunal is anything but a model for the enforcement of liberal rules. Its emergence is a classic example of diplomatic impotence and clever use of a “legal ideal” to push a particular political and legal agenda.

La teoría alemana de la organización y el procedimiento. Una clave para entender la protección de los derechos fundamentales en el Estado social

En la presente investigación se desarrolla la teoría de la organización y el procedimiento como medio de protección de los derechos fundamentales en las relaciones jurídico-prestacionales que la administración pública entabla con el ciudadano, destinatario de la prestación, en el actual Estado social y democrático de derecho. Se trata de un desarrollo dogmático de la teoría y su posible aplicación en estos supuestos partiendo de la insuficiencia de los principios que clásicamente rigen a la denominada administración de policía connatural al Estado liberal de derecho.

Public Administration, Habermas and the Crisis of Legitimacy in the Youth Justice System: An Australian Case Study

Using an Australian case in which a liberal-democratic state systematically breached the human rights of children involved in in its youth justice system, this article explores the idea of ‘legitimacy’ and ‘legitimation crisis’ in the modern administrative state. We acknowledge the relevance of Habermas’ account of a crisis of legitimacy when responding to Carl Schmitt’s challenge to the claim to legitimacy vested in liberal rule of law principles found in Schmitt’s account of state sovereignty and the power to declare exceptions. In this way we highlight some issues with how conventional public administration studies have taken the liberal framework and principles like the rule of law and equality of all before the law for granted. We argue that this field of study has paid too little attention to the role of sovereign power evident when the executive creates what Dyzenhaus and Vermeules refer to as legal ‘black and gray holes’. This highlights the value of reconsidering the concern by mainstream public administration research and theory with questions of administrative discretion and the need to pay much more attention to the role of the executive in the administration of systems like the justice system.

Zionist Frontiers: David Ben-Gurion, Labor Zionism, and transnational circulations of settler development

ABSTRACTThis article examines how settler colonial narratives, structures and relations constitute development. The article offers a new concept, settler development, to show how development, as a colonial template of liberal rule and economic improvement, and settler colonialism, augment and imprint each other. To understand how settler development works, I present a case study that analyzes settler texts that circulate between Zionists in the United States and in Palestine before 1948. In particular, David Ben-Gurion, leader of Jewish settlement in Palestine, and writers in the Jewish American magazine, Jewish Frontier, sought to justify settlement based on economic productivity to appeal to the British to hand over the Mandate to settlers, not indigenous Palestinians. These circulating discourses valorized the ‘pioneer’ as the quintessential subject of settler development who is assumed to have a right over indigenous land through their ability to improve economic productivity. The article combines settler colonial and critical development studies to suggest creative analyses of the way that development is epistemologically linked to the networks of settler colonialism.

Dos conceptos de Estado en el debate constitucional español de 1931

This article enquires into the arguments held by the constituent members about the structure of the state. For that, MPs turns occurred between August and December 1931 are analysed. It is argued that the two rival views on the state within the Constituent Cortes of the Spanish Second Republic are to a great extent those alternatives held by the government and the opposition. Both portray the ideological disputes about, on the one hand, a model of Social Rule of Law, defended by the first coalition government; and, on the other hand, a proposal opposed to broadening social rights in the constitutional text, whereas in favour of strengthening basic individual rights in the consecution of the Liberal Rule of Law to reform the Constitution of 1876.Fecha de envio / Submission date: 23/02/2019Fecha de aceptacion / Acceptance date: 14/04/2019

Modernity and the Law: A Late Twentieth Century View

This essay explores Roberto Unger’s understanding of the specific significance that modernity has for law. It provides an account of the distinctions among customary law, bureaucratic law, the modern liberal rule of law ideal, and the unraveling of the rule of law in post-liberal societies. It compares his views in a preliminary way with those of other major theorists of modernity and with legal theorists. Finally, it discusses his speculations about then future developments and the relationship between central institutional and philosophical issues.

How gun control policies evolve: Gun culture, ‘gunscapes’ and political contingency in post-Soviet Georgia

We analyse the influence of gun culture and exogenous political events on gun regulation in post-Soviet Georgia. While neighbouring states retain restrictive Soviet-era gun laws, in Georgia, state failure, armed conflict and proliferation of weapons during the 1990s all impelled recent governments towards moderate gun policies, including liberal rules on handgun ownership, strict rules on gun carriage and a national gun registry. We conceptualize gun policy as the product of relatively durable institutional legacies and underlying social attitudes—in this case, a distinctive post-communist ‘gunscape’—which constrain future policy development; and specific political conjunctures, which provide opportunities for limited policy experimentation. While Georgian gun owners desire weapons for self-defence, sport and the affirmation of masculinity, they do not seek to defy the state or replace its role in collective security, leading to a moderate ‘harm reduction’ approach to regulation that may be applicable in other post-conflict societies.

O ESTADO DE DIREITO “CONFRONTADO” PELA “REVOLUÇÃO DA INTERNET”!

A revolução tecnológica e seus impactos sobre a fórmula Estado (Liberal) de Direito impõem ao jurista a construção de um novo saber, o qual passa pelo reconhecimento dos limites genéticos e contingenciais que são peculiares ao próprio modelo Estado Liberal, bem como as projeções que se podem fazer a partir do “interregno” de suas crises. Com isso, rediscutindo a viabilidade do projeto constitucional moderno, propõe-se, utilizando da pesquisa bibliográfica, verificar as circunstâncias da experiência político-jurídica contemporânea tomando como referência a era da quantificação e a afetação dos direitos e liberdades fundamentais.