Rule Of Law Research Articles

EU Regulatory Polity 3.0 for Compliance with the Rule of Law: When Depoliticising Goals Lead to Uneven Politicisation

Abstract Since limiting judicial independence in Hungary and Poland, the politics of the rule of law crisis have been examined by various scholars discussing conflicts within and between EU and domestic institutions. The rule of law is no longer a purely national affair – it is of high political salience both for the Member States and the EU polity. The question addressed here is: how has the rule of law crisis reshaped the EU’s modes of governance? We argue that to safeguard this common value, the EU is evolving into a regulatory polity (3.0). This development marks a shift from Majone’s EU regulatory state’s focus on regulating markets (1.0) and regulation in core state powers in times of crises (2.0) to regulation on the core values of the polity (3.0). The article shows that in a context of growing dissensus over the rule of law, EU institutional actors have sought to strengthen “rulemaking,” “rule monitoring” and “rule enforcement” through a regulatory approach anchored in a market logic. It also shows that shifting from the traditional regulatory state 1.0 to regulation in core state powers 2.0, the regulatory polity 3.0 strengthens the EU’s institutional capacity to act when the rule of law is under strain through depoliticised “rule monitoring” and politicised “rulemaking“ and “rule enforcement“ as illustrated in the cases of Hungary and Poland discussed in this article.

Sistem Pengelolaan dan Pengembangan Wakaf secara Produktif di Pondok Pesantren Al-Uswah Kuala Kabupaten Langkat: Studi Analisis Menurut Undang-Undang No. 41 Tahun 2004 tentang Wakaf

ABSTRACT The purpose of this study was to determine the productive waqf management and development system at the Al-Uswah Kuala Islamic Boarding School, Langkat Regency, and also to find out the forms of productive waqf management and development at the Al-Uswah Kuala Islamic Boarding School, Langkat Regency. This type of research includes empirical research with a qualitative approach. The subject of this study involved the Chairperson of the Al-Uswah Kuala Islamic Boarding School Foundation, Nazhir Waqf, and the Community, with a qualitative descriptive research analysis. The results of the research conducted show that the waqf management and development system productively at the Al-Uswah Kuala Islamic Boarding School, Langkat Regency is carried out by administering and collecting data on waqf assets, then recording them in a notarial deed so that they have permanent legal force, and carrying out maximum supervision so that the utilization Waqf assets are in accordance with their function and main objective, which is to develop Islamic education as a place to nurture true Muslims. Then, the productive management and development of waqf at the Al-Uswah Kuala Islamic Boarding School in Langkat Regency is carried out in two forms, namely the physical form in which waqf assets are developed by adding and constructing various buildings needed in the educational process at the institution. Apart from that, it is also being developed in the form of waqf management policies especially for the needs of the students, for example providing free tuition fees for orphans and high achieving students so as to help the Muslim community (santri's parents). While the form of waqf assets is distributed to the surrounding community in the form of donations such as groceries and so on at certain moments. So that the productive management and development of waqf assets is in accordance with Law no. 41 of 2004 concerning Waqf. Keywords: Management, Development, Productive Waqf.

Constitutional Overhaul, the War in Gaza, and the Puzzle of Civic Mobilization in Israel

Abstract Much has been written on the constitutional overhaul in Israel, and the attendant constitutional crisis in the first nine months of 2023. Since October 7, however, with the breakout of the Israel-Gaza war, the overhaul was seemingly shelved. This Article seeks to connect both events, by comparing the legal-political response to the overhaul with the legal-political response to the war. It asks why, given the intensity of the protest movement generated by the overhaul, there was a dearth of protest activity after the war, even though both events implicated similar values, namely the rule of law and individual rights, championed by the protest movement. I argue that a central reason for the disparity cannot only be explained by the dynamics of war but also due to the tensions and complexities inherent in Israel’s self-professed constitutional identity as a Jewish and democratic state. In particular, I argue that anti-overhaul protests appealed to liberal universalist values to garner bipartisan support, with the effect of bypassing substantive issues such as the occupation of the Palestinian Territories and discrimination faced by Israeli Palestinians. This explains the lack of Arab participation in the protests, as many perceived them to be an internal Jewish Affair. Thus, when post-war repressive measures mostly affected Israeli Palestinians, the protest movement failed to rally in their support. Although anti-overhaul protests could have brought about greater liberal consolidation in Israel, the relative lack of post-war mobilization casts lingering doubts on the possibility of long-term consolidation of liberal values in Israel. Attempts to depoliticize the protests, while perhaps successful in warding off the overhaul, and though impressive on their own, have likely failed in instilling deeper, more resilient, liberal values in Israel.

Mutualism: a model for managing risk in P2P sharing

Abstract This article explores how the risk structure currently adopted by the sharing economy, in particular the highly formalised and contrived systems of contract constructed by platforms, is largely constituted by the rules of property law. This effectively ties sharing activities to the old model of private property and its accompanying boundaries of privatised risk and value and undermines the efforts of collaboration to supersede those boundaries through peer-to-peer co-production of value. This article aims towards presenting an alternative model of risk distribution for the sharing economy that is more reflective of its collaborative nature. To this end, I will draw on ideas from commons and mutualism and propose the possibility of creative use of contracts to stipulate positive duties and obligations between collaborative partners as a device to construct a collective and/or mutual risk system.

Addressing the risks of generative AI for the judiciary: The accountability framework(s) under the EU AI Act

The rapid advancements in natural language processing, particularly the development of generative large language models (LLMs), have renewed interest in using artificial intelligence (AI) for judicial decision-making. While these technological breakthroughs present new possibilities for legal automation, they also raise concerns about over-reliance and automation bias. Drawing insights from the COMPAS case, this paper examines the implications of deploying generative LLMs in the judicial domain. It identifies the persistent factors that contributed to an accountability gap when AI systems were previously used for judicial decision-making. To address these risks, the paper analyses the relevant provisions of the EU Artificial Intelligence Act, outlining a comprehensive accountability framework based on the regulation's risk-based approach. The paper concludes that the successful integration of generative LLMs in judicial decision-making requires a holistic approach addressing cognitive biases. By emphasising shared responsibility and the imperative of AI literacy across the AI value chain, the regulatory framework can help mitigate the risks of automation bias and preserve the rule of law.

Don’t forget institutions: a review essay of The Economics of Prosperity

AbstractExchange, division of labor, technology, capital accumulation, and entrepreneurship all contribute to economic growth. In The Economics of Prosperity, Ritenour explains how each of these concepts allow countries to develop and flourish. This book attempts to provide an extensive survey of Austrian literature surrounding development, while still preserving the author’s opinions around debated issues such as the person and function of the entrepreneur. Ritenour also takes the institution of secure private property rights as a given. This paper argues that strong private property rights must precede any discussion of exchange and specialization, particularly because exchange presupposes ownership. The ruler or ruling elites have to concede some power and uphold a strict rule of law to protect private property rights. Additionally, this paper also extends the discussion to cultural and institutional factors behind innovation and economic development, instead of relying on the Weberian work ethic to explain the Industrial Revolution. In short, economic growth requires good economic principles.

Analysis Of Differences In Evidence In District Court Decisions And Supreme Court Decisions: A Case Study On The Judicial Review Process

A judicial review (PK) is a legal mechanism given to parties who are dissatisfied with a decision that has permanent legal force, either in the District Court or the Supreme Court. In Indonesia, a PK application can only be submitted once, as regulated in Article 268 paragraph (3) of the Criminal Procedure Code, and often involves new evidence (novum) as a basis for requesting a judicial review. The objective to be achieved in this study is to analyze the differences related to the evidence in the District Court decision and the Supreme Court decision in the review process. The method used in this study is juridical normative where the legal material used covers the theory, concept, legal principles and some regulations in accordance with the discussion of research. The method of data collection used is literature study where secondary data are used such as books, laws and related journals. The results of this study indicate that the difference in evidence in conducting judicial review becomes one of the considerations for the acceptance or rejection of PK by the Supreme Court. However, in fact, the specification of the quality of evidence is still not clearly explained where it will only create a blur of norms. Therefore, it is not surprising when the Supreme Court rejected many of the judicial review considering that there was no eligibility for the quality of the evidence received

On judicial practice in the field of intellectual property

This article is devoted to the analysis of the legal positions of the Constitutional Court of the Russian Federation, formulated in its regular decisions in the field of intellectual property regarding the qualification of other forms of unfair competition, the administrative-judicial procedure for the protection of intellectual rights, the procedure for paying remuneration to authors of service objects of patent rights. It should be assumed that certain legal positions of the Court are not formulated quite correctly. In addition, it is concluded that certain legal positions contain rules of law, although of a temporary nature, the adoption of which is not within the competence of the Constitutional Court of the Russian Federation.

MULTIPROPRIEDADES – PROCEDIMENTOS REGISTRAL

The objective of this article is to analyze the registration procedures related to timeshares, a model of shared ownership in which multiple owners have rights to the same property. The research seeks to understand how registration procedures influence the legal security and management of these ventures. The methodology adopted is a literature review. The research is based on a critical analysis of books, academic articles, and relevant legislation on timeshares and their registration procedures. The review is conducted to identify the main challenges, practices, and regulatory standards that impact the registration and management of timeshares. The review covers topics such as the evolution of timeshares, comparisons between different jurisdictions, and current legislation. The reviewed literature shows that timeshares are a model that has grown with tourism and that requires clear registrationto avoid conflicts. The legal and administrative challenges that arise in the practice of registering these ventures are also discussed. The expected results include an in- depth understanding of the registration procedures involved in timeshares and their implications for the legal security of investors. The aim is to identify gaps and areas that require improvements in legislation and registration processes. The results should provide recommendations for improving procedures and creating clearer and more effective guidelines. The conclusion of the article should demonstrate that registration procedures are crucial to the success of timeshares, providing a solid basis for the legal security of those involved. It should be noted that, despite advances in regulation, there are still significant challenges that need to be addressed. It is recommended that standardized practices be implemented and that laws be updated to better meet the needs of this property model.

Searching for an Optimal Model for the Renewal of the Constitutional Court to Avoid a Constitutional Crisis: Dream or Reality?*

The failed renewal of the Constitutional Court in Lithuania was not the first in Europe, and will not be the last. The appointment of constitutional judges, usually undertaken with the involvement of the political institutions, became a very sensitive issue closely linked to their independence. After a sequence of unsuccessful attempts to renew the composition of constitutional courts, some states fall into a deep democratic backsliding, while some take the initiative to reform the existing appointment procedure, seeking to prevent the politicisation of constitutional control institutions. A universal and standardised one-size-fits-all model does not exist, as each particular national context must be considered. However, certain lessons are to be learned and certain pitfalls to be avoided. Constitutional courts must correspond to the criteria of the tribunal established by law, as disclosed in international jurisprudence. For this purpose, the proper law is needed. This article analyses the advantages and shortcomings of some elements of the proposed and partly realised Slovak reform on the appointment of constitutional judges that Lithuania and other states could benefit from. This allows for the conclusion that the explicit criterion of professional reputation might prevent arbitrary nominations and ensure that the best judge for the court and the society would be appointed. Contrary to most convictions, a larger majority in the Parliament is not necessary to keep this procedure in line with the principle of the rule of law. The only requirement is that the law must be clear, unambiguous and provide for the steps to be taken if the rotation fails.

Azərbaycan Respublikasının Prokurorluğunun hüquqi statusu, vəziyyəti və inkişaf perspektivləri (prosessual aspektdə)

The prosecutor's office in the Republic of Azerbaijan is the basis for ensuring the rule of law and protecting the rights and interests of citizens within the framework of the country's legislation. This article aims to examine the legal situation, current conditions and future prospects of the Azerbaijani prosecutor's office, paying special attention to its procedural functions. The legal authority of the prosecutor's office is determined by the national Constitution and relevant legislation. Currently, the current state of the prosecutor's office is characterized by a number of challenges and opportunities. It should be noted that the prosecutor's office in Azerbaijan plays an important role in the legal system of the country. The prosecutor's office contributes to the rule of law and the protection of the rights and interests of citizens by solving the problems encountered and using the opportunities that have arisen. Keywords: Republic of Azerbaijan, prosecution, procedural aspect, ınvestigation, court procedures, legal status, rule of law, ınternational standards.

Democracy, Free Elections, and Gender Equality as Perceived by Recent Immigrants

This study examines how democracy and its political attributes (such as free elections) and social attributes (such as gender equality) are perceived by people who come from nondemocratic countries and have lived for several months in a democratic society. The data were collected in Quebec using an original questionnaire completed by 127 adult immigrants. The results indicate that recent immigrants from nondemocratic countries primarily view democracy as a society based on the rule of law with strong social control. They consider free elections significantly more important to democracy than the possibility to vote for any political party. Contrary to expectations, recent immigrants view gender equality as essential for democracy, although this importance varies according to sphere. Immigrants’ conceptions of democracy also signify the most salient characteristics of the social and physical environment of the host society as the most important democratic features. The study illustrates the multifaceted nature of the process of forming ideas about democracy among immigrants socialized in nondemocratic societies. Not only is theoretical knowledge about democracy as a political system part of these ideas, but everything observed in a democratic society can be perceived as attributes of democracy. The results indicate that immigrants’ impressions of the social and physical environment in their host society should not be overlooked when analyzing their ideas on democracy. Consequently, the study concludes that a more welcoming society can foster more positive visions of democracy among newcomers from nondemocratic countries.

Individual right to clean air including compensation for health damage – comment on JP v Ministre de la Transition écologique, C-61/21

Abstract On the one hand, the EU member states are to manage ambient air quality in line with the Air Quality Directive (dir. 2008/50/EC) provisions that put forward local air quality targets. On the other hand, EU citizens have their right to demand that their local authorities pass ‘air quality plans’ for towns or districts where air quality standards were below the so-called limit values. In 2008, in the Janecek Judgement of the Court of Justice of 25.07.2008, C-237/07 Dieter Janecek v. Freistaat Bayern EU:C:2008:447. case the Court of Justice of the EU (the CJEU) for the first time recognised the direct effect of Articles 13 and 23 of this directive, and in this way granted rights to individuals to challenge local air quality plans for their inefficiency. The main point of this article is to prove that EU citizens have a subjective, justiciable right to clean and healthy air, and to examine whether this right entitles them to compensation for health damage due to air pollution, as was the subject matter of the commented case: JP v Ministre de la Transition écologique. Therefore, it is necessary to examine the three conditions of the Francovich rule for state liability established in the Brasserie du Pêcheur case: ‘1. the rule of law infringed must be intended to confer rights on individuals; 2. the breach must be sufficiently serious, 3. and there must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties’ Judgement of the Court of Justice of 5.03.1996, C-46/93 and 48/93 Brasserie du Pêcheur EU:C:1996:79. .

DESAFIOS JURÍDICOS NA REGULAMENTAÇÃO DAS CRIPTOMOEDAS SOB A CONSTITUIÇÃO BRASILEIRA

The research addresses the "Legal Challenges in the Regulation of Cryptocurrencies under the Brazilian Constitution", with the objective of analyzing the legal difficulties related to the regulation of cryptocurrencies in the country. In addition, it seeks to investigate how these digital currencies align with constitutional principles, examine their impact on the Brazilian economy and the security of the business environment, and propose recommendations for adequate regulation. The research problem can be summarized in the following question: In what way does the regulation of cryptocurrencies, in light of the Brazilian Constitution, influence the individual guarantees of citizens and the legal security of the system? The regulation of cryptocurrencies in Brazil presents significant challenges in the legal and constitutional context. Although these virtual currencies play a growing role in the global economy, their decentralized nature, lack of state control, and volatility generate uncertainties that directly affect the Brazilian legal system. The research uses a bibliographical approach, based on academic studies, doctrines, and legislation, aiming to offer a critical view on the subject and contribute to the legal debate around cryptocurrencies in the national scenario.

Examining the role of national governance capacity in building the global low-carbon agricultural supply chains

The majority of related research has traditionally focused on examining the individual influences of national governance capacity and technological innovation on carbon emissions and economic performance, neglecting the effects and influence mechanisms on carbon efficiency within agricultural supply chains, which is not conducive to advancing a low-carbon transition that includes agricultural concerns. This study addresses these gaps by investigating the correlation between national governance capacity (considering voice and accountability, political stability and absence of violence/terrorism, government effectiveness, regulatory quality, rule of law and corruption control) and agricultural supply chain carbon efficiency and investigating the influence mechanism and mediating role of technological innovation. The relevant findings are twofold. 1) The impact of national governance capacity and its components on agricultural carbon efficiency follows an inverted U-shaped curve. 2) Technological innovation can act as a mediator between national governance capacity and select factors of voice and accountability, government effectiveness and regulatory quality to enhance agricultural supply chain carbon efficiency. The findings offer valuable insights for policymakers and managers in agricultural supply chain enterprises seeking to transition towards low-carbon agriculture.

SPECIAL MEASURES FOR SEX OFFENDERS AND POTENTIAL HUMAN RIGHTS VIOLATIONS

Child sexual abuse has attracted enormous attention and occupied significant media space in recent decades. This increased attention has resulted in the creation of strategies aimed at responding to sexual abuse in general, and has been motivated by both the need to prevent reoffending and the desire to adequately respond to the expectations of the wider public. Measures aimed at responding to sexual offenses have become fertile ground for the introduction of various innovations. This may result in the violation of sex offenders’ human rights, and any state based on the rule of law should not allow this. This paper is devoted predominantly to the analysis of the Croatian and Serbian current legal frameworks related to the application of specific measures aimed at sex offenders to establish whether these frameworks are aligned with the relevant human rights protection standards. It has been established that the level of compliance of the two national legislations with the international legal framework is high although there is room for additional corrections. The objective of the paper is to give recommendations for harmonizing the above area with the modern legal acquis, and primarily with the standards established through the case law of the European Court of Human Rights.

OS IMPACTOS DA NOVA LEI DE LICITAÇÕES EM PEQUENOS MUNICÍPIOS

Considering the importance of the New Public Procurement Law (Law 14.133/2021) for modernizing public contracting and the challenges faced by small municipalities, this study addresses its impacts on these locations, focusing on efficiency, transparency, and legal security. The main objective was to analyze how the new legal requirements affect administrative management and procurement processes in small Brazilian municipalities. To this end, the research examined the changes introduced by the new law, implementation challenges, and adaptation strategies. A qualitative study was conducted using semi-structured interviews in Cujubim, Rondônia, with six participants directly involved in the municipality's procurement processes. The results indicate that, although the new legislation has promoted improvements in transparency and efficiency, adaptation has been hindered by a lack of technical training and adequate infrastructure. It is concluded that there is a need for governmental support and continuous training to overcome these obstacles and promote a more inclusive and efficient procurement environment.

Populism and policy capacity: Evidence from an opposition municipality in Istanbul

AbstractDespite achievements in its conceptual rigor, policy capacity still represents a relatively depoliticized concept that fails to sufficiently consider the ways in which politics plays a role in its creation, mobilization, or decay. This article seeks to contribute to this debate by investigating the impact of populism on policy capacity, the type of policy capacity challenges posed and how they are related to populist policy design. Based on a case study of a municipality in Istanbul the article shows how populist politics and national populist policy design erode long‐term municipal policy capacity by enabling the (ab)use of the rule of law, loss of expertise, exhaustion of critical assets such as urban land and financial resources, and erosion of public citizenship due to growing expectations in the form of particularistic benefits. Declining policy capacity in turn leads to a shift in municipal policy priorities.

The Rule of Law Between National and International Contexts: Introduction to the Special Issue on International Economic Law and the Rule of Law

The Rule of Law Between National and International Contexts: Introduction to the Special Issue on International Economic Law and the Rule of Law

“No punishment is enough for monsters”: vindictiveness as an important political emotion in dealing with Belgian (potential) returnee men

ABSTRACT Building on the call to further integrate emotions in critical security and terrorism studies, we explore the ways emotions figure in media discourses and shape responses and policies on the returnee question. Through critical discourse analysis and thick description, we show how Belgian (potential) returnee men were subject to varying securitising discourses and emotional portrayals in media coverage over the past decade. Our argument contends that media discourse(s) on the returnee question exhibit a complex emotional landscape. We discern dominant, alternative and rising emotions that undergird the media coverage. We will illustrate how the “dominant” emotion of fear oscillated with an “alternative” emotion of vulnerability and, over the course of a decade, was accompanied by a “rising” emotion of vindictiveness. We argue that the cultivation of vindictiveness contributes to securitising narratives that portray Belgian (potential) returnee men as irredeemable monsters deserving of extreme punishments. This rising discourse undermines democratic principles and the rule of law. We speak of political emotions because emotions are deeply intertwined with power dynamics, societal structures, and political processes, which shape collective attitudes, behaviours, and policies towards (potential) returnees.