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Creative Destruction: How Capitalism Undermines Rule of Law 创造性破坏:资本主义如何破坏法治
Pub Date : 2021-10-14 DOI: 10.2139/ssrn.3942914
R. Holcombe
Joseph Schumpeter described capitalism as a system of creative destruction. Innovative new ideas, new products, and new production methods displace the old. This works to the advantage of entrepreneurial individuals who bring innovations to market, enabling them to get ahead by producing more value for consumers. After those entrepreneurs get ahead, the forces of creative destruction work against them, threatening to displace them in the economic hierarchy. The system that helps those who want to get ahead threatens those who want to stay ahead. An examination of the institutional framework that supports capitalism shows that it contains incentives for the political elite to cooperate with the economic elite for their mutual benefit. An extensive literature on rent-seeking, rent extraction, regulatory capture, and interest group activity explains why the legal system that supports capitalism is susceptible to capture itself, for the benefit of the elite. Capitalists are the biggest threat to capitalism.
约瑟夫·熊彼特(Joseph Schumpeter)将资本主义描述为一种创造性破坏的体系。创新的新思想、新产品和新生产方法取代了旧的。这对那些将创新推向市场的企业家个人来说是有利的,使他们能够通过为消费者创造更多价值而领先。在这些企业家取得成功之后,创造性破坏的力量对他们不利,威胁要取代他们在经济阶层中的地位。帮助那些想要出人头地的人的体制威胁着那些想要保持领先的人。对支持资本主义的制度框架的考察表明,它包含了政治精英与经济精英合作以实现互利的动机。大量关于寻租、抽租、监管捕获和利益集团活动的文献解释了为什么支持资本主义的法律体系容易被捕获,而这是为了精英的利益。资本家是资本主义的最大威胁。
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引用次数: 0
Resurgent Authoritarianism and the International Rule of Law 复兴的威权主义与国际法治
Pub Date : 2019-09-01 DOI: 10.2139/ssrn.3444799
Wayne Sandholtz
Modern rule of law and post-war constitutionalism are both anchored in rights-based limitations on state authority. Rule-of-law norms and principles, at both domestic and international levels, are designed to protect the freedom and dignity of the person. Given this “thick” conception of the rule of law, authoritarian practices that remove constraints on domestic political leaders and weaken mechanisms for holding them accountable necessarily erode both domestic and international rule of law. Drawing on political science research on authoritarian politics, this study identifies three core elements of authoritarian political strategies: subordination of the judiciary, suppression of independent news media and freedom of expression, and restrictions on the ability of civil society groups to organize and participate in public life. According to available data, each of these three practices has become increasingly common in recent years. This study offers a composite measure of the core authoritarian practices and uses it to identify the countries that have shown the most marked increases in authoritarianism. The spread and deepening of these authoritarian practices in diverse regimes around the world diminishes international rule of law. The conclusion argues that resurgent authoritarianism degrades international rule of law even if this is defined as the specifically post-Cold War international legal order.
现代法治和战后宪政都以对国家权力的权利限制为基础。国内和国际两级的法治规范和原则旨在保护人的自由和尊严。鉴于这种“厚重”的法治概念,取消对国内政治领导人的约束并削弱追究其责任的机制的专制做法必然会侵蚀国内和国际法治。通过对威权政治的政治学研究,本研究确定了威权政治策略的三个核心要素:司法机构的从属地位,对独立新闻媒体和言论自由的压制,以及对公民社会团体组织和参与公共生活能力的限制。根据现有数据,这三种做法近年来都变得越来越普遍。这项研究提供了一种对核心威权主义实践的综合衡量标准,并用它来确定威权主义表现出最显著增长的国家。这些专制做法在世界各地不同政权中的蔓延和深化削弱了国际法治。结论认为,复兴的威权主义削弱了国际法治,即使这被明确定义为冷战后的国际法律秩序。
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引用次数: 1
When Law & Economics Violates the Rule of Law: Three Illustrations 当法律与经济学违反法治:三个例证
Pub Date : 2018-07-04 DOI: 10.5339/ROLACC.2018.5
Aurélien Portuese
Law & Economics scholarship movement continues to be an important methodological approach to the positive and normative analysis of law since its inception in the second half of the 20th century. However, Law & Economics has been criticized on various grounds, from its over-reliance on consequentialist arguments against deontological arguments to its indifference towards the fundamental concepts of law such as the Rule of Law. This latter argument is scrutinized and further illustrated in this article. Here, we demonstrate that despite the common theoretical underpinnings between Law & Economics and the Rule of Law (I), it is argued that Law & Economics conflicts with the Rule of Law principles on three major instances, namely the Coase theorem, the theory of efficient breach of contracts and the influential rule of reason in the field of competition law and policies (II). We therefore conclude that there cannot be a practical convergence between Law & Economics and the Rule of Law at the universal level unless Law & Economics revisits some of its normative conclusions that conflict with the Rule of Law as exemplified in this article.
自20世纪下半叶开始以来,法律与经济学奖学金运动一直是对法律进行积极和规范分析的重要方法论途径。然而,《法律与经济学》受到了各种各样的批评,从过度依赖结果主义论点而不是义务论论点,到对法治等法律基本概念的漠不关心。后一种观点将在本文中详细讨论并进一步说明。在这里,我们证明,尽管法律与经济学与法治(I)之间有共同的理论基础,但人们认为,法律与经济学与法治原则在三个主要方面存在冲突,即科斯定理;有效违约理论以及竞争法和政策领域有影响力的理性规则(II)。因此,我们得出结论,除非《法律与经济学》重新审视其与本文所述的法治相冲突的一些规范性结论,否则在普遍层面上,《法律与经济学》与法治之间不可能存在实际的趋同。
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引用次数: 0
Rule of Law 法治
Pub Date : 2017-06-19 DOI: 10.1007/978-1-4614-7753-2_421
Rosolino Candela, E. Piano
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引用次数: 8
Illiberal, Democratic, Non Arbitrary. Epicentre and Circumstances of a Rule of Law Crisis 不自由,民主,非专制。法治危机的震中与环境
Pub Date : 2017-05-02 DOI: 10.2139/ssrn.2961940
G. Palombella
The diverse threats to the Rule of law (RoL), in more than one country, have been under the attention of the European Commission in the last years and have been focussed in relation to art 7 TEU procedure. The paper argues that EU oversight should be considered having regard to its internal premises and credibility; the question of a EU censorship partakes in a creeping weakness characterising the present relations between States and regional or supranational orders, whose authority is met at times with resisting arguments. Zooming out from the daily threats to the Rule of law in so called illiberal or populist governments, the article puts under scrutiny some usual theoretical tools and conceptual frames, namely, the connection between arbitrariness and the RoL on one side, and on the other the RoL and the overall idea of public law. It suggests that the present crisis is part of a seismic shifting of the main components of the idea of public law that underpins the modern and contemporary state. After disclosing a further case and evidence of (non-)arbitrariness - that exceeds the rule of law features -, the article challenges the conviction that a generic notion of arbitrariness can capture the problem of illiberal governmental actions, or justify the European Union attitude in responding to a ‘rule of law crisis’.
在过去几年中,不止一个国家对法治(RoL)的各种威胁一直受到欧盟委员会的关注,并集中在第7条TEU程序方面。本文认为,欧盟的监督应考虑到其内部前提和可信度;欧盟审查制度的问题体现了当前国家与区域或超国家秩序之间关系的一种逐渐显现的弱点,这些秩序的权威有时会遭到抵制。从所谓的非自由主义或民粹主义政府对法治的日常威胁中,本文审视了一些常用的理论工具和概念框架,即任意性与法律之间的联系,以及法律与公法整体理念之间的联系。它表明,当前的危机是支撑现当代国家的公法理念的主要组成部分发生巨变的一部分。在进一步披露(非)任意性的案例和证据之后——这超出了法治的特征——文章挑战了这样一种信念,即任意性的一般概念可以捕捉到不自由的政府行为的问题,或者证明欧盟在应对“法治危机”时的态度是合理的。
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引用次数: 6
The Rule of Law, Legal Pluralism, and Challenges to a Western-Centric View: Some Very Preliminary Observations 法治、法律多元化以及对西方中心主义的挑战:一些非常初步的观察
Pub Date : 2016-11-14 DOI: 10.2139/ssrn.2869190
Peer C. Zumbansen
Despite hundreds of “Rule of Law” projects at the World Bank and a host of research into the foundations and content of the Rule of Law, we are still nowhere near an altogether satisfactory definition. While the Rule of Law is repeatedly being referred to in ‘legal assistance’ and ‘law reform’ projects and lives as a guiding principle in constitutions around the world, we don’t seem able to settle on a commonly agreed-upon approach to its nature and institutional form. In this context, the Rule of Law provides an opportunity to engage critically with the differences in perception and bias from which participants in the debate define and situate the principle and its underlying values. This short paper argues for a legal pluralist understanding of the Rule of Law as a set of selective institutional experiences and normative contentions which look very different when studied across time and space. Complementing some of the work that has been done in post-colonial studies and by TWAIL (Third World Approaches to International Law) scholars in law, the ‘transnationalization of the rule of law’ might be one of the important next frontiers in deconstructing Western and Northern narratives of legal ordering.
尽管世界银行开展了数百个“法治”项目,并对法治的基础和内容进行了大量研究,但我们离一个完全令人满意的定义还差得远。虽然法治在“法律援助”和“法律改革”项目和生活中被反复提及,并作为世界各地宪法的指导原则,但我们似乎无法就其性质和制度形式达成共识。在这种背景下,法治提供了一个机会,批判性地参与辩论的参与者在定义和定位原则及其潜在价值的认知和偏见方面的差异。这篇简短的论文主张对法治的法律多元主义理解是一套选择性的制度经验和规范性争论,当跨越时间和空间进行研究时,它们看起来非常不同。“法治的跨国化”可能是解构西方和北方法律秩序叙事的下一个重要前沿之一,它补充了后殖民研究和第三世界国际法方法法学学者所做的一些工作。
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引用次数: 5
Compliance to Law and Effectiveness of the Rule of Law in Brazil 守法与巴西法治的有效性
Pub Date : 2013-12-02 DOI: 10.2139/ssrn.2362260
Luciana Gross Cunha, Fabiana Luci de Oliveira, L. Ramos
The goal of this paper is to debate the degree of effectiveness of the rule of law in Brazil, through a survey measuring perceptions, attitudes and habits of Brazilians in regard to compliance to law. The survey conducted in Brazil is based on the study conducted by Tom R. Tyler in the United States, entitled Why People Obey the Law? (New Haven, CT: Yale University Press, 1990). The main argument of Tyler´s study is that people obey the law when they believe it’s legitimate, and not because they fear punishment. We test the same argument in Brazil, relying on five indicators: (i) behavior, which depicts the frequency with which respondents declared to have engaged in conducts in disobedience to the law; (ii) instrumentality, measuring perception of losses associated with the violation of the law, specially fear of punishment; (iii) morality, measuring perception of how much is right or wrong to engage in certain conducts in violation of the law; (iv) social control, which measures perception of social disapproval of certain types of behavior in violation of the law, and (v) legitimacy, which measures the perception of respect to the law and to some authorities. Results indicate that fear of sanctions is not the strongest drive in compliance to law, but more than legitimacy, indicators of morality and social control are the strongest in explaining why people obey the law in Brazil.
本文的目的是通过一项调查来衡量巴西人在遵守法律方面的看法、态度和习惯,来辩论巴西法治的有效性程度。在巴西进行的这项调查是基于汤姆·r·泰勒在美国进行的一项名为“人们为什么遵守法律?”(纽黑文,康涅狄格州:耶鲁大学出版社,1990)。泰勒研究的主要论点是,人们遵守法律是因为他们相信法律是合法的,而不是因为他们害怕惩罚。我们在巴西测试了同样的论点,依靠五个指标:(i)行为,它描述了受访者宣布从事不服从法律的行为的频率;工具性,衡量对与违法行为有关的损失的看法,特别是对惩罚的恐惧;(iii)道德,衡量从事某些违法行为的对错程度;(iv)社会控制,衡量社会对某些违法行为的不赞成程度;(v)合法性,衡量对法律和某些权威的尊重程度。结果表明,对制裁的恐惧并不是促使人们守法的最强大动力,但在解释巴西人们为什么守法方面,道德和社会控制的指标比合法性更强大。
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引用次数: 1
Law as a Precondition for Religious Freedom 法律是宗教自由的先决条件
Pub Date : 2011-04-01 DOI: 10.2139/ssrn.1803254
C. Engel
Throughout history, people have suffered for the sake of their religion. Religious organisations have been forbidden or governments have tightly controlled them. The constitutional protection of freedom of religion is a necessity. In a religiously pluralistic world, granting the guarantee is also in the state’s best interest. Yet religions have been hesitant to embrace the guarantee. It implies secularism. Religious freedom is balanced against other freedoms, and against legitimate state interests. Government is faced with social forces that are grounded in eternity and that cannot be proven to be wrong. Seemingly the constitutional protection is a threatening for religions and the state as it is beneficial. Yet the essentially pragmatic nature of law overcomes the tragic dilemma – albeit only at the price of acknowledging that jurisprudence is policy-making.
纵观历史,人们为了他们的宗教而受苦。宗教组织被禁止或政府严格控制。宪法对宗教自由的保护是必要的。在一个宗教多元化的世界里,提供担保也符合国家的最佳利益。然而,宗教对接受这一保证一直犹豫不决。它意味着世俗主义。宗教自由与其他自由以及合法的国家利益相平衡。政府面对的社会力量是永恒的,不能被证明是错误的。从表面上看,宪法保护对宗教和国家是一种威胁,因为它是有益的。然而,法律本质上的实用主义本质克服了悲剧性的困境——尽管代价是承认法理学就是政策制定。
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引用次数: 3
Tax Avoidance, the Rule of Law and the New Zealand Supreme Court 避税,法治和新西兰最高法院
Pub Date : 2010-12-15 DOI: 10.2139/ssrn.1726165
M. Littlewood
This paper examines the approach that the New Zealand Supreme Court, which was established in 2004, has taken to the problem of tax avoidance. In particular, it examines Ben Nevis Ltd v Commissioner of Inland Revenue (which concerned the General Anti-Avoidance Rule – or GAAR – contained in the Income Tax Act) and Glenharrow Ltd v Commissioner of Inland Revenue (which concerned the GAAR contained in the Goods and Services Tax Act). These cases lend weight to the theory that the idea of tax avoidance is not susceptible to coherent explication and that rules against it are therefore inescapably problematic – to the extent, even, that they constitute a departure from the rule of law. The cases also suggest, however, that having a GAAR is nonetheless better than not having one. It seems clear, too, that the Supreme Court has already, in these two cases, both clarified the law and taken a tougher line against tax avoidance than did the Privy Council.
本文考察了2004年成立的新西兰最高法院处理避税问题的方法。特别地,它审查了本尼维斯有限公司诉税务局局长(涉及所得税法中包含的一般反避税规则-或GAAR)和格伦哈罗有限公司诉税务局局长(涉及商品和服务税法中包含的GAAR)。这些案例支持了这样一种理论,即避税的概念不容易得到连贯的解释,因此反对避税的规则不可避免地存在问题——甚至在某种程度上,它们构成了对法治的背离。然而,这些案例也表明,有GAAR总比没有好。很明显,在这两个案例中,与枢密院相比,最高法院已经明确了法律,并对避税采取了更强硬的立场。
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引用次数: 5
The Compatibility Dialectic: Mediating the Legitimate Coexistence of Islamic Law and State Law 相容辩证法:调解伊斯兰法与国法的合法共存
Pub Date : 2010-01-01 DOI: 10.1111/j.1468-2230.2009.00782.x
Abdullahi Ahmed An-Nacim
Islamic Law is not now and cannot be the state law of any state, whether Muslims are the majority or minority of the population. This view does not dispute the religious authority of Islamic Law for Muslims, which exists only outside the framework of the state. Still, some principles of Islamic Law should be relevant to the public discourse, provided the argument is made in terms of what the author calls ‘civic reason’ and not simply by assertions of religious conviction. While the two are different types of normative systems, each based on its own sources of authority and legitimacy, there are possibilities of compatibility and mutual influence between Islamic Law and state law as complementary normative systems, without requiring either to conform to the nature and role of the other. This lecture examines the requirements, scope and dynamics of this dialectic relationship, whether Muslims are majority or minority.
伊斯兰法现在不是,也不可能是任何国家的州法,无论穆斯林是人口的多数还是少数。这种观点并不质疑伊斯兰教法对穆斯林的宗教权威,因为伊斯兰教法只存在于国家框架之外。尽管如此,伊斯兰教法的一些原则应该与公共话语相关,前提是这些论点是根据作者所说的“公民理性”而不是简单地通过宗教信仰的断言来提出的。虽然这两种是不同类型的规范体系,每一种都基于自己的权威和合法性来源,但伊斯兰法和国家法作为互补的规范体系之间存在兼容和相互影响的可能性,而不要求任何一方符合另一方的性质和作用。本讲座探讨了这种辩证关系的要求、范围和动态,无论穆斯林是多数还是少数。
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引用次数: 20
期刊
PSN: Rule of Law (Topic)
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