The proliferation of international courts and tribunals was a post-Cold War phenomenon. Its timing coincided with rise of the Neo-liberal Washington Consensus, and with the idea that promoting human rights and democracy decreases violence and interstate-war. Should we expect declining popular support for globalization and democracy, and the rise of nationalists leaders and powerful countries antagonistic to human rights and the rule of law to signal the end of the international adjudication era? This contribution will consider the forces that propelled the proliferation of international courts and international adjudication, and international judicialization more generally alongside the factors that contribute to dejudicializing international politics to explore what the current moment suggests for the future of international adjudication. I argue that formal dejudicialization–the elimination of international adjudication–is less likely than de facto dejudicialization. Exploring further de facto dejudicialization, I consider two likely possibilities. 1) International adjudication can return to Sleeping Beauty mode where adjudicatory bodies exist but they are either little used and/or their rulings become less legally and politically relevant. 2) We can witness decay where adjudicatory bodies either become subservient or they generate contestation that undermines their legitimacy and authority. We cannot know if these two options present short or longer term equilibriums, but overall I predict that judicialized international politics will persist.
{"title":"The High Water Mark of International Judicialization?","authors":"K. Alter","doi":"10.2139/ssrn.3857526","DOIUrl":"https://doi.org/10.2139/ssrn.3857526","url":null,"abstract":"The proliferation of international courts and tribunals was a post-Cold War phenomenon. Its timing coincided with rise of the Neo-liberal Washington Consensus, and with the idea that promoting human rights and democracy decreases violence and interstate-war. Should we expect declining popular support for globalization and democracy, and the rise of nationalists leaders and powerful countries antagonistic to human rights and the rule of law to signal the end of the international adjudication era? This contribution will consider the forces that propelled the proliferation of international courts and international adjudication, and international judicialization more generally alongside the factors that contribute to dejudicializing international politics to explore what the current moment suggests for the future of international adjudication. I argue that formal dejudicialization–the elimination of international adjudication–is less likely than de facto dejudicialization. Exploring further de facto dejudicialization, I consider two likely possibilities. 1) International adjudication can return to Sleeping Beauty mode where adjudicatory bodies exist but they are either little used and/or their rulings become less legally and politically relevant. 2) We can witness decay where adjudicatory bodies either become subservient or they generate contestation that undermines their legitimacy and authority. We cannot know if these two options present short or longer term equilibriums, but overall I predict that judicialized international politics will persist.","PeriodicalId":376788,"journal":{"name":"AARN: Legal Systems (Topic)","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130798109","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Chinese Civil Code was enacted on May 28, 2020 and will become effective on January 1, 2021 as the first civil code in the Communist China. Half a century of codification effort finally resulted in this much anticipated code. It utilized state-of-the-art codification techniques and presents a number of innovative features unique to China. In its concise 1260 articles, the Code is divided in seven books: the general provisions, property, contracts, personality, family law, succession and torts. In a break with civilian traditions, the Chinese Civil Code divides obligations into contracts and torts, and it absorbs law of unjust enrichment into the book on contracts as quasi-contracts. Moreover, a book on law of personality stands on its own which includes an enumerated list of personality rights protected by Chinese law with a focus on privacy and data protection in an effort to keep Chinese civil law up-to-date in order to tackle the legal challenges posed by the advancement of technology. Much progress has been made but there are problems that need to be addressed for this Civil Code to be successful. Some of these come from the tensions between the rise of private law and the dominant state sector, the contradictions among legal transplants, the incompatibility between doctrinal innovations and the existing structure, the clash between distributive justice - the foundation of Chinese moral philosophy and commutative justice - the foundation of Western private law. I will argue that solutions to some persistent problems require structural change in Chinese economy, doctrinal innovation and clarification, and conscientious acceptance of a law that is based upon philosophical ideas that differ from traditional Chinese moral philosophy.
{"title":"The Making of a Civil Code in China: Promises and Perils of a New Civil Law","authors":"Hao Jiang","doi":"10.2139/ssrn.3740658","DOIUrl":"https://doi.org/10.2139/ssrn.3740658","url":null,"abstract":"The Chinese Civil Code was enacted on May 28, 2020 and will become effective on January 1, 2021 as the first civil code in the Communist China. Half a century of codification effort finally resulted in this much anticipated code. It utilized state-of-the-art codification techniques and presents a number of innovative features unique to China. \u0000 \u0000In its concise 1260 articles, the Code is divided in seven books: the general provisions, property, contracts, personality, family law, succession and torts. In a break with civilian traditions, the Chinese Civil Code divides obligations into contracts and torts, and it absorbs law of unjust enrichment into the book on contracts as quasi-contracts. Moreover, a book on law of personality stands on its own which includes an enumerated list of personality rights protected by Chinese law with a focus on privacy and data protection in an effort to keep Chinese civil law up-to-date in order to tackle the legal challenges posed by the advancement of technology. \u0000 \u0000Much progress has been made but there are problems that need to be addressed for this Civil Code to be successful. Some of these come from the tensions between the rise of private law and the dominant state sector, the contradictions among legal transplants, the incompatibility between doctrinal innovations and the existing structure, the clash between distributive justice - the foundation of Chinese moral philosophy and commutative justice - the foundation of Western private law. I will argue that solutions to some persistent problems require structural change in Chinese economy, doctrinal innovation and clarification, and conscientious acceptance of a law that is based upon philosophical ideas that differ from traditional Chinese moral philosophy.","PeriodicalId":376788,"journal":{"name":"AARN: Legal Systems (Topic)","volume":"2012 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127392473","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We study the long-term and dynamic relationship between de jure and de facto judicial independence using a large panel dataset covering up to 87 countries and as many as 61 years. In line with the prevailing theoretical view in the literature, our analysis shows a positive relationship between these variables. However, the magnitude of the relationship is quite small. The positive relationship between the two variables is primarily driven by non-OECD countries.
{"title":"The Long-Term Relationship Between De Jure and De Facto Judicial Independence","authors":"B. Hayo, S. Voigt","doi":"10.2139/ssrn.3318549","DOIUrl":"https://doi.org/10.2139/ssrn.3318549","url":null,"abstract":"We study the long-term and dynamic relationship between de jure and de facto judicial independence using a large panel dataset covering up to 87 countries and as many as 61 years. In line with the prevailing theoretical view in the literature, our analysis shows a positive relationship between these variables. However, the magnitude of the relationship is quite small. The positive relationship between the two variables is primarily driven by non-OECD countries.","PeriodicalId":376788,"journal":{"name":"AARN: Legal Systems (Topic)","volume":"263 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116525794","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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