Pub Date : 2018-11-01DOI: 10.1515/icl-2018-frontmatter3
{"title":"Frontmatter","authors":"","doi":"10.1515/icl-2018-frontmatter3","DOIUrl":"https://doi.org/10.1515/icl-2018-frontmatter3","url":null,"abstract":"","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78619874","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}
Abstract Who gets to determine rights and justice? Which mechanism of judicial selection and accountability is optimal? There is no easy answer. If judges are independent experts, nominated and evaluated by their peers, they will be immune from the pressures of electoral rent-seeking, but unaccountable to the people. If judges are elected, they will be democratically accountable, but subject to the redistributive pressures of the ballot box. If judges are nominated and controlled by politicians, they will face the temptations of bureaucratic self-interest and will not be democratically accountable, but they will be shielded from the Public Choice problems of elections. This paper uses the death penalty in the United States to measure and compare the impact of different methods of judicial selection. In the end, there is no optimal solution – at least not within a state judicial monopoly.
{"title":"The Judge and His Hangman: Judicial Selection and the Accountability of Judges in the US","authors":"B. Lemennicier, N. Wenzel","doi":"10.1515/icl-2018-0009","DOIUrl":"https://doi.org/10.1515/icl-2018-0009","url":null,"abstract":"Abstract Who gets to determine rights and justice? Which mechanism of judicial selection and accountability is optimal? There is no easy answer. If judges are independent experts, nominated and evaluated by their peers, they will be immune from the pressures of electoral rent-seeking, but unaccountable to the people. If judges are elected, they will be democratically accountable, but subject to the redistributive pressures of the ballot box. If judges are nominated and controlled by politicians, they will face the temptations of bureaucratic self-interest and will not be democratically accountable, but they will be shielded from the Public Choice problems of elections. This paper uses the death penalty in the United States to measure and compare the impact of different methods of judicial selection. In the end, there is no optimal solution – at least not within a state judicial monopoly.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84455588","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 issue of unconstitutional constitutional amendments encompasses several major topics of constitutional law and legal theory, such as the relationship between constituent and constituted powers; the scope and limits of the amending power (or competence), as well as the role of constitutional adjudication in these processes. Yaniv Roznai’s book will certainly foster scholarly debate on constitutional identity and constitutional change, as well as the role of constitutional courts in the enforcement of limits to the amending power. Overall, the text is interesting, well-written and enjoyable for the reader. The reasoning is divided into three main blocks and I will construe my review according to this threefold partition, delving into the topic progressively more in detail, as my expertise concerns, to a greater extent, the jurisprudence regarding constitutional amendments from a comparative perspective. I will draft some remarks on each part of the book and propose general observations on the core concepts and questions. Finally, I will link and contrast Roznai’s arguments to European scholarship on comparative methodology and specifically to my own work concerning constitutional adjudication on constitutional amendments published since 2011. I. The core concept of the book being ‘unamendability’, the author starts the research with the examination of this phenomenon, both theoretically and in practice, from a comprehensive comparative perspective. He adopts a reasoned classification based on explicit, implicit and supra-constitutional limits to the amending power, spanning different jurisdictions and interpretations. First, he analyzes the case of eternity clauses explicitly included in the constitutions
{"title":"The Limits of Amendment Powers","authors":"Sabrina Ragone","doi":"10.1515/icl-2018-0044","DOIUrl":"https://doi.org/10.1515/icl-2018-0044","url":null,"abstract":"The issue of unconstitutional constitutional amendments encompasses several major topics of constitutional law and legal theory, such as the relationship between constituent and constituted powers; the scope and limits of the amending power (or competence), as well as the role of constitutional adjudication in these processes. Yaniv Roznai’s book will certainly foster scholarly debate on constitutional identity and constitutional change, as well as the role of constitutional courts in the enforcement of limits to the amending power. Overall, the text is interesting, well-written and enjoyable for the reader. The reasoning is divided into three main blocks and I will construe my review according to this threefold partition, delving into the topic progressively more in detail, as my expertise concerns, to a greater extent, the jurisprudence regarding constitutional amendments from a comparative perspective. I will draft some remarks on each part of the book and propose general observations on the core concepts and questions. Finally, I will link and contrast Roznai’s arguments to European scholarship on comparative methodology and specifically to my own work concerning constitutional adjudication on constitutional amendments published since 2011. I. The core concept of the book being ‘unamendability’, the author starts the research with the examination of this phenomenon, both theoretically and in practice, from a comprehensive comparative perspective. He adopts a reasoned classification based on explicit, implicit and supra-constitutional limits to the amending power, spanning different jurisdictions and interpretations. First, he analyzes the case of eternity clauses explicitly included in the constitutions","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86549403","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}
Abstract In Unconstitutional Constitutional Amendments, Yaniv Roznai seeks to unscramble the apparent contradictions in the idea of an unconstitutional constitutional amendment. This argument is ambitious in its scope and its global comparative reach. Roznai does not limit himself to justifying explicit limitations placed on the power of amendment nor to limitations that go only to process. Rather, Roznai argues that amendment powers are always subject to limitations of substance and procedure and that these limitations may be implicit as well as explicit. In this short essay, I will argue that the form of argument deployed by Roznai cannot fully justify the doctrine of unamendability as Roznai elaborates upon it. It allows Roznai to establish that unamendability is a conceptual possibility but it does not follow, as he seeks to argue, that unamendability is a necessary consequence of constitutionalism.
{"title":"Unconstitutional Constitutional Amendments: Between Contradiction and Necessity","authors":"A. Stone","doi":"10.1515/icl-2018-0043","DOIUrl":"https://doi.org/10.1515/icl-2018-0043","url":null,"abstract":"Abstract In Unconstitutional Constitutional Amendments, Yaniv Roznai seeks to unscramble the apparent contradictions in the idea of an unconstitutional constitutional amendment. This argument is ambitious in its scope and its global comparative reach. Roznai does not limit himself to justifying explicit limitations placed on the power of amendment nor to limitations that go only to process. Rather, Roznai argues that amendment powers are always subject to limitations of substance and procedure and that these limitations may be implicit as well as explicit. In this short essay, I will argue that the form of argument deployed by Roznai cannot fully justify the doctrine of unamendability as Roznai elaborates upon it. It allows Roznai to establish that unamendability is a conceptual possibility but it does not follow, as he seeks to argue, that unamendability is a necessary consequence of constitutionalism.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81855891","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 review "Settled Versus Right: A Theory of Precedent" by Randy J. Kozel. In summary, Kozel’s book is worth reading because our Anglo-American legal system is built on the foundation of the doctrine of stare decisis, and his book provides an in-depth yet readable exploration of how precedent is supposed to work. Specifically, Kozel explains why precedent is such a feeble constraint in constitutional cases, and he proposes a novel "second-best theory of stare decisis," given judicial disagreement over proper constitutional interpretation. We identify several problems with this second-best theory of precedent, and we also present an alternative theory of Bayesian stare decisis.
我们回顾了兰迪·j·科泽尔(Randy J. Kozel)的《安定与正确:一种先例理论》。总而言之，科泽尔的书值得一读，因为我们的英美法律体系是建立在先例原则的基础上的，他的书对先例应该如何发挥作用进行了深入而可读的探索。具体来说，科泽尔解释了为什么先例在宪法案件中是如此微弱的约束，他提出了一种新颖的“依先例行事的次优理论”，考虑到司法上对适当的宪法解释存在分歧。我们确定了这种次优先例理论的几个问题，我们也提出了贝叶斯先例的另一种理论。
{"title":"The Problem with Precedent","authors":"E. Guerra-Pujol","doi":"10.1515/icl-2018-0041","DOIUrl":"https://doi.org/10.1515/icl-2018-0041","url":null,"abstract":"We review \"Settled Versus Right: A Theory of Precedent\" by Randy J. Kozel. In summary, Kozel’s book is worth reading because our Anglo-American legal system is built on the foundation of the doctrine of stare decisis, and his book provides an in-depth yet readable exploration of how precedent is supposed to work. Specifically, Kozel explains why precedent is such a feeble constraint in constitutional cases, and he proposes a novel \"second-best theory of stare decisis,\" given judicial disagreement over proper constitutional interpretation. We identify several problems with this second-best theory of precedent, and we also present an alternative theory of Bayesian stare decisis.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88787729","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}
Abstract In 2010, Austria introduced the Registered Partnership as the only form of legal recognition for same-sex couples while marriage is limited to heterosexual couples. In a recent judgment, the Austrian Constitutional Court decided this limitation to be unconstitutional. Due to numerous legal changes in the last years, the legal framework governing registered partnerships and marriage became nearly identical. By upholding different terms for the same kind of relationship, same-sex partners are presented unequal to different-sex couples and forced to show their sexual orientation even in situations where sexual orientation should be irrelevant. This puts them at risk of discrimination. The Court considers this as a violation of the principle of equality.
{"title":"Austrian Constitutional Court Somewhere under the Rainbow: Marriage Equality and the Role of the Austrian Constitutional Court","authors":"Christa Pail","doi":"10.1515/icl-2018-0026","DOIUrl":"https://doi.org/10.1515/icl-2018-0026","url":null,"abstract":"Abstract In 2010, Austria introduced the Registered Partnership as the only form of legal recognition for same-sex couples while marriage is limited to heterosexual couples. In a recent judgment, the Austrian Constitutional Court decided this limitation to be unconstitutional. Due to numerous legal changes in the last years, the legal framework governing registered partnerships and marriage became nearly identical. By upholding different terms for the same kind of relationship, same-sex partners are presented unequal to different-sex couples and forced to show their sexual orientation even in situations where sexual orientation should be irrelevant. This puts them at risk of discrimination. The Court considers this as a violation of the principle of equality.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83863485","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}
Abstract Most constitutions start with a preamble. A constitutional preamble is a text designed to introduce the rest of the constitution. Often, it is also meant to give a concise statement of the nature of the system that the constitution establishes. While they may differ in style and length, most preambles seem to perform two primary functions. First, they declare or identify the source of authority for the document. In most preambles, it is ‘we the people’ that is invoked as the legitimate source of authority. Second, most preambles engage in an explicit attempt to project an identity for ‘we the people.’ At times, the people is defined through an extended historical biography. At other times, it is the presumed common ethnic origin or religious membership that is said to establish the bond, whether the people is territorially bound or not. Still at other times, it is the existence of common political and moral principles that is thought to make up the core constitutive elements of who the people are. Whatever the strategy, preambles attempt to imagine a usable political identity for the people, its collective agency. ‘The people’ are viewed with sufficient agency capable of ‘ordaining’ or ‘granting’ the constitutional document to themselves. Of course, in many cases ‘we the people’ are the very creation of the document itself. Under this account, the ‘people’ are simultaneously the author and product of the constitution. In this sense, preambles are performative in nature: they constitute the people as they at the same time declare that the people are their authors. Through a close study of the constitutional preambles of all countries currently in existence, this article explores how preambles narrate a politically serviceable identity for ‘the people’. Whatever else they are meant to do, preambles are narratives of peoplehood. The formal legal status of preambles might be uncertain, but what is not in doubt and what has largely been neglected is the fact that preambles are also means through which a people attempts to imagine and solidify its identity. As Benedict Anderson long ago explained, an imagined identity is neither true nor false—it simply is. This article explores the processes by which this imagining takes place and the purposes for which it is adopted.
{"title":"Constitutional Preambles as Narratives of Peoplehood","authors":"Adeno Addis","doi":"10.1515/icl-2017-0079","DOIUrl":"https://doi.org/10.1515/icl-2017-0079","url":null,"abstract":"Abstract Most constitutions start with a preamble. A constitutional preamble is a text designed to introduce the rest of the constitution. Often, it is also meant to give a concise statement of the nature of the system that the constitution establishes. While they may differ in style and length, most preambles seem to perform two primary functions. First, they declare or identify the source of authority for the document. In most preambles, it is ‘we the people’ that is invoked as the legitimate source of authority. Second, most preambles engage in an explicit attempt to project an identity for ‘we the people.’ At times, the people is defined through an extended historical biography. At other times, it is the presumed common ethnic origin or religious membership that is said to establish the bond, whether the people is territorially bound or not. Still at other times, it is the existence of common political and moral principles that is thought to make up the core constitutive elements of who the people are. Whatever the strategy, preambles attempt to imagine a usable political identity for the people, its collective agency. ‘The people’ are viewed with sufficient agency capable of ‘ordaining’ or ‘granting’ the constitutional document to themselves. Of course, in many cases ‘we the people’ are the very creation of the document itself. Under this account, the ‘people’ are simultaneously the author and product of the constitution. In this sense, preambles are performative in nature: they constitute the people as they at the same time declare that the people are their authors. Through a close study of the constitutional preambles of all countries currently in existence, this article explores how preambles narrate a politically serviceable identity for ‘the people’. Whatever else they are meant to do, preambles are narratives of peoplehood. The formal legal status of preambles might be uncertain, but what is not in doubt and what has largely been neglected is the fact that preambles are also means through which a people attempts to imagine and solidify its identity. As Benedict Anderson long ago explained, an imagined identity is neither true nor false—it simply is. This article explores the processes by which this imagining takes place and the purposes for which it is adopted.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84977960","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}
Pub Date : 2018-06-01DOI: 10.1515/icl-2018-frontmatter2
{"title":"Frontmatter","authors":"","doi":"10.1515/icl-2018-frontmatter2","DOIUrl":"https://doi.org/10.1515/icl-2018-frontmatter2","url":null,"abstract":"","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86816656","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}
Over the past eight years, the redrafting of the Hungarian constitutional landscape, the declaration of illiberal constitutionalism and its contagious effect across Central and Eastern Europe have firmly moved into research spotlight. Political analysts, lawyers, economists and other academics within liberal studies are making attempts to observe and assess the U-turn of this once hailed as promising and consolidated Central-European state, which was after its democratic transition of 1989–90 the eminent state for EU accession. Developments in Hungarian constitutional law after 2010 suggest that the era in Hungarian constitutionalism characterized by a commitment to the rule of law has been replaced by an era where the law is regarded as an instrument available to the government to rule. Under the new constitution, the constraints that follow from the rule of law have been habitually overridden or ignored by the government. The Constitutional Court’s attempts, to continue the legacy of pre-2010 constitutional practice, were reproached by the government who moved to delimit the powers of the Court or overrule its decisions by formal amending the text of the Constitution. Given this, Hungary offers one of the most striking examples of the degree to which an overwhelming political mandate can dismantle and paralyse key democratic institutions designed in the name of liberal constitutionalism yet not deeply rooted in the society. András L Pap’s monograph is a brand-new set of academic explanations that intend to support better understandings of illiberal constitutionalism in the making. The author – who is professor of constitutional law and doctor at the Hungarian Academy of Sciences; research chair and head of department for the study of constitutionalism and the rule of law at Hungarian Academy of Sciences
在过去的八年中，匈牙利宪法格局的重新起草，非自由宪政的宣言及其在中欧和东欧的传染效应已经成为研究的焦点。政治分析人士、律师、经济学家和自由主义研究领域的其他学者正试图观察和评估这个曾经被誉为有前途和巩固的中欧国家的180度大转弯，在1989年至1990年的民主转型之后，这个国家成为了加入欧盟的杰出国家。2010年以后匈牙利宪法的发展表明，以承诺法治为特征的匈牙利宪政时代已经被一个将法律视为政府统治工具的时代所取代。在新宪法下，政府习惯性地无视或无视法治带来的约束。宪法法院试图延续2010年以前的宪法惯例，但遭到了政府的谴责，政府试图通过正式修改宪法文本来划定法院的权力或推翻其裁决。鉴于此，匈牙利提供了一个最引人注目的例子，说明压倒性的政治授权可以在多大程度上摧毁和瘫痪以自由宪政的名义设计的关键民主制度，但这些制度并未深深扎根于社会。András L Pap的专著是一套全新的学术解释，旨在支持更好地理解正在形成的非自由宪政。作者是匈牙利科学院的宪法学教授和博士;匈牙利科学院宪政与法治研究系主任及系主任
{"title":"New Book on ‘Constitutionalism’ in an Illiberal State: András L Pap, Democratic Decline in Hungary: Law and Society in an Illiberal Democracy (Routledge 2018)","authors":"Nóra Chronowski","doi":"10.1515/icl-2018-0017","DOIUrl":"https://doi.org/10.1515/icl-2018-0017","url":null,"abstract":"Over the past eight years, the redrafting of the Hungarian constitutional landscape, the declaration of illiberal constitutionalism and its contagious effect across Central and Eastern Europe have firmly moved into research spotlight. Political analysts, lawyers, economists and other academics within liberal studies are making attempts to observe and assess the U-turn of this once hailed as promising and consolidated Central-European state, which was after its democratic transition of 1989–90 the eminent state for EU accession. Developments in Hungarian constitutional law after 2010 suggest that the era in Hungarian constitutionalism characterized by a commitment to the rule of law has been replaced by an era where the law is regarded as an instrument available to the government to rule. Under the new constitution, the constraints that follow from the rule of law have been habitually overridden or ignored by the government. The Constitutional Court’s attempts, to continue the legacy of pre-2010 constitutional practice, were reproached by the government who moved to delimit the powers of the Court or overrule its decisions by formal amending the text of the Constitution. Given this, Hungary offers one of the most striking examples of the degree to which an overwhelming political mandate can dismantle and paralyse key democratic institutions designed in the name of liberal constitutionalism yet not deeply rooted in the society. András L Pap’s monograph is a brand-new set of academic explanations that intend to support better understandings of illiberal constitutionalism in the making. The author – who is professor of constitutional law and doctor at the Hungarian Academy of Sciences; research chair and head of department for the study of constitutionalism and the rule of law at Hungarian Academy of Sciences","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87297334","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}
Abstract The Rule of Law and economic development are widely regarded as necessary for a successful society, but defining the international rule of law and explaining the relationship with economic development has proven elusive. This article begins with explanations posited by Hayek and others, but brings a fresh perspective grounded in a multidisciplinary and contextual approach that includes history, philosophy, economics, and law. Properly defined, the rule of law refers to a specific understanding of the relationship between the individual and government. The common law conception of the rule of law (as opposed to the civilian Rechtsstaat or L’État de Droit) is historically more supportive of economic development, but modern international descriptions and definitions confuse the two. Based on empirical economic studies and historical legal anthropology, the common law understanding focused on limited government and individual freedom from interference has proven more likely to encourage entrepreneurship and hence economic development on a long-term basis.
法治和经济发展被广泛认为是一个成功社会的必要条件，但定义国际法治并解释其与经济发展的关系却被证明是难以捉摸的。这篇文章从哈耶克和其他人提出的解释开始，但带来了一个基于多学科和上下文方法的新视角，包括历史、哲学、经济学和法律。正确地定义，法治是指对个人与政府之间关系的具体理解。普通法的法治概念(与民法的Rechtsstaat或L ' État de Droit相对)在历史上更支持经济发展，但现代国际上的描述和定义混淆了这两者。基于实证经济研究和历史法律人类学，着眼于有限政府和个人不受干涉自由的普通法理解已被证明更有可能鼓励企业家精神，从而促进长期的经济发展。
{"title":"The Relationship Among the International Rule of Law, Spontaneous Order, and Economic Development","authors":"Nadia E. Nedzel","doi":"10.1515/icl-2017-0068","DOIUrl":"https://doi.org/10.1515/icl-2017-0068","url":null,"abstract":"Abstract The Rule of Law and economic development are widely regarded as necessary for a successful society, but defining the international rule of law and explaining the relationship with economic development has proven elusive. This article begins with explanations posited by Hayek and others, but brings a fresh perspective grounded in a multidisciplinary and contextual approach that includes history, philosophy, economics, and law. Properly defined, the rule of law refers to a specific understanding of the relationship between the individual and government. The common law conception of the rule of law (as opposed to the civilian Rechtsstaat or L’État de Droit) is historically more supportive of economic development, but modern international descriptions and definitions confuse the two. Based on empirical economic studies and historical legal anthropology, the common law understanding focused on limited government and individual freedom from interference has proven more likely to encourage entrepreneurship and hence economic development on a long-term basis.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77514323","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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