International Journal of Law in Context最新文献

Laws seeking to resolve war-related problems face a significant dilemma. While the legal establishment in a war-affected country drafts laws based on normative approaches suited to peacetime and stable settings, the civilian population pursues crises livelihoods that are markedly unsuited to compliance with or use of such laws. What emerges are socio-legal instabilities that aggravate instead of resolve wartime problems. With a socio-legal examination of Ukraine’s wartime housing Compensation Law, this article describes six sets of instabilities that compromise the utility of the law and aggravate or create additional problems: (1) the case-by-case approach, (2) administrative and institutional capacities, (3) legal vs. available evidence, (4) the timeframe for claims submission and awareness raising, (5) excluded segments of civil society and (6) prohibitions on selling properties. Approaches from international best practice that may be able to attend to these instabilities are then suggested.

Both Hungary and Poland have been in the spotlight regarding their democratic backsliding, with Executives exerting control over supposedly independent pillars of democracy, such as courts or the media. While the concerns about these countries also voiced by leaders of European institutions were similar, the resistance against the systematic erosion of judicial independence comes in different forms. Using comparative longitudinal case study methodology, this article shows that a defining characteristic in the potential, visibility and feasibility of what judges did or could do under the current threats depends on the role judicial associations, understood as representative collegial judicial bodies. More precisely, the format, organisation and operative tools of judicial associations contribute to their influence on prior judicial reforms and their capacity to withstand ongoing efforts in curtailing their independence from political actors. Empirically, the article reviews multiple judicial changes in the 1992–2015 period in both countries and assesses how judicial associations then shaped the divergent responses to recent attempts at limiting judicial independence. The differences in the legal framework, organisation and network reliance explains variance in resistance. Overall, the article broadens the theoretical and empirical framework for studying the role of courts and judges with considerations regarding professional association organisation and co-ordination, as a potential layer of studying judicial resistance.

This article discusses the thin socio-legal conceptualisation of the rule of law in Hungary. Employing a culturalist perspective, it first shows how the rule of law had a thin foundation prior to the Second World War in this country. Then, the contribution demonstrates how, contrary to previous understandings, even in the most advanced stages of rule of law building in Hungary, in the early 1990s, the resulting concept had been thin mainly focusing on institutional guarantees and legal certainty. The remaining part of the contribution then critically discusses whether and to what extent it is possible to use backsliding to frame the ongoing legal changes in Hungary.

This introduction develops a theoretical framework for understanding authoritarian backsliding against the backdrop of existing historical and European socio-legal scholarship. It introduces a number of key distinctions to better understand socio-legal variance among autocratisation. Specifically, it highlights the distinction between authoritarian backsliding and complete breakdown of judicial independence and human rights

Authoritarian backsliding is an aggravated form of rule of law decay, where functioning of key rule of law institutions comes under direct threat and it is mostly observable in the contemporary Central and Eastern European context. This differs from historical instances of authoritarian turn referring to the complete breakdown of judicial independence and human rights, characterised by the politicisation of courts as a mainly historical phenomenon. The differentiation and their socio-legal implications is crucial for developing a roadmap to identify different forms of autocratisation and their different contexts (actors, institutional and political context) that need to be considered when addressing rule of law decay in Europe, both at the national and supranational levels. Ultimately, this general overview also offers the possibility to identify and address latent discontinuities in rule of law development at both the supranational and national levels. Identification of such latent discontinuities is of importance when assessing the risks involved in the introduction of emergency measures to combat perceived threats to the state and the society.

This article critically examines the significance of the relationship between past and present for understanding liberal democratic values in the European context. The article starts by reflecting on the terms used to evaluate the apparent decline in the rule of law in Europe, including ‘backsliding’. It argues that these terms are indicative of a conceptual framework of analysis that includes a temporal dimension but is only partly historical, demonstrating a presentist focus and a perception of the past as a separate period. The article links this perception with the conceptual construction of the rule of law itself, as well as national and transnational narratives about it, which evoke Europe’s non-democratic past as a definitional point of reference that is distinct from the present. Using examples of the legacies of Europe’s dark legal past, the article highlights the artificial nature of this distinction for a range of systems with differing historical experiences. The article argues that interpreting the past in terms of segmented and sequential temporal periods is conceptually contestable and it draws on the philosophy of history to show how the past can instead be understood to have ‘sedimentary’ layers and to endure over time. Ultimately, the article argues that the relationship between law’s past and law’s present needs to be reconceptualised in terms of metaphorical ‘fault lines’ in the rule of law, to acknowledge the potentially disruptive effects of history and to facilitate a critical reimagining of the rule of law’s theoretical and factual foundations.

States’ bordering practices force individuals to undertake dangerous migratory journeys and put them at risk of severe human rights violations. Yet, irregular arrivals who are found not to be at risk of serious harm in their countries of origin are perceived as voluntary migrants and are therefore assumed not to be in need of protection. This article employs the concept of vulnerability to challenge the idea that both the initial and subsequent dangerous migratory journeys are undertaken voluntarily. Based on an analysis of trafficking-based asylum claims from the UK and Germany, the article shows that both re-trafficking and irregular re-migration result from vulnerabilities which converge to preclude reintegration in the country of origin and access to livelihood options. While some of these vulnerabilities are likely to be present at the time of the initial dangerous journey already, the article pays particular attention to ‘consequential vulnerabilities’ brought about by previous migration experiences. It then introduces the concept of ‘route causes’ of irregular re-migration to describe factors which heighten the risk of re-migrating irregularly and therefore establish a risk on return related to harm experienced during irregular migration, rather than in the country of origin. Thus, the article shows that the vulnerability concept informs the future risk analysis in refugee law and argues that, just like a risk of re-trafficking, a risk of irregular re-migration could form the basis of an asylum claim.

This article aims to reflect on ‘ecological vulnerability’ – which makes evident the relationship, flows and interactions between the human being/body and the environment/non-human world – as applied in the context of environmentally induced migration. In particular, the dual role of the law vis-à-vis environmentally displaced migrants as a generator and exacerbator of their vulnerability as well as potential antidote, valuable for attaining protection, will be highlighted. Namely, on one hand, the analysis will show how a lack of conceptualisation of the notion to understand the spatial and temporal patterns of climate change-related migration, as well as its consequences for societal well-being, contributes to generate and exacerbate the vulnerability of that category of migrants. On the other hand, the critical understanding of vulnerability, as developed in some recent legal reasoning of international and national jurisdictions, will be proposed as a key element for ensuring the resilience of both environmental migrants and the law itself, for both virtuously expanding traditional asylum norms and flexibilising access to international protection for those migrants.