Hague Journal on the Rule of Law最新文献

The distinction between “the rule of law” and “the rule of men” is still in use, after more than two and a half thousand years. It is well known that Aristotle’s aphorism extols government according to institutionalized impersonal rules and condemns government by personal fiat. However, the formulation has another dimension that, during the course of the modern era, has gradually been obscured: Aristotle, following Plato, is making a set of philosophical points about the relations between human nature, the wider natural order, and positive law. The first part of this article offers an account of this neglected dimension of the ancient contrast between “the rule of law” and “the rule of men”. The second part of the article considers the reception of the contrast in the early modern age, focussing on the limited government tradition which emerged in the seventeenth and eighteenth centuries. The article concludes by considering how the rise of so-called “formal” accounts of the rule of law tend not merely to deny the validity of the Classical approach, but to render it increasingly obscure.

As a response to mass mobilizations against the political and social status quo, a multiparty agreement activated a process to replace the constitution in Chile, three decades after the country's transition to democracy. I argue that this process has three features that are not only desirable on normative grounds but also shared by successful episodes of constitutional replacement in democratic regimes: the drafting of the new text in an assembly bound by preexisting rules, inclusive mechanisms of representation and decision making, and direct citizen involvement. These features, in interaction with the popular repudiation of the elite-biased institutions inherited from the Pinochet era, might lead to a new constitutional arrangement that deepens democratization by expanding citizen rights, strengthening executive constraints, and removing restrictions on majority rule. Yet the realization of the full democratic potential of this constitutional change depends on the still uncertain ability of constitution makers to compromise on a text that is not only seen as legitimate among ordinary citizens but also promotes coherent goals, effective institutions, and good governance.

The EU adopted a new enlargement strategy for the Western Balkans countries in 2018, provided a time frame for Serbia and Montenegro potentially to join the Union by 2025, and outlined the next steps for accession for Albania, Bosnia and Herzegovina, Kosovo, and North Macedonia. In March 2020, the EU gave the green light to the opening of accession talks with North Macedonia and Albania, and also introduced a new reformed 'accession talks' framework. The strengthening of the rule of law, fighting corruption and organised crime are the cornerstones of the EU-Western Balkans strategy of 2018 and the new accession talks framework of 2020. This article examines the latest enlargement policy developments in 2018-2020 by conceptualising how the EU promotes the rule of law in the Western Balkans thorough its new enlargement policy package. Furthermore, the article offers an in-depth analysis of the case of Albania, where the EU has experimented with some of its latest enlargement-policy ideas in regard to the rule of law. The article also offers some proposals and insights on how the EU rule of law initiative of 2018 can be improved, in order to become more transformative in strengthening the rule of law in countries of the Western Balkans.

To reinstate what amounts to a "Soviet-style justice system", Polish authorities have repeatedly and deliberately violated the Polish Constitution and EU law. Rather than comprehensively detailing these repeated violations, this article focuses on the EU dimension of Poland's rule of law breakdown. Using the activation of the Rule of Law Framework by the European Commission on 13 January 2016 as a starting point, this article offers a critical five-year assessment of EU's (in)action starting with an overview of the extent to which virtually all of the multiple problematical issues identified early on by the Commission have yet to be addressed by Polish authorities by January 2021. Regarding the Commission and the Council's (in)action, this article argues that the Commission has systematically acted in a too little too late fashion while the Council has systematically failed to meaningfully act, with the inaction of these two EU institutions amounting, at times, to dereliction of duties. By contrast, the Court of Justice has forcefully defended judicial independence whenever an infringement case was lodged with it by the Commission. The Court of Justice's record in preliminary ruling cases is more mixed due, in part, to the Court's apprehension to undermine the principle of mutual trust. The article ends with a list of key lessons and recommendations which reflect the EU's few successes and many failures highlighted in this article. It is submitted inter alia that more statements, dialogue and reports are not going to help contain, let alone solve Poland's rule of law crisis. It is indeed no longer a crisis the EU is facing but a total breakdown in the rule of law in Poland which, in turn, represents a threat to the interconnected legal order that underpins the EU.

This article compares the early phases of the constitutional redrafting processes in Venezuela (1999) and currently in Chile (2021), seeking to identify key factors that help explain the radical constitutional-redrafting path that was followed in Venezuela, versus the more moderate, consensual and rule-bounded transformation underway in Chile. We pay particular attention to the presence of Hugo Chávez as leader of a populist project in Venezuela-an important factor absent in today's Chile-whilst also taking into account a host of other important considerations that situate these countries' diverse experiences in their respective socio-political contexts. These factors include the existence of unaddressed historical and social grievances leading to the reform; frustrated efforts at overhauling state institutions or the constitutional text; disparate institutional frameworks to channel reform demands, and different decisions made by the ruling political elites, among other considerations. Our goal is to provide a comprehensive and nuanced comparison that not only helps to understand each case better, but also to think critically about the complex reasons that lead to constitutional redrafting in troubled democracies, with a view to inform our debates on this topic beyond Chile and Venezuela.

After tracing the social, intellectual, and political origins of Chile's demand for a new Constitution (which started in circumscribed circles as early as the late 1990s, but got momentum towards the end of the 2000s), this article describes the semi-sovereign democracy established by the Constitution of 1980, a feature designed by its framers to prevent the dismantling of the particularly radical version of neoliberal economics left in place by the military regime. Then, the piece analyses how the Constitutional Court's conservative jurisprudence contributed to make clear to most Chileans the link between an increasingly unpopular economic model and the constitutional status quo, something which, in turn, led President Bachelet to attempt to introduce a new charter in her second administration (an effort which failed due to the refusal of the conservative parties to replace a fundamental law that was, in fact, largely biased towards their political and economic ideas). The second half of the article is devoted to analyse the way in which the social uprising of October-December 2019 transformed the old demand for a new Constitution into a critically important institutional way to channel what at the time seemed to be a potentially catastrophic social and political crisis. Noting the-rather impressive-capacity of the political party system to agree on the path towards a new charter, the article then argues that Chile's highly regulated constitution-making process represents an instance of what Colón-Ríos (2020) calls a 'procedurally regulated' one, that is, one where an existing constitution is amended to authorize its complete replacement according to the procedures it establishes, but leaving the constituent body leeway to autonomously decide on the content of the new charter. While in tension with traditional understandings of the exercise of the constituent power in cases of complete constitutional change, this feature of Chile's ongoing constitution-making process represents a promising path to introduce a new Constitution in a manner that promotes the rule of law.