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Number of results: 12
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Abstract

The European Union is founded on a set of common principles of democracy, the rule of law, and fundamental rights, as enshrined in Article 2 of the Treaty on the European Union. Whereas future Member States are vetted for their compliance with these values before they accede to the Union, no similar method exists to supervise respect of these foundational principles after accession. This gap needs to be filled, since history proved that EU Member State governments’ adherence to foundational EU values cannot be taken for granted. Against this background this article assesses the need and possibilities for the establishment of an EU Scoreboard on EU values; viable strategies and procedures to regularly monitor all Member States’ compliance with the rule of law on an equal and objective basis; and the nature of effective and dissuasive sanction mechanisms foreseen for rule of law violators.
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Authors and Affiliations

Petra Bárd
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Abstract

This article aims to investigate the phenomenon of the rule of law promotion exercised by the EU through the Deep and Comprehensive Free Trade Agreements (DCFTAs). First, the article emphasizes the unique combination of normative and market power the EU uses to diffuse its norms through trade liberalization. Next, it provides an insight into the particularities of the European Neighbourhood Policy as a policy context for the conclusion and implementation of the Association Agreements, including the DCFTAs with Ukraine, Moldova and Georgia, as well as the conceptual problematic and scope of the rule of law as a value the EU seeks to externalize. Using the DCFTAs with Ukraine, Moldova, and Georgia) as a single group case study of the transparency dimension of the rule of law, the central part of the article analyzes the DCFTAs substantive requirements, directed toward promoting transparency in the partner states (while categorizing the requirements into the most general ones; cooperation-related; and discipline-specific) and the legal mechanisms that make these clauses operational (e.g., the institutional framework of the AAs, gradual approximation and monitoring clauses, and the Dispute Settlement Mechanism). In concluding, the article summarizes the state-of-the-art of the rule of law promotion through the DCFTAs, distinguishes the major challenges the respective phenomenon faces, and emphasizes the prospects for and difficulties of using the DCFTAs as an instrument of rule of law promotion.

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Authors and Affiliations

Maryna Rabinovych
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Abstract

Rule of Law, Legality and Depoliticization were key concepts in the negotiations at the Round Table, in the subsequent dissolution of the security apparatus and in the police reform of 1989/90. Based on published protocols and archival sources, the article explores the use of these concepts in rapidly changing contexts. It argues that the regime and the opposition attached different, even outright op-posite meanings to these concepts, and used them accordingly. As it turned out, it was precisely these semantic cleavages which made an agreement possible in the first place. Key aspects of the regime change in 1989 were being shaped pragmatically, rather than on ideological grounds.
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Authors and Affiliations

Joachim von Puttkamer
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Abstract

This article analyses the amendments of January 2018 to the Act on the Institute of National Remembrance (INR) of 1998, which has raised doubts in light of in ternational law and provoked diplomatic tensions between Poland on one side and Germany, Ukraine, United States of America and Israel on the other. The INR is a national in stitution whose role is, among others, to prosecute perpetrators of in ternational crimes committed between 1917-1990. The article proves that the wording of the amendments is in consistent with in ternational law, as it ignores the principles of in ternational responsibility, definitions of in ternational crimes, and disproportionately limits freedom of expression. In consequence, it cannot be expected that third states will cooperate with Poland in the execution of responsibility for violation of the newly adopted norms.

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Authors and Affiliations

Patrycja Grzebyk
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Abstract

This article contributes to the growing literature on Art. 7 TEU by showcasing the strong and weak points of this provision in the context of the on-going rule of law backsliding in Hungary and Poland – backsliding which threatens the very fabric of EU constitutionalism. The article presents the general context of the EU’s institutional reactions to the so-called “reforms” in Poland and Hungary, which are aimed at hijacking the state machinery by the political parties in charge. Next it introduces the background of Art. 7 TEU and the hopes the provision was endowed with by its drafters before moving on to analysis of its scope and all the mechanisms made available through this instrument, including the key procedural rules governing their use. The author posits that it may be necessary to put our hopes in alternative instruments and policies to combat the current rule of law backsliding, and the article concludes by outlining three possible scenarios to reverse the backsliding, none of which are (necessarily) connected with Art. 7 as such.

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Authors and Affiliations

Dimitry Kochenov
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Abstract

Over the last three years European Union (EU) law has experienced a veritable revolution triggered by the Court of Justice’s rethinking of the fundamental aspects underpinning both the EU’s competence to deal with Rule of Law matters (especially related to the independence and the irremovability of judges at the national level), and the substantive understanding of the key elements of the Rule of Law pertaining to the newly-found competence. An upgraded approach to interim relief in matters related to the Rule of Law completes the picture. As a result, EU law has gone through a profound transformation and the assumptions as to the perceived limits of its reach – insofar as the organization of the national judiciaries is concerned – no longer hold. However, there is also the opposite side to this “Rule of Law revolution.” While its effectiveness in terms of bringing recalcitrant Member States back on track has not been proven (and Poland and Hungary stand as valid reasons for doubts); the division of powers between the Member States and the EU has been altered forever. Rule of Law thus emerges as a successful pretext for a supranational powergrab in the context of EU federalism. The picture is further complicated by the fact that the substantive elements of the Rule of Law required by the Court of Justice of the European Union of the Member States’ judiciaries are seemingly perceived as inapplicable to the supranational level itself. These include structural independence from other branches of power and safeguards of the guarantees of irremovability and security of tenure of the members of the judiciaries. Taking all these elements into consideration, the glorious revolution appears to have triggered at least as many questions as it has provided answers, while being entirely unable to resolve the outstanding problems on the ground in the Member States experiencing significant backsliding in the areas of democracy and the Rule of Law.
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Authors and Affiliations

Dimitry Vladimirovich Kochenov
1 2 3
ORCID: ORCID

  1. CEU Democracy Institute, Budapest
  2. CEU Legal Studies Department, Vienna
  3. COMPAS Visiting Academic (Hilary term 2021), School of Anthropology, University of Oxford
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Abstract

This article analyses the capacity of the African Charter on Democracy, Elections and Governance to counteract the democratic governance shortfall. It argues that the tangible impact of the treaty on the states’ practice has been limited by various endogenous and exogenous factors. The former are identified as directly linked to content of the document and refer to the accuracy of the drafting. The latter are rooted outside the text and beyond the character of the Charter and include issues relating to the states’ reluctance to ratify the document, certain constitutional constraints undermining implementation on the national level, and the weak international guarantees of enforcement.

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Authors and Affiliations

Jan Marek Wasiński
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Abstract

The case law of the CJEU dealing with the rule of law touches upon the question of execution of European Arrest Warrants (EAWs) issued by Polish courts. The year 2020 witnessed the second important judgment of the CJEU in this respect (the Dutch case). As in its 2018 predecessor (the Irish case), the CJEU excluded the possibility of overt denial of all EAWs issued by Polish courts. Instead it insists on a two-step examination, comprising not only a general evaluation but also the examination of the individual situation of a requested person. It remains to be seen whether this is a promise of armistice in the CJEU’s approach to Poland, although this is not believed by the author of the text.
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Authors and Affiliations

Przemysław Saganek
1
ORCID: ORCID

  1. Associate Professor (dr. hab.), Institute of Law Studies of the Polish Academy of Sciences, Warsaw
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Abstract

When discussing justice, John Rawls focuses on smooth functioning, impartiality and social acceptability of the system of political obligations. His theory of justice is forged as a system of liberal democracy combined with constitutionally established principles of welfare state. Although Rawls distinguishes between political and moral norms, he believes that in a welfare constitutional state a reliable method of negotiating between demands of all citizens is accessible by adoption of a social contract. A social contract presupposes a nearly unanimous view on the character of a good political system. This is a case of soft naturalization. The author distinguishes it from hard naturalization that is not applicable to normative political theories.
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Bibliography

Dretske F. (2004), Naturalizowanie umysłu, przeł. B. Świątczak, wstęp U. Żegleń, Warszawa: Wydawnictwo IFiS PAN.
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Quine W.V.O. (1969), Epistemology naturalized, w: tenże, Ontological Relativity and Other Essays, New York: Columbia University Press.
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Sacks O. (2021), Wszystko na swoim miejscu, przeł. J. Łoziński, Poznań: Zysk i S‑ka.
Searle J.R. (1964), How to Derive „Ought” From „Is”, „The Philosophical Review” 73 (1), s. 43–58.
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Authors and Affiliations

Jacek Hołówka
1
ORCID: ORCID

  1. prof. em., Uniwersytet Warszawski, Wydział Filozofii, ul. Krakowskie Przedmieście 3, 00-927 Warszawa
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Abstract

Recent years have witnessed the publication of a number of research papers and books seeking to assess threats of electoral victories of anti-establishment politicians and political parties, described as authoritarian populists. This essay focuses on three books directly addressing the origins and threats of authoritarian populism to democracy. It consists of six sections and the conclusion. The first section presents findings (Norris and Inglehart) based on surveys of values of voters of various age cohorts concluding that authoritarian populism is a temporary backlash provoked by the post-materialist perspective. The second section examines the contention, spelled out in Levitsky and Ziblatt, that increase in openness of American political system produced, unintentionally, a degradation of the American political system. The third section continues brief presentations focusing on to the causes and implications of “illiberal democracy,” and “undemocratic liberalism” (Mounk). The fourth section examines developments in the quality of democracy in the world showing that despite the decline in Democracy Indices, overall there was no slide towards non-democratic forms of government in 2006–2019. The next two sections deal with dimensions missing in reviewed books; the notion of nation-state, international environment, civic culture and, in particular, dangers of radical egalitarianism to democracy. The last section concludes with regrets that the authors ignored rich literature on fragility of democracy and failed to incorporate in their analyses deeper structural factors eroding democracy: by the same token, return to the pre-populist shock trajectory is unlikely to assure survival of liberal democracy.

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Authors and Affiliations

Antoni Z. Kamiński
Bartłomiej K. Kamiński

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