Authoritarian international law? Ginsburg, Tom
American journal of international law,
04/2020, Letnik:
114, Številka:
2
Journal Article
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International law, though formally neutral among regime types, has mainly been a product of liberal democracies since World War II. In light of recent challenges to the liberal international order, ...this Article asks, what would international law look like in an increasingly authoritarian world? As compared with democratic countries, authoritarians emphasize looser cooperation, negotiated settlements, and rules that reinforce regime survival. This raises the possibility of authoritarian international law, designed to extend authoritarian rule across time and space.
New democracies around the world have adopted constitutional courts to oversee the operation of democratic politics. Where does judicial power come from, how does it develop in the early stages of ...democratic liberalization, and what political conditions support its expansion? This book answers these questions through an examination of three constitutional courts in Asia: Taiwan, Korea, and Mongolia. In a region that has traditionally viewed law as a tool of authoritarian rulers, constitutional courts in these three societies are becoming a real constraint on government. In contrast with conventional culturalist accounts, this book argues that the design and functioning of constitutional review are largely a function of politics and interests. Judicial review - the power of judges to rule an act of a legislature or national leader unconstitutional - is a solution to the problem of uncertainty in constitutional design. By providing 'insurance' to prospective electoral losers, judicial review can facilitate democracy.
Constitutions are supposed to provide an enduring structure for politics. Yet only half live more than nine years. Why is it that some constitutions endure while others do not? In The Endurance of ...National Constitutions Zachary Elkins, Tom Ginsburg and James Melton examine the causes of constitutional endurance from an institutional perspective. Supported by an original set of cross-national historical data, theirs is the first comprehensive study of constitutional mortality. They show that whereas constitutions are imperilled by social and political crises, certain aspects of a constitution's design can lower the risk of death substantially. Thus, to the extent that endurance is desirable - a question that the authors also subject to scrutiny - the decisions of founders take on added importance.
What is the relationship between US law and international law? This is the core question of the academic field of foreign relations law, but it is also a life-or-death issue for some people. In ...recent years, a series of cases involving death-row defendants has made its way to the federal courts, presenting a novel set of claims. This Essay discusses one such case, 'Garza v Lappin', decided in 2001. The opinion by Judge Diane Wood is characteristically scrupulous, but is not among her best known, and was hardly controversial at the time. Still, it is a useful case to illustrate the range of possible relationships between international human rights law and domestic courts, an issue of increasing importance around the globe.
There is a new empirical turn in international legal scholarship. Building on decades of theoretical work in law and social science, a new generation of empirical studies is elaborating on how ...international law works in different contexts. The theoretical debate over whether international law matters is a stale one. What matters now is the study of the conditions under which international law is formed and has effects. International law is the product of specific forces and factors; it accomplishes its ends under particular conditions. The trend toward empirical study has expanded through the efforts of scholars in multiple disciplines, with legal scholars playing central roles independently and as collaborators in generating new empirical work. Legal scholars are also now pressed to be increasingly sophisticated consumers of this work. It is time to take stock and evaluate this new generation of multidisciplinary, multimethod empirical scholarship.
Abstract
Emergency governance, we are often told, is executive governance. Only the executive has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of ...being effectively constrained by other branches. Ordinary checks and balances, then, are believed to effectively disappear during a crisis. Referring to the classic theorist of emergency rule, conventional accounts describe crisis governance as “Schmittian” and “post-Madisonian,” characterized by an unbound executive that faces few, if any, legal constraints. This article interrogates these propositions using evidence from how countries responded to the 2020 global pandemic during the critical first few months. It presents data from an original and global survey of over one hundred countries to evaluate the nature of emergency powers during the pandemic. This article finds that, contrary to the conventional wisdom, courts, legislatures, and subnational governments have played important roles in constraining national executives. Courts have insisted on procedural integrity of invocations of emergency, engaged in substantive review of rights restrictions, and in some cases demanded that government take affirmative steps to combat the COVID-19 virus and its effects. Legislatures have played a role in providing oversight and, in many cases, in producing new legislation that responds to the current crisis. Subnational governments, too, have pushed back against central authorities, engaging in valuable checks and balances that shaped the response. Taken together, these findings suggest that, during COVID, emergency governance has been closer to the Madisonian ideal of strong checks and balances than to Schmittian accounts of an unbound executive. This article considers the implications of these findings for theories of emergency governance, arguing that the conventional theories are based on one particular type of crisis—a national security crisis—and therefore their insights may be ill-suited to other kinds of emergencies, such as a pandemic.
The COVID-19 pandemic which has swept the world this year is the greatest global public health crisis in over a century, since the Spanish flu of 1918– 1919. That virus was estimated to have infected ...a quarter of humanity and killed up to 50 million people. Like that pandemic, COVID-19 has reached nearly ever country on earth, sparing only a few small island nations in the Pacific. It is a truly global threat. The editors of this special issue made a timely decision to focus on legislatures. Legislatures are part of the script of modernity, found in most every political system, whether democratic or not. They are also institutions steeped in history, full of norms, venerable traditions and a good deal of pomp and ceremony., The COVID-19 pandemic which has swept the world this year is the greatest global public health crisis in over a century, since the Spanish flu of 1918- 1919. That virus was estimated to have infected a quarter of humanity and killed up to 50 million people. Like that pandemic, COVID-19 has reached nearly ever country on earth, sparing only a few small island nations in the Pacific. It is a truly global threat. The editors of this special issue made a timely decision to focus on legislatures. Legislatures are part of the script of modernity, found in most every political system, whether democratic or not. They are also institutions steeped in history, full of norms, venerable traditions and a good deal of pomp and ceremony.
How has academia understood the massive changes in the world since 1989? This article emphasizes the important role of institutional analysis and empirical scholarship of various kinds. There has ...also been new attention to issues of identity. Finally, there have been monumental changes in the way scholarship is produced and consumed, and these too have consequences for the field.
Rule By Law Ginsburg, Tom; Moustafa, Tamir
Cambridge University Press eBooks,
2008.
eBook
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Scholars have generally assumed that courts in authoritarian states are pawns of their regimes, upholding the interests of governing elites and frustrating the efforts of their opponents. As a ...result, nearly all studies in comparative judicial politics have focused on democratic and democratizing countries. This volume brings together leading scholars in comparative judicial politics to consider the causes and consequences of judicial empowerment in authoritarian states. It demonstrates the wide range of governance tasks that courts perform, as well as the way in which courts can serve as critical sites of contention both among the ruling elite and between regimes and their citizens. Drawing on empirical and theoretical insights from every major region of the world, this volume advances our understanding of judicial politics in authoritarian regimes.
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