EU enlargement has always been a political process. That said, the rule of law is an important aspect and principle of the EU enlargement policy. Implementation of EU driven reforms in candidate countries largely depends on the rule of law-based enlargement as well as on a clear EU perspective. Overpoliticisation of the enlargement process renders the EU’s enlargement law futile and undermines both

The COVID-19 pandemic caused a severe strain on health systems globally, while simultaneously presenting a social, economic, legal, political, and regulatory challenge. Where the efficacy of pandemic laws adopted by governments are a matter of life and death, the urgency with which action needs to be taken during a pandemic creates a law-making environment which incentivises rapid action without scrutiny

Hungary and Poland have seen the most widespread erosion of democracy in the European Union since Fidesz and Law and Justice started their authoritarian remaking in 2010 and 2015, respectively. Despite the EU’s introduction of various doctrinal innovations, it could not force these regimes to comply with the core values of the EU. While the literature has focused on the formal violation of the rule

On 22 October 2020, the Constitutional Tribunal of Poland ruled that an abortion due to foetal impairment was unconstitutional. This article discusses the context of this controversial ruling as well as its main tenets, focusing on the interpretation of the human rights proffered by the Tribunal and on the rule of law concerns raised by the Tribunal’s decision. Against the backdrop of a brief history

During the last decade, it has become apparent that the European Union (EU) Commission is failing to halt rule of law decline in Poland and Hungary. However, has the Commission learnt from its experience in handling rule of law decline in these countries? This article suggests that not only has the EU Commission failed to learn the importance of swift action in the face of burgeoning rule of law crises

This paper analyses the mutually reinforcing relationship between upholding the Rule of Law and protecting university autonomy. Academic freedom as recognised in international human rights law can be deconstructed into two inter-connected dimensions: an individual right and institutional autonomy. The paper argues that the relationship between institutional autonomy of universities and the Rule of

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

This essay seeks to contribute to the literature that asks how interim constitutions can become self-enforcing norms capable of producing a successful constitution-making process. It uses the Chilean constitution-making process as an example to theorize on how the political narratives associated with the November 2019 Agreement, which sets the framework for constitutional change, can influence its

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

Chile is a country crossed by economic inequalities. The constitutional process has opened a space to problematize the institutions that reproduce these inequalities. This paper joins into this discussion arguing that a nuanced focus on the right of access to healthcare under international law would fit the future Constitution better. I label this focus ‘nuanced’, in reaction to international law’s

How do the rule of law and political representation relate to each other? I answer this question, hitherto neglected by rule-of-law scholars, taking my cue from Joseph Raz’s revision of his conception of the rule of law and by relying on a distinction between preferences and interests, which pervades discussions of political representation. I argue that political representatives’ attention to their

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:

Social movements have contested the elitist character of Chilean political institutions in the streets for the past two decades. Citizens have distanced themselves from conventional participation, and turnout rates dropped dramatically. Protesting against unequal treatment and demanding “dignity,” the social uprising in 2019 in Chile consisted of massive protests marked by large-scale demonstrations

Scholars have recently shown how in Europe regimes in democratic decay (e.g. Poland, Hungary) take all sorts of measures targeting and marginalizing political opponents. Although they are authoritarian by nature, the measures are cast in a legal form. According to some scholars this kind of authoritarian rule of law can be best understood as a dual state, namely a combination of the normative state

While an independent judiciary is considered an indispensable component of the rule of law, attacks of the domestic political power on the independence of the judicial branch are observed today in several European States. The European judges (CJUE, ECtHR) appear to be the “last soldier standing” in the defense of judicial independence and they have in no case remained indifferent. This contribution

Some say that the Union is built by moving from crisis to crisis. Crises in the last decade which affected the Union and its citizens concerned, inter alia, public finance (the financial crisis, 2008), migration (2014), public health (the COVID-19 pandemic, 2020) and the rule of law crisis (2018). This paper focus on the latter. It has been noted that some Member States have been happy to receive the

We demonstrate that the CJEU’s Achmea judgment has resulted in significantly more damage beyond the termination of intra-EU BITs. It made the application of EU law difficult, if not impossible. Indeed, it has opened the floodgate to deficient judicial protection in the face of structural backsliding of the rule of law in some EU Member States. While the motives of the CJEU and by extension the European

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

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

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

Irregular migrants in Europe are increasingly subjected to state coercion, surveillance and spatial restrictions, such as containment, dispersal and forced transfers. Lawyers usually evaluate such practices in the light of human rights law, which only provides limited protection. For this reason, I propose an alternative normative framework to evaluate and assess coercive state practices towards irregular

This article advances the thesis that disciplinary proceedings may constitute a tool for breaking the rule of law in Poland. In 2017, as part of a package of legal changes to the judiciary, a disciplinary system was created in Poland to ensure that judges were subservient to the political will of the authorities. From the beginning, new disciplinary officers appointed by the Minister of Justice (the

Many people must be wondering how it is possible that Poland, not so long ago hailed for its exemplary transition from a communist dictatorship to a liberal democracy, could have so swiftly descended into authoritarianism via a crisis in the rule of law. The majority of commentators point to the size and ferocity of the attack on those mechanisms meant to safeguard the rule of law, whereas few focus

Multilateral development banks (MDBs) are accorded immunities and privileges as agents of their member states as justified by functionalist arguments. They are also operationally hybrid: they are actors in their own right in addition to being functional agents. Navigating the functionalist imagery and relying on the argument that they are delegated purely economic pursuits (i.e. financing economic

In their article ‘Striking Back’ and ‘Clamping down’: An Alternative Perspective on Judicial Review, Carol Harlow and Richard Rawlings consider the ways in which an executive may respond to judicial decisions which find against it. They organize such responses or ‘tactics’ into ‘striking back’ according to which the executive attempts to nullify the effect of the judgment, and ‘clamping down’ in terms

Domestic and international jurisprudence exist and develop as two ‘pocket universes’ in a sense that they belong to the same fabric of reality, but at the same time many concepts shift their meaning when moved from one pocket to another. This is of a paramount importance for the idea of the rule of law, which in domestic setting was forged in the flame of civil wars and struggles against the rulers

The assumption that the Rule of law is inherently ready for instrumentalization is assessed through an enquiry into the notion of abuse, on the one side, and of the rule of law on the other. This article addresses the problem of abuse, trying to identify its characteristics and to define its consequences. In order to do so, a line is followed from the different sets of rules that can regulate an institutional

The ‘rule of law’ is one of the most important ideas in contemporary constitutional and political discourse. Yet it can be understood in more or less ‘anatomical’ versus ‘teleological’ ways. Martin Krygier has helped us better understand this distinction, and showed how a teleological approach can help guard against the misuse of the rule of law as an ideal. In this short essay, I further show how

In this article, I argue that values are fluid societal expectations which cannot be used as normative foundations of modern society. Despite their transcendental validity claims, they operate as immanent tools of the normalisation of societal power and contribute to the transformation of potentia of societal forces to the constitutional auctoritas. I subsequently argue that a sociology of constitutional

Martin Krygier's work on the rule of law redirects our attention from analytical definitions and checklists of desiderata to the practical effect of government on the ground. In doing so, he has taken real world examples - particularly from Eastern Europe -- as his touchstone. His account of what it means to live under the rule of law is rigorous enough to be useful but flexible enough to allow us

Written for a collection to celebrate the scholarship of Martin Krygier this brief essay explores some thorny questions surrounding the operation of the European Union’s mechanisms meant to safeguard the rule of law. It focuses on the hesitation of European constitutional actors to provide legal responses to the chicanery animating the actions of illiberal rulers as well as on the difficulties that

This essay offers a personal reading of prof. Martin Krygier’s scholarship. Linking the history of Krygier’s family with his view on sociological jurisprudence, especially on the living law concept, I draw the connections between the personal narration of rules of life and rules of law. His scholarship can be interpreted as a development of the living law concept integrating personal narrations of

Classical Athens is often held up as a model of the rule of law. But while it did give law central and significant role in its public life, it did not have the institutional resources needed to realize the ideal fully. It lacked a way of helping to make the interpretation of law uniform across different executive and particularly judicial sites.

Martin Krygier's scholarship has inspired a broad swathe of work on the rule of law. In two recent books, I sought to understand the successes and failures of efforts to defend the rule of law in the US “war on terror.” This essay summarizes the lessons I learned.

Why did Martin Krygier become a rule of law guy? This Introduction to a Special Issue of the Hague Journal on the Rule of Law, which consists of 33 short essays celebrating Krygier as a colleague, mentor and friend, discusses some of the factors which prompted him to develop a distinct and influential body of work on the rule of law over the past three decades: the rule of law revival, especially in

During the same period that Martin Krygier published several of his most important articles on the rule of law, he was also at work on an ambitious interpretation of the social theory of the U.S. sociologist, Philip Selznick (1919–2010). In the resulting volume, Philip Selznick: Ideals in the World (2012), Krygier generously acknowledged Selznick’s influence on his own intellectual development and

This contribution honouring Prof. Martin Krygier scholarship provides a brief critical reading of the European Commission’s July 2019 Communication on the Rule of Law (COM(2019) 343 final). It argues that although the Commission’s effort is welcome, the Communication fails to correctly identify the core problem related to the Rule of Law in the EU, which is the constitutional capture in the illiberal

This piece reflects rather admiringly on the methods and conceptual framework of Martin Krygier’s various contributions to our understanding of the rule of law. It examines his use of the idea of the telos of the rule of law, contrasting it with the approaches of theorists who seek to analyse the essence or ‘anatomy’ of the rule of law idea or of law itself. It then examines his notion of how the rule

This contribution discusses the links between Martin Krygier’s and Philip Selznick’s work on the ideal of the rule of law. The way Krygier explains and reconstructs Selznick’s theory is helpful, and yet raises questions about the content and application of the ideal. Understanding the development of the rule of law and the interrelation with another central legal ideal, justice, requires not only a

The article proves a long-lasting legacy of Martin Krygier’s work on the rule of law. Taking the European Union as a case study, and specifically—the recent infringement action concerning the judicial independence in Poland, the article addresses the point (teleos) of the rule of law, the conditions the institutions need to fulfill to make this point, and institutional measures that help to meet these

This article draws conceptual, genealogical, and empirical parallels between religion and the rule of law. It presents two related arguments. First, despite the rule of law’s religious roots, the attempts of modern states since the nineteenth century to regulate and stymie religious power are a key part of the rule of law’s history. Second, as a systematically developed theory of internally coherent

This essay takes up the question of why human rights have been something of a peripheral concern for Martin Krygier. The essay suggests that a possible explanation lies in divergent ways in which human rights are commonly understood. The first understanding invokes human rights as a violation of our common humanity (through debasement and humiliation; rape; torture; slavery). The second understanding

The paper discuss constitutional problem in Central-Eastern Europe but especially in Poland. After review of literature which use label “populism” without any analyses the paper look at the constitutional changes as the third moment in revolutionary process which started in 1980.

In this very short essay, for a Festschrift edition of the Hague Journal on the Rule of Law dedicated to Professor Martin Krygier, I take as a point of departure some observations on the opposite of the ideal of the rule of law, i.e. the much-maligned concept of the “rule of men [and women]”. By reflecting upon this counter-ideal, I hope to discern some aspects of the ideal of the rule of law itself

Contribution to a festschrfit for Martin Krygier; argues that the technocratisation of the rule of law has been a problem for the establishment of the global rule of law, but that taking a pluralist view of the norm & settng it in its proper historical context allows for a more postive view of the potenital for suport to local social actors to work in the domestic politics of of 'recipient' states

Norms for cyberspace remain highly contested internationally among governments and fragmented domestically within governments. Despite diplomatic activities at the United Nations over the past two decades, intersubjective agreement on norms governing coercive cyber power is still nascent. Agreed upon, explicitly stated norms are considered voluntary, defined vaguely, and internalized weakly. Implicit

The link between environmental rights, environmental protection and the courts has become more prominent in recent times, with courts and judges being described as the ultimate vanguard of broad environmental rights, and the rights being described as game-changing legal tools over which judges have substantial power. However, given the infancy of environmental rights and the slow rate at which they

In this article, I identify a number of commonly accepted assumptions from the literature associated with the Rule of Law and suggest that—whilst the assumptions are accepted as part of the conceptual narrative of the concept—the cogency of the assumptions falters when they are considered collectively. This article represents, in many respects, both a critique of current practices and a rallying cry

This article seeks to explain the complicated relationship between human rights and the rule of law in a country that is unable or unwilling to advance the rule of law. Islamic principles and Afghan legal traditions complicates the already complex relationship between the rule of law, human rights and impunity. The rule of law and human rights are two sides of the same principle, the freedom to live

Executive lawlessness has been one of the major sources of the crisis of constitutionalism in Africa. After a 9 year tenure marked by allegations of corruption and complicity in the capture of the state by an Indian business family, the South African president, Jacob Zuma was forced to resign on 14 February 2018. This came hard on the heels of the rare and bold decision by the Kenyan Supreme Court

This special issue on rule of law decay addresses a range of issues prompted by recent developments in Poland, Hungary and elsewhere: How to conceptualize rule of law decay? What are its characteristics? How can it be explained? Can it be detected at an early stage? What is the methodology of undermining the rule of law? What, if anything, can outsiders, especially the EU, do to counter this decay

The article critically examines the European Commission’s conceptualisation of the rule of law in enlargement. Three main arguments are advanced. First, regarding the Commission’s understanding of the rule of law in the pre-accession process, it will be argued that it predominantly concentrates on legal-institutional reform. The article asserts that, although important, this particular focus fails

In recent years the creeping deterioration of democratic rule worldwide has become a major preoccupation across a wide range of research fields and disciplines—especially public law and political science—as scholars struggle to understand the nature of evolving threats to a broad range of democratic systems. Many terms are now used to refer to the incremental degradation of democratic rule worldwide

The rule of law in the European Union rests on a precarious decentralised judicial architecture with the two pillars of the judicatures of the EU and of the Member States. Judicial protection emerges as the meta-norm for the governance of this complex governance scheme. It re-orientates the entire EU judicial architecture towards protecting individual rights grounded in EU law. The article makes three

In challenging times for international law, the international rule of law as a connecting thread of the global legal order is a particularly salient topic. By providing a working understanding of the content and contexts of the international rule of law, and by taking the regime of international investment law as a case study, I argue that assessing ‘rise’ or ‘decline’ motions in this sphere warrants

The EU’s foundational values democracy, human rights and rule of law are shared by the Member States and rooted in their constitutional traditions. Constitutional pluralism recognises the legitimacy of parallel legal systems. Pluralism however cannot provide answers when it comes to the design and enforcement of foundational values, which require homogeneous acceptance throughout the Union. Deficiencies

Since the 2015 elections, Poland has ‘enjoyed’ the attention of social sciences—political science in particular—to an extent greater than at any time since the period of “Solidarity” in the early 1980s. In contrast to that period, Poland’s idiosyncratic development over the last two and a half years can hardly be said to play the function of a normative role model. Political developments in Poland

After many waves of democratisation a new type of constitutional transformation has become the focus of scholarly attention. Some researchers claim that the current erosion of constitutionalism can be understood better if the phenomenon is compared to the twentieth century dictatorships. Many others argue that what is happening today is a self-destruction of liberal democracy through democratic procedures

The article discusses the part played by collective memory in the current threat to the rule of law in Poland. The starting point is the concept of commemorative lawmaking and a critical discussion of the use of the concept of memory laws in recent scholarship. An analysis of framing operations performed by PiS memory politics offers examples of how the notion of commemorative lawmaking can be deployed