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211. Filippo Fontanelli, Giuseppe Martinico Paolo Carrozza (eds). Shaping Rule of Law Through Dialogue. International and Supranational Experiences

Author:
Luis Castellvi Laukamp
Publication Date:
02-2011
Content Type:
Journal Article
Abstract:
Dialogue, this noble art, which, like many other things, was invented by the Greeks, is always a sort of collaboration, a way of trying to attain the truth. Perhaps this is why Plato used it as a literary vehicle when he wrote his Socratic dialogues, a corpus of pieces in which he laid the foundations of Western philosophy. Deeply impressed by the death of his mentor Socrates, Plato wrote some of the most brilliant and insightful works of all time, perhaps in order to keep on debating with his master after his death. In all likelihood, no-one since has ever had the same great ability to create such architectures of thought. His enjoyable and entertaining dialogues deal with essential topics such as the nature of time, politics, love, and death. Not only is his style concise and meticulous, with a proverbial ability to pose the right questions, but also didactic and kind. His dialogues enable all participants to engage in an inquiry which, despite not always being successful in reaching the desired goal, has at least proved to be a fundamental tool in the development of all expressions of human thought. The book under review is inspired, mutatis mutandis, by this very same philosophy regarding dialogue. As its editors (Filippo Fontanelli, Giuseppe Martinico, and Paolo Carrozza) point out in their introduction, '[t]he process of fragmentation of the international legal order and the absence of constitutional devices governing the connections between the various legal regimes can be reduced to a rational picture only through the activity of the judges' (at 23). This is why judges play a key role in creating and developing links between the different legal systems which constitute our multi-level judicial environment. The increasingly complex nature of the interaction between national and international judges has often been
Topic:
Development, Government, Politics, and Law
Political Geography:
Greece

212. Republic of Guinea: an analysis of current drivers of change

Author:
Ana Larcher Carvalho
Publication Date:
03-2011
Content Type:
Working Paper
Institution:
Norwegian Centre for Conflict Resolution
Abstract:
Since gaining independence from France in 1958, Guinea has remained relatively stable and has never experienced violent conflict. Until the bloodless military coup of 2008, it had had only two governments: the socialist administration of Sékou Touré (1958-1984) and the liberal regime of Lansana Conté (1984-2008). Despite some moves towards a more democratic system, including the adoption by referendum of a new constitution in 1990, the latter years of the Conté government were marked by bad governance, human rights violations, weak rule of law and impunity. This was compounded by the prolonged illness of the president, whose fitness to govern was widely doubted, and by 2003 there were fears that Guinea could become yet another failed state.
Topic:
Corruption, Democratization, Government, Torture, Regime Change, and Law
Political Geography:
Africa and Guinea

213. Fragile States, Robust Structures: Illegal Police Protection in Buenos Aires

Author:
Matías Dewey
Publication Date:
06-2011
Content Type:
Working Paper
Institution:
German Institute of Global and Area Studies
Abstract:
Weakness is a quality frequently ascribed to Latin American states. This diagnosis proves faulty since it is possible to find resistant structures inside those states that perpetuate such weaknesses. This article shows that this is the case in regards to the police force of the province of Buenos Aires. Here, I will demonstrate that the police have specialized in selling a service available to criminals and criminal organizations: illegal protection. With information taken from in-depth interviews and official documents, I will show that this protection-contrary to the views of Charles Tilly and Diego Gambetta-is characterized by a temporary suspension of the rule of law.
Topic:
Security, Crime, Fragile/Failed State, Law Enforcement, and Law
Political Geography:
Latin America

214. Is the party-appointed arbitrator a "pernicious institution"? A reply to Professor Hans Smit

Author:
Giorgio Sacerdoti
Publication Date:
04-2011
Content Type:
Policy Brief
Institution:
Columbia Center on Sustainable Investment
Abstract:
Some readers of the Columbia FDI Perspective No. 33 of December 14, 2010 may have been surprised to read Hans Smit's contribution against party-appointed arbitrators. The opening of his Perspective could not be expressed in more sweeping terms: "In my judgment, party-appointed arbitrators should be banned unless their role as advocates for the party that appointed them is fully disclosed and accepted. Until this is done, arbitration can never meet its aspiration of providing dispassionate adjudication..."
Topic:
Economics, Human Rights, Foreign Direct Investment, and Law
Political Geography:
United States

215. Local Ownership in Practice: Justice System Reform in Kosovo and Liberia

Author:
Leopold von Carlowitz
Publication Date:
03-2011
Content Type:
Working Paper
Institution:
Geneva Centre for Security Sector Governance (DCAF)
Abstract:
Achieving local ownership is crucial for the success of justice reform programmes as part of international rule of law assistance and security sector reform (SSR) activities. In his 2004 report on the rule of law and transitional justice, the UN Secretary-General emphasized that 'Ultimately, no rule of law reform, justice reconstruction, or transitional justice initiative imposed from the outside can hope to be successful or sustainable.' He claimed that the United Nations 'must learn better how to respect and support local ownership, local leadership and a local constituency of reform, while at the same time remaining faithful to the United Nations norms and standards.'
Topic:
Privatization, United Nations, and Law
Political Geography:
Kosovo, Balkans, and Liberia

216. Why ObamaCare is Wrong For America: How the New Health Care Law Drives Up Costs, Puts Government in Charge of Your Decisions, and Threatens Your Constitutional Rights by Grace-Marie Turner, James C. Capretta, Thomas P. Miller, and Robert E. Moffit

Author:
Jared M. Rhoads
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Objective Standard
Institution:
The Objective Standard
Abstract:
Turn back the clock for a moment to the months leading up to the March 2010 enactment of the Patient Protection and Affordable Care Act, also known as ObamaCare. What do you remember about the president's pitch for health care reform? You may recall the administration's claim that ObamaCare will expand health insurance coverage to 32 million Americans, guaranteeing that nearly all Americans will be covered. You may recall the claim that the new program will reduce waste and overhead, and save the typical American family $2,500 per year. And who could forget Obama's personal promise, delivered time and again: "If you like your doctor, you will be able to keep your doctor. Period. If you like your health care plan, you will be able to keep your health care plan. Period. No one will take it away. No matter what."1 With this and other rhetoric, the president and other supporters of this Act were able to push the program through Congress on a partisan vote despite low popular appeal and indeed amid public furor. But although the bill has been signed, history has yet to be written. Within the more than two thousand pages of legislation are countless provisions and authorizations for additional regulatory changes to be rolled out in the years to come. Thus Americans are left wondering what exactly will change, when it will change, and how. For everyone, the question remains: What does ObamaCare mean for me? Why ObamaCare is Wrong for America summarizes the key provisions of the new law, explaining how this historic piece of legislation fails to achieve the goals so loudly trumpeted by its proponents, and what it will actually do instead. The authors-four health policy experts from four different conservative public policy organizations-largely succeed in making a complex topic comprehensible to a general audience. For starters, they organize their analysis of the legislation into reader-friendly themes such as "Impact on Families and Young Adults," "Impact on Seniors," and "Impact on You and Your Employer." The subsection headings are descriptive and frequent, dividing the chapters into easily digestible segments, many of which are less than a page in length. . . .
Topic:
Law
Political Geography:
America

217. A Bureaucratic Turn?

Author:
Alexander Somek
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
The article discusses the question whether Waldron's new analogy shifts the paradigm of international governance from a relationship that is based on law to a relationship that views participating actors as involved in some kind of common creative problem-solving effort. The implied change from 'law' to 'process' would raise serious concerns about what it might entail for the rights of citizens.
Topic:
Governance and Law

218. Positivism and the Pesky Sovereign

Author:
David Dyzenhaus
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
I argue that Hans Kelsen anticipated the main contribution of Jeremy's Waldron's article: the idea that the place of nation states in the international legal order is akin to that of administrative agencies in the domestic legal order, and thus as wielding delegated rather than original authority. For both wish to understand sovereignty as a kind of metaphor for the unity of a legal system rather than as a pre-legal entity. However, legal positivism is unable to make the move to conceiving of sovereignty that way, since the positivist prejudice against natural law has the result that the idea of a pre-legal sovereign is repressed in one place only to pop up in multiple others. In issue in this debate are two conceptions of the rule of law, a positivistic conception that the rule of law consists mainly of determinate rules and a Fullerian conception in which the rule of law is understood as facilitating a certain process of reason and argument. Since Waldron sees the attraction of the latter conception, and since that conception avoids the problem of the pesky sovereign, I suggest that Waldron should embrace it.
Topic:
Sovereignty and Law

219. Law Promotion Beyond Law Talk: The Red Cross, Persuasion, and the Laws of War

Author:
Steven R. Ratner
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
The International Committee of the Red Cross casts itself as both a unique protector of individual victims of war and a special guardian of the body of international humanitarian law. It manages and reconciles these two roles through a complex, unconventional strategy that includes secret communications with warring parties, ambiguity in conveying its legal views to them, and, at times, a complete avoidance of legal arguments when persuading actors to follow international rules. This modus operandi not only challenges some standard views about the methods used by actors seeking to convince law violators to comply with norms; it also opens the door to a richer theoretical understanding of legal argumentation in that process of persuasion. The resulting construct consists of a matrix of inputs that determine how a persuading entity will deploy legal arguments and outputs that convey the dimensions of the resulting argumentation. Both the theory and the ICRC's work suggest that entities concerned with compliance would often do best to settle for a target to act consistently with a norm rather than to internalize it. They also raise difficult moral questions about whether compliance with international law is the optimal goal if it has adverse consequences for the values an institution seeks to uphold.
Topic:
War, Communications, and Law

220. Armin von Bogdandy and Jürgen Bast (eds). Principles of European Constitutional Law

Author:
Birgit Schlutter
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
After the entry into force of the Lisbon treaty on 1 December 2010, and right in the middle of the European response to the recent financial and economic crisis, the review of the second edition of Armin von Bogdandy's and Jürgen Bast's Principles of European Constitutional Law appears to be a timely and anything but anachronistic or cynical enterprise. The European effort to combat the financial crisis and set up a joint framework to regulate the banking sector shows the constant need for research on the 'founding principles of the polity' and the sources of its legitimacy (at 1). And indeed, the second edition of the book, too, provides a thorough examination of the main themes underlying a more closely connected Europe.
Topic:
Law
Political Geography:
Europe and Lisbon