12 November 2020
A Tragic Constitutional Court Judgment on Abortion
Ewa Łętowska examines the Polish Constitutional Court's judgement on abortion and finds that it shows how far the country has moved towards religious and moral fundamentalism. The ruling creates a wobbly, unclear and hypocritical legal state. Continue reading >>
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11 November 2020
LawRules #8: We Need to Talk About the Penal System
We need to talk about the Penal System. In European Criminal Law, there is consensus that criminal law should be ultima ratio, that is, the last resort when the law is applied and executed. However, criminal law and the penal system at large have also proven to be an efficient way to silence political opponents and citizens turning against the government by literally barring them from raising their voice in public. We have seen examples for this in Europe, and we’ll have to talk about that today. But there are more aspects to this topic: How are prison systems being used as a tool by autocratic-leaning governments? And how is the relationship between the penal system and the rule of law in the Area of Freedom, Security and Justice that the European Union aspires to be? Continue reading >>
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10 November 2020
A game hacked by the dealer
There are many ways a government can undermine judicial independence, even without explicit legislative action. One of the most effective ways is to makes sure that the ‘right judges’ will get the important cases. At the Hungarian Kúria, the case allocation system clearly violate international standards. Continue reading >>
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08 November 2020
Of Asymmetries, Aspirations and…Values, too
How are the transnational legal order (“TLO”) and transnational governance affected by the democratic backsliding, authoritarianism and populism? As painfully evidenced by the Polish and Hungarian cases, the system of governance and constitutional design of the European TLO have been in error of “normative asymmetry”: transnational authority to ensure that the states remain liberal democracies has not been effectively translated into the transnational law and remedies. In order to make the TLO more responsive to the democratic threats, however, it is crucial to take on the challenges that go beyond institutional and procedural tinkering. Continue reading >>
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04 November 2020
Effective Pandemic Management Requires the Rule of Law and Good Governance
Nine months since the declaration of the novel SARS-CoV-2 virus as a global health emergency by the WHO, and we know much more about the virus, including transmission and control. Governments, however, are still operating in emergency mode and relying on emergency powers to the exclusion and suspension of the ordinary functioning of the state. Such suspension of the normal functioning of parliamentary control and judicial oversight exposes one of the most damaging fallacies of crisis: that emergency management requires the suspension of rights, the rule of law and good governance. Continue reading >>26 October 2020
Dark Money Subverts the Rule of Law
During the recently completed United States Senate committee hearings for Donald Trump’s nominee for a seat on the Supreme Court, Amy Coney Barrett, Senator Sheldon Whitehouse of Rhode Island used his time to try to demonstrate how right-wing groups, including the Federalist Society and Judicial Crisis Network, use dark money to shape the American judiciary. A common reaction, certainly on the part of those continually disadvantaged on the policy side, is that massive dark money investment in the legal system’s actors and outcomes subverts the rule of law. Although ordinary citizens, informed commentators, and political representatives make this claim, theorists have paid scant attention to explaining why this might be so. This omission is likely rooted in the sort of concept theorists think the rule of law is. Continue reading >>24 October 2020
No more “Business as Usual”
The Polish Constitutional Court (“the Court”), once a proud institution and an effective check on the will of the majority, is now a shell of its former self. It has become a dangerous and unhinged institution that uses the judicial review both as a sword to punish the opponents and to promote the illiberal agenda of the ruling majority. Thursday’s abortion ruling is only the latest example. In these dark days we must always remember the old Constitutional Court and the liberal foundations it had laid for more than twenty years. More crucially, accepting the current constitutional oppression as “business as usual”, will carry the risk of losing the rule of law in Poland for good. Continue reading >>
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22 October 2020
LawRules #5: We need to talk about Prosecutors
Public prosecutors decide whether a criminal suspect is investigated. Or not. They decide whether a person is indicted and whether there will be a trial. Or not. If you control them, you can make your opponents' life miserable and let your friends run free. On the other hand: If prosecutors don't have to answer to politics at all, who will hold them accountable? This is what we discuss with these distinguished guests in this week's episode of our Rule of Law podcast. Continue reading >>20 October 2020
Recognizing Turkey’s Anti-Rule of Law System
On October 13, a criminal court of first instance defied the authority of the Turkish Constitutional Court (TCC). A similar challenge to the TCC’s authority by a first instance court had occurred over two years ago. In present-day Turkey, however, it is wrong to see such fundamental violations of the rule of law as an unfortunate exception to an abstractly conceived system of rules. Rather, they should be considered as the manifestation of a well-functioning anti-rule of law system. Continue reading >>
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18 October 2020