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The Template

Cristina E. Parau

in Transnational Networking and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond

This chapter analyses the origin and evolution of the Network Community’s transnational Judiciary design Template, which has now become settled public policy in post-Communist Central and Eastern ... More

This chapter analyses the origin and evolution of the Network Community’s transnational Judiciary design Template, which has now become settled public policy in post-Communist Central and Eastern Europe, and beyond. Consisting of the Constitutional Court, the Judicial Council, and the Magistrates’ Training Academy, the Template is rooted in US Judiciary practice insofar as judicialization in the USA inspired contemporary paradigmatic thinking in Europe. The Template has maximally empowered the Judiciaries of CEE with the attributes of supremacy and autonomy, whilst disempowering all other political actors to make public policy in defiance of judicial preferences, even on issues that do not touch the essential judicial values of the guilt or innocence of those subject to State power. The long-term goal is the anti-majoritarian revision of public policy and society. Yet the Template enjoys little popular legitimacy, having been propagated into post-Communist CEE to practically no resistance from people and nations unsure how to govern themselves. Since then, the Network Community has shown zero tolerance of national movements to revisit the Template.Less

Ten Legal Change

in Law and Capitalism: What Corporate Crises Reveal about Legal Systems and Economic Development around the World

This chapter explores several important questions related to legal change, legal transplants, and legal harmonization and convergence. It begins with the simple observation that all countries ... More

This chapter explores several important questions related to legal change, legal transplants, and legal harmonization and convergence. It begins with the simple observation that all countries constantly change some subset of the rules that form part of their legal systems via legislative change, regulatory change, or case law. Some models of law and markets do not contemplate the possibility that legal systems change by means other than colonization or military occupation. Where the possibility of legal change is contemplated in the literature, the answer, often implicit, is that legal change is an evolutionary process. This chapter summarizes Robert Clark's argument that the history of capitalist enterprise can be divided into four stages and that the legal system responded by employing regulatory strategies appropriate to each stage. These are the entrepreneurial stage, the rise of the professional business manager, the emergence of financial intermediaries and institutional investors as professional investment managers, and the professionalization of the savings function as workers delegated the authority to invest in particular financial claims to plan sponsors and other professionals.Less

Lex Mercatoria—The Debate as it Currently Stands

Orsolya Toth

in The Lex Mercatoria in Theory and Practice

This chapter provides an overview of the lex mercatoria debate and argues that the discourse suffers from deficiencies. First, there is an overwhelming advocatory style amongst commentators to the ... More

This chapter provides an overview of the lex mercatoria debate and argues that the discourse suffers from deficiencies. First, there is an overwhelming advocatory style amongst commentators to the detriment of analytical arguments. Second, the debate is fraught with terminological confusions and the term ‘lex mercatoria’ itself is ambiguous. Third, the debate remains isolated from public international law and jurisprudence. The chapter introduces the structure of the debate by identifying the key arguments of the proponents. These arguments fail because they refer to ‘evidence’ of the lex mercatoria to demonstrate its ‘existence’. They point to written documents, including legal harmonization and other codification measures to suggest that the lex mercatoria exists. However, measures such as the UNIDROIT Principles or TransLex Principles do not explain the existence or normative force of unwritten trade usage. Legal pluralism offers a helpful perspective on the topic by distinguishing between ‘existence’ and ‘recognition’ of the law.Less

The politics of environmental policy

Bernadette Connaughton

in Europeanisation and New Patterns of Governance in Ireland

This chapter analyses the impact of domestic pressures and the Europeanisation of environmental policy on the domestic institutional framework in Ireland. It presents case studies to highlight the ... More

This chapter analyses the impact of domestic pressures and the Europeanisation of environmental policy on the domestic institutional framework in Ireland. It presents case studies to highlight the range of environmental problems Ireland has faced and how public and private actors have responded to these challenges. This chapter argues that Europeanisation has led to adaptational pressures resulting in legal harmonisation and some institutional innovation. It also investigates whether the progressive change that has occurred in environmental policy, and the way in which public and private actors seek solutions to environmental problems, are reflected in new patterns of governance.Less

Conclusion

Shobita Parthasarathy

in Patent Politics: Life Forms, Markets, and the Public Interest in the United States and Europe

The Conclusion argues that the political machinery of patents unearthed throughout the book has implications for international legal harmonization and trade agreements as well as patent reform ... More

The Conclusion argues that the political machinery of patents unearthed throughout the book has implications for international legal harmonization and trade agreements as well as patent reform efforts. It suggests further that this analysis can contribute to our understanding of other highly technical policy domains. Finally, it observes that the controversies explored in this book reveal a gap in the governance of the moral and socioeconomic impacts of technologies broadly—notably that policymakers must balance procedurally objective and systematic decisionmaking with responsiveness to the public—which the US and European patent systems have only partially and awkwardly covered but which contemporary societies must learn how to address.Less

Challenging the Basic Values—Problems in the Rule of Law in Hungary and the Failure of the EU to Tackle Them

Zoltán Szente

in The Enforcement of EU Law and Values: Ensuring Member States' Compliance

This chapter investigates Hungary’s non-compliance problems and the insights these can provide into the relations between the EU and Hungary. Since 2010 there has been a new period in these ... More

This chapter investigates Hungary’s non-compliance problems and the insights these can provide into the relations between the EU and Hungary. Since 2010 there has been a new period in these relations—the Hungarian constitutional changes have challenged the EU, testing its capacity and ability to protect the Rule of Law in the Member States. This situation stands in contrast to Hungary’s legal harmonization and institutional adaptation to EU requirements prior to 2010. Now, when the challenge from the inside—that is, from a Member State—to the democratic value system of the community is significantly greater than ever, the EU faces an unexpected obstacle. To work out an effective and long-term solution to a situation which has never occurred before, the chapter examines the problem in greater detail—in particular whether it threatens the foundations of EU law as a whole.Less

The Impact of the Court of Justice of the European Union on Jordan

Abdullah Nawafleh

in The Impact of the European Court of Justice on Neighbouring Countries

Jordan and the EU have developed a strong relationship on several levels. This relationship has been strengthened by the signing of the Association Agreement which forms the legal basis of the ... More

Jordan and the EU have developed a strong relationship on several levels. This relationship has been strengthened by the signing of the Association Agreement which forms the legal basis of the relations between the EU and Jordan. Further, the Agreement established a mechanism for cooperation to harmonize legislation between the EU and Jordan. The EU has supported Jordan to enhance the effectiveness and independence of the judiciary, including judicial training and the modernization of Jordan’s court system. This chapter examines the external impact of the CJEU on Jordan judges. The research shows that despite the strong relationship between the EU and Jordan, CJEU decisions have not been cited or influenced Jordanian judges’ decisions.Less