Handbook on the Rule of Law PDF
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HANDBOOK ON THE RULE OF LAW M4581 - MAY_9781786432438_t.indd 1 01/08/2018 14:47 For Adam Winchester, student, friend and colleague M4581 - MAY_9781786432438_t.indd 2 01/08/2018 14:47 Handbook on the Rule of Law Edited by Christopher May Professor of Political Economy, Lancaster University, UK Adam Winchester Formerly at Lancaster University, UK Cheltenham, UK • Northampton, MA, USA M4581 - MAY_9781786432438_t.indd 3 01/08/2018 14:47 © Christopher May and Adam Winchester 2018 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2018935747 This book is available electronically in the Law subject collection DOI 10.4337/9781786432445 ISBN 978 1 78643 243 8 (cased) ISBN 978 1 78643 244 5 (eBook) Typeset by Servis Filmsetting Ltd, Stockport, Cheshire 2 0 M4581 - MAY_9781786432438_t.indd 4 01/08/2018 14:47 Contents List of contributors viii Introduction to the Handbook on the Rule of Law 1 Christopher May and Adam Winchester PART I DEFINING THE RULE OF LAW 1 The advantages of a thin view 21 Jørgen Møller 2 The promise of a thick view 34 Adriaan Bedner 3 Difficulties with measuring the rule of law 48 Tom Ginsburg 4 The rule of law, legal pluralism, and challenges to a Western-centric view: Some very preliminary observations 57 Peer Zumbansen 5 Arbitrary power and the ideal of the rule of law 75 Martin Krygier (with Adam Winchester) 6 The centrality of predictability to the rule of law 96 Christopher May 7 The rule of law in inter-national relations: Contestation despite diffusion – diffusion through contestation 109 Antje Wiener PART II THE HISTORY OF THE RULE OF LAW 8 The rule of law: An outline of its historical foundations 135 Pietro Costa 9 Minimising Magna Carta and modernising exposition of the rule of law in the English historical constitution 149 J.W.F Allison 10 Turning the rule of law into an English constitutional idea 167 J.W.F. Allison 11 The rule of law and the rise of capitalism 184 Tor Krever v M4581 - MAY_9781786432438_t.indd 5 01/08/2018 14:47 vi Handbook on the rule of law PART III INSTITUTIONS OF THE RULE OF LAW 12 The rule of law and its application to the United Nations 203 Clemens A. Feinäugle 13 Power rules: The World Bank, rule of law reform, and the World Development Report 2017 217 Deval Desai 14 The rule of law and the European Union 235 Amichai Magen and Laurent Pech 15 Non-governmental organisations and the rule of law: The experience of Latin America 257 Fiona Macaulay 16 Lawyers and the rule of law 271 David Howarth 17 The rule of law and legal education: Do they still connect? 289 John Flood PART IV CONTEXTUALISING THE RULE OF LAW 18 The rule of law, new constitutionalism, and transnational legality 307 A. Claire Cutler 19 Global administrative law 322 Valentina Vadi 20 The rule of law and feminism: The dilemma of differences 333 Anna Loretoni 21 The rule of law and Islam 345 Jerg Gutmann and Stefan Voigt 22 The rule of law and human rights 357 Mona Rishmawi PART V APPLYING THE RULE OF LAW 23 The rule of law from a law and economics perspective 383 Mariana Mota Prado 24 The rule of law, institutions, and economic development 405 Lydia Brashear Tiede 25 The legal empowerment of the poor 419 Dan Banik M4581 - MAY_9781786432438_t.indd 6 01/08/2018 14:47 Contents vii 26 The rule of law as a marketing tool: The International Criminal Court and the branding of global justice 434 Christine Schwöbel-Patel 27 The rule of law and terrorism 453 Clive Walker 28 Post-conflict peacebuilding and the rule of law 471 Teresa Almeida Cravo 29 Rule of law in Asia: The case of China 490 Thomas E. Kellogg 30 Court development in Timor-Leste: ‘Handover’ and its long shadow 509 Pip Nicholson and Samantha Hinderling Subject index 531 Name index 536 M4581 - MAY_9781786432438_t.indd 7 01/08/2018 14:47 Contributors EDITORS Christopher May holds the Chair of Political Economy at Lancaster University and has published widely on the interactions between the law and political economy (ranging from intellectual property rights to the rule of law and the corporate form). Having spent nine years in faculty management, he is now back in the Department of Politics, Philosophy and Religion enjoying life as a normal professor. Adam Winchester was a Doctoral Researcher in the Department of Politics, Philosophy and Religion, Lancaster University. During the final stages of preparing this volume for publication Adam was taken ill and died suddenly. I had known Adam for around 20 years, from when I first taught him as a mature undergraduate to his studying with me to complete a doctorate while also working as co-editor on this volume. Both in a physical and an intellectual sense Adam was really bigger than life and his passing leaves a gap that it will be difficult to fill. Is it no exaggeration to say that without his tenacity and dedication to the project, this volume would not be in your hands today. Adam’s life had taken a new turn with his move into the academy and while it is a tragedy that he will not now follow his chosen path, nevertheless this Handbook represents a lasting testament to an academic career cut short all too early. CONTRIBUTORS J.W.F. Allison has been appointed to the Cambridge Law Faculty since 1995. He previously held lectureships at the Universities of London, Cape Town and Chicago. His main publica- tions are two monographs The English Historical Constitution and A Continental Distinction in the Common Law and the two-volume Oxford Edition of Dicey which he edited and which includes Dicey’s largely unpublished comparative constitutional lectures. Dan Banik is Professor of Political Science and Research Director at the University of Oslo’s Centre for Development and Environment. His research interests include poverty, inequality, governance, legal empowerment, social protection, development aid, famine, and food security. Professor Banik’s recent books include The Democratic Dividend: Political Transition, Poverty and Inclusive Development in Malawi (2016) and The Legal Empowerment Agenda: Poverty, Labour and the Informal Economy in Africa (2011). Adriaan Bedner’s research at Leiden Law School, The Netherlands focuses on Indonesian law and society. He has written on a wide variety of subjects in this field, including access to justice, dispute resolution and the judiciary. He has also done work of a more general theoretical and comparative nature, in particular on rule of law and access to justice. viii M4581 - MAY_9781786432438_t.indd 8 01/08/2018 14:47 Contributors ix Pietro Costa is Professor Emeritus of the University of Florence. Among his recent publications are Civitas. Storia della cittadinanza in Europa, 1999–2001; Democrazia politica e Stato costituzionale, 2006; Poucos, muitos, todos. Lições de história da democracia, 2012. Teresa Almeida Cravo is an Assistant Professor of International Relations at the Faculty of Economics of the University of Coimbra (Portugal) and a researcher at the Centre for Social Studies. She is currently the co-coordinator of the PhD programme ‘Democracy in the XXIst Century’ and coordinator of the Master’s programme in International Relations – Peace, Security and Development Studies. She has a PhD in Politics and International Studies from the University of Cambridge. Her research focuses on peace, violence and global interventionism, from a critical perspective. A. Claire Cutler is Professor of International Relations and International Law in the Political Science Department of the University of Victoria, Victoria, British Columbia, Canada. Among her publications are Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (2003) and The Politics of Private Transnational Governance by Contract edited with Thomas Dietz (2017). Deval Desai researches legal reform, global governance, expertise and ignorance at the Albert Hirschman Center on Democracy, Graduate Institute, Geneva. He has published on these in the Annual Review of Law and Social Science, Humanity, Development & Change, and the Journal of Development Studies. He was recently Fellow-in-Residence at the Institute for Global Law and Policy, Harvard Law School, and has worked for several years as a Justice, Conflict, and Governance Specialist at the World Bank. Clemens A. Feinäugle worked as an Associate Legal Officer at WHO, Geneva, before working at the Max Planck Institute Luxembourg and before that as a law clerk at the Federal Constitutional Court of Germany, and before that as a Senior Research Fellow at the Max Planck Institute for Foreign Public Law and International Law in Heidelberg. John Flood is Professor of Law and Society and Inaugural Director of the Law Futures Centre, Griffith University Law School, Australia. His research focuses on the legal profession, globalisation of law, and technology and law. His latest research endeavours are in the fields of blockchain technologies and ICOs, and their regulation. Tom Ginsburg currently co-directs the Comparative Constitutions Project, an NSF-funded data set cataloging the world’s constitutions since 1789 at the University of Chicago, USA. His books include Judicial Reputation: A Comparative Theory (2015) (with Nuno Garoupa); and The Endurance of National Constitutions (2009) (with Zachary Elkins and James Melton), which won the best book award from Comparative Democratization Section of APSA. Before entering law teaching, he served as a legal advisor at the Iran-US Claims Tribunal, The Hague and currently serves as senior advisor on Constitution Building to International IDEA. Jerg Gutmann is Post-doctoral Researcher at the Institute of Law and Economics, University of Hamburg, Germany; he works at the intersection between economics, law, and political science. Most of his research addresses questions in the new institutional economics and political economy and tries to answer them based on cross-country empirical research. 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