Confucianism has been historically intertwined with authoritarianism in general and monarchy in specific. Various contemporary attempts to reconcile Confucianism with democracy have yielded controversial results mostly due to the theoretical tension between the authoritarian character of the former and the liberal one of the latter. This article seeks to develop an alternative route to Confucian democracy by drawing from Huang Zongxi’s 黃宗羲 Waiting for the Dawn: A Plan for the Prince. In this well-known work, Huang argues for a form of (...) limited government that is built upon laws, political protection of academic freedom, good institutional designs, and separation of governmental powers. While these features seem to qualify Huang only as a defective liberal, this article argues that they are in much coherence with the insights of republicanism concerning good governance. This article will argue that the republican themes embodied in Waiting for the Dawn can justify and support a particular form of Confucian republican democracy. (shrink)

If the criminal trial is aimed simply at ascertaining the truth of a criminal charge, it is inherently problematic to prevent the prosecution from adducing relevant evidence on the ground of its unlawful provenance. This article challenges the starting premise by replacing the epistemic focus with a political perspective. It offers a normative justification for the exclusion of unlawfully obtained evidence that is rooted in a theory of the criminal trial as a process of holding the executive to the rule (...) of law. On this theory, it is the admission rather than exclusion of such evidence that is inherently problematic. The differences between this theory and others that are in currency will be noted, as will its implications and limitations. (shrink)

PurposeThe purpose of the paper is to provide an overview of the legal implications which may be relevant to the ethical aspects of emerging technologies, to explore the existing situation in the area of legal regulation at EU level, and to formulate recommendations for the lawmakers.Design/methodology/approachThe analysis is based on the premise that the law is supposed to invoke moral principles. Speculative findings are formulated on the basis of analyzing specific emerging technologies; empirical findings are based on a research conducted (...) in the whole legal corpus of the EU.FindingsIn the area of network‐based technologies the already existing and elaborated legal frameworks can be used in an extended manner; artificial intelligence‐based technologies call for alterations in several branches of law; while interface technologies show the difficulty and complexity of regulating interdisciplinary fields. The legal implications of emerging technologies have attracted only a minimal legislative attention in the competent bodies of the EU.Originality/valueThe paper provides a systemic approach towards transmitting ethical norms to the application of emerging technologies through legal regulation, and formulates detailed recommendations in various areas of such technologies. (shrink)

This paper describes and defends a novel and distinctively egalitarian conception of the rule of law. Official behavior is to be governed by preexisting, public rules that do not draw irrelevant distinctions between the subjects of law. If these demands are satisfied, a state achieves vertical equality between officials and ordinary people and horizontal legal equality among ordinary people.

The study of law and information technology comes with an inherent contradiction in that while technology develops rapidly and embraces notions such as internationalization and globalization, traditional law, for the most part, can be slow to react to technological developments and is also predominantly confined to national borders. However, the notion of the rule of law defies the phenomenon of law being bound to national borders and enjoys global recognition. However, a serious threat to the rule of law is looming (...) in the form of an assault by technological developments within artificial intelligence (AI). As large strides are made in the academic discipline of AI, this technology is starting to make its way into digital decision-making systems and is in effect replacing human decision-makers. A prime example of this development is the use of AI to assist judges in making judicial decisions. However, in many circumstances this technology is a ‘black box’ due mainly to its complexity but also because it is protected by law. This lack of transparency and the diminished ability to understand the operation of these systems increasingly being used by the structures of governance is challenging traditional notions underpinning the rule of law. This is especially so in relation to concepts especially associated with the rule of law, such as transparency, fairness and explainability. This article examines the technology of AI in relation to the rule of law, highlighting the rule of law as a mechanism for human flourishing. It investigates the extent to which the rule of law is being diminished as AI is becoming entrenched within society and questions the extent to which it can survive in the technocratic society. (shrink)

In his posthumous work Power and Prosperity , the economist Mancur Olson asked why the economies of many of those countries of the former Soviet Union and other emergent countries that had at last adapted to the theoretical and practical presuppositions of the market economy had not seen themselves, notwithstanding, recompensed with the prosperity that this economic model promises to all those who follow its rules. The core of the answer was in a long paragraph that is perhaps elemental to (...) a jurist but may be original and worth remembering as an innovative thesis in the world of economists. (shrink)

Justice as a manifestation of “the just” is an evasive concept. On the one hand there is the law, an operation run by professionals. On the other hand there are the citizens the law is meant for. Generally speaking the law strives for justice. But the law has to protect many different interests and must work through legal devices. Therefore the justice that emerges from it is necessarily a legal compromise. For the citizens the legal rules are a given reality. (...) Generally they will agree that the law is there to achieve justice but legal arguments that justify a rule or decision cannot have the same value for them. In cases that affect them personally, justice will be a personal, existential experience, which may be incompatible with legal justice. It is hard to keep these two forms of justice under one roof. In order to make this easier this paper proposes a conceptual split between “law‐linked justice” and “existence‐linked justice.” It is argued that the law cannot in truth to its rational origin ignore the citizens’ experience of justice, out of the ordinary as they may be. (shrink)

We approach law with deep ambivalence. On the one hand, we take immense pride in living under the rule of law. On the other hand, we often catch ourselves lamenting the existence of law. When we lament the existence of law, we are not just saying that there is too much of it. We are not just complaining about the amount of law. Rather, our complaint goes to the very nature of law itself. We complain that its rules are constraining, (...) that its generality ignores the particularity of each situation, that its coercive force rides roughshod over our autonomy, and the list goes on. However, notwithstanding the frustration with law, it is not that we want to get rid of it. This paper seeks to express and explain our conflicting sentiments about law – why we sometimes view law as a monumental moral achievement and why we are sometimes so frustrated with it. The answer, as this paper will argue, lies in the nature of norms. The value and limit of law is traceable to the value and limit of norms. Kierkegaard helps us see that. This paper will argue that our ambivalence about law mirrors Kierkegaard’s ambivalence about ethics. (shrink)

This article connects the insights of post-realist scholarship about radical indeterminacy and its consequences for the legitimacy of adjudication to the current legitimacy crisis of the international investment regime. In the past few years, numerous studies have exposed serious shortcomings in investment law and arbitration including procedural problems and the substantive asymmetry of the rights protected. These criticisms have prompted a broad consensus in favor of amending the international investment regime and multiple reform proposals have appeared that appeal to the (...) rule of law ideal as an instrument for increasing the acceptability of the international investment system. This article argues that the reliance of such proposals on jurisprudential approaches that fail to adequately accommodate the post-realist indeterminacy critique and take seriously the role of ideology in adjudication renders reform efforts unable to solve the legitimacy problems of the investment regime. The conclusions suggest the need to abandon implausible claims to depoliticization and face the methodological challenges posed by the promise of ideologically balanced assessments advanced by some rule of law theorists. The article finally points at the urgency to reform traditional approaches to doctrinal work in order to increase awareness of critical challenges and open up doctrinal methods to alternative methodological avenues. (shrink)

. The general issue addressed in this paper is the relation between the rule of law as a matter of national law, and as a matter of international law. Different institutional conceptions of this relationship give rise to different attitudes towards international law. Nonetheless, questions arise that cast doubt on age-old tenets of certain Western countries concerning the radical separability between the rule of law within the domestic system and in the international realm. The article will start considering some recent (...) developments in the United States' treatment of alien detainees. Then it shall address the relation between domestic constitutions and international legal systems, pointing out the challenge coming from the development of "super partes" international law and jus cogens. The question concerning the appeal to the rule of law will be made: Can our attitude to the rule of international law be exempted from consistency with the rule of law that we claim for our domestic system? In order to answer this question (in the negative), an appropriate theoretical perspective is eventually proposed and displayed. (shrink)

Chief Judge Achilles and Judge Hera – uniqueness of proceedings – the nature of judicial decision-making – the judicial order of Mega-city One – source of judicial power – judicial styles – qualities required for judicial office – context of judicial action – requirement of reflection – interpretation and meaning in enforcement of law – adjudicative models – law as horrific – legal theories – Hans Kelsen – Justice Hercules – Jacques DerridaJudge Howard – critical assessment of judicial order of (...) Mega-city One – Hans Kelsen, positivism and democracy – merging of law fondatrice and law conservatrice – the “soul of the law” – fracture of the Rule of Law – fascism – comparisons with fascist regimes of twentieth Century Europe – signifiers in judicial uniform – consequences of dissent – reasons for, and consequences of, resignationChief Judge AchillesJudge HeraJudgement delivered 3 March 2138.Grand Hall of Justice, Mega-city One. (shrink)

Introduction: Is soft power effective? Justice institutions have become a key topic in the international scientific and institutional agendas some decades ago, for different, and still interdependent reasons: the waves of democratizations (Pridham 2000), the increasing power of the judicial branch (Russell and O Brian 2001; Stone Sweet 2002), the transnationalisation of the processes of law making and law enforcement (Allard and Garapon 2005), the increasing demand for justice, dispute resolution, and rights enforcement (Epp 1998; OECD 2014, 2015). Despite the (...) vast literature focusing on these phenomena, very little has been said on the impact that the recent development of the quality of justice mainstream (Fabri et al. 2005; Piana 2010) has on the relationship between the judicial and the executive branch. Notoriously, this relationship is one of the key dimensions for a constitutional democracy. (shrink)