Burning the Rechtsstaat: legal institutions and protection of the rule of law

Abstract

The economic literature is clear that transparent and impartial rule of law is crucial for successful economic outcomes. However, how does one guarantee rule of law? This paper uses the idea of ‘self-reinforcing’ institutions to show how political institutions may derail rule of law if associated judicial institutions are not self-reinforcing. We illustrate this using the contrasting examples of Estonia and Poland to frame the importance of institutional context in determining both rule of law and the path of legal institutions. Although starting tabula rasa for a legal system is difficult, it worked well for rule of law in Estonia in the post-communist transition. Alternately, Poland pursued a much more gradualist strategy of reform of formal legal institutions; this approach meant that justice institutions, slow to shed their legacy and connection with the past, were relatively weak and susceptible to attack from more powerful (political) ones. We conclude that legal institutions can protect the rule of law but only if they are in line with political institutions, using their self-reinforcing nature as a shield from political whims of the day.

Constitutional Foundations of the Post-communist Russian Economy and the Role of the State

“…From early attempts to define the role of the executive in the economy to more recent moves to expand the powers of the President, define national champions, and bring the 'commanding heights' of the economy under closer state supervision, there has been a consistent struggle of politics against economics… and a clear victory of politics in this struggle. The growth of executive power has continued unabated due to an issue which has been observed in Russia and elsewhere: legal institutions do not have enough gravitas or heft to be able to protect the market economy or even the rule of law on their own (Hartwell and Urban 2021). Unlike the lawyers and legal experts who believed that the formal recognition of the Constitutional Court in the Constitution of 1993 would guarantee its independence from political turbulence (Trochev 2008), the reality has been that the executive has been able to shape the legal landscape, first by decree, second by erosion of institutional norms, and finally by changing the foundational documents related to the legal sector.…”

Institutional resilience: how the formal legal system sustains informal cooperation

“…Deakin et al (2017) point to the role that the legal system plays in reducing complexity for agents while acknowledging that the law itself is part of a more extensive system governing social interaction. Echoing this point, Hartwell and Urban (2021) show in a case study of the transition experience in Estonia and Poland that political institutions need to be aligned to make the protection of the rule of law work. Relatedly, the theory of political settlements (Kelsall et al, 2022) deals with questions of how the ground rules governing economic and political exchange are the results of agreements between different groups.…”

Public policy and developmental imperatives: theorising governance in the case of social grants in Endumeni Local Municipality, KwaZulu-Natal

“…SAPO (2021) states that beneficiaries of social grants must not pay the money requested by queue marshals, SAPO's workers, or any individual demanding such a payment and must lay charges of fraud and corruption at the police station. Even the South Africa's economy is growing gradually because of the leadership crisis as there are factions in the ruling party, which is a party that has many seats in almost three spheres of government (Hartwell & Urban, 2021;Mohr & Fourie, 2015). Good and effective governance is imperative in keeping and maintaining a growing economy (Kefela, 2011;Olowu & Sako, 2002).…”