The Rule of Law as a Political Weapon

Maravall, José María

doi:10.1017/cbo9780511610066.012

Cited by 40 publications

(26 citation statements)

References 18 publications

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“…Otherwise, legislating would reflect a "series of sporadic and patternless exercises of power" (Fuller 1969: 110). Reforms may negatively affect the generality of laws, for instance through the instrumentalization of law as a political weapon (Maravall 2003) and "state capture" (Hellman et al 2003), that is, "the efforts of firms to shape the laws, policies, and regulations of 2 Veto players are institutional or political domestic actors whose agreement is necessary to change the status quo. They are typically reform opponents who tend to oppose eu-induced judicial and anti-corruption reforms and the way in which these reforms are conducted.…”

Section: 23mentioning

confidence: 99%

“…The implication of the pathological turn in Europeanization research is clear. eudriven judicial, anti-corruption and legal reforms can negatively affect the rule of law, especially when the partisan and inconsistent application of eu conditionality enables reformers to misuse the rule of law (and reforms) as a political weapon (Maravall 2003) against critical members from the judiciary or the opposition. Thus, more reform may not necessarily result in more progress, and may instead lead to a deterioration of the rule of law.…”

Section: Introductionmentioning

confidence: 99%

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Europeanization and the Rule of Law: Towards a Pathological Turn

Mendelski

2016

Southeast Eur

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Recent scholarship has exposed the "eu's pathological power", which has undermined the creation of the rule of law in South Eastern Europe (see) and beyond. This paper discusses the "pathological turn" in Europeanization studies by identifying and providing evidence for several "pathologies of Europeanization", i.e. legal and political deficiencies related to rule of law reform, such as legal instability, lack of generality and enforcement, and increased politicization. These pathologies result, among others, from a deficient approach of the eu to rule of law promotion and assessment. In particular, the author highlights three main fundamental problems of Europeanization in the area of the rule of law: 1) valuing quantity over quality; 2) partisan empowerment of domestic change agents; and 3) biased assessment of the rule of law. These problematic issues are further clarified on selected country examples of reform failure from see and the 2012 "rule of law crisis" in Romania. It is argued that given the eu's inability to objectively assess and effectively promote the rule of law, the eu should either abstain from evaluating rule of law or radically revise its approach and methodology, for instance by following the policy advice provided in this paper.

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Section: 23mentioning

confidence: 99%

Section: Introductionmentioning

confidence: 99%

Europeanization and the Rule of Law: Towards a Pathological Turn

Mendelski

2016

Southeast Eur

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“…Furthermore, overall, the above literature underestimated the incumbent governments' short-term interest in making use of the judiciary. In practice, an incumbent government has often exploited judicial officers' powers for partisan goals, such as the removal of its political opponents, in many new democracies (Maravall, 2003). Especially in the new democracies with a civil-law prosecution system, a ruling force is more likely to be tempted to seek its short-term interest in using prosecutors' extensive power in criminal procedures for its own ends (Lee, 2014, pp.…”

Section: Previous Explanationsmentioning

confidence: 99%

The politics of prosecution service reform in new presidential democracies: The South Korea and Russia cases in comparative perspective

Lee

2016

Journal of Eurasian Studies

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This paper explains why large-scale reform of a civil-law prosecution system will be abandoned, fail, or succeed in exceptional cases, focusing on the strategic interaction between an incumbent president and prosecutors, through a comparative analysis of the South Korea and Russia cases. A civil-law prosecution system could hardly be reformed, although there were several attempts to correct the politicization of the prosecution service, in new presidential democracies. An incumbent president sometimes considers major reform against the prosecutors, but he or she tends to abandon it and seek to form alliance with them, expecting short-term political benefits under intense political competition. Moreover, although a president strongly pushes for large-scale prosecution service reform, he or she also cannot easily achieve this goal, since the prosecutors' willful initiation of criminal proceedings will cause his or her momentum to decline. Indeed, only Putin exceptionally succeeded in major reform of the prosecution system under weak political competition, among South Korean and Russian Presidents after democratization.

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“…On the other hand, some literatures suggest the 'rule of law as a political weapon' as a new pattern of the judicialization of politics (Guarnieri, 2003;Maravall, 2003). This is distinguished from mere judicial activism by which courts make an ultimate decision in policy-making processes.…”

Section: The Judicialization Of Politics and The 'Rule Of Law As A Pmentioning

confidence: 99%

The Discordant Combination of Civil-Law Prosecution System and Presidentialism: A Theoretical Framework

Lee¹

2014

JPL

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Civil-law prosecutors could damage particular politicians' moral foundations with their own timing and extent, manipulating criminal proceedings through their broad power within the centralized criminal procedure. This is why they must be cautiously checked by any other body of government, contrary to their common-law counterparts who exercise limited power because of the decentralized criminal procedure. Fortunately, in most civil-law countries, prosecutors are required to be accountable to democratic bodies, despite the global trend of judicial independence. In several new presidential democracies, however, civil-law prosecutors are often involved in the judicialization of politics through criminal proceedings, despite their accountability to a political branch, unlike in the continental European countries. Why is there such a difference? To answer this question, this article provides an innovative theoretical framework explaining that civil-law prosecutors would be induced to abuse their great power in a partisan position, not under a consensus form of government, but under presidentialism, with the new institutionalist approach. According to this framework, empirical researches will also be encouraged.

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The Rule of Law as a Political Weapon

Cited by 40 publications

References 18 publications

Europeanization and the Rule of Law: Towards a Pathological Turn

Europeanization and the Rule of Law: Towards a Pathological Turn

The politics of prosecution service reform in new presidential democracies: The South Korea and Russia cases in comparative perspective

The Discordant Combination of Civil-Law Prosecution System and Presidentialism: A Theoretical Framework

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