Description

It is conventional wisdom that real democracy, as opposed to its electoral variety, requires rule of law, whereby rulers are constrained by legal principles that they do not control and that are enforced by impartial and empowered courts. How such a legal order emerges in the context of movement from authoritarian to democratic rule remains largely unknown. In the second half of the 20th century, very few countries completed such a legal transition, with Spain as the one clear example, but as the new millennium began, there was hope for some of the post communist members of the European Union, if only because of the presence of political competition and pressure from the EU. Still, as of 2010 none of these countries had yet achieved the degree of judicial impartiality or power needed to qualify as modern legal orders.

The purpose of this Workshop is to explore why this is the case. This goal requires consideration of the impact of EU pressures and the domestic politics of judicial reform. It requires probing the role of and relationship between institutional and cultural change, and the impact of informal practices. It calls for consideration of the working of judicial bureaucracy in its socialist variant (with its peculiar incentive structure), as well as the persistence of positivist and formalistic approaches to law. Another issue is the presence or absence of demand for law among politicians and business leaders and their attitudes toward courts. Finally, there is the impact of new constitutional courts, which often represent a different approach to law from that manifested by regular courts or shared by political leaders.