當國家權力透過法律、法庭和法治的語言不斷膨脹，猶如霍布斯所描述的「利維坦」時；作為微小個體的我們，有什麼樣的空間和資源去抵抗威權的野心？羅永生（嶺南大學文化研究系退休副教授）阿古智子（現代中國研究學者，東京大學大學院綜合文化研究科教授）專文推薦李雪莉（《報導者》營運長＆總主筆）何明修（臺灣大學社會系教授）倉田徹（立教大學法學部教授）陳玉潔（中央研究院法律學研究所助研究員）張潔平（媒體人）許菁芳（多倫多大學政治學博士、暨南大學公共行政系助理教授）許仁碩（北海道大學媒體與傳播研究院助理教授）黃丞儀（中央研究院法律學研究所研究員）共同推薦（按姓氏筆畫排序）//黎恩灝的這部新著最為值得細續的，就是作者更為深入地為我們提供了一個歷史梳理和理論解釋，去解答為何香港原有的法治為何會如此脆弱，令致威權法治可以長驅直進的問題。更進一步的，雖然面對香港法治四面楚歌的困境，作者也不忘為讀者開拓縱深的歷史和環球視野，參照外地種種「司法抗爭」的經驗，為法治敗壞和理想失落的情勢下，提供坐困愁城之外的思考出路和精神鼓舞。//──羅永生（嶺南大學文化研究系退休副教授）//李柱銘、梁家傑、戴耀廷——香港過去幾十年的民主運動是由多位香港法律專家所領導的。現在，在《港區國安法》體制下，民主派已不能在街頭或議會中開展活動，而被監禁者可以「自由」發言的法庭則成為了最後的抗爭舞臺。本書透過與大量外國案例的比較，仔細探討繼承中英文化的香港司法的獨特性，並探討司法抗爭的可能性，成為了一本絕望中的希望之書。//──倉田 徹（立教大學法學部教授）＝制度匱乏不等於價值滅絕＝過往的香港享有國際社會公認的司法獨立和法治，也是「香港故事」中香港成功的基石與港人自豪的來源。對外資來說，優秀公平的商法及民法、廉潔的法官、高效的司法機構等，已提供足夠誘因來此通商；對港人來說，依法治國、司法獨立的概念深植人心，彷彿擁有法律和法律制度，便足以保障人權與自由。然而，香港真的是個法治（rule of law）社會嗎？其實，香港法治之建立，可說是英殖時期的政治手段：香港的法律制度移植自普通法與便於管制的殖民地法例，雖有司法獨立之外衣，卻不曾擁有真正的民主問責，對政權始終缺乏有效制衡，也為日後威權主義式的法治制度和文化鋪路。主權移交後，威權色彩更為鮮明，司法逐漸與政權融合，甚而為其所用，成為權力意志的延伸，種種狀況在二〇二〇年六月《港區國安法
This new volume on The Rule of Law in Comparative Perspective compares the different conceptions of the rule of law that have developed in different legal cultures. Lawyers and legal scholars from var
Nothing provides as much material for comparative legal study as the great variety of rule-making that characterizes land law. Land law is perhaps the only legal area in which the leveling march of gl
This book proposes a new way of understanding events throughout the world that are usually interpreted as democratization, rising authoritarianism, or revolution. Where the rule of law is weak and corruption pervasive, what may appear to be democratic or authoritarian breakthroughs are often just regular, predictable phases in longer-term cyclic dynamics - patronal politics. This is shown through in-depth narratives of the post-1991 political history of all post-Soviet polities that are not in the European Union. This book also includes chapters on czarist and Soviet history and on global patterns.
This book proposes a new way of understanding events throughout the world that are usually interpreted as democratization, rising authoritarianism, or revolution. Where the rule of law is weak and corruption pervasive, what may appear to be democratic or authoritarian breakthroughs are often just regular, predictable phases in longer-term cyclic dynamics - patronal politics. This is shown through in-depth narratives of the post-1991 political history of all post-Soviet polities that are not in the European Union. This book also includes chapters on czarist and Soviet history and on global patterns.
This book is a unique analysis of the struggle to build a rule of law in one of the world's most dynamic and vibrant nations - a socialist state that is seeking to build a market economy while struggling to pursue an ethos of social equality and opportunity. It addresses constitutional change, the assertion of constitutional claims by citizens, the formation of a strong civil society and non-profit sector, the emergence of economic law and the battles over who is benefited by the economic regulation, labor law and the protection of migrant and export labor, the rise of lawyers and public interest law, and other key topics. Alongside other countries, comparisons are made to parallel developments in another transforming socialist state, the People's Republic of China.
This book is a unique analysis of the struggle to build a rule of law in one of the world's most dynamic and vibrant nations - a socialist state that is seeking to build a market economy while struggling to pursue an ethos of social equality and opportunity. It addresses constitutional change, the assertion of constitutional claims by citizens, the formation of a strong civil society and non-profit sector, the emergence of economic law and the battles over who is benefited by the economic regulation, labor law and the protection of migrant and export labor, the rise of lawyers and public interest law, and other key topics. Alongside other countries, comparisons are made to parallel developments in another transforming socialist state, the People's Republic of China.
At the end of June 2013, Professor Anton MJ COORAY retired from his position at the City University of Hong Kong School of Law after almost twenty-five years of loyal and productive service. During that time, he made a very substantial contribution to the success of the School, as well as to the study and practice of law both within and outside of Hong Kong. This Festschrift has attracted contributions from not only his colleagues, but also a number of world-renowned scholars, who wished to convey through their contributions their enormous respect for his scholarship, leadership and gentlemanly bearing. 'The Rule of Law: a Comparative Perspective' has been chosen the theme of this Festschrift because it is one of the most important topics in the area of constitutional and administrative law, about which Professor COORAY has researched and written extensively. Although the study of the 'rule of law' encompassed a very long list of fundamental legal principles or precepts, the thirteen
Contributors to this volume examine how the legislative, executive and administrative arms of government have responded to issues concerning the rights and status of refugees and asylum seekers in five common law jurisdictions: the UK, Australia, Canada, the USA and New Zealand. Who and what determines the legislative agenda in this context? Is the legislative agenda driven by the legislators or by the executive? Where does the 'community' fit into this picture? Together the essays explain the international context for the responses of the jurisdictions, evaluate the responses from a human rights perspective and assess the integrity and coherency of legal responses as shown by their impact on the rule of law.
This volume explores the various strategies, mechanisms and processes that influence rule of law dynamics across borders and the national/international divide, illuminating the diverse paths of influence. It shows to what extent, and how, rule of law dynamics have changed in recent years, especially at the transnational and international levels of government. To explore these interactive dynamics, the volume adopts an interdisciplinary approach, bringing together the normative perspective of law with the analytical perspective of social sciences. The volume contributes to several fields, including studies of rule of law, law and development, and good governance; democratization; globalization studies; neo-institutionalism and judicial studies; international law, transnational governance and the emerging literature on judicial reforms in authoritarian regimes; and comparative law (Islamic, African, Asian, Latin American legal systems).
This volume explores the various strategies, mechanisms and processes that influence rule of law dynamics across borders and the national/international divide, illuminating the diverse paths of influence. It shows to what extent, and how, rule of law dynamics have changed in recent years, especially at the transnational and international levels of government. To explore these interactive dynamics, the volume adopts an interdisciplinary approach, bringing together the normative perspective of law with the analytical perspective of social sciences. The volume contributes to several fields, including studies of rule of law, law and development, and good governance; democratization; globalization studies; neo-institutionalism and judicial studies; international law, transnational governance and the emerging literature on judicial reforms in authoritarian regimes; and comparative law (Islamic, African, Asian, Latin American legal systems).
This volume offers an in depth analysis of current issues of culture of judicial independence in comparative perspective by senior academics, judges and practitioners across jurisdictions. It deals w
Civil justice in the United States is neither civil nor just. Instead it embodies a maxim that the American legal system is a paragon of legal process which assures its citizens a fair and equal treatment under the law. Long have critics recognized the system's failings while offering abundant criticism but few solutions. This book provides a comparative-critical introduction to civil justice systems in the United States, Germany and Korea. It shows the shortcomings of the American system and compares them with German and Korean successes in implementing the rule of law. The author argues that these shortcomings could easily be fixed if the American legal systems were open to seeing how other legal systems' civil justice processes handle cases more efficiently and fairly. Far from being a treatise for specialists, this book is an introductory text for civil justice in the three aforementioned legal systems.
Civil justice in the United States is neither civil nor just. Instead it embodies a maxim that the American legal system is a paragon of legal process which assures its citizens a fair and equal treatment under the law. Long have critics recognized the system's failings while offering abundant criticism but few solutions. This book provides a comparative-critical introduction to civil justice systems in the United States, Germany and Korea. It shows the shortcomings of the American system and compares them with German and Korean successes in implementing the rule of law. The author argues that these shortcomings could easily be fixed if the American legal systems were open to seeing how other legal systems' civil justice processes handle cases more efficiently and fairly. Far from being a treatise for specialists, this book is an introductory text for civil justice in the three aforementioned legal systems.
The theme of this book is the legal regulation of violence and the role of litigation in Athenian society. Using comparative anthropological and historical perspectives, David Cohen challenges traditional evolutionary and functionalist accounts of the development of legal process. Examining Athenian theories of social conflict and the rule of law, as well as actual litigation involving the regulation of violence, he emphasises the way in which the judicial process operates in an agonistic social field. This perspective illuminates the social dimensions of litigation and the legal regulation of violence, and helps to explain otherwise puzzling features of Athenian litigation.
It is a settled rule of international law that a State may not rely on the provisions of its 'internal law' as justification for failing to comply with international obligations. However, the judiciaries of most countries, including those with a high record of compliance with international norms, have increasingly felt the need to preserve the area of fundamental principles, where the State's inclination to retain full sovereignty seems to act as an unbreakable 'counter-limit' to the limitations deriving from international law. This volume explores this trend by adopting a comparative perspective, addressing the question of how conflicts between international law and national fundamental principles are dealt with and resolved within a specific legal system. The contributing authors identify common tendencies and fundamental differences in the approaches and evaluate the implications of this practice for the future of the principle of supremacy of international law.
Both in WTO law and EU law there is a dichotomy between liberalisation based on market access and targeting domestic regulation. Consequently, both regimes share the problem of distinguishing national measures impairing market access and those that do not have such effect. Looking at the provision of services, a cornerstone of EU substantive law, in the EU and the WTO this book offers a comprehensive evaluation of the current legal status quo on transnational services provision on a global level. Based on thorough analysis of both EU and WTO law, policymakers are provided with concrete proposals for fostering the consistency and effectiveness of the current regime. A final chapter discusses possible approaches to regulation such as home state rule, host state rule and mutual recognition from a comparative perspective. Written by a highly respected author team, this is essential reading for EU internal market specialists and WTO law scholars alike.
