Rule of Law Commons^™

The Roberts Court Paradox, John C. P. Goldberg, Benjamin C. Zipursky

Fordham Law Review

As perhaps the most conservative Supreme Court of the past century, the Roberts Court regularly touts its commitment to traditional ideals, including the rule of law. Yet Trump v. United States seems ready to place presidents entirely or largely above the law by granting them absolute or near absolute immunity from criminal prosecutions for official conduct. And Trump is not a one-off: from judicial recusal to qualified immunity to due process decisions, the Court frequently seems to display indifference to values of accountability and impartiality that have long been thought integral to the rule of law. What is going on? …

The Effectiveness Of Public-Private Partnerships In Addressing Residential Urban Development Challenges In Greater Cairo, Sara Nagy Abdelmessih

Theses and Dissertations

This research explores the effectiveness of Public-Private Partnerships (PPPs) in tackling the residential urban development challenges facing Cairo today. In the past two decades, PPPs have emerged as a dominant mode of housing production, positioned as collaborative ventures between state agencies and private developers. They have become integral to the expansion of Greater Cairo, producing vast new urban extensions under the promise of mobilizing private capital, technical expertise, and delivery capacity. Yet, questions remain about whether these arrangements genuinely address Egypt’s most urgent housing needs, or whether they reproduce market-driven logics that leave large segments of the population excluded. The …

Beyond Democracy: How A Free Press Supports The Rule Of Law, Erin C. Carroll

Cardozo Law Review

Widespread agreement has existed for centuries that a free press is essential to democracy. But legal scholars have spent almost no effort thinking about why else we might need a free press. This article attempts to widen the aperture. It argues that as the free press is essential to democracy, it is just as essential to a separate value: the rule of law. Recognizing and investigating the connections between the free press and the rule of law is essential right now. It can help us discern how the press can create friction against the erosion of both rule of law …

Redefining Law In China, Zeming Liu, Benjamin L. Liebman

Faculty Scholarship

Although there is a growing body of literature on the role of law under authoritarian regimes, scholars have paid little attention to authoritarian legal ideology or conceptions of legality in contemporary authoritarian states. This Article presents the first in-depth study of the Chinese Communist Party’s recent novel attempt to introduce and implement an official legal ideology under the banner of “Xi Jinping’s Thought on the Rule of Law,” one which aims both to create a definitive theory of law and to offer a guide to China’s legal development. We examine four principal components of this legal ideology: the theoretical definition …

Security And Terrorism Vs Free Expression: Analytical Study On The European Court Of Human Rights, Mariam Adel Massoud

Theses and Dissertations

The 11 of September attacks provide a paradigm shift when it comes to protection of national security. It results in a trending vision that prioritized security over national security, which makes it essential to think about balancing national security with free expression as a pillar of democratization. This study focusses on how the balance between freedom of expression and national security interests is achieved. It studies the legal approached of the European court of human rights and its legal assessment to strike this balance. The findings of this analytical study asserts that in order for the ECtHR to achieve this …

Prerogative In Common: On The Emancipatory Potential Of Radical Mutuality Amid Sovereign Decisionism, Matthew Builes

Dissertations, Theses, and Capstone Projects

In times of crisis, liberal democracies resort to authoritarian measures that undermine core democratic values. Dominant thought in the study of emergency-era law and politics appeal to a dichotomy of normal and exceptional times, to critique or justify the turn to sovereign decisionism. While this strategy seems clear-cut, the persistence of exceptional spaces and the crises that supposedly generate them challenge existing frameworks by blurring the line between norm and exception. This project explores the prospect of radical mutual aid, as a transformative response to the enduring crisis of modernity.

Doing Away With Racial Profiling In Policing Without Doing Away With The Rule Of Law, François Tanguay-Renaud

All Papers

Since the turn of the millennium, Canadian appellate courts have been investing increasingly systematic efforts in demystifying and curtailing racial profiling in policing. These judicial efforts have so far been focused on the application of the legal criteria for arrest and detention as well as their regulation under section 9 of the Canadian Charter of Rights and Freedoms. In this article, I contend that this unidimensional approach is unsound and outline a corrective path forward. First, I argue that the prevailing judicial understanding of what racial profiling is and how it affects the lawfulness of arrests and detentions has the …

Standing On Stare Decisis After Students For Fair Admissions, Areeb Asif, Lindsey Roloff

Northwestern University Law Review

The Supreme Court recognized nearly half a century ago in Regents of the University of California v. Bakke that “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Nevertheless, the Court seriously undercut efforts to bring such a future to life by striking down race-conscious admissions programs in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively SFFA). Though SFFA’s binding effect is limited to educational institutions, …

Crisis Convergence, Sarah Medina Camiscoli

Northwestern University Law Review

Progressive jurists and legal scholars have called the Supreme Court’s doctrine of colorblind constitutionalism that dismantled affirmative action in Students for Fair Admissions, Inc. v. President and Fellows of Harvard (SFFA) a crisis for constitutional democracy. However, scholars have not yet tended to students, particularly students mobilized for racial justice, to understand their interpretation of this race-evasive ideology and what insights those mobilized students might offer in this pivotal moment. Given the fact that a small coalition of dissenting conservative jurists, scholars, and mobilized students—the Federalist Society—spent decades crafting the doctrine, scholarship, and resources that drive colorblind constitutionalism …

Constitutional Futurisms, Jeremiah Chin

Northwestern University Law Review

How do we reckon with the past? The Supreme Court’s recent embrace of originalism as a mode of constitutional analysis relies almost exclusively on a view of history and tradition that would bind us to an understanding of principles and ideals that legitimized the exclusion of minority voices. Cases such as New York State Pistol and Rifle Ass'n v. Bruen use flavors of originalism as a framework to define rights and governmental powers through their historical antecedents, but this broad standard of interpretation is notably absent in the Court’s recent discussions of histories and traditions of racism in the United …

Comparative Approaches To Parliamentary Thresholds In Selected Countries: Lesson Learn For Indonesia, Deni Angela, Mohammad Novrizal

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

This research aims to analyze the changes in the threshold number of votes obtained from general elections as a condition to be included in determining the acquisition of parliamentary seats, or from now on abbreviated as `Parliamentary Threshold,' which occurred in several countries that adhere to the democratic system, namely Indonesia, Turkey, Kazakhstan, Ukraine and Serbia. This article employs a normative legal research method, utilizing legal principles, history, and regulations as primary references, and then making comparisons. This research found that although the numbers of Parliamentary Thresholds in these countries vary, and the changes are some by increasing and some …

Prophetic Law In Indonesia And South Africa: A Comparative Constitutional Study On The Integration Of Religious Law Into Legal Systems, Kelik Wardiono, Arief Budiono, Saepul Rochman, Jan Alizea Sybelle

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Prophetic law is an ancient legal framework rooted in divine commandments, such as God's Ten Commandments to Moses, as well as Christian and Islamic laws, nowadays commonly referred to as religious law. The meaning of prophetic law is religious law from Abrahamic religions. Particularly, Christian law has significantly influenced Western civilization, with its impact extending to regions like South Africa besides customary law. Similarly, Islamic law has also left a lasting impression on Indonesia's legal system besides customary law. This article employs a comparative law method to analyze the constitutions of Indonesia and South Africa, focusing on the legalization of …

Compliance Vs. National Interest: Why Do Trade Restrictions Fail Under The Wto?, Enni Ekakusumawati, Abdul Masba Magasing, Maskun, Winnar Sitorus, Muhammad Mutawalli Mukhlis

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Trade restrictions are tools that countries often use to safeguard national interests, including economic stability, national security, and public welfare. However, under the World Trade Organization (WTO) framework-especially the General Agreement on Tariffs and Trade (GATT)-many such restrictions violate core principles such as non-discrimination (Articles I and III), the prohibition of quantitative restrictions (Article XI), and rules governing exceptions (Articles XX and XXI). This article examines why trade restrictions frequently fail in WTO dispute settlement by analyzing the substantive and procedural requirements under WTO law. Through a normative legal approach, it studies GATT provisions, WTO agreements, and case decisions-particularly the …

Open Legal Policy Criteria In The Constitutional Court Decision: An Evaluation And Recommendation, Firdaus Arifin, Ihsanul Maarif, I Gde Panja Astawa, Mohd Kamarulnizam Abdullah, Robi Asadul Bahri

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The application of an open legal policy in the testing of legislative norms by the Constitutional Court of the Republic of Indonesia often leads to legal uncertainty due to the lack of clear criteria. The variation in the approaches taken by judges in interpreting legislative policies undermines legal certainty and diminishes the credibility of constitutional reviews. This research aims to evaluate the criteria of open legal policy that can serve as a basis for the Constitutional Court to assess the constitutionality of policies. This study employs a normative legal approach that examines theories, principles, and relevant legal rules in testing …

Legal Reform To The Foundation Wage System Based On Worker Performance, Dyah Hapsari Prananingrum, Freidelino Paixao Ramos Alves De Sousa, Chris Emilians Putra Jacobus

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The main issue raised in this article is the vagueness of the norm of worker competitiveness in the Indonesian Foundation Law. In achieving its aims, a foundation will face problems related to its own sustainability. Charitable activities that it is engaged in are believed to threaten its sustainability, in addition to achieve fairness both for foundation as employer and worker as employee, norm of worker performance in the form of wage based on performance are needed. Such an issue may be solved by reforming the Foundation Law with the adoption of a performance-based approach, similar to the Job Creation Law. …

Ungerminated Seed: Proportionality Test In The Indonesian Constitutional Court, Eko Riyadi, Satya Arinanto, Simon Butt, Fitra Arsil

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

This article examines how the Constitutional Court of the Republic of Indonesia (the Court) constructs its argumentation regarding the limitation and derogation of human rights. The primary issue is how the Court interprets and operationalises the limitation clause under the Constitution of the Republic of Indonesia to derogate from and limit human rights. This article also illustrates how the Court applies the derogation and limitation clauses to freedom of religion, the right against retroactive prosecution and the death penalty, the right of women to stand for election, and the right to freedom of expression. The Court has never ruled on …

Breaking Diplomatic Immunity: Legal Implications Of Israeli Airstrikes On The Iranian Consulate Under International Law, Yordan Gunawan, Aisyah Ajeng Putri Riyanto, Safira Ayu Tri Ariyani

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

In April 2024, Israeli airstrikes were directed at the Iranian consulate building located in the capital city of Syria, Damascus. The Israeli-Iranian relationship has escalated significantly, shifting from a diplomatic partnership to severe hostility over the course of almost fifty years. This article seeks to examine the legal implications of the Israeli attack on the Iranian consulate building by considering the United Nations Charter and the Vienna Conventions, as well as to analyse the responses of the Iranian government and the international community. This article employed a normative legal research methodology, which involved combining a statutory approach with a detailed …

Indonesian Constitutional Court’S Moral Legitimacy: A Dworkinian Rights-Based Defense, Prisilia Kornelia Moonik

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

This study discusses the moral legitimacy of constitutional adjudication in general, with a particular focus on the Indonesian Constitutional Court. Moral legitimacy is crucial as it justifies the necessity of Constitutional Court—not merely because of its existence is stipulated by the 1945 Constitution. This issue is also discussed in response to the legislature’s (the People’s Representative Council) adverse reactions to the Constitutional Court, including efforts to weaken its authority. Additionally, moral legitimacy is also related to the well-known critique of constitutional adjudication: the counter-majoritarian difficulty. This study draws on Ronald Dworkin Rights-Based Theory, which defends constitutional adjudication as a means …

Canada's Foreign Fighter Problem: How Should The Federal Government Manage Suspected Isis Members Held In Syria?, Mira Stephenson

Dalhousie Journal of Legal Studies

Since the Islamic State of Iraq and Syria (ISIS) fell in 2019, the Autonomous Administration of North and East Syria (AANES) has arbitrarily detained tens of thousands of accused ISIS fighters and their families in Northern Syria. Among those detained are Canadian citizens. Although Canada has repatriated Canadian women and children from AANES custody, its policy approach to date has been inadequate.

Canada must take action to develop a cohesive policy for the approximately 17 Canadians remaining in AANES custody. In this paper, I will evaluate four potential policy options available to the Canadian government. First, that Canada could take …

The Collapse Of Negara Hukum: How Indonesia’S Rule Of Law Has Been Shaped By Embedded Oligarch Politics?, Herlambang Perdana Wiratraman

The Indonesian Journal of Socio-Legal Studies

This article argues recent performance of the rule of law in the 25-years period after Soeharto’s authoritarian regime. Why has there been a weakening of civil liberties, while on the other hand the oligarchic power and authoritarianism strengthens the current Indonesia’s politics. This article examines the prevalence of arbitrary practices, not only in the fair procedural process of law enforcement, but also why it is so easy to pass anti-democratic laws that contradict the principles of the rule of law. By referring to three specific case studies: free expression, academic freedom and press freedom, this article found that politics in …