The Rule of Law

Authored by: Martin Mendelski

The Routledge Handbook of East European Politics

Print publication date:  August  2017
Online publication date:  August  2017

Print ISBN: 9781138919754
eBook ISBN: 9781315687681
Adobe ISBN:

10.4324/9781315687681.ch8

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Abstract

Establishing the rule of law has been one of the key challenges (next to building capitalism and democracy) for post-communist countries. 1 However, not all post-communist countries have overcome this challenge and transitioned to the rule of law. How can the rule of law be established? Practitioners have responded to this question by stressing different means (laws, judiciaries and enforcement bodies) and objectives (legality, equality before the law, law and order, predictability) of rule of law reform. Judges have argued that the rule of law requires above all judicial independence and the institutional and material safeguards to maintain it. Businessmen and economists have emphasised the importance of judicial efficiency to reduce the length of proceedings, the respect of property rights, and the enforcement of contracts. Politicians have used the rule of law as a buzzword with changing meanings, calling for judicial accountability, judicial independence, or the fight against corruption. Legal experts have advised building judicial capacity and adopting best practices (including “best” legal frameworks, international standards, anti-corruption agencies, judicial academies, etc.) to improve the rule of law. International donors, with their different priorities and agendas, have emphasised a plethora of issues to establish the rule of law, such as judicial capacity building (EU, USAID, and World Bank), respect for human rights and a fair trial (ECtHR), fight of corruption, improved judicial review, judicial independence, impartiality and training (Council of Europe and EU), law and order and minority rights (OSCE), and in general the adaptation to European and international legal standards through processes of institutional transplantation and approximation. What becomes obvious is the heterogeneity of means, goals, opinions, agendas, and priorities of diverse stakeholders, which makes rule of law reform a complex, expensive, and challenging issue.

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