Vladimir Maizus
ברק ארז, ד. (2012). "חוקה למצבי חירום". בתוך: אשר גרוניס, אלעזר ריבלין ומיכאל מוסה קריאני (עורכים) ספר שלמה לוין. אלון הוצאה לאור, עמודים 696-671.
Whittington, K. E. (2001). Yet Another Constitutional Crisis. Wm. & Mary L. Rev., 43, 2093.
Abstract:
The recent presidential impeachment and the postelection controversy each led many to fear that the United States had either already entered or was about to enter a constitutional crisis. Such concerns seem overwrought. This Article will use those events as a foil for examining the nature of constitutional crises. The Article will distinguish two types of constitutional crises and consider several potential crises in American history, clarifying how crises occur and how they can be averted. Constitutional crises in the United States are rare in large part because of the robustness of the country's informal constitutional practices, reasonably good constitutional design, and relatively limited political disagreement.
Tamanaha, B. Z. (2004). On the rule of law: History, politics, theory. Cambridge University Press.
Abstract:
The rule of law is the most important political ideal today, yet there is much confusion about what it means and how it works. This 2004 book explores the history, politics, and theory surrounding the rule of law ideal, beginning with classical Greek and Roman ideas, elaborating on medieval contributions to the rule of law, and articulating the role played by the rule of law in liberal theory and liberal political systems. The author outlines the concerns of Western conservatives about the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book examines the rule of law on a global level, and concludes by answering the question of whether the rule of law is a universal human good.
Zwitter, A. (2012). The Rule of Law in Times of Crisis A Legal Theory on the State of Emergency in the Liberal Democracy. Archiv für Rechts-und Sozialphilosphie, 98(1), 95-111.
Abstract:
This article aims to contribute to the theoretical discussion about the rule of law and about its definition by looking at situations where the rule of law is put to the test – states of emergency. States of emergency and laws of exception have specific characteristics, one fundamental characteristic being that legislative power is shifted to the executive – in other words, democracies become less democratic. By analysing the principle of the rule of law in conjunction with the nature of emergencies and the structure of states of emergency, their interconnection will become more transparent. It will logically demonstrate that rules regarding states of exception concern only liberal democracies and that the rule of law has to continue its rule also within times of crisis. I will argue that there is no democracy without a conception of the rule of law. The rule of law only works in democracies and is therefore inapplicable to authoritarian regimes. Having established that, this article adds to the legal-theoretical understanding of the rules of emergency powers by elaborating them on the basis of the concepts democracy, rule of law and separation of powers.
Secretary-General, U. N. The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UN Doc. S/2004/616 (Aug. 23, 2004).
Abstract:
Recent years have seen an increased focus by the United Nations on questions of transitional justice and the rule of law in conflict and post-conflict societies, yielding important lessons for our future activities. Success will depend on a number of critical factors, among them the need to ensure a common basis in international norms and standards and to mobilize the necessary resources for a sustainable investment in justice. We must learn as well to eschew one-size-fits-all formulas and the importation of foreign models, and, instead, base our support on national assessments, national participation and national needs and aspirations. Effective strategies will seek to support both technical capacity for reform and political will for reform. The United Nations must therefore support domestic reform constituencies, help build the capacity of national justice sector institutions, facilitate national consultations on justice reform and transitional justice and help fill the rule of law vacuum evident in so many post-conflict societies.
Justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives. Advancing all three in fragile post-conflict settings requires strategic planning, careful integration and sensible sequencing of activities. Approaches focusing only on one or another institution, or ignoring civil society or victims, will not be effective. Our approach to the justice sector must be comprehensive in its attention to all of its interdependent institutions, sensitive to the needs of key groups and mindful of the need for complementarity between transitional justice mechanisms. Our main role is not to build international substitutes for national structures, but to help build domestic justice capacities.
In some cases, international or mixed tribunals have been established to address past crimes in war-torn societies. These tribunals have helped bring justice and hope to victims, combat the impunity of perpetrators and enrich the jurisprudence of international criminal law. They have, however, been expensive and have contributed little to sustainable national capacities for justice administration. The International Criminal Court offers new hope for a permanent reduction in the phenomenon of impunity and the further ratification of its statute is thus to be encouraged.
But while tribunals are important, our experience with truth commissions also shows them to be a potentially valuable complementary tool in the quest for justice and reconciliation, taking as they do a victim-centred approach and helping to establish a historical record and recommend remedial action. Similarly, our support for vetting processes has shown them to be a vital element of transitional justice and, where they respect the rights of both victims and the accused, key to restoring public trust in national institutions of governance. Victims also benefit from well-conceived reparations programmes, which themselves help ensure that justice focuses not only on perpetrators, but also on those who have suffered at their hands. Strengthening United Nations support in all these areas will require efforts to enhance coordination among all actors, develop our expert rosters and technical tools and more systematically record, analyse and apply these lessons in Security Council mandates, peace processes and the operations of United Nations peace missions.
Svensson-Mccarthy, A. (1998), The international law of human rights and states of exception, Martinus Nijhoff Publishers.
Abstract:
This study demonstrates the extensive protection that international law provides to human rights even in the most serious of emergencies when they are particularly vulnerable. Based on a meticulous analysis of preparatory works and practice under the International Covenant on Civil and Political Rights, as well as the American and European Conventions on Human Rights, and with a special chapter on the International Labour Organisation's approach to international labour standards and emergencies, this book shows that respect for the rule of law and the concept of a democratic society are controlling parameters in any valid limitation on the enjoyment of human rights. It further shows that respect for human rights and the operation of institutions such as the Legislature and Judiciary are crucial to enabling societies to address and eventually remedy the root causes of emergency situations. The study recommends possible directions for the development of case law and suggests some practical means to help ensure that international legal requirements are in fact respected in emergencies.
Schmitt, C. (1934 [2005]), Political Theology: Four Chapters on the Concept of Sovereignty, George D. Schwab, trans., University of Chicago Press.
Abstract:
Written in the intense political and intellectual tumult of the early years of the Weimar Republic, Political Theology develops the distinctive theory of sovereignty that made Carl Schmitt one of the most significant and controversial political theorists of the twentieth century.
Focusing on the relationships among political leadership, the norms of the legal order, and the state of political emergency, Schmitt argues in Political Theology that legal order ultimately rests upon the decisions of the sovereign. According to Schmitt, only the sovereign can meet the needs of an "exceptional" time and transcend legal order so that order can then be reestablished. Convinced that the state is governed by the ever-present possibility of conflict, Schmitt theorizes that the state exists only to maintain its integrity in order to ensure order and stability. Suggesting that all concepts of modern political thought are secularized theological concepts, Schmitt concludes Political Theology with a critique of liberalism and its attempt to depoliticize political thought by avoiding fundamental political decisions.
https://www.press.uchicago.edu/ucp/books/book/chicago/P/bo3649910.html
Elkin-Koren, N. and Salzberger E. M. (2005), "The Effects of Cyberspace on the Economic Theory of the State", in Marciano, A. and Josslin J. M (eds.) How to Shape A Democratic State, Edward Elgar, pp. 58-100.
Abstract
The book as a whole analyzes the effects of Cyberspace on the Economic Analysis of Law and argues that the networked information environment should exert a crucial influence on economic thinking, on the perception of law, and, by derivation, on the economic analysis of law. Information technologies have dramatically altered many aspects of our everyday life. They change the way we communicate with one another, the way we purchase, entertain, interact, learn, research, deliberate, do business, and indeed, think. During the past two decades the Internet has been revolutionizing economic, communal and political life. This Cyber-revolution is the most significant transformation in the information environment since the invention of printing.
Cyberspace has become an integral part of people's everyday life, and the online information environment constitutes the human condition of our time. People spend a large portion of their time using the Internet for entertainment, business, social relationships and political activities. The increasing human activity in Cyberspace is transforming social and cultural norms, creating a web of new communities, with diverse characteristics - linguistically, culturally and economically. It is beginning to blur some old boundaries across classes and social hierarchies, while at the same time drawing new borders of the digital divide, between the haves and the have nots, between those who are in command of the technology, and the technologically illiterate. The new information environment further introduces new players and novel market and non-market behaviors that cannot be easily explained by standard sociological, political or economic concepts. Cyberspace can even be thought of as affecting the definition of the self.
The concluding chapter of the book (chapter 10) focuses on political theory and offers a normative analysis of the state and its government, examining collective action, rule-making processes and the organization of the public sphere. We explore whether the new technological frontiers opened by Cyberspace bear upon the liberal theory of the state (and on the economic theory of the state). We conclude that Cyberspace shakes the paradigm of Liberal Democracy and calls for re-examination of its basic foundations: representative democracy governed by checked and controlled majority decision-making.
A by-product of this argument is an attempt to incorporate Republican theories of the state into economic analysis. The focus here is on the presupposition regarding individual preferences - whether they are exogenous, given or internal to the collective decision-making process.
Available at SSRN: https://ssrn.com/abstract=622261
Salzberger, E. (2017). "The Rule of Law Under Extreme Conditions and International Law: A Law and Economics Perspective", in Thomas Eger, Stefan Oeter, Stefan Voigt (eds.), The International Law and the Rule of Law Under Extreme Conditions, Mohr Siebeck, pp. 3-56
Abstract:
A general article that set forth an analysis of the following subjects from the perspective of law and economics: the concept of the rule of law in the international arena and in international law; the economic philosophical foundations of the theory of the state and their applicability to the international sphere and to extreme conditions; characterization of extreme conditions vis-à-vis the rule of law, including a short overview of the models put forward in the literature and also some methodological remarks for those who engage with a Law and Economics approach towards this topic.
The Rule of Law Under Extreme Conditions and International Law: A Law and Economics Perspective
Nollkaemper, A. (2011). National courts and the international rule of law. Oxford University Press.
Abstract:
This book explores the way domestic courts contribute to the maintenance of theinternational of law by providing judicial control over the exercises of public powers that may conflict with international law. The main focus of the book will be on judicial control of exercise of public powers by states. Key cases that will be reviewed in this book, and that will provide empirical material for the main propositions, include Hamdan, in which the US Supreme Court reviewed detention by the United States of suspected terrorists against the 1949 Geneva Conventions; Adalah, in which the Supreme Court of Israel held that the use of local residents by Israeli soldiers in arresting a wanted terrorist is unlawful under international law, and the Narmada case, in which the Indian Supreme Court reviewed the legality of displacement of people in connection with the building of a dam in the river Narmada under the ILO Indigenous and Tribal Populations Convention 1957 (nr 107).
This book explores what it is that international law requires, expects, or aspires that domestic courts do. Against this backdrop it maps patterns of domestic practice in the actual or possible application of international law and determines what such patterns mean for the protection of the international rule of law.