This book suggests that the scope and breadth of regulatory reforms since the mid-1980s and particularly during the 1990s, are so striking that they necessitate a reappraisal of current approaches to the study of the politics of regulation. The authors call for the adoption of different and fresh perspectives to examine this area.

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Regulation in the Age of Governance: the rise of the post-regulatory state

This work aims to provide a concise treatment of constitutional and administrative law, which is a core subject for LLB and CPE students. It It contains a comprehensive introduction to the subject, and new case and statute law, and is suitable for students taking law degrees, CPE and ILEX Stage II courses, and those taking degrees in public administration, politics, government, and students taking A-Level law.

Constitutional and Administrative Law

Contents - 8 Acknowledgements - 10 Abbrevations - 14 Introduction - 18 1 Legal Change at Lake Dianchi - 20 Part I: Legislation and Lawmaking - 42 2 Law in the Boks - 44 3 Bargaining on the Land Bill - 69 4 Cleaning Up Pollution Legislation - 87 5 China's Legislative Challenges - 117 Part II: Compliance and Violation - 124 6 Why People Obey the Law - 126 7 Lawful Construction - 149 8 Attempts at Abatement - 169 9 Kunming's Hunger for Land - 190 10 Why Contamination Continues - 210 11 Law and the Complexity of Reality - 229 Part III: Enforcement and Political Campaigns - 244 12 The Enforcement Gap - 246 13 Punishing Violations - 280 14 Movements of Law - 325 15 Ad Hoc Law Enforcement - 371 Conclusion - 380 16 Regulating Land and Pollution - 382 References - 407 Samenvatting - 457

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Regulating land and pollution in China : lawmaking, compliance, and enforcement : theory and cases

‘INFORMAL INSTITUTIONALISATION’ (O’Donnell, 1996), or the prevalence of informal rules and norms over the formal institutions of political regimes (Merkel & Croissant, 2000), is a typical outcome of various post-authoritarian transitions (Helmke & Levitsky, 2003), including post-Soviet ones. The dominance of informal institutions which create obstacles to the rule of law is a major distinction between Russia (and other post-Soviet regimes) and most Eastern European countries (Gel’man, 2003). But what are the origins, formation mechanisms and development trends of Russia’s informal political institutions? Because answering these questions requires the collective efforts of the international and interdisciplinary academic community, this article is focused only on specific aspects. The article is divided into four sections. First, I examine existing structural explanations for the dominance of informal institutions in Russian politics. Second, I present a procedural model of informal institutionalisation in emerging political regimes. Third, I analyse the politics of informal institution building in Russia, using the case of institutions of electoral governance as an example. Finally, the effects of informal institutions on political regime dynamics in Russia will be considered.

The unrule of law in the making: The politics of informal institution building in Russia

This article reviews several functional explanations that have been given to the dramatic spread of proportionality (early legal development, conflict management, lingua franca, and raw judicial power) and suggests an intrinsic one. Proportionality, we believe, is essentially a requirement for justification, which represents a profound shift in constitutional law on a global level. We characterize this, following South African scholar Etienne Mureinik, as a shift from a culture of authority to a culture of justification. At its core, a culture of justification requires that governments should provide substantive justification for all their actions, by which we mean justification in terms of the rationality and reasonableness of every action and the trade-offs that every action necessarily involves, i.e., in terms of proportionality. We identify several features of Western constitutional systems that have evolved after World War II, and that support the culture of justification. These include a broad conception of rights, a broad approach to constitutional interpretation with an emphasis on principles and values rather than on text, low barriers to substantive review, and no legal “black holes” (areas and actions with respect to which government needs to provide no justification). Most importantly in terms of our review, it involves a two-stage form of judicial review, identifying the infringement of the right, and justifying the infringement, with an emphasis on the second stage of justification. We also suggest two preliminary historical explanations for the rise of the culture of justification. One is its connection to the rise of the human rights ideology which developed after WWII, and which provided a response to the threats of nationalism and populism. The other is its roots in the optimistic belief in rationality and reason that can be traced to the nineteenth-century German legal science movement. We end our review by characterizing the gradual shift towards proportionality and the culture of justification as a shift towards an administrative model of constitutional law, which we term the “administrization” of constitutional law.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1623397_code369711.pdf?abstractid=1623397&rulid=64183&mirid=4

Proportionality and the Culture of Justification

The study of legal transplants seems to have reached its saturation point. Its richness has both contributed to conceptual confusion and obscured persistent assumptions about the nature of the migration of laws that are no longer valid in today’s “flat” world. This Article aims to map the different definitions of and approaches to this concept by offering a graphic presentation of a series of typologies and distinctions that serve to encapsulate the various aspects of the debate. It then focuses on aspects that have received insufficient attention, and advances a renewed model of the transplant process that draws on today’s complex reality rather than on the classical assumptions that served as a basis for early debate. Simple accounts of transplants as single events, through which an importer system adopts the laws of an exporter system, should be replaced by long-term accounts of series of interacting transplant events generated by a multitude of players. The model is applied in a case study that chronicles the evolution of the two British grounds of substantive review of the administration, unreasonableness, and proportionality. Both have evolved through complex processes that involve innovation, vacillating degrees of loyalty to European doctrine and reliance on Commonwealth sources of influence. The application of the model not only provides a real-life example of the evolution of law in practice, it also offers readers a glimpse of the development of British public law and the impact of foreign law. Here, I proffer a novel emphasis on the impact of Commonwealth law. The literature in this context usually focuses on two actors: European law is considered, at least impliedly, as the central source of influence. Yet British courts first obliquely rejected European pressure by reverting to tests seemingly developed in Commonwealth countries (which, in fact, largely resemble German jurisprudence, once again without disclosing this influence). Ending with an assessment of the current state of affairs and possible future reliance on other sources of influence (the United States included), I show that no transplant is an island, and that complex modes of interaction color the process.

Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration in the United Kingdom

How does law interact with regulatory reality, and why does legislative mandate, which presumably stands at the apex of regulatory package, often deviate from its ideal-type as exclusive organizer of action? These questions are treated in this article through the concept of "fuzzy legality", which serves as a common title for six different legal arrangements that stray from the ideal-type legislative mandate, while enabling "perfectly legal" industry behaviour. Against the background of potential dangers involved in such practices, the article traces the politics of preference for fuzziness both by regulators and regulatees. It reassesses calls for responsive and reflexive law, by suggesting that policy content, rather than overly formal enforcement and implementation strategies, may stand at the basis of the crisis of regulation.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1270431_code334531.pdf?abstractid=942475&mirid=1

Fuzzy Legality in Regulation: The Legislative Mandate Revisited

The article addresses the question of the role of the judiciary in the constitutional democratic state through an analysis of the concept of judicial activism. The multidimensional model advanced in the article is based on three distinct visions of judicial activism, which draw on a perceived role of the judiciary as participant in a complex network of interactions with other social, political and institutional players under a 'constitutional interdependence/constitutional dialogue template', and rejects depiction of the judiciary as possessor of 'the power of the last word'. The model comprises seventeen parameters, and provides a basis for composite qualitative and quantitative analyses of the impact of the judiciary in the social and political spheres.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3507318_code2042917.pdf?abstractid=942476&mirid=1

Judicial Activism: A Multidimensional Model

Legal transplant chronicles: The evolution of unreasonableness and proportionality review of the administration in the United Kingdom

The article addresses the question of the role of the judiciary in the constitutional democratic state through an analysis of the concept of judicial activism. The model advanced in the article is based on a composite theory of the role of the judiciary, drawing on, and developing, Canon’s (1982) analysis of judicial activism and more recent multidimensional approaches to the assessment of judicial output. The article supplements the traditional vision of the judiciary as law enforcer in two directions. Drawing on the ‘constitutional dialogue/constitutional interdependence’ paradigm, the article perceives the judiciary as participant in a multi-player web of constitutional interactions, in which other government branches, individuals and public bodies participate in the decision making process; arguments on the omnipotency of the judiciary are thus replaced by a model of interdependency and interaction. The constitutionalist tradition serves as basis for the third vision, under which the judiciary is an active protector of core ‘thin’ societal values. These three visions of the role of the judiciary support a multidimensional analysis of judicial activism, under which judicial output is considered not only against pre-decision law, but also on the basis of post-decision dynamics and the value content of the decision. The model comprises seventeen distinct parameters, which include, inter alia, the degree of change in the law, interpretation techniques, interference with democratic processes, rhetoric, obiter dicta, reliance on comparative sources, the extent of the decision, and the complexity of the legal question brought before the court. Under this group of parameters, any change in the law, or action that extends beyond the mere settlement of the dispute before the court, would be considered activist. Additional parameters draw on the second vision of the role of the judiciary, and consider post-decision reaction of the legislature, the administration, the public and the judiciary itself as basis for supplementary assessment. In this context it is argued that a decision that is fully accepted and implemented by other members of the constitutional web should be viewed as less activist than a decision that is subsequently rejected; in the former case the decision conforms with societal consensus or equilibrium, while in the latter case, post-decision processes reflect judicial deviance from such consensus. A final parameter pertains to the value-content of the decision, under which a decision that promotes and protects core societal values should be considered less activist than one that intervenes in low-value policy areas. The model advanced in the article provides a basis for composite qualitative and quantitative assessments of the impact of the judiciary in the social and political spheres.

Margit Cohn

Papers

Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration in the United Kingdom

Fuzzy Legality in Regulation: The Legislative Mandate Revisited

Judicial Activism: A Multidimensional Model

Legal transplant chronicles: The evolution of unreasonableness and proportionality review of the administration in the United Kingdom

Judicial Activism: A Multidimensional Model