Edited by Martin Scheinin, Helle Krunke and Marina Aksenova
Chapter 12: Guides and guardians: judiciaries in times of transition
Associate Professor of Public International Law, Faculty of Law, University of Copenhagen. There exists a surprising lack of fundamental disagreement in contemporary discourse about the desirability of the rule of law and the particular set of institutions deemed necessary for its maintenance, not the least of which are independent judiciaries. In short, the rule of law consensus has achieved quasi-canonical status across the political spectrum. Under these conditions, the judiciary, especially at the highest level, cannot content itself to measure state action against an abstract yardstick. Instead, judiciaries must also assume the role of guides offering direction and reassurance to hostile societal actors about the transition process as such. The chapter argues that judges can offer such guidance much more credibly if they visibly have a grand vision for the erection of the legal edifice, something that the new constitutional courts in Central and Eastern Europe readily found in the practice of their Western European, especially German colleagues, but something that was weaker in Russia and entirely lacking in Egypt and the Arab world.
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