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The Rule of Law is one of the European Union’s founding values and is not only a Treaty obligation under Article 2 Treaty on European Union but also a part of the accession criteria for potential Member States of the Union. Therefore, the Rule of Law is part of the foundation of the European Union’s institutional order, and fundamental to European integration. During the past several years concerns have been raised regarding the Rule of Law in the Union and especially regarding Poland and Hungary. The European Union has established a comprehensive response function to breaches of the Rule of Law which both Member States have been subject to. However, there are differences in the procedure and different mechanisms have been used in relation to the two Member States, and while neither the Rule of Law nor the response mechanisms available are unstudied subjects neither for social sciences nor the legal community there is a lack of research combining the two fields and comparing the Member States. This study has been conducted with the goal to fill this gap by conducting a comparative study on the Rule of Law responses at the European Union’s disposal and using Poland and Hungary as the cases addressed. The study attempts to find a correlation between the breaches within the Rule of Law committed by the Member States and the responses used by the European Union to find motivations for why it is justified to approach the Member States differently. To accomplish this the study compares first the breaches found by the European Commission in the respective Member States and then the response mechanisms used to address the concerns. By conducting this comparative analysis, the study has found significant motivations behind the different approaches used by the European Union which shows a correlation between the concerns raised and the European Union’s approach to address the concerns. The result of the study shows that it is motivated to use different approaches despite the two Member States breaching the same value.

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No / This paper seeks to demonstrate how capability approach can be used as a framework for an active rule of law and good governance to reduce or eliminate mob justice practices to create a peaceful society for sustainable development in Africa. Thus, by adopting the capability approach, and the use of the rule of law and good governance to create peace for achieving sustainable development goals (SDG 16). This will also help provide access to justice including to the poor and most vulnerable. The chapter focuses on Africa, by using Ghana as a case study.

University of Macau / Faculty of Law

Depuis ses origines, la codification a toujours été officiellement réalisée en vue d’assurer l’accessibilité et l’intelligibilité de la norme ainsi que la sécurité juridique des individus. Cette conception téléologique de la codification est corroborée par les discours politiques contemporains qui l’associent plus généralement à l’Etat de droit auquel elle est censée contribuer. La seule récurrence de cette affirmation ne suffit pas à prouver sa pertinence. C’est pourquoi, en se fondant sur l’Etat de droit et ses multiples facettes, il est au préalable nécessaire de procéder à la conceptualisation de la codification. Il s’agit de la condition sine qua non pour une étude fiable de l’Etat de droit comme fin de la codification. / Since its origins, the codification has always been officially carried out in order to ensure the accessibility and intelligibility of the norm, as well as the legal security of the individuals. This teleological conception of the codification is corroborated by the contemporary political views which associate it, more generally, to the Rule of law to which it is supposed to contribute. The only recurrence of this assertion is not sufficient to prove its relevance. That is why, based on the rule of law and its many facets, it is necessary to proceed first to the conceptualization of the codification. It is the sine qua non for a reliable study of the Rule of law as being the aim of the codification.

Despite the rule of law being one of the founding values and objectives of the European Union, some of the Member States have disrespected the rule of law. In response, the European Commission has invented new tools to reinforce the rule of law. The newest tool is the Rule of Law Report, and the purpose of this thesis is to study the Report’s significance in ensuring respect for the rule of law in the EU. To do so a combination of legal methods and a range of sources, such as EU primary law, case-law, EU documents and doctrine, have been used. The Report is issued annually, so far it has been published in three editions stretching from 2020 to 2022. The Report builds on a general part and 27 country chapters assessing the rule of law situation in each Member State. From the 2022 Report onwards, the Report is also accompanied with recommendations to each Member State. The Report is to be considered soft law. It is non-binding and can, hence, not be subject to judicial review by the European Court of Justice, but it imposes a moral obligation on the institutions addressed. Mainly on the Member States, but also on the Council, the European Parliament, and other bodies of the EU. It is descriptive, interpretative and has a connection to hard law but can only be enforced by soft enforcement. Furthermore, the Report does not explicitly mention a legal basis, but the Commission appears to have the conferred powers to adopt the act. Moreover, the Report have had practical effects at national and EU-level, and it has potential to have even more effects. It urges national rule of law reforms and causes debate in the institutions and national parliaments about the rule of law situation. It could be subject to interpretation in the ECJ and in national courts and it could serve as a source to activate other hard tools in the rule of law toolbox. Despite being criticised, the Report has significance in ensuring respect for the rule of law in the EU. It might have a low legal status, but it has legal relevance, and it has the potential to have even higher legal relevance in the future.

The beginning of the 1990s saw many African countries embarking on the process of drafting new constitutions as they abandoned independence constitutions. Most of the independence constitutions were perceived as constitutions without constitutionalism and they were generally blamed for failure of democracy and the rule of law in Africa. The study analyses the state of democracy and constitutionalism and the impact that colonialism had on the African continent. Apart from the spurt of new constitutions adopted, democracy is growing very slowly in most African states with widespread human rights violations and disregard for the rule of law and the principle of separation of powers, still holding the centre stage. Judicial independence is an important component of democracy in the modern state. The study therefore scrutinizes how the principle of judicial independence can be promoted and protected to enhance democracy. One important mechanism which plays a crucial role in safeguarding judicial independence is the way judicial officers are appointed. The study selects four countries – Swaziland, Kenya, Zimbabwe and South Africa and analyses how judicial officers are appointed in these countries in an effort to find an effective and optimal approach.The premise of the study is centred on the role of constitutionalism and the process of appointing judges as a means of promoting and safeguarding democracy in these selected countries. / Public, Constitutional, & International Law / LLM

Dans l'histoire des idéologies philosophiques de l'humanité, les philosophes politiques français du XVIIIème siècle, et particulièrement Montesquieu et Rousseau, ont eu une importance décisive, non seulement dans la fondation de la république en France mais aussi pour leur contribution à la définition de ce qu'est un Etat de droit ou Etat juridique. C'est à ce titre que ces deux penseurs nous intéressent ici, comme autant de contributions idéologiques majeures à la détermination du pouvoir d'Etat et de l'Etat de droit. C'est pour ces raisons d'ailleurs que ces deux théoriciens jouent actuellement un grand rôle dans la construction d'un état juridique au Vietnam, et c'est ce rôle que nous entendons éclairer dans cette thèse. / In the history of philosophical ideologies of humanity, the French political philosophers of the eighteenth century had a decisive importance, especially Montesquieu and Rousseau, not only in the founding of the republic in France but also for their contribution to the definition of the Rule of law or legal state. These two thinkers are of central interest to understand their evolution of political concepts, because of their major ideological contributions to the determination of the State power and the Rule of law. Likewise, their influence has been extended through the time until our days, playing a big role in the configuration of a legal state in Vietnam. This thesis aims to illuminate this role.