Drawing on models of expertise, developed by policy scholars this paper examines how values, and politics enter highly contested policy debates and into legal decision-making by government agencies. I will explore the findings of a case study on the controversial Australian airspace reform “NAS2b” to highlight how lawyers advising different actors within that debate, positioned their advice on the legal process and integrated their advice with non-legal considerations in the policy mix. The paper concludes with a discussion about how insights from this study might help lawyers position themselves in solving future policy problems. This paper seeks to fill a gap between the treatment of the role of lawyers in literature concerning government lawyers, and public policy literature around the role of experts in policy. Specifically, this paper will add to the small number of empirical studies into how government lawyers and decision-makers experience their role in practice.
In one of his most famous book, Der Begriff des Politischen, Carl Schmitt wrote that the one of the essential debate on political refers to the differentiation between friend and enemy. This affirmation has been repeated over the decades. Nonetheless, Jacques Derrida has demonstrated a crucial mistake on Schmitt's notion of the political. In his seminar “The politics of friendship,” Derrida went to the bottom of the question and bearded out the right idea of friend/enemy relationship since the Ancient Greek. In the present panel, I wish to explore effects in the literature provoked by Schmitt's misread. Further, I intend to actualize this subject and to make clear that there are other paths to look into this utter relevant topic.
This paper evaluates the different tactics of hybrid regime to cope with contentious politics by legal means. The author suggests that hybrid regimes can repress political opposition by legal instruments without creating political instability. By using a method of triangulation between history, media and case law, the author traces the institutional setting of post-colonial Hong Kong and evaluates the tensions and struggles between the judiciary, the state and political opposition before and after the Umbrella Movement. Rather than simply criminalising protests, the government is able to suppress the opposition camp by a strategy of “depoliticisation and neutralisation” by local laws. The success of such tactics can be attributed to the colonial history, its conflicting legal culture, and geopolitics between Hong Kong and China. Instead of doctrinal study, the interplay between history, culture and geopolitics contributes to the research on law and politics in hybrid regime.
The most significant legal innovation that Xi Jinping plans to institute to expand his anti-corruption campaign is the anticipated creation of a National Supervisory Commission in March 2018. This institution will require the adoption of new legislation and Constitutional revisions. In effect it will consolidate the control of the Chinese Communist Party's discipline inspection over all government employees, not only Party members.
What emerges from this project is an assertive agenda to reinforce the Party's dominance by blending its institutions into the formal legal system. This paper investigates the relevant processes to shape the legal system in accordance with the Party's ideological identity and argues that they mark a major turn against the modern identity that China's legal system sought to represent during the opening and reform era. It examines what Beijing perceives to be the desirable relationship between the Party and the law in the Leninist Party-state of tomorrow.
Entering this century, Taiwan and Hong Kong both saw drastic political transformation while TW liberalized and HK faced further limitation. A puzzle is why, despite diverging legal-political contexts, the local legal profession both grew to split? I argue for an ideational explanation. Namely, the legal profession is not an it but they. Their ideals of rule of law, first embodied in critical state transformation and then prioritized in interactive political processes, explain why and how they represent and uphold different stances in sociopolitical issues. In Taiwan, judges defend independence, lawyers represent peoples’ rights, and prosecutors pursue justice. Their different ideals result in the mosaic image of judicial reform. Conversely in HK, two competing ideals of law and order and moderation of power fundamentally shaped how and when the HK legal profession acts. The intensifying tension contributes both to the judicialization of politics and politicization of judicial policies.
Although political parties profoundly affect the functioning of a democratic constitutional set-up, party dynamics are often ignored in comparative constitutional studies. In this paper, I will inquire how certain constitutional structures have facilitated or constrained the evolution of party system in India. At the same time, the Indian party system profoundly affects constitutional structures such as separation of powers and federalism. This paper seeks to achieve the above objective by analyzing the constituent assembly debates and judicial opinions dealing with party dynamics of the Indian Constitution. I conclude with the argument that rather than using merely as a tool for an external perspective on constitutional law, party dynamics should be made part of the internal logic of design and doctrine of constitutional law. The Indian experience provides a forceful example for why and how comparative constitutionalists should engage more deeply with party systems.