The principle of open justice is innately connected to the integrity of the legal system. A fundamental aspect of the system of checks and balances at common law, it has been enshrined as a key institutional feature in democracies which value the independence of the judicial branch. In Ireland, the administration of justice in public is embedded in the Constitution in Article 34.1 and has been vigorously defended by the judiciary since the 1960s. An increased emphasis on the privacy rights of individual litigants has recently prompted the Irish courts to move away from the strict application of the principle, allowing courts to make a variety of orders to protect the privacy of litigants which were previously considered to be contrary to the Constitution's protection of the principle of open justice. This paper explores this recent development and its significance for the administration of justice in a modern democracy.
The paper aims to explore the connections between rule of law, state capability and development in Latin America. The interaction between these areas faces different problems and solutions than in other western countries. There is a lack of analysis of how the rule of law can effectively improve the state capability and therefore, promote the social and economic development. A new approach can help to understand that the vices of rule of law are part of the problems that undermine state capability. Rather than construct general solutions based in abstract principles of rule of law, the approach should understand how the problems related to the state capacity are caused by distortions in the rule of law, and how the enhancement of the rule of law can be an effective solution for the promotion of development, considering formal and informal institutions.
The paper considers the attempts recently made both in Greece and in Italy to amend the Fundamental Charters and their relation with the wider context given by the economic crisis and the emerging challenges to the rule of law. The comparative approach allows to detect similarities between the two cases and to envisage possible solutions to restore the rule of law and protect democracy from the quick gains of populist politics. The paper describes how in both legal systems the state of the rule of law is fairly weak, seriously affecting the quality of democracy, notwithstanding a long and well-established constitutional tradition. Italy and Greece experience the threat to which western democracies are currently exposed to that of becoming essentially illiberal, because of “ill-conceived” reforms leading towards an unbalanced distribution of power and progressively increasing the flaws in the compliance to the rule of law. A challenge responsible political actors should relish.