TY - CHAP

T1 - Guides and Guardians

T2 - judiciaries in times of transition

AU - Afsah, Ebrahim

PY - 2016

Y1 - 2016

N2 - Despite the scholarly and official agreement that effective legal institutions matter a great deal, there are no universally valid rules about how public administrations, including courts and the law enforcement agencies on which the execution of their verdicts rests, should be reformed. While most good solutions to public administration problems will share certain common features and broadly similar institutional design, they will have to incorporate highly contextual information about local culture, legal traditions, existing administrative patterns, etc. In this respect, public administration and legal reform ‘is necessarily more of an art than a science’ requiring the careful balancing of existing structures against the visionary endpoint of reform.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. As will be argued below, 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.

AB - Despite the scholarly and official agreement that effective legal institutions matter a great deal, there are no universally valid rules about how public administrations, including courts and the law enforcement agencies on which the execution of their verdicts rests, should be reformed. While most good solutions to public administration problems will share certain common features and broadly similar institutional design, they will have to incorporate highly contextual information about local culture, legal traditions, existing administrative patterns, etc. In this respect, public administration and legal reform ‘is necessarily more of an art than a science’ requiring the careful balancing of existing structures against the visionary endpoint of reform.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. As will be argued below, 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.

M3 - Book chapter

SN - 9781785365850

SP - 251

EP - 277

BT - Judges as Guardians of Constitutionalism and Human Rights

A2 - Scheinin, Martin

A2 - Krunke, Helle

A2 - Aksenova, Marina

PB - Edward Elgar Publishing

CY - London

ER -