Author: Gianfranco Tamburelli – 18/11/2019
| Tamburelli Gianfranco PhD in International Law Institute for International Legal Studies (ISGI), National Research Council (CNR), Rome, Italy. The theme “juridical doctrine and civil society” is at the same time far-reaching and new in a historical period characterized by the complexity of the dynamics of international relations, by the radical transformations of the ways of living due to scientific and technological progress, by the economic and social effects of the so-called globalization and, lastly, reactions to globalization itself. All these factors require a frequent revision of rules and institutions in order to adapt to the changes underway. What is legal science’s proper role in contemporary society?[1] What should be the interrelationships between institutions representing legal science and public authorities, between the juridical doctrine and law-making and institution-building processes? This fascinating subject is worthy of analysis in relation to different legal levels (international, ‘supranational’, national), different forms of state (democratic state, socialist state, etc.), various possible configurations of the systems of legal sources (Anglo-Saxon common law, Roman law), as well as in relation to some economic-structural characters of the national legal systems (newly independent countries, states with economies in transition, etc.), or to the novelties of some sector regulations (environment, space, etc.). I would first like to recall that, according to Article 38, paragraph 1, letter d), of the Statute of the International Court of Justice “the teachings of the most highly qualified publicists of the various nations” is among the subsidiary means for determination of rules of law. They still seem current in this regard the notations of Francesco Capotorti, according to which the authority of the doctrine is strengthened by the frequency of the opportunities of confrontation between its representatives;opportunities that occur in placesformally determined (as commissions) or in scientific places ofparticular importance (as institutes).[2] However, my analysis of the juridical doctrine – as corpus of knowledge and theoretical reflection coming from legal scholars – does not concern its possible character of subsidiary source of law, but its role in the interpretation,[3] governance, and orientation of legal – institutional systems. Law scholars have not paid (sufficient) theoretical attention to this subject. In this context, I would like to further delimit the field of investigation to the role of juridical doctrine in the activities aimed to the promotion of the rule of law, and institution building for democracy and sustainable development. The credibility of independent researchers as well as well of established, prestigious institutions representing juridical doctrine, has become of a great importance in particular for addressing the sustainable development objectives, also in relation to the nature of some issues to be faced at all levels (international, European, national). In this regard, we might think of the environmental law issues, e.g. those about climate change, where it is clear the importance of the reliability of the scientific assessments and proposals, including those on modern and effective legal regulations.[4] The importance of the scientific basis of the activities aimed at the promotion of the rule of law, and institution building for democracy is evident when analysing the challenges and the new approaches of the international and European Cooperation. Since the late 1980s, the international donor community has in fact been pursuing a set of policies that have increasingly linked the allocation of assistance to the conditions and structures of governance of the potential beneficiary countries.[5] This implies the proposal of legal models, coming from the experience as represented by the juridical doctrine. After the end of the Cold War, and the adoption of the Maastricht Treaty, aid conditionality has become one of the guiding principles also of the EU foreign policy, oriented on rewarding countries making progress in the establishment, and performance of renewed, democratic institutions. This has found expression – among other things – in the new Association Agreements with three Eastern Partnership’s countries (Georgia, Moldova, and Ukraine). [6] As far as it can be considered in this analysis, it is worth to note that the EU put unprecedented efforts in channelling the post-communist European countries strong desire to join the EU into the expectation and the definition of an ambitious project of modernization of the state. Democracy building activities have had their focus on the state and its institutions, as the foundation for long term democratic stability. This is confirmed by the experience of the evolving relations between the EU and Ukraine. The effectiveness of the reform process, and the pursuit of the key political aims of promoting the rule of law, democracy, and human rights – together with the fight to bureaucracy and corruption – have been seen by the international and European Cooperation as closely related to the strengthening of the legal culture, which accompanies them and gives them, or might give, “auctoritas”.[6] The juridical doctrine has provided guidance to the international community and the EU, as well as to national authorities of beneficiary countries, on the key conceptual and methodological issues surrounding the promotion of the rule of law. Both international community and the EU, and beneficiary countries have needed support and instruments provided for by high qualified legal advisors and institutions. In contrast with this need, however, in the last few years law scholars have been often victims of repression from various national governments, some governments of EU countries included, due to their critical scientific and / or political positions.[7] The fact that a large part of scholars are public employees makes them particularly exposed to restrictions by the authorities. Some authoritarian elites facing criticism from scholars, consider in fact easier to restrict their freedoms and diminish their influence than to dialogue with them. This is the case of Amendments to the 2011 Law on National Higher Education adopted in Hungary on April 4, 2017, officially intended to regulate the activities of all foreign universities operating in the country, but according to a widespread interpretation[8] specifically drawn up to stop the activity of the Central European University (CEU), a well-known private higher institution of education. Then, I would like to underline the current relevance also in Europe of safeguarding strong, independent, prestigious scientific institutions, in Hungary as in Italy or Ukraine. Both the international legal order and the internal ones are looking for new equilibria and are committed to revisiting principles and institutions that have proved insufficient or inadequate at the beginning of the Third Millennium. The strengthening of the rule of law, and institutions for democracy and sustainable development are key priorities. The international organizations (OSCE, NATO, and the Council of Europe in first line) maintain a constant level of vigilance over the activities pursuing the rule of law and institution building in the Eastern European countries, with monitoring, evaluation, and reports on related activities; the EU make use of the requirements of harmonization, approximation and, in the case of the associated countries, implementation of the acquis communautaire. Issues concerning the value and influence of scholars and their representing institutions are extremely complex particularly in countries which undergo a deep, structural reform process, and in countries which must face a post-conflict situation, or an ongoing armed conflict. In these countries, in fact, juridical research performs very relevant public interest functions both with regard to the legal-institutional evolution, and the understanding and governance of social dynamics. (reproduced by kind permission of the Author – source:Auctoritate magis quam imperio: Juridical Doctrine in Civil Society, Collection of scientific works. Materials of X International Juridical Conference (Kyiv, October 30, 2019). To the 70th Anniversary of V. M. Koretskyi Institute of State and Law, ed. by N. A. Parkhomenko (the head), O. O. Malyshev, A. M. Gurova (the secretary), V. K. Malolitneva, P. S. Demchenko. Kyiv, 2019, pp. 70-74. |
List of bibliography
1. Mark B. Brown, Science in Democracy: Expertise, Institutions, and Representation, Cambridge, 2009.
2. Francesco Capotorti, Cours général de droit international public, 248, in “Collected Courses of the Hague Academy of International Law”, 248, The Hague Academy of International Law, 1994, p. 124-126.
3. Filippo Gallo, L’interpretazione del diritto è ‘affabulazione’? – in Collana della Rivista di Diritto Romano, Saggi, 2005, pp. 95-125.
4. Federico Spantigati, La formazione del giurista strumentale alla costruzione del “sistema”, in Politica del diritto, XXVIII, 1, 1997, pp. 125-141.
5. Todd Landman,Developing Democracy: Concepts, Measures, and Empirical Relationships,Centre for Democratic Governance, University of Essex, Background paper prepared for the Ministry of Foreign Affairs of Sweden, May 2007.
6. Gianfranco Tamburelli, Notes on the Relations between the EU and Ukraine and the Progress in the Implementation of the Association Agreement, in Administrative Law and Process Journal, Taras Shevchenko National University of Kyiv, 2, 2019.
7. Ernesto Bianchi, Evandro, Augusto. Auctoritas, potestas, imperium. Brevi annotazioni storiche e semantiche, in Jus-online, Rivista di scienze giuridiche, Università Cattolica di Milano, 28.10.2018.
8. Jannis Grimm, Ilyas Saliba,Free Research in Fearful Times: Conceptualizing an Index to Monitor Academic Freedom, in Interdisciplinary Political Studies, Issue 3 (1), 2017, pp. 41-75.
[1] Considering the wider question about science’s proper role in democracy, according to a widespread opinion, a half-century ago the answer would have clearly been: to “speak truth to power.” Today, however, the answer should be much more articulated [1].
[2] In addition to the advantage of listening to the opinion of each scientist, there is in this case the possibility to use resolutions approved by the institution most often concerning current themes and thus contributing to the progressive development of international law [2, p. 126].
[3] Jurists perform interpretative activities of the law, to which no juridical value is attributed, but only an authority of a moral nature, connected to the prestige acquired by them in various ways [3, p. 109].
[4] In contemporary society, the jurist, to be a jurist of interests, must have, besides the knowledge of the law, also the ethical authority to have a leading role in the evaluation of the having to be [4, p. 132].
[5] Aid conditionality policies have increasingly taken on board questions of democracy, good governance, and human rights in the formulation of long-term partnerships with recipient countries [5].
[6] The phrase “auctoritate magis quam imperio” it remains one of the best ways to describe a form of power based first on moral authority [7].
[7] Some studies have pointed to the connection between this worrying trend and processes of authoritarian regression, where the curtailment of academic freedom is often an indicator of wider human rights violations [8].
[8] On December 7, 2017, the EU Commission decided to refer Hungary to the Court of Justice of the EU on the grounds that its Higher Education Law as amended on April 4, 2017 is not compatible with the freedom for higher education institutions to provide services and establish themselves anywhere in the EU.