Reforms in the judiciary of Ukraine: domestic practices and the EU's policy instruments

peer reviewedThe decline of judicial independence in Ukraine has continued at a higher pace during the Presidency of Viktor Yanukovych in spite of the reforms introduced in 2010 and the sustained involvement of international actors. Taking the EU's involvement as a case in point, this article argues that support for judicial reforms aimed at enhancing the independence of the judiciary did not comprehensively address the sociological roots of clientelism that have traditionally characterised the judiciary field in Ukraine and paradoxically reinforced the executive branch. This article analyses this phenomenon from the perspective of Bourdieu's theory of practices and through the prism of policy tools promoted by the EU within the framework of the European Neighbourhood Policy

In the Absence of the Rule of Law: Everyday Lawyering, Dignity and Resistance in Myanmar's 'Disciplined Democracy'

This article explores how ‘everyday’ lawyers undertaking routine criminal defence cases navigate an authoritarian legal system. Based on original fieldwork in the ‘disciplined democracy’ of Myanmar, the article examines how hegemonic state power and a functional absence of the rule of law have created a culture of passivity among ordinary practitioners. ‘Everyday’ lawyers are nevertheless able to uphold their clients’ dignity by practical and material support for the individual human experience – and in so doing, subtly resist, evade or disrupt state power. The article draws upon the literature on the sociology of lawyering and resistance, arguing for a multilayered understanding of dignity going beyond lawyers’ contributions to their clients’ legal autonomy. Focusing on dignity provides an alternative perspective to the otherwise often all-consuming rule of law discourse. In authoritarian legal systems, enhancing their clients’ dignity beyond legal autonomy may be the only meaningful contribution that ‘everyday’ lawyers can make

The Limits of the European Union’s Transformative Power: Pathologies of Europeanization and Rule of Law Reform in Central and Eastern Europe

This thesis examines the impact of the European Union (EU) on the development of the rule of law in Central and Eastern Europe. The topic is addressed through a mixed methods study which consists of a quantitative comparative analysis of three country groups from Central and Eastern Europe (1. Central Europe and the Baltics, CEB; 2. South Eastern Europe, SEE; 3. Commonwealth of Independent States, CIS) and three qualitative case studies on Poland, Romania and Moldova. The empirical analysis is based on an innovative set of indicators and revealing insights from numerous qualitative interviews. The findings of the study suggest that the impact of the EU is differential, both healthy and pathological. While EU-driven judicial reforms increase judicial capacity and align domestic legislation with European and international standards (substantive legality), they do not improve and even lead to a deterioration of judicial impartiality and formal legality, resulting in several reform pathologies, such as instable, incoherent and non-enforced laws and in more politicized and incoherent judicial systems, which undermine the development of the rule of law. These pathological effects occur mostly in weak rule of law countries from SEE (Romania) and CIS (Moldova), in contrast to more healthy effects in advanced, strong rule of law countries from CEB (Poland). The dissimilar development in the rule of law across countries is explained in relation to the conduct of reforms. Successful reformers like Poland, which consolidate the rule of law, have strong and independent horizontal accountability institutions (e.g. Constitutional Court, Ombudsman, judiciary), which mitigate or alleviate reform pathologies and ensure that reforms are conducted in an accountable, gradual and non-politicized way. Unsuccessful reformers, like Romania and Moldova, lack these independent checks on reformers and thus fail to establish the rule of law. Based on the findings from the case studies an original typology of healthy and pathological reform paths is proposed, which draws on the logic of circular and cumulative causation and emphasizes the mutual reinforcement between domestic conditions and the reform approach of transnational coalitions. The proposed typology implies that EU conditionality is not transformative, but rather reinforces existing healthy and pathological reform paths, thus cementing the existing divergence in the rule of law across post-communist countries. This thesis further makes several policy recommendations to remedy the pathological impact of donor-driven reforms