In this chapter, I first examine how the rule of law has been defined in legal theory, and how it has been distinguished from the rule by law, which is a distortion thereof (Section 3.1). Second, I assess how the rule of law has been conceptualised in the context of the European Union, as this book focuses primarily on the EU legal order (Section 3.2). In this regard, I also draw on the acquis of the Council of Europe. The Council of Europe is a distinct jurisdictional order, yet it heavily influenced the ‘EU’ conceptualisation of the rule of law, and the EU regularly relies on Council of Europe sources in its own legal practices. Finally, I draw on these findings to identify the rule of law’s core principles and to distil the concrete requirements that public authorities must fulfil to comply therewith (Section 3.3). Identifying these requirements – and the inherent challenges to achieve them – will subsequently allow me to build a normative analytical framework that I can use as a benchmark in Chapter 4 to assess how algorithmic regulation impacts the rule of law.

Police use of facial recognition technologies is on the rise across Europe and beyond. Public authorities state that these powerful algorithmic systems could play a major role in assisting to prevent terrorism, reduce crime, and to safeguard vulnerable persons. There is also an international consensus that these systems pose serious risks to the rule of law and several human rights, including the right to private life, as guaranteed under the European Convention on Human Rights (ECHR). The world’s first case examining the legality of a facial recognition system deployed by police, Bridges v South Wales Police, thus remains an important precedent for policymakers, courts, and scholars worldwide. This chapter focusses on the role and influence of the right to private life, as enshrined in Article 8 ECHR, and the relevant case law of the European Court of Human Rights, in the ‘lawfulness’ assessment of the police use of live facial recognition in Bridges. A framework that the Court of Appeal for England and Wales held was ‘not in accordance with the law’ and therefore in breach of Article 8 ECHR. The analysis also considers the emerging policy discourse prompted by Bridges in the United Kingdom surrounding the need for new legislation, a significant shift away from the current AI governance approach of combining new ethical standards with existing law.

Chapter 7 examines the legality of humanitarian intervention and the extent to which certain interventions might qualify as being excused despite the lack of a legal basis.

Despite promising early evidence for the validity of well-designed game-based assessments (GBAs) for employee selection, the interaction between the complexity of games and their use in international and cross-cultural contexts is unknown. To address this, this paper presents a descriptive, qualitative study examining the perspectives of both GBA vendors and organizational stakeholders related to cross-cultural issues unique to GBAs related to 1) privacy, 2) legality, and 3) applicant reactions. Overall, privacy and legality concerns appeared similar for GBAs as with other assessment methods, although certain common characteristics of GBAs amplify common concerns. Applicant reactions appeared more positive to GBAs across national borders and cultures than traditional assessments, although some international differences were reported. Other cross-cultural topics raised included international differences in the conflation of GBA and artificial intelligence, in the importance of mobile-first design, and in the ability of GBAs to provide a more language-agnostic experience than other assessment types.

In Stage 3 of its review the Court has to examine if the contested interference can be held to be justified by objective and convincing reasons. One of the requirements for a restriction to be justifiable is the lawfulness requirement. The requirement has been given an autonomous and substantive reading by the Court, which entails that a restriction must have a basis in domestic law, the legal basis must be sufficiently accessible, the interference must be sufficiently foreseeable, and it must not be arbitrary. In addition, in particular in cases regarding surveillance, searches and the exercise of other discretionary powers, the Court has required that procedural safeguards must be offered. All these requirements are discussed in this chapter.

This edited volume explores the nature of authoritarian policing, its transformation and resilience, and its rule of law implications. The discussion of the evolution of policing takes place in the context of the overall development of the police, their professionalization, institutional autonomy and neutrality, legality, and their credibility within the communities they manage and serve. What makes policing “democratic” is a contested concept and the definition varies depending on the level of abstraction and the particular focus of the inquiry. While regime type, which is itself a contested concept, the close nexus between the coercive power of the police and the state, it is never dispositive. Thus, the dichotomous categorization of authoritarian policing (AP) and democratic policing (DP), while useful as a starting point for comparative analysis, misses a large amount of nuance and often overlooks the plurality of either system, neglecting the fact that a police system can be authoritarian or democratic in multiple ways and in different aspects of policing. This volume rejects this simple binary view. It aims to untie and unpack the nexus between the police and the political system and to explore the plurality of both AP and DP.

Political democratization does not necessarily lead to democratic policing; rather, authoritarian legacy always poses a challenge for the integration between democracy and coercive policing. This chapter presents a case study of Taiwan to unveil such authoritarian legacy. After its democratization in the late 1980s, Taiwan has been gradually transformed its authoritarian policing into democratic policing subject to judicial review. However, as Taiwan’s peaceful democratic transition did not come with radical political changes, authoritarian legacy persists and continues to affect policing practices. Nonetheless, throughout both authoritarian and democratic periods, the police in Taiwan have obtained strong legitimacy and been perceived as one of the most trustworthy government agencies. As such, questions to explore in this chapter include: Why has authoritarian policing been this adaptive in Taiwan? How has the coexistence between authoritarian legacy and liberal democracy been made possible? What are the impacts on democratic governance and efficacy of legal reforms?

Many of our oceans and seas are under threat. Strengthening the environmental rule of law for better protection and sustainable use of the oceans is therefore urgent. This Chapter introduces the concept of the environmental rule of law for oceans and the diverse perspectives and topics that will be addressed throughout the book.

Chapter 3 explores the structure of the international criminal justice field. Specifically, the chapter argues that the community of international criminal law practice, which includes judges, lawyers, academics, non-governmental organizations, and state diplomats, is bound by two core norms, or shared understandings: firstly, that the perpetrators of mass atrocities deserve to be punished (the ‘anti-impunity’ norm), and secondly, that punishment should follow a fair criminal process (the ‘legalism’ norm). Next, Chapter 3 turns to the debates taking place inside the international criminal justice field in relation to questions of individual criminal responsibility. The analysis reveals a variety of competing views on the meaning of criminal responsibility rules, on the requirements of a ‘fair process’, and on the mechanisms for ending impunity for mass atrocities. These clashes of ideas result not only from differences in the professional backgrounds of the persons engaging in international criminal law practice, but also from the lack of agreement on the nature of personal culpability for atrocity crimes and on the function of criminal law in the international society.

The article contributes to the unsettling of the Western paradigm of “law and religion,” by examining the overlapping of the two categories in the context of Jewish, Islamic, and Zoroastrian discussions of legality and revelation in the early Abbasid period. With regard to all three legal traditions, the article traces a process of theologization of the law (and minimization of the role of human agency in effecting the content of revelation), on the one hand, and one of textual demarcation and confinement of the law (in line with the principle of “legality”), on the other hand.

The article argues that Sherira, Shāfiʽī and Manuščihr played a particularly significant role in framing and articulating these broad processes, by insisting on the textual confinement of God’s revelation as pronounced at the initial revelatory moment in the Mishnah-cum-Talmud, Hadith, and Zand (alongside the Torah, Quran and Avesta). This, in turn, paved the way for regarding these corpora as the exclusive, complete, and authoritative articulation of the law. Indeed, the parallel diachronic shifts evident in the three religious traditions points to a broader legal-theological turn in the early Abbasid period, which bears significant implications on the history of the dynamics of law and religion.

The chapter addresses the question of how to continue developing artificial intelligence (AI) without challenging and infringing legal norms, principles and values, represented by the current legal frameworks of liberal democratic societies. To answer this question, the chapter first of all briefly deals with the concept of legality (what it means to be legal in the age of disruptive technologies) and then relates it to two specific private law challenges: The first challenge is related to intellectual property law and is represented by the clash between trade secret protection of algorithms and the increasing public need for algorithmic transparency and explicability; the second challenge is related to consumer protection where the questions of liability and the shifting roles of the main stakeholders build the space for discussing who is who in building, developing and using AI.

This chapter introduces the approach taken in the book, which is to focus on the law, not policy. It further clarifies that the book will focus on the legal aspects of the Security Council based on the UN Charter and in the Council’s practice.

Chapter 8 reconstructs Kierkegaard’s ignored critique of consequentialism, a critique that is still relevant to ethics. It is argued that morality and religion require not only good intentions but also a good character. However, since moral character itself is not directly accessible, but only shown indirectly by words and deeds, Kierkegaard describes it in terms of hidden inwardness, which is only seen by God. Still, such inwardness neither entails a hidden, private domain nor “negative outwardness,” which “confines itself (in order not to be seen for what it is)” (Jack Mulder). Nor does it entail enclosing reserve (Indesluttethed), which is inwardness in deadlock. Instead, it represents an inwardness that strives to express itself in words and deeds. As a result, Kierkegaard’s moral psychology is more defensible and less problematic than often assumed.