Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.001.0001
- Subject:
- Political Science, International Relations and Politics
This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret ...
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This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret these issues, it makes a significant contribution to the English School's study of international society. More specifically, it offers a concise definition of ‘world society’ and thus helps to resolve a longstanding problem in international theory. This groundbreaking conceptual work is supported by an indepth empirical analysis of American opposition to the ICC. The book goes beyond the familiar arguments related to national interests and argues that the Court has exposed the extent to which American notions of accountability are tied to the nation‐state. Where other democracies are willing to renegotiate their social contract because they see themselves as part of world society, the US protects its particular contract with ‘the American people’ because it offers a means of distinguishing that nation and its democracy from the rest of the world. In opposing the ICC, therefore, the US seeks to defend a society of states because this kind of society can accommodate American exceptionalism and advance particular US interests. This ‘sovereigntist’, or more accurately ‘Americanist’, influence is further illustrated in chapters on the customary international law, universal jurisdiction, transatlantic relations and US policy on international humanitarian law in the war on terror. The book concludes by evoking E.H. Carr's criticism of those great powers who claim that a harmony exists between their particular interests and those of wider society. It also recalls his argument that great powers sometimes need to compromise and in this context it argues that support for the ICC is a more effective means of fulfilling America's purpose and a less costly sacrifice for the US to make than that demanded by the ‘Americanist’ policy of nation‐building.Less
This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret these issues, it makes a significant contribution to the English School's study of international society. More specifically, it offers a concise definition of ‘world society’ and thus helps to resolve a longstanding problem in international theory. This groundbreaking conceptual work is supported by an indepth empirical analysis of American opposition to the ICC. The book goes beyond the familiar arguments related to national interests and argues that the Court has exposed the extent to which American notions of accountability are tied to the nation‐state. Where other democracies are willing to renegotiate their social contract because they see themselves as part of world society, the US protects its particular contract with ‘the American people’ because it offers a means of distinguishing that nation and its democracy from the rest of the world. In opposing the ICC, therefore, the US seeks to defend a society of states because this kind of society can accommodate American exceptionalism and advance particular US interests. This ‘sovereigntist’, or more accurately ‘Americanist’, influence is further illustrated in chapters on the customary international law, universal jurisdiction, transatlantic relations and US policy on international humanitarian law in the war on terror. The book concludes by evoking E.H. Carr's criticism of those great powers who claim that a harmony exists between their particular interests and those of wider society. It also recalls his argument that great powers sometimes need to compromise and in this context it argues that support for the ICC is a more effective means of fulfilling America's purpose and a less costly sacrifice for the US to make than that demanded by the ‘Americanist’ policy of nation‐building.
George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.001.0001
- Subject:
- Political Science, American Politics
This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new ...
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This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new kind of “covert” constitutional law – one with a stronger emphasis on equality in the wake of the abolition of slavery – which was legally established in the Amendments made to the U.S. Constitution between 1865 and 1870. The author asserts that the influence of this “secret constitution”, which has varied in degree from Reconstruction to the present day, is visible in the rulings of the Supreme Court on issues hinging on personal freedom, equality, and discrimination.Less
This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new kind of “covert” constitutional law – one with a stronger emphasis on equality in the wake of the abolition of slavery – which was legally established in the Amendments made to the U.S. Constitution between 1865 and 1870. The author asserts that the influence of this “secret constitution”, which has varied in degree from Reconstruction to the present day, is visible in the rulings of the Supreme Court on issues hinging on personal freedom, equality, and discrimination.
André Béteille
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780198080961
- eISBN:
- 9780199082049
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198080961.001.0001
- Subject:
- Sociology, Politics, Social Movements and Social Change
Democracy was inspired by the lofty ideals of the French Revolution: liberty, equality, and fraternity. These ideals led many countries to challenge the absolutist monarchies of the past. In Europe, ...
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Democracy was inspired by the lofty ideals of the French Revolution: liberty, equality, and fraternity. These ideals led many countries to challenge the absolutist monarchies of the past. In Europe, democratic ideals and values grew in response to the oppressive rule of absolutist monarchs. In India, the idea of democracy came with colonial rule but conferred subjecthood without citizenship on the Indian people. Colonial rule kindled the aspiration of Indians to become a nation of free and equal citizens and led to the formation of a political party, the Indian National Congress. This book explores the political institutions of democracy in India, focusing on those that began to emerge from the middle of the nineteenth century onwards. It looks at Parliament and the state legislatures, the Supreme Court and high courts, and political parties, highlighting the maladies that beset these basic institutions of democracy today. After discussing the institutions of democracy, the book looks at the role of government and opposition in a democracy, civil society and the state, constitutional morality, how institutions work and why they fail, the representation of India as a society of castes and communities as well as a nation of citizens, pluralism and liberalism in India, the distinction between law and custom, and the relationship between sociology and ideology.Less
Democracy was inspired by the lofty ideals of the French Revolution: liberty, equality, and fraternity. These ideals led many countries to challenge the absolutist monarchies of the past. In Europe, democratic ideals and values grew in response to the oppressive rule of absolutist monarchs. In India, the idea of democracy came with colonial rule but conferred subjecthood without citizenship on the Indian people. Colonial rule kindled the aspiration of Indians to become a nation of free and equal citizens and led to the formation of a political party, the Indian National Congress. This book explores the political institutions of democracy in India, focusing on those that began to emerge from the middle of the nineteenth century onwards. It looks at Parliament and the state legislatures, the Supreme Court and high courts, and political parties, highlighting the maladies that beset these basic institutions of democracy today. After discussing the institutions of democracy, the book looks at the role of government and opposition in a democracy, civil society and the state, constitutional morality, how institutions work and why they fail, the representation of India as a society of castes and communities as well as a nation of citizens, pluralism and liberalism in India, the distinction between law and custom, and the relationship between sociology and ideology.
Alicia Hinarejos
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199569960
- eISBN:
- 9780191721977
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569960.001.0001
- Subject:
- Law, EU Law
The EU's activity under its intergovernmental pillars — The Common Foreign and Security Policy and Justice and Home Affairs — has traditionally been beyond the scope of judicial control offered by ...
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The EU's activity under its intergovernmental pillars — The Common Foreign and Security Policy and Justice and Home Affairs — has traditionally been beyond the scope of judicial control offered by the central EC legal system. The increasing importance of this activity, and its growing intrusion into the lives of individuals, has led to a sense that the level of judicial oversight and protection is insufficient and that the constitutional balance of the Union stands in urgent need of reform. While the need for reform is widely recognised, wholesale constitutional change has been stalled by the failure to ratify the Constitutional Treaty and the delay in ratifying the Treaty of Lisbon. This book charts the attempts to develop more satisfactory judicial control over the intergovernmental pillars in the face of such constitutional inertia. It examines the leading role played by the European Court of Justice in reforming its own jurisdiction, and analyses the ECJ's development as a constitutional court in comparison with more established constitutional adjudicators. Throughout the book the current constitutional position is compared extensively to the reforms introduced by the Treaty of Lisbon, offering a timely snapshot of the EU's federal structure in a state of flux.Less
The EU's activity under its intergovernmental pillars — The Common Foreign and Security Policy and Justice and Home Affairs — has traditionally been beyond the scope of judicial control offered by the central EC legal system. The increasing importance of this activity, and its growing intrusion into the lives of individuals, has led to a sense that the level of judicial oversight and protection is insufficient and that the constitutional balance of the Union stands in urgent need of reform. While the need for reform is widely recognised, wholesale constitutional change has been stalled by the failure to ratify the Constitutional Treaty and the delay in ratifying the Treaty of Lisbon. This book charts the attempts to develop more satisfactory judicial control over the intergovernmental pillars in the face of such constitutional inertia. It examines the leading role played by the European Court of Justice in reforming its own jurisdiction, and analyses the ECJ's development as a constitutional court in comparison with more established constitutional adjudicators. Throughout the book the current constitutional position is compared extensively to the reforms introduced by the Treaty of Lisbon, offering a timely snapshot of the EU's federal structure in a state of flux.
Arturo J. Carrillo
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199291922
- eISBN:
- 9780191603716
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199291926.003.0015
- Subject:
- Political Science, International Relations and Politics
This paper examines how international law contributes to contemporary understandings of transitional justice with respect to reparations for victims of gross and systematic human rights abuses. The ...
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This paper examines how international law contributes to contemporary understandings of transitional justice with respect to reparations for victims of gross and systematic human rights abuses. The author surveys the jurisprudence of the Inter-American Court of Human Rights through 2003 to determine how the Court’s practice can be used to guide the formulation of reparatory policies during political transition. Recognizing that the direct application of Inter-American case law to situations of mass atrocity is not always viable in practice, the author analyzes regional human rights jurisprudence, particularly that relating to compensation, to determine what role the Court’s rules can and cannot play as a reference for policymakers and societies faced with the challenge of designing a reparations program. He concludes that while landmark Court decisions like Velásquez Rodríguez provide general normative guidance, there are significant obstacles to extending to the transitional justice context many of the measures, amounts, and formulas relied upon by the Court in awarding compensation. The fairness of compensation outside the courtroom cannot be determined with reference to predetermined rules, but depends on the factual context in which the measures are adopted including the number of victims involved. A better source of comparative inspiration is found in the Court’s growing practice of adopting non-monetary reparations measures to deal with moral harm.Less
This paper examines how international law contributes to contemporary understandings of transitional justice with respect to reparations for victims of gross and systematic human rights abuses. The author surveys the jurisprudence of the Inter-American Court of Human Rights through 2003 to determine how the Court’s practice can be used to guide the formulation of reparatory policies during political transition. Recognizing that the direct application of Inter-American case law to situations of mass atrocity is not always viable in practice, the author analyzes regional human rights jurisprudence, particularly that relating to compensation, to determine what role the Court’s rules can and cannot play as a reference for policymakers and societies faced with the challenge of designing a reparations program. He concludes that while landmark Court decisions like Velásquez Rodríguez provide general normative guidance, there are significant obstacles to extending to the transitional justice context many of the measures, amounts, and formulas relied upon by the Court in awarding compensation. The fairness of compensation outside the courtroom cannot be determined with reference to predetermined rules, but depends on the factual context in which the measures are adopted including the number of victims involved. A better source of comparative inspiration is found in the Court’s growing practice of adopting non-monetary reparations measures to deal with moral harm.
Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.001.0001
- Subject:
- Law, Philosophy of Law
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit ...
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Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.Less
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.
Paul Fabian Mullen
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297574
- eISBN:
- 9780191598982
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297572.003.0013
- Subject:
- Political Science, European Union
This chapter examines the impact of EU enlargement on the Translation Services of the Court of Justice of the European Communities. The Translation Service is already struggling with stagnating ...
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This chapter examines the impact of EU enlargement on the Translation Services of the Court of Justice of the European Communities. The Translation Service is already struggling with stagnating resources and an ever-increasing workload. Eastward enlargement will not only amplify existing problems, but create new ones.Less
This chapter examines the impact of EU enlargement on the Translation Services of the Court of Justice of the European Communities. The Translation Service is already struggling with stagnating resources and an ever-increasing workload. Eastward enlargement will not only amplify existing problems, but create new ones.
David E. Klein and Gregory Mitchell (eds)
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.001.0001
- Subject:
- Psychology, Forensic Psychology
This volume of essays examines the psychological processes that underlie judicial decision making. Chapters in the first section of the book take as their starting point the fact that judges make ...
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This volume of essays examines the psychological processes that underlie judicial decision making. Chapters in the first section of the book take as their starting point the fact that judges make many of the same judgments and decisions that ordinary people make and consider how our knowledge about judgment and decision-making in general applies to the case of legal judges. Chapters in the second section focus on the specific tasks that judges perform within a unique social setting and examine the expertise and particular modes of reasoning that judges develop to deal with their tasks in this unique setting. Chapters in the third section raise questions about whether and how we can evaluate judicial performance, with implications for the possibility of improving judging through the selection and training of judges and structuring of judicial institutions. Together the essays apply a wide range of psychological insights to help us better understand how judges make decisions and to open new avenues of inquiry into the influences on judicial behavior.Less
This volume of essays examines the psychological processes that underlie judicial decision making. Chapters in the first section of the book take as their starting point the fact that judges make many of the same judgments and decisions that ordinary people make and consider how our knowledge about judgment and decision-making in general applies to the case of legal judges. Chapters in the second section focus on the specific tasks that judges perform within a unique social setting and examine the expertise and particular modes of reasoning that judges develop to deal with their tasks in this unique setting. Chapters in the third section raise questions about whether and how we can evaluate judicial performance, with implications for the possibility of improving judging through the selection and training of judges and structuring of judicial institutions. Together the essays apply a wide range of psychological insights to help us better understand how judges make decisions and to open new avenues of inquiry into the influences on judicial behavior.
Ian Clark
- Published in print:
- 2007
- Published Online:
- May 2007
- ISBN:
- 9780199297009
- eISBN:
- 9780191711428
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199297009.003.0009
- Subject:
- Political Science, International Relations and Politics
This chapter locates the discussion in the context of the theoretical literature on international norms, particularly that by Martha Finnemore and Katherine Sikkink. Much of this literature is ...
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This chapter locates the discussion in the context of the theoretical literature on international norms, particularly that by Martha Finnemore and Katherine Sikkink. Much of this literature is interested in norm cycles, and the means by which norms come to be disseminated internationally. Building on this work, the chapter argues that the idea of dissemination does not quite capture what in fact have been a series of strategic negotiations between international and world society, often coming during the major peace settlements at the end of wars. Historically, this has often also arisen out of a coalition of interest between powerful state actors, and civil society groups. It is suggested that the framework of negotiation between international and world society allows us to understand this process in a particular way. It also demonstrates how the absorption of norms from world society into international society has complicated the latter's practices of consensus. It opens up major new issues about how consensus is to be developed within world society about changing principles of international legitimacy. These issues are explored in the context of the WTO and G7/8, and illustrated by the Ottawa Convention on Landmines and the formation of the International Criminal Court.Less
This chapter locates the discussion in the context of the theoretical literature on international norms, particularly that by Martha Finnemore and Katherine Sikkink. Much of this literature is interested in norm cycles, and the means by which norms come to be disseminated internationally. Building on this work, the chapter argues that the idea of dissemination does not quite capture what in fact have been a series of strategic negotiations between international and world society, often coming during the major peace settlements at the end of wars. Historically, this has often also arisen out of a coalition of interest between powerful state actors, and civil society groups. It is suggested that the framework of negotiation between international and world society allows us to understand this process in a particular way. It also demonstrates how the absorption of norms from world society into international society has complicated the latter's practices of consensus. It opens up major new issues about how consensus is to be developed within world society about changing principles of international legitimacy. These issues are explored in the context of the WTO and G7/8, and illustrated by the Ottawa Convention on Landmines and the formation of the International Criminal Court.
Lawrence S. Wrightsman and Mary L. Pitman
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199730902
- eISBN:
- 9780199776986
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199730902.001.0001
- Subject:
- Psychology, Forensic Psychology
In 1966 the Supreme Court ruled that law-enforcement officers were required to inform criminal defendants about their rights to remain silent or have an attorney present during their interrogation. ...
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In 1966 the Supreme Court ruled that law-enforcement officers were required to inform criminal defendants about their rights to remain silent or have an attorney present during their interrogation. In the 40 years since the inception of the “Miranda rule,” its anticipated effect has not been realized. The purposes of this book are to examine the reasons why the goal of the authors of the Miranda ruling has not been met and to identify procedures that move the criminal justice system closer to this goal. Separate chapters deal with four causes: the limitations and compromises in the original decision, the problems in comprehension of the Miranda warnings by various vulnerable populations (adolescents, non-English speakers, the deaf, and the mentally-challenged), the decisions subsequent to the 1966 decision that have eroded its breadth and application, and the efforts by police to avoid the curtailments from the ruling. The final chapter examines possible remedies such as requiring the presence of an attorney when the rights are given and videotaping the entire interrogation.Less
In 1966 the Supreme Court ruled that law-enforcement officers were required to inform criminal defendants about their rights to remain silent or have an attorney present during their interrogation. In the 40 years since the inception of the “Miranda rule,” its anticipated effect has not been realized. The purposes of this book are to examine the reasons why the goal of the authors of the Miranda ruling has not been met and to identify procedures that move the criminal justice system closer to this goal. Separate chapters deal with four causes: the limitations and compromises in the original decision, the problems in comprehension of the Miranda warnings by various vulnerable populations (adolescents, non-English speakers, the deaf, and the mentally-challenged), the decisions subsequent to the 1966 decision that have eroded its breadth and application, and the efforts by police to avoid the curtailments from the ruling. The final chapter examines possible remedies such as requiring the presence of an attorney when the rights are given and videotaping the entire interrogation.
Patrick Polden
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0016
- Subject:
- Law, Legal History
This chapter shows that by the late 19th century changes in structures of the law would seem more notable for what had been preserved than for what had been replaced or transformed. The superior ...
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This chapter shows that by the late 19th century changes in structures of the law would seem more notable for what had been preserved than for what had been replaced or transformed. The superior courts of law had deserted Westminster Hall for a splendid edifice in the Strand; two of the three historic courts of common law — the Common Pleas and Exchequer — had passed into history, while the King's Bench, had been relegated to the status of a mere division in a new entity, a ‘Supreme Court of Judicature’ (SCJ). Below the level of the SCJ the changes were, at least on the civil side, more drastic, though criminal justice continued to be dispensed chiefly by the lay justices of the peace, either in quarter or petty sessions; stipendiary magistrates, already known in 1814, were to be found only in a few places outside London. Country courts were something new, products of mid-century legislation and named after the ancient county courts in order to provide a spurious pedigree.Less
This chapter shows that by the late 19th century changes in structures of the law would seem more notable for what had been preserved than for what had been replaced or transformed. The superior courts of law had deserted Westminster Hall for a splendid edifice in the Strand; two of the three historic courts of common law — the Common Pleas and Exchequer — had passed into history, while the King's Bench, had been relegated to the status of a mere division in a new entity, a ‘Supreme Court of Judicature’ (SCJ). Below the level of the SCJ the changes were, at least on the civil side, more drastic, though criminal justice continued to be dispensed chiefly by the lay justices of the peace, either in quarter or petty sessions; stipendiary magistrates, already known in 1814, were to be found only in a few places outside London. Country courts were something new, products of mid-century legislation and named after the ancient county courts in order to provide a spurious pedigree.
Thomas J. Curry
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780195145694
- eISBN:
- 9780199834129
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195145690.001.0001
- Subject:
- Religion, History of Christianity
Protestantism abandoned Christendom by way of the First Amendment of the Bill of Rights, and Catholicism did the same in the Declaration of Religious Liberty of the Second Vatican Council. Because ...
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Protestantism abandoned Christendom by way of the First Amendment of the Bill of Rights, and Catholicism did the same in the Declaration of Religious Liberty of the Second Vatican Council. Because scholars have misinterpreted and manipulated the historical background of the meaning of the Free Exercise of Religion and Establishment of Religion, they have led legislators and judges back into the problem of Church and State that prevailed in Christendom, and that the Amendment solved. As a result, the Supreme Court's interpretation of the First Amendment has reached a point of deep confusion and crisis. Whereas the Amendment was intended to specify government's lack of jurisdiction in religion, modern interpretations of it have conferred upon government power to define the meaning of the Free Exercise of Religion, religious neutrality, and what aids or hinders religion. The way out of the present confusion lies in confining government to what is secular and forbidding it to make religious assessments and decisions. Examining the decisions of the Supreme Court, this work demonstrates that by reconnecting with the history of the First Amendment and approaching it as a limitation on the power of government, rather than as a grant to government to protect religious liberty, the courts can escape the crisis and confusion they are presently experiencing. Religious liberty is a natural right. Within the meaning of the First Amendment, the Free Exercise of Religion means freedom from government jurisdiction in religion, not a government guarantee to allow individuals to exercise the religion of their choice.Less
Protestantism abandoned Christendom by way of the First Amendment of the Bill of Rights, and Catholicism did the same in the Declaration of Religious Liberty of the Second Vatican Council. Because scholars have misinterpreted and manipulated the historical background of the meaning of the Free Exercise of Religion and Establishment of Religion, they have led legislators and judges back into the problem of Church and State that prevailed in Christendom, and that the Amendment solved. As a result, the Supreme Court's interpretation of the First Amendment has reached a point of deep confusion and crisis. Whereas the Amendment was intended to specify government's lack of jurisdiction in religion, modern interpretations of it have conferred upon government power to define the meaning of the Free Exercise of Religion, religious neutrality, and what aids or hinders religion. The way out of the present confusion lies in confining government to what is secular and forbidding it to make religious assessments and decisions. Examining the decisions of the Supreme Court, this work demonstrates that by reconnecting with the history of the First Amendment and approaching it as a limitation on the power of government, rather than as a grant to government to protect religious liberty, the courts can escape the crisis and confusion they are presently experiencing. Religious liberty is a natural right. Within the meaning of the First Amendment, the Free Exercise of Religion means freedom from government jurisdiction in religion, not a government guarantee to allow individuals to exercise the religion of their choice.
Frank Prochaska
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199640614
- eISBN:
- 9780191738678
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199640614.001.0001
- Subject:
- History, British and Irish Modern History, American History: 19th Century
This book is a survey of a wide range of British opinion on the United States in the nineteenth century and highlights the views of John Stuart Mill, Walter Bagehot, Sir Henry Maine, and James Bryce, ...
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This book is a survey of a wide range of British opinion on the United States in the nineteenth century and highlights the views of John Stuart Mill, Walter Bagehot, Sir Henry Maine, and James Bryce, who wrote extensively on American government and society. The Victorians made a memorable contribution to the ongoing debate over the character and origins of democracy through their examination of a host of issues, including the role of the Founding Fathers, the American Constitution and its relationship to the British Constitution, slavery, the Supreme Court, the Presidency, the spoils system, and party politics. Their trenchant commentary punctures several popular American assumptions, not least the idea of exceptionalism. To Victorian commentators, the bonds of kinship, language, law, and language were of great significance; and while they did not see the United States as having a unique destiny, they rallied to Anglo-Saxon exceptionalism, which reflected their sense of a shared transatlantic history. Their commentary remains remarkably prescient, if only because the American government retains so much of its eighteenth-century character.Less
This book is a survey of a wide range of British opinion on the United States in the nineteenth century and highlights the views of John Stuart Mill, Walter Bagehot, Sir Henry Maine, and James Bryce, who wrote extensively on American government and society. The Victorians made a memorable contribution to the ongoing debate over the character and origins of democracy through their examination of a host of issues, including the role of the Founding Fathers, the American Constitution and its relationship to the British Constitution, slavery, the Supreme Court, the Presidency, the spoils system, and party politics. Their trenchant commentary punctures several popular American assumptions, not least the idea of exceptionalism. To Victorian commentators, the bonds of kinship, language, law, and language were of great significance; and while they did not see the United States as having a unique destiny, they rallied to Anglo-Saxon exceptionalism, which reflected their sense of a shared transatlantic history. Their commentary remains remarkably prescient, if only because the American government retains so much of its eighteenth-century character.
August Reinisch (ed.)
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199595297
- eISBN:
- 9780191595752
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199595297.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book ...
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The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book demonstrates that problems of judicial review of acts of international organizations are relevant in many organizations and in many different contexts. This book presents a broad picture concerning potential challenges of acts of international organizations before national courts. It covers such diverse international organizations as the United Nations itself, its subsidiary organs, such as the specialized international criminal courts for the former Yugoslavia and Rwanda, the European Patent Office, the European Schools, EUROCONTROL, OPEC, or INTERPOL. Building on the case law of domestic courts, the chapters highlight similar legal issues according to four introductory working hypotheses. They relate to the nature of judicial review of acts of international organizations, its interdependence with domestic methods of incorporating international law, to the conditions of a human rights-based review and to the inter-relationship between domestic challenges and the safeguard of the independent functioning of international organizations. The book's conclusion brings the different findings together and analyses them in the light of the initial working hypotheses. It also discusses whether attempts to secure a certain minimum level of legal protection against acts of international organizations through judicial review by national courts may contribute to securing greater accountability of international organizations.Less
The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book demonstrates that problems of judicial review of acts of international organizations are relevant in many organizations and in many different contexts. This book presents a broad picture concerning potential challenges of acts of international organizations before national courts. It covers such diverse international organizations as the United Nations itself, its subsidiary organs, such as the specialized international criminal courts for the former Yugoslavia and Rwanda, the European Patent Office, the European Schools, EUROCONTROL, OPEC, or INTERPOL. Building on the case law of domestic courts, the chapters highlight similar legal issues according to four introductory working hypotheses. They relate to the nature of judicial review of acts of international organizations, its interdependence with domestic methods of incorporating international law, to the conditions of a human rights-based review and to the inter-relationship between domestic challenges and the safeguard of the independent functioning of international organizations. The book's conclusion brings the different findings together and analyses them in the light of the initial working hypotheses. It also discusses whether attempts to secure a certain minimum level of legal protection against acts of international organizations through judicial review by national courts may contribute to securing greater accountability of international organizations.
Andrew Kuper
- Published in print:
- 2004
- Published Online:
- November 2004
- ISBN:
- 9780199274901
- eISBN:
- 9780191601552
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199274908.001.0001
- Subject:
- Political Science, International Relations and Politics
Global organizations are exercising unprecedented power–from the hallowed halls of the UN to the closed boardrooms of multinational corporations. Yet their leaders are often scandalously ...
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Global organizations are exercising unprecedented power–from the hallowed halls of the UN to the closed boardrooms of multinational corporations. Yet their leaders are often scandalously unaccountable to the people they claim to serve. How can we ensure that global leaders act responsively, and effectively, in the interests of the world’s people? In this lucid and provocative book, Andrew Kuper develops persuasive and practical answers.Democracy Beyond Borders criticizes conventional theories of justice and democracy that focus almost exclusively on the state and its electoral cycles. Kuper shows how non-state actors, such as corporations and civil society advocates, can be brought into multi-level government as partners with states. He presents an original theory of representation to answer the problem of accountability. At the core of this vision is a new separation of powers, in which different global actors check and balance one another in a complex harmony. This innovative framework complements electoral accountability and enables Kuper to recommend far-reaching reforms to the World Courts, the UN, and advocacy agencies including Transparency International.Democracy Beyond Borders stands at the forefront of a new generation of political thought, for which globalization is the challenge and deepening democracy the solution.Less
Global organizations are exercising unprecedented power–from the hallowed halls of the UN to the closed boardrooms of multinational corporations. Yet their leaders are often scandalously unaccountable to the people they claim to serve. How can we ensure that global leaders act responsively, and effectively, in the interests of the world’s people? In this lucid and provocative book, Andrew Kuper develops persuasive and practical answers.Democracy Beyond Borders criticizes conventional theories of justice and democracy that focus almost exclusively on the state and its electoral cycles. Kuper shows how non-state actors, such as corporations and civil society advocates, can be brought into multi-level government as partners with states. He presents an original theory of representation to answer the problem of accountability. At the core of this vision is a new separation of powers, in which different global actors check and balance one another in a complex harmony. This innovative framework complements electoral accountability and enables Kuper to recommend far-reaching reforms to the World Courts, the UN, and advocacy agencies including Transparency International.Democracy Beyond Borders stands at the forefront of a new generation of political thought, for which globalization is the challenge and deepening democracy the solution.
Stefanie A. Lindquist and Frank B. Cross
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195370850
- eISBN:
- 9780199870790
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370850.001.0001
- Subject:
- Law, Comparative Law
This book explores the theoretical and empirical dimensions to this controversial subject. The main aim of the book is to shift the focus of the academic and political debate over judicial activism ...
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This book explores the theoretical and empirical dimensions to this controversial subject. The main aim of the book is to shift the focus of the academic and political debate over judicial activism to a more objective, empirically-based approach to analyzing activism in appellate courts. Focusing on the justices' voting behavior on the United States Supreme Court from 1954 to 2004, the book first identifies theoretical dimensions to judicial activism based on scholars' attention to the Court's potential for countermajoritarian action. In particular, the book considers the propensity of the justices to (1) strike down legislation enacted by state and federal elected officials, (2) invalidate executive branch actions in connection with judicial review of administrative agencies, (3) expand the power of the federal judiciary through increasing access to the courts, and (4) alter prevailing legal rules by overturning precedent. All of these dimensions are also evaluated in terms of the justices' propensities to vote in these areas in accordance with their own personal policy preferences. The final chapter creates a “judicial activism scale” for the justices serving on the Court during the Warren, Burger, and Rehnquist Courts.Less
This book explores the theoretical and empirical dimensions to this controversial subject. The main aim of the book is to shift the focus of the academic and political debate over judicial activism to a more objective, empirically-based approach to analyzing activism in appellate courts. Focusing on the justices' voting behavior on the United States Supreme Court from 1954 to 2004, the book first identifies theoretical dimensions to judicial activism based on scholars' attention to the Court's potential for countermajoritarian action. In particular, the book considers the propensity of the justices to (1) strike down legislation enacted by state and federal elected officials, (2) invalidate executive branch actions in connection with judicial review of administrative agencies, (3) expand the power of the federal judiciary through increasing access to the courts, and (4) alter prevailing legal rules by overturning precedent. All of these dimensions are also evaluated in terms of the justices' propensities to vote in these areas in accordance with their own personal policy preferences. The final chapter creates a “judicial activism scale” for the justices serving on the Court during the Warren, Burger, and Rehnquist Courts.
Arad Reisberg
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199204892
- eISBN:
- 9780191709487
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199204892.003.0004
- Subject:
- Law, Company and Commercial Law
This chapter inquires into the particular difficulties minority shareholders face where they seek redress against wrongdoing directors. Section 3.2 discusses these problems and Section 3.3 outlines ...
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This chapter inquires into the particular difficulties minority shareholders face where they seek redress against wrongdoing directors. Section 3.2 discusses these problems and Section 3.3 outlines the common law responses to these problems. Through extensive discussion of case law and emerging so-called principles and rules this section illustrates how procedurally and substantively English law has developed to provide disincentives to prospective shareholder claimants in this context. Subsequently, two policy responses are analysed. First, Section 3.4.1 examines and assesses the competence of three alternative bodies which may assess the merits of a derivative action: a committee of independent directors, an ‘independent organ’ of the company, and the courts. It concludes that courts should discharge the task of deciding this critical question. Section 3.4.2 explains that once a gatekeeper is put in place, the focus should be on establishing an expeditious means for screening and dismissing non-meritorious cases. It evaluates how well (or rather, badly) current legal screens work.Less
This chapter inquires into the particular difficulties minority shareholders face where they seek redress against wrongdoing directors. Section 3.2 discusses these problems and Section 3.3 outlines the common law responses to these problems. Through extensive discussion of case law and emerging so-called principles and rules this section illustrates how procedurally and substantively English law has developed to provide disincentives to prospective shareholder claimants in this context. Subsequently, two policy responses are analysed. First, Section 3.4.1 examines and assesses the competence of three alternative bodies which may assess the merits of a derivative action: a committee of independent directors, an ‘independent organ’ of the company, and the courts. It concludes that courts should discharge the task of deciding this critical question. Section 3.4.2 explains that once a gatekeeper is put in place, the focus should be on establishing an expeditious means for screening and dismissing non-meritorious cases. It evaluates how well (or rather, badly) current legal screens work.
Jann K. Kleffner
- Published in print:
- 2008
- Published Online:
- May 2009
- ISBN:
- 9780199238453
- eISBN:
- 9780191716744
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199238453.001.0001
- Subject:
- Law, Public International Law
The book examines the principle of complementarity in the Rome Statute of the International Criminal Court and the implications of that principle for the suppression of genocide, crimes against ...
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The book examines the principle of complementarity in the Rome Statute of the International Criminal Court and the implications of that principle for the suppression of genocide, crimes against humanity, and war crimes on the domestic level. The book is set against the general background of the national suppression of these crimes, its potential and pitfalls. It traces the evolution of complementarity as a principle governing the allocation of the respective competences of the ICC and national criminal jurisdictions, and its translation into one of the central requirements for the admissibility of situations and cases before the ICC. It provides a critical and comprehensive analysis of the provisions in the Rome Statute and the Rules of Procedure and Evidence relevant to complementarity. In so doing, it addresses the notions of ‘unwillingness’ and ‘inability’, and the procedural framework for the application, invocation, and litigation of questions of admissibility. The early practice of the ICC in operationalizing complementarity is also considered. The book further devotes attention to the question whether and to what extent the Rome Statute in general, and the regulation of complementarity in particular, imposes on States Parties an obligation to investigate and prosecute core crimes domestically. In that context, it analyses the room for States to opt for substitutes of criminal proceedings, such as truth commission processes and the granting of amnesties. Finally, the book examines the potential of the complementary regime to function as a catalyst for States to conduct domestic criminal proceedings vis-à-vis core crimes.Less
The book examines the principle of complementarity in the Rome Statute of the International Criminal Court and the implications of that principle for the suppression of genocide, crimes against humanity, and war crimes on the domestic level. The book is set against the general background of the national suppression of these crimes, its potential and pitfalls. It traces the evolution of complementarity as a principle governing the allocation of the respective competences of the ICC and national criminal jurisdictions, and its translation into one of the central requirements for the admissibility of situations and cases before the ICC. It provides a critical and comprehensive analysis of the provisions in the Rome Statute and the Rules of Procedure and Evidence relevant to complementarity. In so doing, it addresses the notions of ‘unwillingness’ and ‘inability’, and the procedural framework for the application, invocation, and litigation of questions of admissibility. The early practice of the ICC in operationalizing complementarity is also considered. The book further devotes attention to the question whether and to what extent the Rome Statute in general, and the regulation of complementarity in particular, imposes on States Parties an obligation to investigate and prosecute core crimes domestically. In that context, it analyses the room for States to opt for substitutes of criminal proceedings, such as truth commission processes and the granting of amnesties. Finally, the book examines the potential of the complementary regime to function as a catalyst for States to conduct domestic criminal proceedings vis-à-vis core crimes.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0001
- Subject:
- Political Science, European Union
Provides an introduction to the book by explaining its origin, purpose, approach, and structure. The first section presents the generic question posed by the book: how is a particular mode of ...
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Provides an introduction to the book by explaining its origin, purpose, approach, and structure. The first section presents the generic question posed by the book: how is a particular mode of governance, the judicial mode, consolidated as a stable set of practices; it explains that the approach taken combines three strains of theory – theory on judicialization and governance, on the courts as commitment devices, and on the dynamics of judicial rulemaking and precedent. The second section, European Integration and the Legal System, indicates that the book expands on previous efforts to elaborate and test a theory of European integration, and shows that its primary focus is on the impact of adjudicating European Community law on the institutionalization of the European Union (EU), rather than on the impact of EU law on national legal systems. The third section, Determinants of Judicial Discretion in the EU, looks at the question of how the European Court has been able to have such an impact on the course of European integration and the work of the national courts. The fourth section, Precedent and the Path Dependence of Legal Institutions, focuses on why legal institutions tend to develop in path dependent ways; it begins by conceptualizing precedent, and then attempts to show how legal systems can develop in path dependent ways, and discusses how the book goes about analysing precedent in Europe. The last two sections look at the case selection and data used in the book and give a brief outline of its structure.Less
Provides an introduction to the book by explaining its origin, purpose, approach, and structure. The first section presents the generic question posed by the book: how is a particular mode of governance, the judicial mode, consolidated as a stable set of practices; it explains that the approach taken combines three strains of theory – theory on judicialization and governance, on the courts as commitment devices, and on the dynamics of judicial rulemaking and precedent. The second section, European Integration and the Legal System, indicates that the book expands on previous efforts to elaborate and test a theory of European integration, and shows that its primary focus is on the impact of adjudicating European Community law on the institutionalization of the European Union (EU), rather than on the impact of EU law on national legal systems. The third section, Determinants of Judicial Discretion in the EU, looks at the question of how the European Court has been able to have such an impact on the course of European integration and the work of the national courts. The fourth section, Precedent and the Path Dependence of Legal Institutions, focuses on why legal institutions tend to develop in path dependent ways; it begins by conceptualizing precedent, and then attempts to show how legal systems can develop in path dependent ways, and discusses how the book goes about analysing precedent in Europe. The last two sections look at the case selection and data used in the book and give a brief outline of its structure.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0002
- Subject:
- Political Science, European Union
The evolution of the European Community (EC) towards a supranational constitution is charted by combining three different perspectives. First, an examination is made of the major features of the ...
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The evolution of the European Community (EC) towards a supranational constitution is charted by combining three different perspectives. First, an examination is made of the major features of the integration process since 1959, which argues that the European market and polity developed symbiotically, as the activities of economic actors, organized interests, litigators and judges, and the EC's legislative and regulatory organs became linked, to create a self‐sustaining, dynamic system. Second, the ‘constitutionalization’ of the treaty system is investigated, and the activities of the European Court of Justice (ECJ) surveyed; among other things, constitutionalization secured property rights for transnational market actors, expanded the discretionary powers of national judges, and reduced the EC's intergovernmental character. Third, the relationship between the ECJ and the national courts is considered, focusing on how intra‐judicial conflict and cooperation have shaped the production of specific constitutional doctrines; through these ‘constitutional dialogues’, the supremacy of EC law was gradually achieved, rendering it judicially enforceable. Overall, the chapter situates the development of the European legal system within the overall process of European integration.Less
The evolution of the European Community (EC) towards a supranational constitution is charted by combining three different perspectives. First, an examination is made of the major features of the integration process since 1959, which argues that the European market and polity developed symbiotically, as the activities of economic actors, organized interests, litigators and judges, and the EC's legislative and regulatory organs became linked, to create a self‐sustaining, dynamic system. Second, the ‘constitutionalization’ of the treaty system is investigated, and the activities of the European Court of Justice (ECJ) surveyed; among other things, constitutionalization secured property rights for transnational market actors, expanded the discretionary powers of national judges, and reduced the EC's intergovernmental character. Third, the relationship between the ECJ and the national courts is considered, focusing on how intra‐judicial conflict and cooperation have shaped the production of specific constitutional doctrines; through these ‘constitutional dialogues’, the supremacy of EC law was gradually achieved, rendering it judicially enforceable. Overall, the chapter situates the development of the European legal system within the overall process of European integration.
