LORD BINGHAM OF CORNHILL
- Published in print:
- 2007
- Published Online:
- January 2012
- ISBN:
- 9780197263945
- eISBN:
- 9780191734038
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197263945.003.0003
- Subject:
- History, Cultural History
This chapter discusses the traditionalist view of the judicial role. Three propositions are used as the basis for this view, beginning with the separation of powers. The second and third propositions ...
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This chapter discusses the traditionalist view of the judicial role. Three propositions are used as the basis for this view, beginning with the separation of powers. The second and third propositions relate to non-statutory areas of the law, and that the authority and standing of the judges depend on their strict adherence to rules. The chapter also touches on the constitutional implications of this choice.Less
This chapter discusses the traditionalist view of the judicial role. Three propositions are used as the basis for this view, beginning with the separation of powers. The second and third propositions relate to non-statutory areas of the law, and that the authority and standing of the judges depend on their strict adherence to rules. The chapter also touches on the constitutional implications of this choice.
David Lewis Jones
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199532711
- eISBN:
- 9780191705489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199532711.003.0001
- Subject:
- Law, Legal History
This chapter describes the judicial role of the House of Lords before 1870. A significant part of Parliament's role, from the reign of Edward I, lay in providing remedies for petitioners either ...
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This chapter describes the judicial role of the House of Lords before 1870. A significant part of Parliament's role, from the reign of Edward I, lay in providing remedies for petitioners either reluctant to pursue their causes in other courts or, to a lesser extent, wishing to appeal from a lower court. With the development of the two Houses of Parliament in the 14th century, petitions could be and were sent to either House. The Lords claimed, by the early 15th century, that judgment belonged to them alone: petitions considered by the Commons were sent to the Lords for confirmation, but petitions dealt with by the Lords were not referred to the Commons. In the 16th century there was a sharp decline in the judicial work of Parliament; only five cases are recorded in the Lords Journals between 1514 and 1589. During the 1620s, Henry Elsyng codified the rules of procedure in the House of Lords.Less
This chapter describes the judicial role of the House of Lords before 1870. A significant part of Parliament's role, from the reign of Edward I, lay in providing remedies for petitioners either reluctant to pursue their causes in other courts or, to a lesser extent, wishing to appeal from a lower court. With the development of the two Houses of Parliament in the 14th century, petitions could be and were sent to either House. The Lords claimed, by the early 15th century, that judgment belonged to them alone: petitions considered by the Commons were sent to the Lords for confirmation, but petitions dealt with by the Lords were not referred to the Commons. In the 16th century there was a sharp decline in the judicial work of Parliament; only five cases are recorded in the Lords Journals between 1514 and 1589. During the 1620s, Henry Elsyng codified the rules of procedure in the House of Lords.
Lars Vinx
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199227952
- eISBN:
- 9780191711077
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199227952.003.0005
- Subject:
- Law, Philosophy of Law
Kelsen was a fervent advocate of constitutional entrenchment and of constitutional review by a constitutional court. However, Kelsen's theory of legal interpretation and adjudication suggests that ...
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Kelsen was a fervent advocate of constitutional entrenchment and of constitutional review by a constitutional court. However, Kelsen's theory of legal interpretation and adjudication suggests that judges on a constitutional court will inevitably have taken political decisions more often than not. How can the institution of judicial review be defended as compatible with democracy, given this starting point? What positive contribution can it make to the development of a legality-based conception of political legitimacy? This chapter analyzes Kelsen's answer to this question by discussing his understanding of adjudication and his concept of constitution. It goes on to construct a conception of proper judicial role in a democratic state that is based on the conception of democracy developed in the previous chapter.Less
Kelsen was a fervent advocate of constitutional entrenchment and of constitutional review by a constitutional court. However, Kelsen's theory of legal interpretation and adjudication suggests that judges on a constitutional court will inevitably have taken political decisions more often than not. How can the institution of judicial review be defended as compatible with democracy, given this starting point? What positive contribution can it make to the development of a legality-based conception of political legitimacy? This chapter analyzes Kelsen's answer to this question by discussing his understanding of adjudication and his concept of constitution. It goes on to construct a conception of proper judicial role in a democratic state that is based on the conception of democracy developed in the previous chapter.
J. W. F. Allison
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298656
- eISBN:
- 9780191710735
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298656.003.0008
- Subject:
- Law, Comparative Law, Legal History
A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory ...
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A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory separation of powers. This chapter describes the contribution of the Conseil d'Etat's dynamic extension of its judicial role (in determining, inter alia, state liability and proportionality) to the entrenchment of the French institutional and substantive distinctions. It shows, in contrast, that the English separation of powers has not facilitated the entrenchment of an English substantive distinction, which is thus not in convergence with the French. Rather, it shows how it has contributed to continuing administrative immunities, judicial restraint in English public law, and general uncertainty about the judicial role in administrative disputes, evident in the doctrine of ultra vires, unease about justiciability, and related debate about distinguishing public and privatelaw.Less
A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory separation of powers. This chapter describes the contribution of the Conseil d'Etat's dynamic extension of its judicial role (in determining, inter alia, state liability and proportionality) to the entrenchment of the French institutional and substantive distinctions. It shows, in contrast, that the English separation of powers has not facilitated the entrenchment of an English substantive distinction, which is thus not in convergence with the French. Rather, it shows how it has contributed to continuing administrative immunities, judicial restraint in English public law, and general uncertainty about the judicial role in administrative disputes, evident in the doctrine of ultra vires, unease about justiciability, and related debate about distinguishing public and privatelaw.
Sudhir Krishnaswamy
- Published in print:
- 2011
- Published Online:
- September 2012
- ISBN:
- 9780198071617
- eISBN:
- 9780199081455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198071617.003.0005
- Subject:
- Law, Constitutional and Administrative Law
The basic structure doctrine has, since its inception in Kesavananda Bharati v. State of Kerala in 1973, often been criticized as being illegitimate. This chapter examines the key challenges to the ...
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The basic structure doctrine has, since its inception in Kesavananda Bharati v. State of Kerala in 1973, often been criticized as being illegitimate. This chapter examines the key challenges to the legitimacy (including moral legitimacy, legal legitimacy, and sociological legitimacy) of the basic structure doctrine by engaging directly with the normative arguments about legitimacy of the doctrine while building on arguments of legal doctrine carried out so far. It focuses on the mode of constitutional interpretation and the judicial role in creating and sustaining the use of the basic structure doctrine, and considers Richard Fallon's account of the concept of legitimacy in constitutional theory. It also discusses express constitutional meanings, implied constitutional meanings, the doctrine of implied limitations, the doctrine of necessary implication, structural interpretation, exclusivity of amending power, and judicial review. Finally, the chapter explores alternative accounts of the concept of sovereignty advanced by the Supreme Court and academic commentators as underlying the basic structure doctrine: judicial supremacy, popular sovereignty, and shared sovereignty.Less
The basic structure doctrine has, since its inception in Kesavananda Bharati v. State of Kerala in 1973, often been criticized as being illegitimate. This chapter examines the key challenges to the legitimacy (including moral legitimacy, legal legitimacy, and sociological legitimacy) of the basic structure doctrine by engaging directly with the normative arguments about legitimacy of the doctrine while building on arguments of legal doctrine carried out so far. It focuses on the mode of constitutional interpretation and the judicial role in creating and sustaining the use of the basic structure doctrine, and considers Richard Fallon's account of the concept of legitimacy in constitutional theory. It also discusses express constitutional meanings, implied constitutional meanings, the doctrine of implied limitations, the doctrine of necessary implication, structural interpretation, exclusivity of amending power, and judicial review. Finally, the chapter explores alternative accounts of the concept of sovereignty advanced by the Supreme Court and academic commentators as underlying the basic structure doctrine: judicial supremacy, popular sovereignty, and shared sovereignty.
Sandra Fredman
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199272761
- eISBN:
- 9780191709814
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199272761.003.0008
- Subject:
- Law, Human Rights and Immigration
This chapter examines the interaction between equality of status, found in anti-discrimination law, and distributive equality, found in the Welfare State and socio-economic rights. The development of ...
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This chapter examines the interaction between equality of status, found in anti-discrimination law, and distributive equality, found in the Welfare State and socio-economic rights. The development of substantive equality has required greater attention to be paid to the relationship between these two spheres. Applying the work of Fraser and others, the chapter considers the interaction between recognition and redistribution, arguing for a better integration of positive and negative dimensions. It applies the analysis in Chapter 4 to fashion an appropriate judicial role. It then considers positive duties to promote equality outside the courts. Rather than requiring proof of individual fault through litigation, proactive models impose responsibility with those best placed to bring about change. However, proactive models risk slipping into pure policy without a human rights dimension. The chapter addresses the key challenge: to structure the duty round the concept of a fundamental right, without reverting to individualized complaints mechanisms.Less
This chapter examines the interaction between equality of status, found in anti-discrimination law, and distributive equality, found in the Welfare State and socio-economic rights. The development of substantive equality has required greater attention to be paid to the relationship between these two spheres. Applying the work of Fraser and others, the chapter considers the interaction between recognition and redistribution, arguing for a better integration of positive and negative dimensions. It applies the analysis in Chapter 4 to fashion an appropriate judicial role. It then considers positive duties to promote equality outside the courts. Rather than requiring proof of individual fault through litigation, proactive models impose responsibility with those best placed to bring about change. However, proactive models risk slipping into pure policy without a human rights dimension. The chapter addresses the key challenge: to structure the duty round the concept of a fundamental right, without reverting to individualized complaints mechanisms.
David Steele
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199532711
- eISBN:
- 9780191705489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199532711.003.0002
- Subject:
- Law, Legal History
This chapter begins with a discussion of the events leading to the attempted abolition of the House of Lords. It also describes Lord Selborne' Supreme Court of Judicature Act in 1873, Lord Cairn's ...
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This chapter begins with a discussion of the events leading to the attempted abolition of the House of Lords. It also describes Lord Selborne' Supreme Court of Judicature Act in 1873, Lord Cairn's honour, and the Act of 1876 which not only preserved and improved the Law Lords but breathed some new life into their House with the introduction of judicial peerages.Less
This chapter begins with a discussion of the events leading to the attempted abolition of the House of Lords. It also describes Lord Selborne' Supreme Court of Judicature Act in 1873, Lord Cairn's honour, and the Act of 1876 which not only preserved and improved the Law Lords but breathed some new life into their House with the introduction of judicial peerages.
Kent Greenawalt
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199756148
- eISBN:
- 9780199979523
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199756148.003.0002
- Subject:
- Law, Philosophy of Law
This chapter mainly inquires how courts should regard the basic relation between legislatures and themselves: are they faithful agents or independent partners, or both? It shows that faithful agency ...
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This chapter mainly inquires how courts should regard the basic relation between legislatures and themselves: are they faithful agents or independent partners, or both? It shows that faithful agency is undoubtedly a large component of judicial interpretation of statutes but not the only component. Given all that courts appropriately do, their role is best seen as a combination of faithful agency and independent judgment. Neither basic concept alone, nor a combination of the two, resolves many particular issues about how statutes should be interpreted, and one important variable in this respect is the age of the statutes involved.Less
This chapter mainly inquires how courts should regard the basic relation between legislatures and themselves: are they faithful agents or independent partners, or both? It shows that faithful agency is undoubtedly a large component of judicial interpretation of statutes but not the only component. Given all that courts appropriately do, their role is best seen as a combination of faithful agency and independent judgment. Neither basic concept alone, nor a combination of the two, resolves many particular issues about how statutes should be interpreted, and one important variable in this respect is the age of the statutes involved.
Geoffrey Marshall
- Published in print:
- 1980
- Published Online:
- March 2012
- ISBN:
- 9780198761211
- eISBN:
- 9780191695148
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198761211.003.0005
- Subject:
- Law, Constitutional and Administrative Law
This chapter discusses the role of the judiciary in the application of law. It discusses different approaches to statutory interpretation in the United States and Britain. It also describes the two ...
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This chapter discusses the role of the judiciary in the application of law. It discusses different approaches to statutory interpretation in the United States and Britain. It also describes the two constitutional factors which may have influenced arguments about the judicial role and judicial interpretation: first, the formal relationship between legislature and judiciary may be significantly different political systems; second, there may be structural differences in the modes of operation of legislatures.Less
This chapter discusses the role of the judiciary in the application of law. It discusses different approaches to statutory interpretation in the United States and Britain. It also describes the two constitutional factors which may have influenced arguments about the judicial role and judicial interpretation: first, the formal relationship between legislature and judiciary may be significantly different political systems; second, there may be structural differences in the modes of operation of legislatures.
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804756785
- eISBN:
- 9780804779562
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804756785.003.0010
- Subject:
- Law, Philosophy of Law
According to H. L. A. Hart, “rules of obligation” are the primary or ground-floor element of legal order. The systemic quality of law is reflected in the fact that primary rules of obligation can be ...
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According to H. L. A. Hart, “rules of obligation” are the primary or ground-floor element of legal order. The systemic quality of law is reflected in the fact that primary rules of obligation can be and are in fact often supplemented by “secondary rules” which are logically interrelated with primary rules. The distinction between rules of obligation and power-conferring rules appears to be identical with the distinction between rules regulating juristic acts and rules regulating natural acts. Hart also argues that the essence of every legal system lies in its “rule of recognition,” which relates to the way judges must exercise their powers. His explanation of the systemic quality of mature legal systems depends in large part on his elaboration of the interrelationship between secondary rules and primary rules or standards of conduct. This chapter examines Hart's theory of legal order and his concept of secondary rules, judicial role, and judicial duty. It also considers powers of adjudication and legislation based on a simplified analytical model of a feudal order.Less
According to H. L. A. Hart, “rules of obligation” are the primary or ground-floor element of legal order. The systemic quality of law is reflected in the fact that primary rules of obligation can be and are in fact often supplemented by “secondary rules” which are logically interrelated with primary rules. The distinction between rules of obligation and power-conferring rules appears to be identical with the distinction between rules regulating juristic acts and rules regulating natural acts. Hart also argues that the essence of every legal system lies in its “rule of recognition,” which relates to the way judges must exercise their powers. His explanation of the systemic quality of mature legal systems depends in large part on his elaboration of the interrelationship between secondary rules and primary rules or standards of conduct. This chapter examines Hart's theory of legal order and his concept of secondary rules, judicial role, and judicial duty. It also considers powers of adjudication and legislation based on a simplified analytical model of a feudal order.
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804756785
- eISBN:
- 9780804779562
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804756785.003.0011
- Subject:
- Law, Philosophy of Law
In The Concept of Law, H. L. A. Hart reinstates the thesis that laws genuinely are rules, explicable as that special kind of social rules found in a 'union of primary and secondary rules'. He rejects ...
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In The Concept of Law, H. L. A. Hart reinstates the thesis that laws genuinely are rules, explicable as that special kind of social rules found in a 'union of primary and secondary rules'. He rejects the formalist view of legal rules and demonstrates that his own theory is essentially not a formalistic one. To this end, he explains how legal rules both do and should leave a considerable scope for the discretion of judges and other officials in dealing with particular cases. His goal is to emphasize the errors of formalism identified by the rule sceptics while correcting any radical form of rule scepticism itself. This chapter examines Hart's arguments about judicial discretion and judicial role. It first discusses the debate between proponents of legal realism and formalism before turning to assess the limits of discretion and the diversity of legal standards. The chapter concludes by looking at the common law and the controversy about rules.Less
In The Concept of Law, H. L. A. Hart reinstates the thesis that laws genuinely are rules, explicable as that special kind of social rules found in a 'union of primary and secondary rules'. He rejects the formalist view of legal rules and demonstrates that his own theory is essentially not a formalistic one. To this end, he explains how legal rules both do and should leave a considerable scope for the discretion of judges and other officials in dealing with particular cases. His goal is to emphasize the errors of formalism identified by the rule sceptics while correcting any radical form of rule scepticism itself. This chapter examines Hart's arguments about judicial discretion and judicial role. It first discusses the debate between proponents of legal realism and formalism before turning to assess the limits of discretion and the diversity of legal standards. The chapter concludes by looking at the common law and the controversy about rules.
Charles Gardner Geyh
- Published in print:
- 2016
- Published Online:
- March 2016
- ISBN:
- 9780190233495
- eISBN:
- 9780190233518
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190233495.003.0005
- Subject:
- Political Science, American Politics
Chapter 5 revisits the ailing rule of law paradigm and proposes, in its stead, a new “legal culture” paradigm, which rests on a different set of assumptions that comport more closely with the ...
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Chapter 5 revisits the ailing rule of law paradigm and proposes, in its stead, a new “legal culture” paradigm, which rests on a different set of assumptions that comport more closely with the traditional understandings of the judicial role summarized in Chapter 4. This new paradigm posits that judges are immersed in a legal culture that values law, process, and justice—values that independence promotes by insulating judges from external pressures that could undermine their commitment to the norms of the legal culture. Yet, because judges are also subject to internal influences in tension with the values of the legal culture, independence must be tempered by a measure of accountability, the appropriate limits of which vary by dimension: an adjudicative dimension that seeks fair hearings for litigants; a political dimension that seeks public confidence in the courts; and an ethical dimension that seeks good judges who respect their roles.Less
Chapter 5 revisits the ailing rule of law paradigm and proposes, in its stead, a new “legal culture” paradigm, which rests on a different set of assumptions that comport more closely with the traditional understandings of the judicial role summarized in Chapter 4. This new paradigm posits that judges are immersed in a legal culture that values law, process, and justice—values that independence promotes by insulating judges from external pressures that could undermine their commitment to the norms of the legal culture. Yet, because judges are also subject to internal influences in tension with the values of the legal culture, independence must be tempered by a measure of accountability, the appropriate limits of which vary by dimension: an adjudicative dimension that seeks fair hearings for litigants; a political dimension that seeks public confidence in the courts; and an ethical dimension that seeks good judges who respect their roles.
Ernest J. Weinrib
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199665815
- eISBN:
- 9780191748622
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199665815.003.0008
- Subject:
- Law, Philosophy of Law, Law of Obligations
This chapter returns to the claim adumbrated in Chapter 1, that private law is autonomous and nonpolitical. Turning from substance to process, from specific tort doctrines to the judicial roles, it ...
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This chapter returns to the claim adumbrated in Chapter 1, that private law is autonomous and nonpolitical. Turning from substance to process, from specific tort doctrines to the judicial roles, it elucidates the public nature of corrective justice when actualized in an operating system of private law. By considering the relationship between the formalist idea of private law and the concrete particularity of the social life that private law governs, it shows how private law can be autonomous without being detached from social reality, and how corrective justice can become public without being political. The autonomy of private law refers to its self-regulation as it realizes the distinctive rationality immanent to it. Corrective justice is non-political because, unlike distributive justice, it involves the choice of no external purposes. The chapter concludes by discussing the ways in which private law so conceived is both determinate and indeterminate, stable and variable.Less
This chapter returns to the claim adumbrated in Chapter 1, that private law is autonomous and nonpolitical. Turning from substance to process, from specific tort doctrines to the judicial roles, it elucidates the public nature of corrective justice when actualized in an operating system of private law. By considering the relationship between the formalist idea of private law and the concrete particularity of the social life that private law governs, it shows how private law can be autonomous without being detached from social reality, and how corrective justice can become public without being political. The autonomy of private law refers to its self-regulation as it realizes the distinctive rationality immanent to it. Corrective justice is non-political because, unlike distributive justice, it involves the choice of no external purposes. The chapter concludes by discussing the ways in which private law so conceived is both determinate and indeterminate, stable and variable.
Mary Arden
- Published in print:
- 2015
- Published Online:
- March 2015
- ISBN:
- 9780198728573
- eISBN:
- 9780191795411
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198728573.003.0009
- Subject:
- Law, Human Rights and Immigration, EU Law
This chapter discusses statute law and statutory interpretation and then draws some conclusions about the judicial role. The principal premise is that statutory interpretation can be analysed into ...
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This chapter discusses statute law and statutory interpretation and then draws some conclusions about the judicial role. The principal premise is that statutory interpretation can be analysed into two distinct models: the Agency Model and the Dynamic Model. It describes the Agency Model and makes a short detour into the rule of law. It then turns to the Dynamic Model, and considers the extremely liberal approach to interpreting legislation under s 3 of the Human Rights Act 1998. This is contrasted with the courts’ more restricted approach to the question of whether they should ever go beyond Strasbourg jurisprudence, referred to as the ‘take account’ point. The development of the Dynamic Model is one of the factors which has led to a debate about whether judges now have too much power.Less
This chapter discusses statute law and statutory interpretation and then draws some conclusions about the judicial role. The principal premise is that statutory interpretation can be analysed into two distinct models: the Agency Model and the Dynamic Model. It describes the Agency Model and makes a short detour into the rule of law. It then turns to the Dynamic Model, and considers the extremely liberal approach to interpreting legislation under s 3 of the Human Rights Act 1998. This is contrasted with the courts’ more restricted approach to the question of whether they should ever go beyond Strasbourg jurisprudence, referred to as the ‘take account’ point. The development of the Dynamic Model is one of the factors which has led to a debate about whether judges now have too much power.
Ken I. Kersch
- Published in print:
- 2012
- Published Online:
- March 2016
- ISBN:
- 9780814760147
- eISBN:
- 9780814763490
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814760147.003.0010
- Subject:
- Political Science, Political Theory
This chapter comments on Robin West's essay in the previous chapter, agreeing with her central claim, which is that, in deciding cases, today's judges are increasingly inclined to think of themselves ...
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This chapter comments on Robin West's essay in the previous chapter, agreeing with her central claim, which is that, in deciding cases, today's judges are increasingly inclined to think of themselves not as doing justice between the parties before them but, rather, as resolving the dispute to produce rules that fit as neatly as possible into a broader regulatory system. As such, judging is now largely an occasion for the engineering and maintenance of a larger and impersonal administrative and regulatory system. However, the chapter questions West's call for a return to the increasingly lost tradition of moral, party-centered, “empathetic” judging. The changes she acutely observes are so deeply implicated in the nature of the modern social welfare state that, even if it were possible to reverse them, to do so would be extremely radical.Less
This chapter comments on Robin West's essay in the previous chapter, agreeing with her central claim, which is that, in deciding cases, today's judges are increasingly inclined to think of themselves not as doing justice between the parties before them but, rather, as resolving the dispute to produce rules that fit as neatly as possible into a broader regulatory system. As such, judging is now largely an occasion for the engineering and maintenance of a larger and impersonal administrative and regulatory system. However, the chapter questions West's call for a return to the increasingly lost tradition of moral, party-centered, “empathetic” judging. The changes she acutely observes are so deeply implicated in the nature of the modern social welfare state that, even if it were possible to reverse them, to do so would be extremely radical.
Rabeea Assy
- Published in print:
- 2015
- Published Online:
- August 2015
- ISBN:
- 9780199687442
- eISBN:
- 9780191767104
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199687442.001.0001
- Subject:
- Law, Human Rights and Immigration
This book explores whether mandatory legal representation may sometimes be justified. Litigation in person is widespread in common-law jurisdictions and self-representation is treated as a ...
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This book explores whether mandatory legal representation may sometimes be justified. Litigation in person is widespread in common-law jurisdictions and self-representation is treated as a fundamental right, regardless of financial means or the capacity to litigate effectively. This right is considered sacrosanct even in circumstances of extreme abuse of process, as, for instance, in ‘vexatious litigation’. By contrast, most civil-law systems take the opposite view, generally imposing legal representation as a condition of civil litigation. So, paradoxically, it is the relatively flexible and informal judge-based systems, which might be thought more conducive to self-representation, that tend to make representation obligatory, whereas the more formal and complex adversarial systems, where professional representation is critical, offer unfettered freedom to proceed in person. The high numbers of such litigants and the burdens placed on judicial resources by their lack of legal knowledge pose serious challenges to the administration of justice in common-law jurisdictions. This book challenges the conventional position in these legal systems, arguing that as a matter of principle, a litigant who lacks the knowledge and skills to present her case effectively cannot legitimately insist upon representing herself when by doing so she is likely to inflict disproportionate costs on her opponent and on the administration of justice. This argument is developed by discussing the case law of English and American courts as well as judgments of the ECtHR, the ICTY, and the HRC. The book further develops a theoretical framework for assessing the justification of mandatory legal representation in specific circumstances, by comparison with the criminal context, an assessment of the value of self-representation in terms of outcome, and an examination of possible intrinsic justifications, including autonomy and litigant satisfaction.Less
This book explores whether mandatory legal representation may sometimes be justified. Litigation in person is widespread in common-law jurisdictions and self-representation is treated as a fundamental right, regardless of financial means or the capacity to litigate effectively. This right is considered sacrosanct even in circumstances of extreme abuse of process, as, for instance, in ‘vexatious litigation’. By contrast, most civil-law systems take the opposite view, generally imposing legal representation as a condition of civil litigation. So, paradoxically, it is the relatively flexible and informal judge-based systems, which might be thought more conducive to self-representation, that tend to make representation obligatory, whereas the more formal and complex adversarial systems, where professional representation is critical, offer unfettered freedom to proceed in person. The high numbers of such litigants and the burdens placed on judicial resources by their lack of legal knowledge pose serious challenges to the administration of justice in common-law jurisdictions. This book challenges the conventional position in these legal systems, arguing that as a matter of principle, a litigant who lacks the knowledge and skills to present her case effectively cannot legitimately insist upon representing herself when by doing so she is likely to inflict disproportionate costs on her opponent and on the administration of justice. This argument is developed by discussing the case law of English and American courts as well as judgments of the ECtHR, the ICTY, and the HRC. The book further develops a theoretical framework for assessing the justification of mandatory legal representation in specific circumstances, by comparison with the criminal context, an assessment of the value of self-representation in terms of outcome, and an examination of possible intrinsic justifications, including autonomy and litigant satisfaction.
- Published in print:
- 2006
- Published Online:
- June 2013
- ISBN:
- 9780804753982
- eISBN:
- 9780804768054
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804753982.003.0005
- Subject:
- Law, Legal History
Over the past hundred years, the question of consideration has been tied to which promises should be enforced by the law. The classical scholars' vision of contract may be compared with several other ...
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Over the past hundred years, the question of consideration has been tied to which promises should be enforced by the law. The classical scholars' vision of contract may be compared with several other ideas through which the obligations of relationship could be regulated or managed. In particular, there are three parallel approaches to distinguishing contract from other forms of regulation: the distinction between contract and status, between a contract economy and an economy of gift exchange, and between a system of regulation dealing with the formation of obligation and one dealing with its contents. These distinctions converge in three areas: the reimagination of the market as a distinct sphere of activity, the conception of the judicial role, and the creation of an ideal image of the contracting individual or calculating subject.Less
Over the past hundred years, the question of consideration has been tied to which promises should be enforced by the law. The classical scholars' vision of contract may be compared with several other ideas through which the obligations of relationship could be regulated or managed. In particular, there are three parallel approaches to distinguishing contract from other forms of regulation: the distinction between contract and status, between a contract economy and an economy of gift exchange, and between a system of regulation dealing with the formation of obligation and one dealing with its contents. These distinctions converge in three areas: the reimagination of the market as a distinct sphere of activity, the conception of the judicial role, and the creation of an ideal image of the contracting individual or calculating subject.
Adrian J Bradbrook
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198819837
- eISBN:
- 9780191860096
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198819837.003.0003
- Subject:
- Law, Environmental and Energy Law
This chapter provides an overview of the societal problems and the poverty trap created in developing countries where universal access to energy services does not exist. It relates the efforts made ...
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This chapter provides an overview of the societal problems and the poverty trap created in developing countries where universal access to energy services does not exist. It relates the efforts made in recent years by the United Nations and other international institutions in seeking to promote universal energy access. The chapter then focuses on the following range of legal options open to the international community to address the issue:• Does a human right of access to energy services exist?• If not, what other international law strategies exist to provide for universal access to energy services?• In the absence of suitable international law instruments, what role can national law play in promoting and/or guaranteeing universal access to energy services?• Is there a role for the judiciary to play in this context?What are the most likely future legal developments in this field?Less
This chapter provides an overview of the societal problems and the poverty trap created in developing countries where universal access to energy services does not exist. It relates the efforts made in recent years by the United Nations and other international institutions in seeking to promote universal energy access. The chapter then focuses on the following range of legal options open to the international community to address the issue:• Does a human right of access to energy services exist?• If not, what other international law strategies exist to provide for universal access to energy services?• In the absence of suitable international law instruments, what role can national law play in promoting and/or guaranteeing universal access to energy services?• Is there a role for the judiciary to play in this context?What are the most likely future legal developments in this field?
Sandra Fredman
- Published in print:
- 2018
- Published Online:
- December 2018
- ISBN:
- 9780199689408
- eISBN:
- 9780191768293
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199689408.003.0008
- Subject:
- Law, Comparative Law, Human Rights and Immigration
Is health a human right? Many would maintain that it is not. On this view health and ill-health are due to natural causes, not to State actions. Others are concerned that health raises too many ...
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Is health a human right? Many would maintain that it is not. On this view health and ill-health are due to natural causes, not to State actions. Others are concerned that health raises too many polycentric problems to be dealt with through justiciable human rights. These contestations have shaped the way in which the right to health is understood. Section II sketches out the health context. Section III considers jurisdictions in which there is no express right to health, but a right has been derived from rights to life, personal integrity, or privacy. Section IV contrasts this approach with jurisdictions with an express right to health. Section V examines the role of the right to equality, while section VI focuses on reproductive health. The final section returns to the challenges of polycentricity and the extent to which a justiciable right can address systemic issues rather than individual rights to medication.Less
Is health a human right? Many would maintain that it is not. On this view health and ill-health are due to natural causes, not to State actions. Others are concerned that health raises too many polycentric problems to be dealt with through justiciable human rights. These contestations have shaped the way in which the right to health is understood. Section II sketches out the health context. Section III considers jurisdictions in which there is no express right to health, but a right has been derived from rights to life, personal integrity, or privacy. Section IV contrasts this approach with jurisdictions with an express right to health. Section V examines the role of the right to equality, while section VI focuses on reproductive health. The final section returns to the challenges of polycentricity and the extent to which a justiciable right can address systemic issues rather than individual rights to medication.
