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The Judges: Active or Passive: Maccabaean Lecture In Jurisprudence

LORD BINGHAM OF CORNHILL

in Proceedings of the British Academy, Volume 139, 2005 Lectures

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 ... More

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

The Judicial Role of the House of Lords before 1870

David Lewis Jones

in The Judicial House of Lords 1876–2009:

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 ... More

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

A Substantive Distinction

J. W. F. Allison

in A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law

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 ... More

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

Democratic Constitutionalism—Kelsen's Theory of Constitutional Review

Lars Vinx

in Hans Kelsen's Pure Theory of Law: Legality and Legitimacy

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 ... More

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

Legitimacy of the Basic Structure Doctrine

Sudhir Krishnaswamy

in Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine

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 ... More

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

Viking Age and Medieval Assemblies in Western Norway: Approaches to Identification of Sites

Halldis Hobæk

in Power and Place in Europe in the Early Middle Ages

While the socio-political and judicial role and importance of assemblies in Viking Age and medieval Norway has been discussed by generations of historians, the physical aspects of assembly sites and ... More

While the socio-political and judicial role and importance of assemblies in Viking Age and medieval Norway has been discussed by generations of historians, the physical aspects of assembly sites and their precise locations has, until recently, been an under-researched topic. Very few assembly sites have been identified. Focusing on Western Norway, this chapter discusses approaches to identifying such sites. It is argued that while archaeology offers great potential for future studies in this field, a multi-disciplinary approach to the locating of sites from Viking and medieval times is preferable. By combining information from historical records and onomastic material, eighty-three documented probable or possible sites have been identified, thus significantly augmenting the number of known thing sites within the research area.Less

Equality

Sandra Fredman

in Human Rights Transformed: Positive Rights and Positive Duties

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 ... More

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

Courts in Transition

Yvonne Tew

in Constitutional Statecraft in Asian Courts

This chapter makes the case for an empowered judicial role in the constitutional governance of emerging democracies in Asia. Courts play a significant role in checking political power in dominant ... More

This chapter makes the case for an empowered judicial role in the constitutional governance of emerging democracies in Asia. Courts play a significant role in checking political power in dominant party states and building foundational principles of constitutionalism for aspiring democracies. In the face of concentrated political power, the judiciary can strengthen its institutional role through strategic assertiveness, as the Malaysian apex court has exhibited in two recent landmark decisions: Semenyih Jaya v. Pentadbir Tanah Daerah Hulu Langat (2017) and Indira Gandhi v. Pengarah Jabatan Agama Islam (2018). How can courts develop the constitutional jurisprudence necessary to support a more empowered judicial role? The chapter argues that the constitution’s foundational elements—the constitution’s original framework, the separation of powers, and the rule of law—provide a core basis for courts to safeguard and draw on to structure constitutional adjudication. It explores the specific legal mechanisms that courts can invoke in practice: a constitutional basic structure doctrine, purposive interpretation, and proportionality analysis in constitutional adjudication. Taken together, these judicial interventions can equip courts in developing democracies to defend the constitution’s core structure and to construct principles of constitutionalism.Less

The Judicial House of Lords: Abolition and Restoration 1873–6

David Steele

in The Judicial House of Lords 1876–2009:

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 ... More

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

Judges as Faithful Agents or Independent, Cooperative Actors?

Kent Greenawalt

in Statutory and Common Law Interpretation

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 ... More

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

Judges and Legislators

Geoffrey Marshall

in Constitutional Theory

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 ... More

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

The Legal Order II: Secondary Rules

in H.L.A. Hart, Second Edition

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 ... More

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

Judicial Discretion and the Judicial Role

in H.L.A. Hart, Second Edition

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 ... More

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

The Autonomy of Private Law

Ernest J. Weinrib

in The Idea of Private Law

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 ... More

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

The Legal Culture Paradigm

Charles Gardner Geyh

in Courting Peril: The Political Transformation of the American Judiciary

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 ... More

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

The Changing Judicial Role: Human Rights, Community Law, and the Intention of Parliament

Mary Arden

in Human Rights and European Law: Building New Legal Orders

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 ... More

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

Systems and Feelings

Ken I. Kersch

in Passions and Emotions: NOMOS LIII

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 ... More

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

Article 19 TEU

Marcus Klamert and Bernhard Schima

in The EU Treaties and the Charter of Fundamental Rights: A Commentary

Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.

Speculating on Gifts and Promises

in Calculating Promises: The Emergence of Modern American Contract Doctrine

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 ... More

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