Mitchel de S.-O.-l’E. Lasser
- Published in print:
- 2009
- Published Online:
- January 2010
- ISBN:
- 9780199575169
- eISBN:
- 9780191706714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199575169.003.0010
- Subject:
- Law, Comparative Law
This chapter discusses some of the difficult, but fascinating, rule of law/democratic theory issues raised by the judicial approaches employed by the Cour de cassation of France, the Supreme Court of ...
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This chapter discusses some of the difficult, but fascinating, rule of law/democratic theory issues raised by the judicial approaches employed by the Cour de cassation of France, the Supreme Court of the United States, and the European Court of Justice. It examines what it means for legal and judicial systems to function in such bifurcated or integrated ways. More specifically, it explores the implications for such interrelated issues as judicial transparency, accountability and control, and democratic debate and deliberation. As an introduction to the complex topic of how the French, American, and EU judicial systems each deal with the formation and transfer of interpretive knowledge and authority, this chapter considers how each of the three judicial systems handles the deeply pragmatic issue of how to make publicly accessible certain forms of knowledge about what Americans call ‘the state of the law’ (that is, knowledge about the content, development, and motivation of existing legal and judicial norms).Less
This chapter discusses some of the difficult, but fascinating, rule of law/democratic theory issues raised by the judicial approaches employed by the Cour de cassation of France, the Supreme Court of the United States, and the European Court of Justice. It examines what it means for legal and judicial systems to function in such bifurcated or integrated ways. More specifically, it explores the implications for such interrelated issues as judicial transparency, accountability and control, and democratic debate and deliberation. As an introduction to the complex topic of how the French, American, and EU judicial systems each deal with the formation and transfer of interpretive knowledge and authority, this chapter considers how each of the three judicial systems handles the deeply pragmatic issue of how to make publicly accessible certain forms of knowledge about what Americans call ‘the state of the law’ (that is, knowledge about the content, development, and motivation of existing legal and judicial norms).
Mitchel de S.-O.-l’E. Lasser
- Published in print:
- 2009
- Published Online:
- January 2010
- ISBN:
- 9780199575169
- eISBN:
- 9780191706714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199575169.003.0011
- Subject:
- Law, Comparative Law
The judicial systems of France, the United States, and the European Union as represented by the Cour de cassation, Supreme Court, and the European Court of Justice, respectively, take rather ...
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The judicial systems of France, the United States, and the European Union as represented by the Cour de cassation, Supreme Court, and the European Court of Justice, respectively, take rather different approaches to a series of fundamental debate and deliberation issues. First, who should be engaged in debates about judicial decision-making? Second, where should these debates be held and/or found? And, third, what kinds of debates should be had? By answering these questions differently, the three judicial systems produce very different models of democratic debate, deliberation, and legitimacy in the judicial context. This chapter examines how (and why) the French, American, and EU judicial systems each align their respective (and quite different) approaches to the issues of judicial transparency, accountability, and control, as well as judicial debate and judicial deliberation.Less
The judicial systems of France, the United States, and the European Union as represented by the Cour de cassation, Supreme Court, and the European Court of Justice, respectively, take rather different approaches to a series of fundamental debate and deliberation issues. First, who should be engaged in debates about judicial decision-making? Second, where should these debates be held and/or found? And, third, what kinds of debates should be had? By answering these questions differently, the three judicial systems produce very different models of democratic debate, deliberation, and legitimacy in the judicial context. This chapter examines how (and why) the French, American, and EU judicial systems each align their respective (and quite different) approaches to the issues of judicial transparency, accountability, and control, as well as judicial debate and judicial deliberation.
YUVAL SHANY
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199274284
- eISBN:
- 9780191718090
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199274284.003.0004
- Subject:
- Law, Public International Law
This chapter examines the systematic nature of international law and the structural relations between international courts and tribunals. It situates the relations between international courts and ...
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This chapter examines the systematic nature of international law and the structural relations between international courts and tribunals. It situates the relations between international courts and tribunals on a continuum between a full-fledged judicial system (comparable to a national judicial system) and a non-system (comparable to the relations between different national legal systems), and identifies the legal regime which should regulate jurisdictional competition between international judicial bodies.Less
This chapter examines the systematic nature of international law and the structural relations between international courts and tribunals. It situates the relations between international courts and tribunals on a continuum between a full-fledged judicial system (comparable to a national judicial system) and a non-system (comparable to the relations between different national legal systems), and identifies the legal regime which should regulate jurisdictional competition between international judicial bodies.
Mitchel de S.-O.-l’E. Lasser
- Published in print:
- 2009
- Published Online:
- January 2010
- ISBN:
- 9780199575169
- eISBN:
- 9780191706714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199575169.003.0012
- Subject:
- Law, Comparative Law
This book has proposed an organisational prism for the comparative understanding of the judicial systems of France, the United States, and the European Union, one that turns on the bifurcated or ...
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This book has proposed an organisational prism for the comparative understanding of the judicial systems of France, the United States, and the European Union, one that turns on the bifurcated or integrated structure of their respective argumentative practices and on their institutional or argumentative means of generating judicial legitimacy. Whereas the French Cour de cassation model is known for its radical bifurcation, the U.S. Supreme Court discourse is precisely (and in contrast) the publicly integrated or conglomerate form of its legitimating judicial argumentation, which is to say the way in which it integrates both its more formalising and its more policy-oriented discourses in one and the same publicly accessible space: the judicial opinion itself. This approach obviously places enormous power in — but also enormous strain on — the American judicial decision. The European Court of Justice model softens the radical French bifurcation by publishing and thus tempering its two discourses.Less
This book has proposed an organisational prism for the comparative understanding of the judicial systems of France, the United States, and the European Union, one that turns on the bifurcated or integrated structure of their respective argumentative practices and on their institutional or argumentative means of generating judicial legitimacy. Whereas the French Cour de cassation model is known for its radical bifurcation, the U.S. Supreme Court discourse is precisely (and in contrast) the publicly integrated or conglomerate form of its legitimating judicial argumentation, which is to say the way in which it integrates both its more formalising and its more policy-oriented discourses in one and the same publicly accessible space: the judicial opinion itself. This approach obviously places enormous power in — but also enormous strain on — the American judicial decision. The European Court of Justice model softens the radical French bifurcation by publishing and thus tempering its two discourses.
William Cornish, J Stuart Anderson, Ray Cocks, Michael Lobban, Patrick Polden, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.001.0001
- Subject:
- Law, Legal History
The Oxford History of the Laws of England: Volume XI 1820-1914 English Legal System is one of three volumes devoted to that period of relative peace across Europe running from the defeat ...
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The Oxford History of the Laws of England: Volume XI 1820-1914 English Legal System is one of three volumes devoted to that period of relative peace across Europe running from the defeat of Napoleon to the terrible war against the two Kaisers. Volume XI is devoted mainly to: the sources of English law; the intellectual frameworks and institutions within which they were understood; the constitutional arrangements for the legislature; central and local executives; and the judicial system, this last providing the crucial core from which professional lawyers operated. Detailed footnoting to historical sources and literature occurs in the course of the narrative. Each volume has Tables of Cases and of Statutes covering the materials in that Volume. Volume XI also includes a Names Index and a Subject Index for the volume.Less
The Oxford History of the Laws of England: Volume XI 1820-1914 English Legal System is one of three volumes devoted to that period of relative peace across Europe running from the defeat of Napoleon to the terrible war against the two Kaisers. Volume XI is devoted mainly to: the sources of English law; the intellectual frameworks and institutions within which they were understood; the constitutional arrangements for the legislature; central and local executives; and the judicial system, this last providing the crucial core from which professional lawyers operated. Detailed footnoting to historical sources and literature occurs in the course of the narrative. Each volume has Tables of Cases and of Statutes covering the materials in that Volume. Volume XI also includes a Names Index and a Subject Index for the volume.
Mitchel de S.-O.-l’E. Lasser
- Published in print:
- 2009
- Published Online:
- January 2010
- ISBN:
- 9780199575169
- eISBN:
- 9780191706714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199575169.003.0006
- Subject:
- Law, Comparative Law
This chapter explains the functions of France's civil judicial system on the basis of a radical discursive bifurcation, one in which only public legislative pronouncements can officially make law, ...
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This chapter explains the functions of France's civil judicial system on the basis of a radical discursive bifurcation, one in which only public legislative pronouncements can officially make law, but in which high-ranking, state-trained and state-sanctioned jurists, judges, and attorneys are fully understood and expected to play an important collective role in the establishment and development of legal norms. It describes the operation of the high French civil judiciary as defined by a particular theory of law and legal interpretation that functions in a particularly centralised, hierarchical, and meritocratically elitist procedural context. It seeks to explain how the radical French discursive dualism/bifurcation can be maintained both practically and conceptually in good faith. The views of Mirjan Damaska, John Dawson, and John Merryman regarding institutional structure are also considered, along with the Cour de cassation and its magistrates.Less
This chapter explains the functions of France's civil judicial system on the basis of a radical discursive bifurcation, one in which only public legislative pronouncements can officially make law, but in which high-ranking, state-trained and state-sanctioned jurists, judges, and attorneys are fully understood and expected to play an important collective role in the establishment and development of legal norms. It describes the operation of the high French civil judiciary as defined by a particular theory of law and legal interpretation that functions in a particularly centralised, hierarchical, and meritocratically elitist procedural context. It seeks to explain how the radical French discursive dualism/bifurcation can be maintained both practically and conceptually in good faith. The views of Mirjan Damaska, John Dawson, and John Merryman regarding institutional structure are also considered, along with the Cour de cassation and its magistrates.
Mitchel de S.-O.-l’E. Lasser
- Published in print:
- 2009
- Published Online:
- January 2010
- ISBN:
- 9780199575169
- eISBN:
- 9780191706714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199575169.003.0002
- Subject:
- Law, Comparative Law
This chapter examines the Cour de cassation in France, which has generally been considered the archetype of civilian judicial theory and practice. Three major American comparative analyses — those ...
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This chapter examines the Cour de cassation in France, which has generally been considered the archetype of civilian judicial theory and practice. Three major American comparative analyses — those produced by Roscoe Pound, John Dawson, and Duncan Kennedy — share a deeply pragmatic, realist (or proto-realist or post-realist, as the case may be) distrust of the syllogistic and apparently formalist style of the French civil judicial decision. All three analyses assume that something must be going on behind the facade of the French judicial decision, and that what is going on turns out to be judicial lawmaking. This chapter argues, however, that French judicial argument is bifurcated into two distinct spheres. In addition to the syllogistic argumentative sphere of the official French judicial decision, a vibrant — though well hidden — discursive sphere exists within the French civil judicial system. In this sheltered argumentative space, French magistrates argue not so much in terms of textual deduction, but rather in terms of the advantages and disadvantages of adopting one judicial interpretation over another.Less
This chapter examines the Cour de cassation in France, which has generally been considered the archetype of civilian judicial theory and practice. Three major American comparative analyses — those produced by Roscoe Pound, John Dawson, and Duncan Kennedy — share a deeply pragmatic, realist (or proto-realist or post-realist, as the case may be) distrust of the syllogistic and apparently formalist style of the French civil judicial decision. All three analyses assume that something must be going on behind the facade of the French judicial decision, and that what is going on turns out to be judicial lawmaking. This chapter argues, however, that French judicial argument is bifurcated into two distinct spheres. In addition to the syllogistic argumentative sphere of the official French judicial decision, a vibrant — though well hidden — discursive sphere exists within the French civil judicial system. In this sheltered argumentative space, French magistrates argue not so much in terms of textual deduction, but rather in terms of the advantages and disadvantages of adopting one judicial interpretation over another.
Mitchel de S.-O.-l’E. Lasser
- Published in print:
- 2009
- Published Online:
- January 2010
- ISBN:
- 9780199575169
- eISBN:
- 9780191706714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199575169.003.0009
- Subject:
- Law, Comparative Law
This chapter argues that the Cour de cassation of France, the Supreme Court of the United States, and the European Court of Justice are truly emblematic courts, courts whose discursive practices and ...
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This chapter argues that the Cour de cassation of France, the Supreme Court of the United States, and the European Court of Justice are truly emblematic courts, courts whose discursive practices and conceptual frameworks characterise those of their respective judicial systems. Each of these three judicial systems possesses defining conceptual structures and discursive practices that go a long way towards making those systems what they are. What makes the French judicial system French, the European system European, and the American system American are formal, discursive, and conceptual attributes that manifest themselves throughout those judicial systems, attributes that surface again and again despite the obvious variation in the parties, the subject matter, the legal issues, and the like handled by the assorted courts in question. This chapter compares the judicial discourses of the three courts as well as their judicial argumentation and judicial decisions.Less
This chapter argues that the Cour de cassation of France, the Supreme Court of the United States, and the European Court of Justice are truly emblematic courts, courts whose discursive practices and conceptual frameworks characterise those of their respective judicial systems. Each of these three judicial systems possesses defining conceptual structures and discursive practices that go a long way towards making those systems what they are. What makes the French judicial system French, the European system European, and the American system American are formal, discursive, and conceptual attributes that manifest themselves throughout those judicial systems, attributes that surface again and again despite the obvious variation in the parties, the subject matter, the legal issues, and the like handled by the assorted courts in question. This chapter compares the judicial discourses of the three courts as well as their judicial argumentation and judicial decisions.
Carlo Guarnieri
- Published in print:
- 2002
- Published Online:
- March 2012
- ISBN:
- 9780198298359
- eISBN:
- 9780191685422
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298359.003.0002
- Subject:
- Law, Legal Profession and Ethics
Even though there is a trend in all contemporary democracies towards courts increasingly playing a politically significant role, there are some important differences in its intensity and the way ...
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Even though there is a trend in all contemporary democracies towards courts increasingly playing a politically significant role, there are some important differences in its intensity and the way judicial activism manifests itself in specific contexts. These differences are related to a range of elements, both inside and outside the judicial system. This chapter focuses on internal elements. Without judicial independence, it is impossible to speak of an autonomous intervention by the judiciary in the political process. To evaluate the degree of independence judges enjoy, both their training and recruitment and the guarantees that exist to safeguard their independent status need to be taken into account. An analysis of such structural aspects introduces another element, the role of the perception of judges, which is influenced in part by the institutional setting in which judges operate.Less
Even though there is a trend in all contemporary democracies towards courts increasingly playing a politically significant role, there are some important differences in its intensity and the way judicial activism manifests itself in specific contexts. These differences are related to a range of elements, both inside and outside the judicial system. This chapter focuses on internal elements. Without judicial independence, it is impossible to speak of an autonomous intervention by the judiciary in the political process. To evaluate the degree of independence judges enjoy, both their training and recruitment and the guarantees that exist to safeguard their independent status need to be taken into account. An analysis of such structural aspects introduces another element, the role of the perception of judges, which is influenced in part by the institutional setting in which judges operate.
Stephen Zamora, José RamlóN CossíO, Lenone Pereznieto, José Roldá n-Xopa, and David Lopez
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199288489
- eISBN:
- 9780191700514
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199288489.003.0006
- Subject:
- Law, Constitutional and Administrative Law
This chapter focuses on the characteristics of Mexico's judicial system. Two fundamental principles of governmental authority, federalism and the separation of powers, give form to the basic court ...
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This chapter focuses on the characteristics of Mexico's judicial system. Two fundamental principles of governmental authority, federalism and the separation of powers, give form to the basic court structures in Mexico. Thus, in Mexico, one finds that judicial power is distributed between independent but interrelated systems of federal and state courts. Moreover, at the federal and state levels, the judiciary constitutes a distinct branch of government, formally independent of the executive and legislative branches.Less
This chapter focuses on the characteristics of Mexico's judicial system. Two fundamental principles of governmental authority, federalism and the separation of powers, give form to the basic court structures in Mexico. Thus, in Mexico, one finds that judicial power is distributed between independent but interrelated systems of federal and state courts. Moreover, at the federal and state levels, the judiciary constitutes a distinct branch of government, formally independent of the executive and legislative branches.
Andrew Le Sueur
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199670024
- eISBN:
- 9780191749414
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199670024.003.0009
- Subject:
- Law, Constitutional and Administrative Law
Orthodox constitutional thinking suggests that scrutiny of judicial decisions by parliamentarians would be inconsistent with judicial independence, and that ministers (in particular the Lord ...
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Orthodox constitutional thinking suggests that scrutiny of judicial decisions by parliamentarians would be inconsistent with judicial independence, and that ministers (in particular the Lord Chancellor) should be answerable to Parliament for operational aspects of the judicial system. Significant changes to the reach of judicial power into public policy (through judicial review, the Human Rights Act 1998 and European Union law) and radical restructuring of the basic constitutional architecture of the judicial system (by the Constitutional Reform Act 2005) call into question the suitability of the orthodox model of independence and accountability for the twenty-first century. Analysis of the parliamentary record demonstrates that parliamentarians can, and do, scrutinize a wide spectrum of decision-making by judges. The cordon sanitaire around judges has been lifted and more nuanced but still uncertain understandings of how to achieve parliamentary accountability while preserving judicial independence are emerging.Less
Orthodox constitutional thinking suggests that scrutiny of judicial decisions by parliamentarians would be inconsistent with judicial independence, and that ministers (in particular the Lord Chancellor) should be answerable to Parliament for operational aspects of the judicial system. Significant changes to the reach of judicial power into public policy (through judicial review, the Human Rights Act 1998 and European Union law) and radical restructuring of the basic constitutional architecture of the judicial system (by the Constitutional Reform Act 2005) call into question the suitability of the orthodox model of independence and accountability for the twenty-first century. Analysis of the parliamentary record demonstrates that parliamentarians can, and do, scrutinize a wide spectrum of decision-making by judges. The cordon sanitaire around judges has been lifted and more nuanced but still uncertain understandings of how to achieve parliamentary accountability while preserving judicial independence are emerging.
Daniel D. Stier and Diane M. Nicks
- Published in print:
- 2007
- Published Online:
- September 2009
- ISBN:
- 9780195301489
- eISBN:
- 9780199863822
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195301489.003.0004
- Subject:
- Public Health and Epidemiology, Public Health, Epidemiology
This chapter explores the relations between public health and the judiciary, defined broadly as the U.S. court system, essential functions of the court system, essential people within the court ...
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This chapter explores the relations between public health and the judiciary, defined broadly as the U.S. court system, essential functions of the court system, essential people within the court system (e.g., judges and juries), and procedural rules and customs under which the courts resolve disputes and operate. It introduces the structure and function of federal and state courts, and describes how federalism requires state and federal courts to share power. It then discusses several public health law-related cases decided by courts. While showing that courts generally grant broad deference to officials endeavoring to protect the public's health, the cases also illustrate judicial insistence on the existence of underlying legal authority; the attention paid by courts to the facts on which public health actions are based; the judicial balancing of protection of public health and individual rights; the impact of federalism on judicial decisions; and the potential for judicial interpretation to change over time. Finally, the chapter addresses the emerging issue of the courts' roles in and preparedness needs for public health emergencies.Less
This chapter explores the relations between public health and the judiciary, defined broadly as the U.S. court system, essential functions of the court system, essential people within the court system (e.g., judges and juries), and procedural rules and customs under which the courts resolve disputes and operate. It introduces the structure and function of federal and state courts, and describes how federalism requires state and federal courts to share power. It then discusses several public health law-related cases decided by courts. While showing that courts generally grant broad deference to officials endeavoring to protect the public's health, the cases also illustrate judicial insistence on the existence of underlying legal authority; the attention paid by courts to the facts on which public health actions are based; the judicial balancing of protection of public health and individual rights; the impact of federalism on judicial decisions; and the potential for judicial interpretation to change over time. Finally, the chapter addresses the emerging issue of the courts' roles in and preparedness needs for public health emergencies.
Carlo Guarnieri and Patrizia Pederzoli
- Published in print:
- 2002
- Published Online:
- March 2012
- ISBN:
- 9780198298359
- eISBN:
- 9780191685422
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298359.001.0001
- Subject:
- Law, Legal Profession and Ethics
Judicial intervention in social, economic, and political issues (‘judicialization’) has increased substantially in democracies in recent years. The change has been more dramatic in Europe than in the ...
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Judicial intervention in social, economic, and political issues (‘judicialization’) has increased substantially in democracies in recent years. The change has been more dramatic in Europe than in the United States, where judicial law-making has largely been assimilated into the political process. Judges played a central role in a series of major political controversies throughout the 1990s in Italy, Spain, and France, and their involvement has resulted in moves to restrict or alter the power of judges. The role of judges has also become the subject of political debate and reform proposals in England, Portugal, and Germany. This book argues that three elements affect the political significance of judicial decisions. First is the status of judges (the way they are recruited and the guarantees they enjoy) and the way judges define their role in the judicial and political process. Second is the organization of the judicial system, including the existence of judicial review of legislation, the structure of trials, and the arrangement of public prosecution. Thirdly, judicial power is affected by the broader political system: a polity in which power is divided and fragmented offers wider opportunities for the judiciary to intervene in the political process.Less
Judicial intervention in social, economic, and political issues (‘judicialization’) has increased substantially in democracies in recent years. The change has been more dramatic in Europe than in the United States, where judicial law-making has largely been assimilated into the political process. Judges played a central role in a series of major political controversies throughout the 1990s in Italy, Spain, and France, and their involvement has resulted in moves to restrict or alter the power of judges. The role of judges has also become the subject of political debate and reform proposals in England, Portugal, and Germany. This book argues that three elements affect the political significance of judicial decisions. First is the status of judges (the way they are recruited and the guarantees they enjoy) and the way judges define their role in the judicial and political process. Second is the organization of the judicial system, including the existence of judicial review of legislation, the structure of trials, and the arrangement of public prosecution. Thirdly, judicial power is affected by the broader political system: a polity in which power is divided and fragmented offers wider opportunities for the judiciary to intervene in the political process.
Michael A. Livingston, Pier Giuseppe Monateri, and Francesco Parisi
Mauro Capelletti, John Henry Meryman, and Joseph M. Perillo (eds)
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780804774956
- eISBN:
- 9780804796552
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804774956.003.0002
- Subject:
- Law, Comparative Law
This chapter describes the Italian political system, the principal political parties, and the outlines of the judicial system as they existed in the mid- to late 1960s. There is also a brief ...
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This chapter describes the Italian political system, the principal political parties, and the outlines of the judicial system as they existed in the mid- to late 1960s. There is also a brief discussion of the government’s role in the Italian economy.Less
This chapter describes the Italian political system, the principal political parties, and the outlines of the judicial system as they existed in the mid- to late 1960s. There is also a brief discussion of the government’s role in the Italian economy.
Xiaoqun Xu
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804755863
- eISBN:
- 9780804779500
- Item type:
- book
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804755863.001.0001
- Subject:
- Law, Legal History
This book examines the Chinese judicial system and its operations in the Republican era, filling a gap in the scholarship on modern China, Chinese law, Chinese legal history, and comparative law. It ...
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This book examines the Chinese judicial system and its operations in the Republican era, filling a gap in the scholarship on modern China, Chinese law, Chinese legal history, and comparative law. It offers an analysis of how judicial reform initiatives were envisioned and pursued by the central government from 1901 through 1937, how the various initiatives were, or failed to be, implemented at the provincial and county levels, and how the reform impacted judicial practices and power relationships in local society. The book sheds light on the reach of the Chinese state, and on the complex interactions between the judicial field and administrative field within the state system, and between them and local society. In that context, it illuminates what judicial modernity actually meant for the Chinese state and society, and why irregularities, abuses, corruption, and informal practices continued in spite of the reform.Less
This book examines the Chinese judicial system and its operations in the Republican era, filling a gap in the scholarship on modern China, Chinese law, Chinese legal history, and comparative law. It offers an analysis of how judicial reform initiatives were envisioned and pursued by the central government from 1901 through 1937, how the various initiatives were, or failed to be, implemented at the provincial and county levels, and how the reform impacted judicial practices and power relationships in local society. The book sheds light on the reach of the Chinese state, and on the complex interactions between the judicial field and administrative field within the state system, and between them and local society. In that context, it illuminates what judicial modernity actually meant for the Chinese state and society, and why irregularities, abuses, corruption, and informal practices continued in spite of the reform.
Thomas N. Mitchell
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780300215038
- eISBN:
- 9780300217353
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300215038.003.0008
- Subject:
- History, Ancient History / Archaeology
This chapter reviews the structures and functioning of the democratic constitution in the final period when it achieved its fullest development and when the democratic ideal received its most ...
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This chapter reviews the structures and functioning of the democratic constitution in the final period when it achieved its fullest development and when the democratic ideal received its most complete discussion and clearest articulation. It notes that Athenian political life in the fourth century held a new stability and maturity, and a surer sense of its guiding principles and superior merits. In that vein, the chapter explores the roles of the Council of Five Hundred and the Council of the Areopagus in this new context, and discusses in more detail the various reforms made to the appointment of magistrates, as well as the changes implemented in the military, the state's finances, the judicial system, and the role of the Assembly.Less
This chapter reviews the structures and functioning of the democratic constitution in the final period when it achieved its fullest development and when the democratic ideal received its most complete discussion and clearest articulation. It notes that Athenian political life in the fourth century held a new stability and maturity, and a surer sense of its guiding principles and superior merits. In that vein, the chapter explores the roles of the Council of Five Hundred and the Council of the Areopagus in this new context, and discusses in more detail the various reforms made to the appointment of magistrates, as well as the changes implemented in the military, the state's finances, the judicial system, and the role of the Assembly.
Carlo Guarnieri
- Published in print:
- 2002
- Published Online:
- March 2012
- ISBN:
- 9780198298359
- eISBN:
- 9780191685422
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298359.003.0001
- Subject:
- Law, Legal Profession and Ethics
To understand the specific reasons why judicial intervention in politics occurs at different speeds and intensities in different countries, a comparative analysis of a range of democratic regimes can ...
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To understand the specific reasons why judicial intervention in politics occurs at different speeds and intensities in different countries, a comparative analysis of a range of democratic regimes can help to identify general trends as well as the particular features of individual cases. There are three sets of elements that may directly affect the growth of judicial power: the judges themselves (particularly their recruitment and status); the judicial system in which they operate (especially its structure, the means of gaining access to it, and the powers it entrusts to judges); and, finally, the characteristics of the political system. This chapter argues that the willingness of judges to intervene in politics requires favourable conditions in each of these three areas.Less
To understand the specific reasons why judicial intervention in politics occurs at different speeds and intensities in different countries, a comparative analysis of a range of democratic regimes can help to identify general trends as well as the particular features of individual cases. There are three sets of elements that may directly affect the growth of judicial power: the judges themselves (particularly their recruitment and status); the judicial system in which they operate (especially its structure, the means of gaining access to it, and the powers it entrusts to judges); and, finally, the characteristics of the political system. This chapter argues that the willingness of judges to intervene in politics requires favourable conditions in each of these three areas.
Francis G Jacobs
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199644322
- eISBN:
- 9780191738173
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199644322.003.0009
- Subject:
- Law, EU Law
This chapter discusses the changes affecting the judicial system of the European Union. The chapter deals with changes in the institutional provisions, including a series of significant extensions in ...
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This chapter discusses the changes affecting the judicial system of the European Union. The chapter deals with changes in the institutional provisions, including a series of significant extensions in the general provisions governing the jurisdiction of the Courts. Further, the Lisbon Treaty introduces important changes on fundamental rights which are examined in light of their impact on the Court of Justice. Finally, the chapter discusses changes affecting appointments to the Courts. The main overall conclusion is that the various extensions of the jurisdiction of the Courts under the Lisbon Treaty are to be welcomed in a Union based on the rule of law. They represent, taken in their entirety, a major advance for the European Union. But it cannot be denied that they also present challenges of a novel kind for the Courts; and they may even require, sooner rather than later, some re-shaping of the Union's judicial system.Less
This chapter discusses the changes affecting the judicial system of the European Union. The chapter deals with changes in the institutional provisions, including a series of significant extensions in the general provisions governing the jurisdiction of the Courts. Further, the Lisbon Treaty introduces important changes on fundamental rights which are examined in light of their impact on the Court of Justice. Finally, the chapter discusses changes affecting appointments to the Courts. The main overall conclusion is that the various extensions of the jurisdiction of the Courts under the Lisbon Treaty are to be welcomed in a Union based on the rule of law. They represent, taken in their entirety, a major advance for the European Union. But it cannot be denied that they also present challenges of a novel kind for the Courts; and they may even require, sooner rather than later, some re-shaping of the Union's judicial system.
Francis G Jacobs
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199695706
- eISBN:
- 9780191741302
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199695706.003.0019
- Subject:
- Law, EU Law
This chapter evaluates both the functioning and access to the Court of Justice, and frames these against non-negotiable criteria that come from the rule of law. It studies the Lisbon Treaty, which ...
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This chapter evaluates both the functioning and access to the Court of Justice, and frames these against non-negotiable criteria that come from the rule of law. It studies the Lisbon Treaty, which has made a number of changes to the judicial system in terms of reinforcing the rule of law. This chapter also tries to show the relevance of the rule of law, as well as the disadvantages that may follow due to a broad and weak understanding of the term.Less
This chapter evaluates both the functioning and access to the Court of Justice, and frames these against non-negotiable criteria that come from the rule of law. It studies the Lisbon Treaty, which has made a number of changes to the judicial system in terms of reinforcing the rule of law. This chapter also tries to show the relevance of the rule of law, as well as the disadvantages that may follow due to a broad and weak understanding of the term.
Eric Hayot
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195377965
- eISBN:
- 9780199869435
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195377965.003.0003
- Subject:
- History, Cultural History, Asian History
This chapter provides an extensive reading of George Henry Mason's The Punishments of China (1801). Mason's book, which appeared in a series of illustrated volumes on the “Costume of Various ...
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This chapter provides an extensive reading of George Henry Mason's The Punishments of China (1801). Mason's book, which appeared in a series of illustrated volumes on the “Costume of Various Nations,” demonstrates the degree to which “punishment” could already by 1801 be considered part of China's “costume” in the West. Moving back and forth between the book's illustrations, which Mason purchased in Canton from a Chinese painter named Pu Qua, and its captions, which were written by Mason himself, the chapter argues that the tension between caption and image must be understood at least partly as a reflection of the concerns of the 18th century China trade. China's refusal to trade for any Western goods other than silver, a topic of much national concern in England in the late 18th century, may have prompted Mason to imagine a compassion for Chinese criminals as a suitable object of international exchange, making sympathy for China's “suffering humanity” quite literally the only “good” that the Chinese could not refuse. This “compassion trade,” the chapter argues, must be understood in part as a reaction to the 1793 Macartney Embassy that attempted to rework British trade relations with China.Less
This chapter provides an extensive reading of George Henry Mason's The Punishments of China (1801). Mason's book, which appeared in a series of illustrated volumes on the “Costume of Various Nations,” demonstrates the degree to which “punishment” could already by 1801 be considered part of China's “costume” in the West. Moving back and forth between the book's illustrations, which Mason purchased in Canton from a Chinese painter named Pu Qua, and its captions, which were written by Mason himself, the chapter argues that the tension between caption and image must be understood at least partly as a reflection of the concerns of the 18th century China trade. China's refusal to trade for any Western goods other than silver, a topic of much national concern in England in the late 18th century, may have prompted Mason to imagine a compassion for Chinese criminals as a suitable object of international exchange, making sympathy for China's “suffering humanity” quite literally the only “good” that the Chinese could not refuse. This “compassion trade,” the chapter argues, must be understood in part as a reaction to the 1793 Macartney Embassy that attempted to rework British trade relations with China.
