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Concluding Postscript

Mitchel de S.-O.-l’E. Lasser

in Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy

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 ... More

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

On Judicial Transparency, Control, and Accountability

Mitchel de S.-O.-l’E. Lasser

in Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy

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 ... More

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

On Judicial Debate, Deliberation, and Legitimacy

Mitchel de S.-O.-l’E. Lasser

in Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy

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 ... More

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

Jurisdictional Competition in View of the Systematic Nature of International Courts and Tribunals

YUVAL SHANY

in The Competing Jurisdictions of International Courts and Tribunals

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 ... More

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

France: How is the Discursive Bifurcation Maintained?: Introduction

Mitchel de S.-O.-l’E. Lasser

in Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy

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, ... More

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

The French Bifurcation

Mitchel de S.-O.-l’E. Lasser

in Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy

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 ... More

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

Apples and Oranges

Mitchel de S.-O.-l’E. Lasser

in Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy

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 ... More

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

Judges: Status, Career, and Activism

Carlo Guarnieri

in The Power of Judges: A Comparative Study of Courts and Democracy

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 ... More

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

The Judicial System

Stephen Zamora, José RamlóN CossíO, Lenone Pereznieto, José Roldá n-Xopa, and David Lopez

in Mexican 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 ... More

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

Parliamentary Accountability and the Judicial System

Andrew Le Sueur

in Accountability in the Contemporary Constitution

Orthodox constitutional thinking suggests that scrutiny of judicial decisions by parliamentarians would be inconsistent with judicial independence, and that ministers (in particular the Lord ... More

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

Public Health and the Judiciary

Daniel D. Stier and Diane M. Nicks

in Law in Public Health Practice

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 ... More

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

Italian Government

Michael A. Livingston, Pier Giuseppe Monateri, and Francesco Parisi

Mauro Capelletti, John Henry Meryman, and Joseph M. Perillo (eds)

in The Italian Legal System: An Introduction, Second Edition

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 ... More

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

The Compassion Trade: Punishment, Costume, Sympathy, 1800–1801

Eric Hayot

in The Hypothetical Mandarin: Sympathy, modernity, and Chinese Pain

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 ... More

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

Athenian Democracy in its Fullest Form

Thomas N. Mitchell

in Democracy's Beginning: The Athenian Story

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 ... More

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

Introduction

Carlo Guarnieri

in The Power of Judges: A Comparative Study of Courts and Democracy

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 ... More

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

The Lisbon Treaty and the Court of Justice

Francis G Jacobs

in EU Law after Lisbon

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 ... More

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