William Domnarski
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195374599
- eISBN:
- 9780199871452
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195374599.001.0001
- Subject:
- Law, Legal Profession and Ethics
The power and influence of the federal judiciary has been widely discussed and understood. And while there have been a fair number of institutional studies of individual district courts or courts of ...
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The power and influence of the federal judiciary has been widely discussed and understood. And while there have been a fair number of institutional studies of individual district courts or courts of appeal, there have been very few studies of the judiciary that emphasize the judges themselves. Although previous studies provide numerous statistical facts, they do not answer the two most important questions relating to the federal judiciary: who the judges are and what they do. Federal Judges Revealed considers approximately one hundred oral histories of Article Three judges, extracting the most important information. The material is organized thematically so that practitioners can easily access professional areas of interest. Topics include “How judges write their opinions” and “What judges believe make a good lawyer”. The book considers the background of the judges through college, law school, military service, clerkships, practice lives, and their appointments to the federal bench. It allows the reader to evaluate Federal judges based on their own words without an intermediary.Less
The power and influence of the federal judiciary has been widely discussed and understood. And while there have been a fair number of institutional studies of individual district courts or courts of appeal, there have been very few studies of the judiciary that emphasize the judges themselves. Although previous studies provide numerous statistical facts, they do not answer the two most important questions relating to the federal judiciary: who the judges are and what they do. Federal Judges Revealed considers approximately one hundred oral histories of Article Three judges, extracting the most important information. The material is organized thematically so that practitioners can easily access professional areas of interest. Topics include “How judges write their opinions” and “What judges believe make a good lawyer”. The book considers the background of the judges through college, law school, military service, clerkships, practice lives, and their appointments to the federal bench. It allows the reader to evaluate Federal judges based on their own words without an intermediary.
Cristina E. Parau
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780197266403
- eISBN:
- 9780191879593
- Item type:
- book
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197266403.001.0001
- Subject:
- Law, Legal Profession and Ethics
Studies of the fate of Judiciaries in post-Communist Central and Eastern Europe (CEE) have been rare and attempts at causal explanation rarer. This study found that interlocked transnational ...
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Studies of the fate of Judiciaries in post-Communist Central and Eastern Europe (CEE) have been rare and attempts at causal explanation rarer. This study found that interlocked transnational networking empowered a minority of elite Judiciary revisionists to entrench their institutional template in Eastern European constitutions, setting these transitional democracies on a trajectory toward a global trend of the judicialization of politics. The first, crucial step in that process is traced: the formal disempowerment of democracy through Judiciary revisions that ordinary people and politicians in Central and Eastern Europe little heeded. The causal nexus converging on this outcome is explained. Why it matters is because the revisionist template reorients that most venerable of non-majoritarian institutions beyond adjudication of the guilt or innocence of subjects of state power under legal certainty – the classical role of modern courts – toward the improvisation of public policy, with or without the consent of the majority of the governed, by ‘finding’ it in constitutions; the unique legitimacy of which derives from the prior ratification of a supermajority. The question of who shall have the final disposition of contested constitutional meaning – the Executive, Legislature, Judiciary, the People, or All of these – implicates sovereignty itself and whom it shall rest on: the last word is sovereign for practical purposes. The interdisciplinarity of this study will appeal to a wide audience: scholars of law and politics and socio-legal studies, social scientists researching elite transnationalism and European integration beyond the EU, even institutional design practitioners.Less
Studies of the fate of Judiciaries in post-Communist Central and Eastern Europe (CEE) have been rare and attempts at causal explanation rarer. This study found that interlocked transnational networking empowered a minority of elite Judiciary revisionists to entrench their institutional template in Eastern European constitutions, setting these transitional democracies on a trajectory toward a global trend of the judicialization of politics. The first, crucial step in that process is traced: the formal disempowerment of democracy through Judiciary revisions that ordinary people and politicians in Central and Eastern Europe little heeded. The causal nexus converging on this outcome is explained. Why it matters is because the revisionist template reorients that most venerable of non-majoritarian institutions beyond adjudication of the guilt or innocence of subjects of state power under legal certainty – the classical role of modern courts – toward the improvisation of public policy, with or without the consent of the majority of the governed, by ‘finding’ it in constitutions; the unique legitimacy of which derives from the prior ratification of a supermajority. The question of who shall have the final disposition of contested constitutional meaning – the Executive, Legislature, Judiciary, the People, or All of these – implicates sovereignty itself and whom it shall rest on: the last word is sovereign for practical purposes. The interdisciplinarity of this study will appeal to a wide audience: scholars of law and politics and socio-legal studies, social scientists researching elite transnationalism and European integration beyond the EU, even institutional design practitioners.
Alexandra Barahona de Brito
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198280385
- eISBN:
- 9780191598852
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198280386.001.0001
- Subject:
- Political Science, Democratization
This book analyses the Uruguayan and Chilean experiences with the transitional politics of truth and justice regarding past human rights violations. These policies are shaped by the legacy of ...
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This book analyses the Uruguayan and Chilean experiences with the transitional politics of truth and justice regarding past human rights violations. These policies are shaped by the legacy of repressive rule, and the dynamics of the politics of transition and of the balance of power under the new democratic governments peculiar to each country. The issue is central to the politics of transition for ethical, symbolic, practical and political reasons: politically it is the most explosive transitional issue; on a practical level, only official acknowledgement can resolve pending legal questions for survivors and families of victims; ethically, it is hard to generate democratic consensus or social endorsement for social reform without involving principles and ideals that appeal to the underlying values and aspirations of the citizenry. Dealing with legacies of state repression permits the beginning of the process of ‘deconstruction of cultures of fear’ without which democratization cannot occur. This is not only desirable and necessary; some kind of truth telling policy has proved to be both required and feasible in a wide range of contemporary regime transitions. However, justice is not always possible: limitations on prosecutions are more self-imposed than 'structural', more political than institutional, and clearly there is a tension between the conditions necessary to ensure accountability and those that govern periods of transition. Unconsolidated democracies are not able to practise the politics of a consolidated democracy; the politics of consolidated democracies includes the capacity to call the powerful to account. This is perhaps the yardstick with which to measure consolidation. Instead of practising the politics of consolidated democracy, what these countries have to engage in is the politics of democratic consolidation. Although truth and justice policies may remain relevant after the transition and 'leak into' the politics of democratization, (where they can continue to be a source of conflict in the judicial system and of latent or overt painful and deep-seated social animosities), the resolution of the issue in the formal political arena can and does make it marginal in terms of day-to-day politics. Consolidation depends more crucially on the reform of key institutions that permitted abuse and impunity: the thorough reform of the judiciary and of the forces of repression. If a government does not undertake a proper reform of the institutions that made abuse and impunity possible, the democracy it presides over will be lame and incomplete.Less
This book analyses the Uruguayan and Chilean experiences with the transitional politics of truth and justice regarding past human rights violations. These policies are shaped by the legacy of repressive rule, and the dynamics of the politics of transition and of the balance of power under the new democratic governments peculiar to each country. The issue is central to the politics of transition for ethical, symbolic, practical and political reasons: politically it is the most explosive transitional issue; on a practical level, only official acknowledgement can resolve pending legal questions for survivors and families of victims; ethically, it is hard to generate democratic consensus or social endorsement for social reform without involving principles and ideals that appeal to the underlying values and aspirations of the citizenry. Dealing with legacies of state repression permits the beginning of the process of ‘deconstruction of cultures of fear’ without which democratization cannot occur. This is not only desirable and necessary; some kind of truth telling policy has proved to be both required and feasible in a wide range of contemporary regime transitions. However, justice is not always possible: limitations on prosecutions are more self-imposed than 'structural', more political than institutional, and clearly there is a tension between the conditions necessary to ensure accountability and those that govern periods of transition. Unconsolidated democracies are not able to practise the politics of a consolidated democracy; the politics of consolidated democracies includes the capacity to call the powerful to account. This is perhaps the yardstick with which to measure consolidation. Instead of practising the politics of consolidated democracy, what these countries have to engage in is the politics of democratic consolidation. Although truth and justice policies may remain relevant after the transition and 'leak into' the politics of democratization, (where they can continue to be a source of conflict in the judicial system and of latent or overt painful and deep-seated social animosities), the resolution of the issue in the formal political arena can and does make it marginal in terms of day-to-day politics. Consolidation depends more crucially on the reform of key institutions that permitted abuse and impunity: the thorough reform of the judiciary and of the forces of repression. If a government does not undertake a proper reform of the institutions that made abuse and impunity possible, the democracy it presides over will be lame and incomplete.
Alexandra Barahona de Brito
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199240906
- eISBN:
- 9780191598869
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199240906.003.0005
- Subject:
- Political Science, Democratization
This chapter examines how Argentina, Brazil, Uruguay and Chile fared with truth and justice policies after the transition from authoritarian rule, looking at the issue from an institutional and ...
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This chapter examines how Argentina, Brazil, Uruguay and Chile fared with truth and justice policies after the transition from authoritarian rule, looking at the issue from an institutional and political angle, and at the social politics of memory. Efforts to deal with the past and their significance in the overall politics of transition to democracy are shaped by country-specific historical conditions and developments: the nature and legacies of repression and authoritarian rule; and the nature of the transition process and the various political, institutional and legal factors conditioning the post-transitional period, among which are the nature of repression, the presence and strength of a human rights movement, inherited legal or constitutional limitations, relations between political parties and Human Rights Organizations (HROs), the degree of executive or party commitment to policies of truth and justice, the unity of democratic parties, the ability of the military to mobilise against any policies of accountability as well as their relations with the democratic executive, the attitude of the judiciary to past violations, the presence of a strong legislative right, and the degree to which repression penetrated the social fabric. The way in which the first democratically elected authorities deal with the past, together with the relative strength of the human rights movement in the post-transitional period, sets the agenda for the subsequent evolution of the issue; more specifically, the past remains a source of open conflict if there are loopholes in official policies that preclude full closure or amnesty, and if transnational groups or regional and international human rights bodies challenge national policies favouring impunity. The past also remains a source of conflict if there are strong HROs that continue to contest official decisions on how to deal with the past, and have allies in the formal political arena or the courts. Official policies to deal with the past are not of themselves directly relevant to the process of democratisation, and what is more, during the first transitional period, truth and justice policies are unrelated to (or may even place obstacles in the way of) wider institutional reform; the reverse is also true, but whatever the case, the past becomes part of the dynamic of democratic politics. Indeed, although the continued pursuit of truth and justice and its links to wider reforms may be difficult to establish across the board, the politics of memory more widely conceived are important for a process of democratization in all four countries examined here, as it is about how a society interprets and appropriates its past, in an attempt to mould its future, and as such it is an integral part of any political process, including progress towards deeper democracy.Less
This chapter examines how Argentina, Brazil, Uruguay and Chile fared with truth and justice policies after the transition from authoritarian rule, looking at the issue from an institutional and political angle, and at the social politics of memory. Efforts to deal with the past and their significance in the overall politics of transition to democracy are shaped by country-specific historical conditions and developments: the nature and legacies of repression and authoritarian rule; and the nature of the transition process and the various political, institutional and legal factors conditioning the post-transitional period, among which are the nature of repression, the presence and strength of a human rights movement, inherited legal or constitutional limitations, relations between political parties and Human Rights Organizations (HROs), the degree of executive or party commitment to policies of truth and justice, the unity of democratic parties, the ability of the military to mobilise against any policies of accountability as well as their relations with the democratic executive, the attitude of the judiciary to past violations, the presence of a strong legislative right, and the degree to which repression penetrated the social fabric. The way in which the first democratically elected authorities deal with the past, together with the relative strength of the human rights movement in the post-transitional period, sets the agenda for the subsequent evolution of the issue; more specifically, the past remains a source of open conflict if there are loopholes in official policies that preclude full closure or amnesty, and if transnational groups or regional and international human rights bodies challenge national policies favouring impunity. The past also remains a source of conflict if there are strong HROs that continue to contest official decisions on how to deal with the past, and have allies in the formal political arena or the courts. Official policies to deal with the past are not of themselves directly relevant to the process of democratisation, and what is more, during the first transitional period, truth and justice policies are unrelated to (or may even place obstacles in the way of) wider institutional reform; the reverse is also true, but whatever the case, the past becomes part of the dynamic of democratic politics. Indeed, although the continued pursuit of truth and justice and its links to wider reforms may be difficult to establish across the board, the politics of memory more widely conceived are important for a process of democratization in all four countries examined here, as it is about how a society interprets and appropriates its past, in an attempt to mould its future, and as such it is an integral part of any political process, including progress towards deeper democracy.
Nathalie Bernard-Maugiron (ed.)
- Published in print:
- 2009
- Published Online:
- January 2012
- ISBN:
- 9789774162015
- eISBN:
- 9781617970993
- Item type:
- book
- Publisher:
- American University in Cairo Press
- DOI:
- 10.5743/cairo/9789774162015.001.0001
- Subject:
- Political Science, International Relations and Politics
This title presents a wide-ranging review of the relationship between the Egyptian judiciary and the government. If justice in the Arab world is often marked by a lack of autonomy of the judiciary ...
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This title presents a wide-ranging review of the relationship between the Egyptian judiciary and the government. If justice in the Arab world is often marked by a lack of autonomy of the judiciary toward the executive power, one of the characteristic features of the Egyptian judiciary lies in its strength and activism in the defense of democratic values. Judges have been struggling for years to enhance their independence from the executive power and exercise full supervision of the electoral process to achieve transparent elections. Recent years have seen growing tensions in Egypt between the judiciary and the executive authority. In order to gain concessions, judges went as far as to threaten to boycott the supervision of the presidential and legislative elections in the fall of 2005 and to organize sit-ins in the streets. The struggle between the two powers was in full swing in the spring of 2006, when a conference convened in Cairo in early April on the theme of the role of judges in the process of political reform in Egypt and the Arab world. The conference was organized by the Cairo Institute for Human Rights Studies (CIHRS) in cooperation with the Institut de Recherche pour le Developpement (IRD).Less
This title presents a wide-ranging review of the relationship between the Egyptian judiciary and the government. If justice in the Arab world is often marked by a lack of autonomy of the judiciary toward the executive power, one of the characteristic features of the Egyptian judiciary lies in its strength and activism in the defense of democratic values. Judges have been struggling for years to enhance their independence from the executive power and exercise full supervision of the electoral process to achieve transparent elections. Recent years have seen growing tensions in Egypt between the judiciary and the executive authority. In order to gain concessions, judges went as far as to threaten to boycott the supervision of the presidential and legislative elections in the fall of 2005 and to organize sit-ins in the streets. The struggle between the two powers was in full swing in the spring of 2006, when a conference convened in Cairo in early April on the theme of the role of judges in the process of political reform in Egypt and the Arab world. The conference was organized by the Cairo Institute for Human Rights Studies (CIHRS) in cooperation with the Institut de Recherche pour le Developpement (IRD).
Ray A. Moore and Donald L. Robinson
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780195151169
- eISBN:
- 9780199833917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019515116X.003.0017
- Subject:
- Political Science, Democratization
In mid‐July, the revision committee turned its attention to the draft's language on the structure of government in Japan's new parliamentary system: the make‐up and powers of the Diet, the “highest ...
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In mid‐July, the revision committee turned its attention to the draft's language on the structure of government in Japan's new parliamentary system: the make‐up and powers of the Diet, the “highest organ of state power” (including the House of Representatives and House of Councillors), the executive (cabinet) and the judiciary; and explicit restrictions on the exercise of governmental power by the emperor. Ch. 15 traces the brilliant performance of Kanamori as interpreter and expositor of constitutional language.Less
In mid‐July, the revision committee turned its attention to the draft's language on the structure of government in Japan's new parliamentary system: the make‐up and powers of the Diet, the “highest organ of state power” (including the House of Representatives and House of Councillors), the executive (cabinet) and the judiciary; and explicit restrictions on the exercise of governmental power by the emperor. Ch. 15 traces the brilliant performance of Kanamori as interpreter and expositor of constitutional language.
Leonardo Morlino
- Published in print:
- 1998
- Published Online:
- November 2003
- ISBN:
- 9780198280828
- eISBN:
- 9780191599965
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198280823.003.0003
- Subject:
- Political Science, Democratization
The entire set of indicators and measures of consolidation and crisis is presented. The indicators and measures are systematically applied to the four Southern European cases (Portugal, Spain, Italy, ...
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The entire set of indicators and measures of consolidation and crisis is presented. The indicators and measures are systematically applied to the four Southern European cases (Portugal, Spain, Italy, Greece). Consequently, a set of institutional, electoral, party, and elite dimensions is discussed with reference to the empirical cases.Less
The entire set of indicators and measures of consolidation and crisis is presented. The indicators and measures are systematically applied to the four Southern European cases (Portugal, Spain, Italy, Greece). Consequently, a set of institutional, electoral, party, and elite dimensions is discussed with reference to the empirical cases.
Gavin Drewry
- Published in print:
- 1998
- Published Online:
- November 2003
- ISBN:
- 9780198294719
- eISBN:
- 9780191599361
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294719.003.0006
- Subject:
- Political Science, Reference
Questions the omission of law and legal perspectives in political science and advocates its relevance and overlap in two country examples: the USA and the UK. Legal politics, the role of the ...
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Questions the omission of law and legal perspectives in political science and advocates its relevance and overlap in two country examples: the USA and the UK. Legal politics, the role of the judiciary, public law and administration, and the constitutional politics of America are provided as examples, intended to generate future relationships in the areas of law and political science.Less
Questions the omission of law and legal perspectives in political science and advocates its relevance and overlap in two country examples: the USA and the UK. Legal politics, the role of the judiciary, public law and administration, and the constitutional politics of America are provided as examples, intended to generate future relationships in the areas of law and political science.
Peter Rutland
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780199240975
- eISBN:
- 9780191598999
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199240973.003.0012
- Subject:
- Political Science, International Relations and Politics
Questions the extent to which post‐communist Russia has indeed become a democracy. It examines the problems of Russian democracy in different areas such as elections, separation of powers, judicial ...
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Questions the extent to which post‐communist Russia has indeed become a democracy. It examines the problems of Russian democracy in different areas such as elections, separation of powers, judicial system, freedom of press, respect for human rights, and development of civil society. It concludes that Russia has not been well served by efforts to transplant the American‐style democracy without taking into account local circumstances and conditions.Less
Questions the extent to which post‐communist Russia has indeed become a democracy. It examines the problems of Russian democracy in different areas such as elections, separation of powers, judicial system, freedom of press, respect for human rights, and development of civil society. It concludes that Russia has not been well served by efforts to transplant the American‐style democracy without taking into account local circumstances and conditions.
Miro Cerar
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198293866
- eISBN:
- 9780191599156
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198293860.003.0012
- Subject:
- Political Science, Comparative Politics
In Slovenia the power of the state is divided along classical lines into a legislature, an executive and a judiciary: legislative power is exercised by the parliament, comprising a National Assembly, ...
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In Slovenia the power of the state is divided along classical lines into a legislature, an executive and a judiciary: legislative power is exercised by the parliament, comprising a National Assembly, which is the general representative house, and a National Council, which is a body representing various interests and has very limited powers; executive power is divided between the president and the government; judicial power is exercised by the ordinary courts and the Constitutional Court, which rules on the conformity of legal enactments with the constitution and the law and decides constitutional complaints and certain other matters. It is generally accepted that Slovenia has a parliamentary system in which the focus of political decision–making lies with the parliament and the government. As in most other Central and East European countries in transition, in Slovenia the formal powers of parliament remain very strong, but, unlike the pure parliamentarism that certain countries opted for, the Slovene arrangements belong more to a group that could be characterized as parliamentarism with a directly (popularly) elected (or semi‐presidential) president. The role of the president is relatively small, and is to act as the head of state, whose function or powers are mainly of a representative, initiative, and protocol nature. After an introduction discussing whether Slovenia has a parliamentary or semi‐presidential system, this chapter focuses on the actual nature and features of the position and role of the president in the context of the constitutional and political system of the Republic of Slovenia, in six further sections: National Independence and Establishment of the First President of the Republic, Parliament and Government; Historical Factors and the Events Surrounding the Formation of the Regime; The Constitutional Powers of the President, Prime Minister, and Parliament; The Nature of the Parliamentary Majority and the Relationship Between the President and the Majority; and Conclusion.Less
In Slovenia the power of the state is divided along classical lines into a legislature, an executive and a judiciary: legislative power is exercised by the parliament, comprising a National Assembly, which is the general representative house, and a National Council, which is a body representing various interests and has very limited powers; executive power is divided between the president and the government; judicial power is exercised by the ordinary courts and the Constitutional Court, which rules on the conformity of legal enactments with the constitution and the law and decides constitutional complaints and certain other matters. It is generally accepted that Slovenia has a parliamentary system in which the focus of political decision–making lies with the parliament and the government. As in most other Central and East European countries in transition, in Slovenia the formal powers of parliament remain very strong, but, unlike the pure parliamentarism that certain countries opted for, the Slovene arrangements belong more to a group that could be characterized as parliamentarism with a directly (popularly) elected (or semi‐presidential) president. The role of the president is relatively small, and is to act as the head of state, whose function or powers are mainly of a representative, initiative, and protocol nature. After an introduction discussing whether Slovenia has a parliamentary or semi‐presidential system, this chapter focuses on the actual nature and features of the position and role of the president in the context of the constitutional and political system of the Republic of Slovenia, in six further sections: National Independence and Establishment of the First President of the Republic, Parliament and Government; Historical Factors and the Events Surrounding the Formation of the Regime; The Constitutional Powers of the President, Prime Minister, and Parliament; The Nature of the Parliamentary Majority and the Relationship Between the President and the Majority; and Conclusion.
Anne Phillips
- Published in print:
- 1998
- Published Online:
- November 2003
- ISBN:
- 9780198294153
- eISBN:
- 9780191600098
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294158.003.0007
- Subject:
- Political Science, Political Theory
This chapter addresses three issues. The first is whether the arguments for ensuring equal or proportionate representation by gender and ethnicity in legislative assemblies should also apply to ...
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This chapter addresses three issues. The first is whether the arguments for ensuring equal or proportionate representation by gender and ethnicity in legislative assemblies should also apply to social class. The second is whether focusing on the institutions of representative democracy blocks more ambitious proposals for extending democratic participation, for example, those put forward in arguments for associational or associative democracy. The third is whether the case for an equal representation of women and proportionate representation of ethnic minority groups should also apply to appointed bodies like quangos or the judiciary. The chapter concludes that the case for a politics of presence is strongest when allied to some of these larger ambitions.Less
This chapter addresses three issues. The first is whether the arguments for ensuring equal or proportionate representation by gender and ethnicity in legislative assemblies should also apply to social class. The second is whether focusing on the institutions of representative democracy blocks more ambitious proposals for extending democratic participation, for example, those put forward in arguments for associational or associative democracy. The third is whether the case for an equal representation of women and proportionate representation of ethnic minority groups should also apply to appointed bodies like quangos or the judiciary. The chapter concludes that the case for a politics of presence is strongest when allied to some of these larger ambitions.
Tim Hayward
- Published in print:
- 2004
- Published Online:
- July 2005
- ISBN:
- 9780199278688
- eISBN:
- 9780191602757
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199278687.003.0004
- Subject:
- Political Science, Political Theory
Responds to critical claims that constitutionalising the right to an adequate environment would not be prudent due to difficulties making it justiciable and difficulties that could make success on ...
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Responds to critical claims that constitutionalising the right to an adequate environment would not be prudent due to difficulties making it justiciable and difficulties that could make success on the merits unlikely in cases appealing to it. Shows these difficulties are not insurmountable and do not arise from the inherent nature of rights or of environmental problems. What surmounting them does involve, though, is ensuring that courts have the requisite institutional and constitutional competence, which critics consider to be, respectively, unfeasible and undesirable. It is shown that there is no serious obstacle to the development of the requisite institutional competence, which, if necessary, can be achieved through the establishment of specialist environmental courts. As for questions of courts’ legitimate constitutional competence, these arise not only for environmental rights, but for fundamental rights more generally. Also points out that litigation is not the only, or most significant, purpose in constitutionalising the right.Less
Responds to critical claims that constitutionalising the right to an adequate environment would not be prudent due to difficulties making it justiciable and difficulties that could make success on the merits unlikely in cases appealing to it. Shows these difficulties are not insurmountable and do not arise from the inherent nature of rights or of environmental problems. What surmounting them does involve, though, is ensuring that courts have the requisite institutional and constitutional competence, which critics consider to be, respectively, unfeasible and undesirable. It is shown that there is no serious obstacle to the development of the requisite institutional competence, which, if necessary, can be achieved through the establishment of specialist environmental courts. As for questions of courts’ legitimate constitutional competence, these arise not only for environmental rights, but for fundamental rights more generally. Also points out that litigation is not the only, or most significant, purpose in constitutionalising the right.
Tim Hayward
- Published in print:
- 2004
- Published Online:
- July 2005
- ISBN:
- 9780199278688
- eISBN:
- 9780191602757
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199278687.003.0005
- Subject:
- Political Science, Political Theory
Constitutionalising a right makes it immune to the possibility of (routine) democratic revision. So, constitutional rights that set certain substantive values beyond the reach of routine political ...
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Constitutionalising a right makes it immune to the possibility of (routine) democratic revision. So, constitutional rights that set certain substantive values beyond the reach of routine political revision have the effect of pre-empting decisions that might otherwise be arrived at through democratic procedures. To the extent that environmental rights can be taken to embody substantive value commitments, they would appear to be vulnerable to the criticism that the constitutional entrenchment of them is undemocratic. Certain procedural rights, however, are necessary for the very functioning of democracy as such. Can procedural environmental rights be justified on this ground? And what about the substantive right to an adequate environment? Argues that both kinds of environmental rights, in common with some existing and far less controversial rights, can in fact be justified on the very grounds that democracy itself is justified.Less
Constitutionalising a right makes it immune to the possibility of (routine) democratic revision. So, constitutional rights that set certain substantive values beyond the reach of routine political revision have the effect of pre-empting decisions that might otherwise be arrived at through democratic procedures. To the extent that environmental rights can be taken to embody substantive value commitments, they would appear to be vulnerable to the criticism that the constitutional entrenchment of them is undemocratic. Certain procedural rights, however, are necessary for the very functioning of democracy as such. Can procedural environmental rights be justified on this ground? And what about the substantive right to an adequate environment? Argues that both kinds of environmental rights, in common with some existing and far less controversial rights, can in fact be justified on the very grounds that democracy itself is justified.
Cécile Fabre
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198296751
- eISBN:
- 9780191599200
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198296754.003.0005
- Subject:
- Political Science, Political Theory
I reject the claim that bills of social rights are undemocratic and therefore unacceptable. I argue that they are indeed undemocratic in some cases, but that this is not a good reason for rejecting ...
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I reject the claim that bills of social rights are undemocratic and therefore unacceptable. I argue that they are indeed undemocratic in some cases, but that this is not a good reason for rejecting them. In the course of defending this claim, I distinguish between democratic rights, namely, those rights the respect of which is necessary for a regime to count and function as a democracy, and undemocratic rights, namely, those rights the respect of which is not necessary for a regime to count and function as a democracy. I also look at different ways in which the judiciary could protect constitutional social rights; I claim that the constitutional court should tell the government when it has breached a right and should set a deadline for the provision of remedies, but should not tell the government which remedies to provide, and how it should provide them. I thus delineate the scope for democratic decision‐making when constitutional social rights are at issue.Less
I reject the claim that bills of social rights are undemocratic and therefore unacceptable. I argue that they are indeed undemocratic in some cases, but that this is not a good reason for rejecting them. In the course of defending this claim, I distinguish between democratic rights, namely, those rights the respect of which is necessary for a regime to count and function as a democracy, and undemocratic rights, namely, those rights the respect of which is not necessary for a regime to count and function as a democracy. I also look at different ways in which the judiciary could protect constitutional social rights; I claim that the constitutional court should tell the government when it has breached a right and should set a deadline for the provision of remedies, but should not tell the government which remedies to provide, and how it should provide them. I thus delineate the scope for democratic decision‐making when constitutional social rights are at issue.
Cécile Fabre
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198296751
- eISBN:
- 9780191599200
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198296754.003.0006
- Subject:
- Political Science, Political Theory
I consider the claim that social rights cannot be constitutionalized and protected by the judiciary, because the latter is unable to adjudicate rights which, by nature, are vague and cannot ...
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I consider the claim that social rights cannot be constitutionalized and protected by the judiciary, because the latter is unable to adjudicate rights which, by nature, are vague and cannot constitute a solid basis for assessing governmental policy‐making. I reject this practical objection to constitutional social rights whilst taking on board some of its insights, by looking at the ways in which social rights are given specific content by institutions such as the ILO and the UN, and at the way constitutional social rights are dealt with by some domestic constitutional courts.Less
I consider the claim that social rights cannot be constitutionalized and protected by the judiciary, because the latter is unable to adjudicate rights which, by nature, are vague and cannot constitute a solid basis for assessing governmental policy‐making. I reject this practical objection to constitutional social rights whilst taking on board some of its insights, by looking at the ways in which social rights are given specific content by institutions such as the ILO and the UN, and at the way constitutional social rights are dealt with by some domestic constitutional courts.
Justin Crowe
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691152936
- eISBN:
- 9781400842575
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691152936.003.0003
- Subject:
- Political Science, American Politics
This chapter examines the reorganization of the federal judiciary from the beginning of Thomas Jefferson's second term as president in 1805 until just prior to the Compromise of 1850. During the ...
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This chapter examines the reorganization of the federal judiciary from the beginning of Thomas Jefferson's second term as president in 1805 until just prior to the Compromise of 1850. During the first half of the nineteenth century, the government faced a new set of challenges, many of which were the result of the vast territorial expansion. Territorial expansion and the politics of statehood admission intertwined with judicial reform attempts focused primarily on arranging states in circuits and ensuring regional geographic representation on the Supreme Court. The chapter considers the four stages in which the history of judicial institution building unfolded in the eras of Jeffersonian and Jacksonian democracy: the Judiciary Act of 1807, the stalemate over the National Republicans' attempts to extend the circuit system to the West in the mid-1820s, the Whigs' failed consolidation plan of 1835, and the triumph of reform in the Judiciary Act of 1837.Less
This chapter examines the reorganization of the federal judiciary from the beginning of Thomas Jefferson's second term as president in 1805 until just prior to the Compromise of 1850. During the first half of the nineteenth century, the government faced a new set of challenges, many of which were the result of the vast territorial expansion. Territorial expansion and the politics of statehood admission intertwined with judicial reform attempts focused primarily on arranging states in circuits and ensuring regional geographic representation on the Supreme Court. The chapter considers the four stages in which the history of judicial institution building unfolded in the eras of Jeffersonian and Jacksonian democracy: the Judiciary Act of 1807, the stalemate over the National Republicans' attempts to extend the circuit system to the West in the mid-1820s, the Whigs' failed consolidation plan of 1835, and the triumph of reform in the Judiciary Act of 1837.
Martin S. Flaherty
- Published in print:
- 2019
- Published Online:
- May 2020
- ISBN:
- 9780691179124
- eISBN:
- 9780691186122
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691179124.001.0001
- Subject:
- Political Science, International Relations and Politics
In the past several decades, there has been a growing chorus of voices contending that the Supreme Court and federal judiciary should stay out of foreign affairs and leave the field to Congress and ...
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In the past several decades, there has been a growing chorus of voices contending that the Supreme Court and federal judiciary should stay out of foreign affairs and leave the field to Congress and the president. Challenging this idea, this book argues instead for a robust judicial role in the conduct of U.S. foreign policy. The book demonstrates that the Supreme Court and federal judiciary have the power and duty to apply the law without deference to the other branches. Turning first to the founding of the nation, the book shows that the Constitution's original commitment to separation of powers was as strong in foreign as domestic matters, not least because the document shifted enormous authority to the new federal government. This initial conception eroded as the nation rose from fledgling state to superpower, fueling the growth of a dangerously formidable executive that today asserts near-plenary foreign affairs authority. The book explores how modern international relations makes the commitment to balance among the branches of government all the more critical and considers implications for modern controversies that the judiciary will continue to confront. At a time when executive and legislative actions in the name of U.S. foreign policy are only increasing, the book makes the case for a zealous judicial defense of fundamental rights involving global affairs.Less
In the past several decades, there has been a growing chorus of voices contending that the Supreme Court and federal judiciary should stay out of foreign affairs and leave the field to Congress and the president. Challenging this idea, this book argues instead for a robust judicial role in the conduct of U.S. foreign policy. The book demonstrates that the Supreme Court and federal judiciary have the power and duty to apply the law without deference to the other branches. Turning first to the founding of the nation, the book shows that the Constitution's original commitment to separation of powers was as strong in foreign as domestic matters, not least because the document shifted enormous authority to the new federal government. This initial conception eroded as the nation rose from fledgling state to superpower, fueling the growth of a dangerously formidable executive that today asserts near-plenary foreign affairs authority. The book explores how modern international relations makes the commitment to balance among the branches of government all the more critical and considers implications for modern controversies that the judiciary will continue to confront. At a time when executive and legislative actions in the name of U.S. foreign policy are only increasing, the book makes the case for a zealous judicial defense of fundamental rights involving global affairs.
Michael A. Bailey and Forrest Maltzman
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691151045
- eISBN:
- 9781400840267
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151045.003.0006
- Subject:
- Law, Legal History
Justices have considerable latitude to pursue either their personal preferences or their personal visions of the law. The danger is that the Court gets so far out of line from the rest of the ...
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Justices have considerable latitude to pursue either their personal preferences or their personal visions of the law. The danger is that the Court gets so far out of line from the rest of the political system that we see fundamental institutional showdowns that threaten the independence of the judiciary, such as the Court-packing controversy in the 1930s. If the elected branches influence justices, however, they can keep the Court in check, thereby attenuating such risks. This chapter tests whether the Court systematically yields to the elected branches. In particular, it examines whether individual justices vote differently when the constraints imposed by the executive and legislative branches are likely to be at their strongest. It focuses on the two versions in the literature: one in which the Court is constrained only on statutory cases and the other in which the constraint extends to all cases, including constitutional cases.Less
Justices have considerable latitude to pursue either their personal preferences or their personal visions of the law. The danger is that the Court gets so far out of line from the rest of the political system that we see fundamental institutional showdowns that threaten the independence of the judiciary, such as the Court-packing controversy in the 1930s. If the elected branches influence justices, however, they can keep the Court in check, thereby attenuating such risks. This chapter tests whether the Court systematically yields to the elected branches. In particular, it examines whether individual justices vote differently when the constraints imposed by the executive and legislative branches are likely to be at their strongest. It focuses on the two versions in the literature: one in which the Court is constrained only on statutory cases and the other in which the constraint extends to all cases, including constitutional cases.
Justin Crowe
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691152936
- eISBN:
- 9781400842575
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691152936.001.0001
- Subject:
- Political Science, American Politics
How did the federal judiciary transcend early limitations to become a powerful institution of American governance? How did the Supreme Court move from political irrelevance to political centrality? ...
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How did the federal judiciary transcend early limitations to become a powerful institution of American governance? How did the Supreme Court move from political irrelevance to political centrality? This book uncovers the causes and consequences of judicial institution building in the United States from the commencement of the new government in 1789 through the close of the twentieth century. Explaining why and how the federal judiciary became an independent, autonomous, and powerful political institution, the book moves away from the notion that the judiciary is exceptional in the scheme of American politics, illustrating instead how it is subject to the same architectonic politics as other political institutions. Arguing that judicial institution building is fundamentally based on a series of contested questions regarding institutional design and delegation, the book develops a theory to explain why political actors seek to build the judiciary and the conditions under which they are successful. It both demonstrates how the motivations of institution-builders ranged from substantive policy to partisan and electoral politics to judicial performance, and details how reform was often provoked by substantial changes in the political universe or transformational entrepreneurship by political leaders. Embedding case studies of landmark institution-building episodes within a contextual understanding of each era under consideration, the book presents a historically rich narrative that offers analytically grounded explanations for why judicial institution building was pursued, how it was accomplished, and what—in the broader scheme of American constitutional democracy—it achieved.Less
How did the federal judiciary transcend early limitations to become a powerful institution of American governance? How did the Supreme Court move from political irrelevance to political centrality? This book uncovers the causes and consequences of judicial institution building in the United States from the commencement of the new government in 1789 through the close of the twentieth century. Explaining why and how the federal judiciary became an independent, autonomous, and powerful political institution, the book moves away from the notion that the judiciary is exceptional in the scheme of American politics, illustrating instead how it is subject to the same architectonic politics as other political institutions. Arguing that judicial institution building is fundamentally based on a series of contested questions regarding institutional design and delegation, the book develops a theory to explain why political actors seek to build the judiciary and the conditions under which they are successful. It both demonstrates how the motivations of institution-builders ranged from substantive policy to partisan and electoral politics to judicial performance, and details how reform was often provoked by substantial changes in the political universe or transformational entrepreneurship by political leaders. Embedding case studies of landmark institution-building episodes within a contextual understanding of each era under consideration, the book presents a historically rich narrative that offers analytically grounded explanations for why judicial institution building was pursued, how it was accomplished, and what—in the broader scheme of American constitutional democracy—it achieved.
Joshua A. Berman
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195374704
- eISBN:
- 9780199871438
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195374704.003.0003
- Subject:
- Religion, Judaism, Biblical Studies
This chapter examines how Deuteronomy offers an egalitarian political prescription for the shape of Israelite society and its leadership regime. The program is egalitarian in that it attenuates, in ...
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This chapter examines how Deuteronomy offers an egalitarian political prescription for the shape of Israelite society and its leadership regime. The program is egalitarian in that it attenuates, in the first place, the institutional power of the monarchy as construed in the ancient Near East in the following realms: the military, the cult, the judiciary, the economy, and the harem. It further establishes a set of checks and balances that curb the power of the various seats of authority: the king, the priesthood, the judiciary and the prophet. Moreover, Deuteronomy's egalitarian program for the regime is reflected in its rejection of the institutions and language of tribal patriarchy so evidenced in the other pentateuchal texts, in favor of collective, national identity. Whereas earlier studies that examined Deuteronomy's plan for the regime have focused on chapters 16–18, this study maintains that one must read all of Deuteronomy as an integrated whole in order to perceive the full intricacy of its blueprint for a society in the land. Particular attention is paid to the role played in this regard by the so‐called narrative frames of the book—chapters 1–4, and chapters 27–30. While previous studies have noted that Deuteronomy seems to adopt a form of checks and balances, this study locates the statement it makes in this regard within the history of political thought on the subject. Scanning theories from Roman jurists through Montesquieu, this study concludes that the kernel of a theory of checks and balances that one may adduce from a reading of Deuteronomy is suggestive of formulations that we do not encounter again until the writings of the American Founding Fathers.Less
This chapter examines how Deuteronomy offers an egalitarian political prescription for the shape of Israelite society and its leadership regime. The program is egalitarian in that it attenuates, in the first place, the institutional power of the monarchy as construed in the ancient Near East in the following realms: the military, the cult, the judiciary, the economy, and the harem. It further establishes a set of checks and balances that curb the power of the various seats of authority: the king, the priesthood, the judiciary and the prophet. Moreover, Deuteronomy's egalitarian program for the regime is reflected in its rejection of the institutions and language of tribal patriarchy so evidenced in the other pentateuchal texts, in favor of collective, national identity. Whereas earlier studies that examined Deuteronomy's plan for the regime have focused on chapters 16–18, this study maintains that one must read all of Deuteronomy as an integrated whole in order to perceive the full intricacy of its blueprint for a society in the land. Particular attention is paid to the role played in this regard by the so‐called narrative frames of the book—chapters 1–4, and chapters 27–30. While previous studies have noted that Deuteronomy seems to adopt a form of checks and balances, this study locates the statement it makes in this regard within the history of political thought on the subject. Scanning theories from Roman jurists through Montesquieu, this study concludes that the kernel of a theory of checks and balances that one may adduce from a reading of Deuteronomy is suggestive of formulations that we do not encounter again until the writings of the American Founding Fathers.
