Part V Separation of Powers, Ch.28 The Separation of Judicial Power

2018 ◽  
Author(s):  
Foster Michelle
Keyword(s):  
Separation Of Powers ◽  
Judicial Power ◽  
Controversial Issues ◽  
Individual Rights ◽  
High Court ◽  
The Core ◽  
Future Developments ◽  
Methods And Techniques ◽  
History Of

This chapter discusses the separation of judicial power principle in Australia. First, it considers the history of the principle and whether it was intended or assumed by the Constitution's drafters. Next, the chapter examines the evolution of the principle in the High Court's jurisprudence, as well as its underlying rationales. Hereafter, this chapter considers the practical ramifications of the principle, and the methods and techniques adopted by the High Court to respond to some of its ‘inconvenient’ consequences. Finally, the chapter considers two of the core underlying rationales in the context of controversial issues in contemporary jurisprudence. It analyses the separation of judicial power principle and the protection of individual rights, in addition to the separation of judicial power principle and federalism. The chapter concludes by briefly commenting on likely future developments.

Proportionality and the Separation of Powers in Constitutional Review: Examining the Role of Judicial Deference

2017 ◽  
Vol 45 (2) ◽  
pp. 181-197
Author(s):  
Caroline Henckels
Keyword(s):  
Separation Of Powers ◽  
Decision Makers ◽  
The Other ◽  
Judicial Power ◽  
Symbiotic Relationship ◽  
Constitutional Review ◽  
High Court

The High Court's tentative moves toward adopting structured proportionality as a method of constitutional review have been hampered by concerns about the separation of powers. This article argues that the manner in which a court undertakes proportionality analysis is crucial to the question of whether it is acting within the domain of judicial power. In this regard, the concept of judicial deference plays a vital but thus far under-theorised role. Deference refers not to judicial submission or surrender to the legislature, which would abdicate judicial power to a non-judicial body. Rather, it refers to a court giving weight to the judgment or opinion of government in circumstances of normative or empirical uncertainty. Courts afford deference in this way for two reasons: the desirability of respecting decisions made by democratically legitimate decision-makers, and the practical advantages that inhere in relying on the institutional competence and expertise of the other branches of government. An increased understanding of these rationales for deference in the context of constitutional review would diminish concerns about the High Court straying outside the domain of judicial power. Proportionality and deference exist in a symbiotic relationship and should be addressed together by a coherent judicial theory; many of the concerns raised by the High Court about the former would diminish were it also to embrace the latter.

Contraception and Abortion in the United States

2021 ◽  
pp. 62-76
Author(s):  
David A. Strauss
Keyword(s):  
United States ◽  
Constitutional Law ◽  
The United States ◽  
Controversial Issues ◽  
Future Developments ◽  
Current State ◽  
History Of ◽  
The Law ◽  
The Right

This chapter provides the legal background for the issues discussed in subsequent chapters. The author discusses how US constitutional law treats the right to abortion and contraception. He describes the history of the law regulating abortion, the current state of the law, and what the most controversial issues have been. He describes some roads not taken and speculates about future developments. Finally, the author addresses the practical effects of these legal developments on the availability of abortion.

scholarly journals Separation of Powers Under the 1999 Nigerian Constitution: The Core Legal Dilemmas

2019 ◽  
Vol 3 (2) ◽  
pp. 235
Author(s):  
Olusola Babatunde Adegbite ◽  
Oreoluwa Omotayo Oduniyi ◽  
Jubril Akinwunmi Farinde
Keyword(s):  
Separation Of Powers ◽  
Federal System ◽  
Constitutional Democracy ◽  
The Core ◽  
The World ◽  
History Of ◽  
Legislative Institutions

At the core of Nigeria's constitutional practice lies the doctrine of separation of powers. The application of the principle is such that power under Nigeria's presidential cum federal system is delineated both horizontally and vertically. Even though the doctrine has a major feature of every constitution in the world, its implementation does not seem satisfactory given the insults that have been carried out by successive governments. This paper examines the doctrine of separation of powers and its complicatedness as regards to its practice in Nigeria's constitutional democracy. Reflecting on the history of Nigeria, this paper will discuss the eroded implementation of the principle of separation. As a result, it seems to be that the concept of "separation" is not going well and tends to fuse the function of executive and legislative institutions. In this situation, the principle is in a dilemma. This paper further offers a flicker of hope by pointing to the fact that all hopes do not appear lost, as the Judiciary still maintains some level of ‘separateness,' except that only time will tell as to how much this lasts.

THE CORE AND PERIPHERY OF THE CURRENT CULTURE OF ARTISTIC CREATION ABOUT THE GREAT PATRIOTIC WAR IN THE STUDENTS’ VIEWS

2020 ◽  
Vol 6 (3) ◽  
pp. 130-149
Author(s):  
Elena N. NARKHOVA ◽  
Dmitry Yu. NARKHOV
Keyword(s):  
Historical Memory ◽  
Soviet Period ◽  
Russian Society ◽  
Student Culture ◽  
The Core ◽  
Musical Works ◽  
Great Patriotic War ◽  
History Of ◽  
Current Student ◽  
Historical Periods

This article analyzes the degree of demand for works of art (films and television films and series, literary and musical works, works of monumental art) associated with the history of the Great Patriotic War among contemporary students. This research is based on the combination of two theories, which study the dynamics and statics of culture in the society — the theory of the nucleus and periphery by Yu. M. Lotman and the theory of actual culture by L. N. Kogan. The four waves of research (2005, 2010, 2015, 2020) by the Russian Society of Socio¬logists (ROS) have revealed a series of works in various genres on this topic in the core structure and on the periphery of the current student culture; this has also allowed tracing the dynamics of demand and the “movement” of these works in the sociocultural space. The authors introduce the concept of the archetype of the echo of war. The high student recognition of works of all historical periods (from wartime to the present day) is shown. A significant complex of works has been identified, forming two contours of the periphery. Attention is drawn to the artistic work of contemporary students as a way to preserve the historical memory of the Great Patriotic War. This article explains the necessity of preserving the layer of national culture in order to reproduce the national identity in the conditions of informational and ideological pluralism of the post-Soviet period. The authors note the differentiation of youth due to the conditions and specifics of socialization in the polysemantic sociocultural space.

Due Process, Judicial Power and Chapter III in the New High Court

2004 ◽  
Vol 32 (2) ◽  
pp. 205-224 ◽  
Author(s):  
Fiona Wheeler
Keyword(s):  
Due Process ◽  
Judicial Power ◽  
High Court

Indexicality of Grammar: The Case of Japanese Transgender Speakers

2019 ◽  
Author(s):  
Hideko Abe
Keyword(s):  
Gender Identity ◽  
Gender Identity Disorder ◽  
Grammatical Gender ◽  
Core Structure ◽  
Subject Positions ◽  
Transgender Identity ◽  
The Core ◽  
History Of ◽  
History Of Scholarship ◽  
Grammatical Structures

This article discusses how the intersection of grammatical gender and social gender, entwined in the core structure of language, can be analyzed to understand the dynamic status of selfhood. After reviewing a history of scholarship that demonstrates this claim, the discussion analyzes the language practices of transgender individuals in Japan, where transgender identity is currently understood in terms of sei-dōitsusei-shōgai (gender identity disorder). Based on fieldwork conducted between 2011 and 2017, the analysis reveals how individuals identifying with sei-dōitsusei-shōgai negotiate subject positions by manipulating the specific indexical meanings attached to grammatical structures.

The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality

2021 ◽  
pp. 0067205X2199313
Author(s):  
Michael Legg
Keyword(s):  
Rule Of Law ◽  
Procedural Fairness ◽  
Judicial Power ◽  
Communications Technology ◽  
Design Decisions ◽  
Adoption Of Technology ◽  
The Rule Of Law ◽  
The Core

The COVID-19 pandemic and the ensuing mandated health protections saw courts turn to communications technology as a means to be able to continue to function. However, courts are unique institutions that exercise judicial power in accordance with the rule of law. Even in a pandemic, courts need to function in a manner consistent with their institutional role and their essential characteristics. This article uses the unique circumstances brought about by the pandemic to consider how courts can embrace technology but maintain the core or essential requirements of a court. This article identifies three essential features of courts—open justice, procedural fairness and impartiality—and examines how this recent adoption of technology has maintained or challenged those essential features. This examination allows for an assessment of how the courts operated during the pandemic and also provides guidance for making design decisions about a technology-enabled future court.

Dead-Ends and New Directions

2021 ◽  
Vol 15 (4) ◽  
pp. 327-347
Author(s):  
Jean Francesco A.L. Gomes
Keyword(s):  
Natural History ◽  
Scientific Theory ◽  
Good Science ◽  
Orthodox Christian ◽  
The Core ◽  
The Earth ◽  
New Directions ◽  
History Of ◽  
Evolutionary Science ◽  
Doctrine Of Creation

Abstract The aim of this article is to investigate how Abraham Kuyper and some late neo-Calvinists have addressed the doctrine of creation in light of the challenges posed by evolutionary scientific theory. I argue that most neo-Calvinists today, particularly scholars from the Vrije Universiteit Amsterdam (VU), continue Kuyper’s legacy by holding the core principles of a creationist worldview. Yet, they have taken a new direction by explaining the natural history of the earth in evolutionary terms. In my analysis, Kuyper’s heirs at the VU today offer judicious parameters to guide Christians in conversation with evolutionary science, precisely because of their high appreciation of good science and awareness of the nonnegotiable elements that make up the orthodox Christian narrative.

ЦЕННОСТИ И СМЫСЛЫ НЕНАСИЛИЯ В ПОЛИТИЧЕСКОМ ПРОТЕСТЕ

2021 ◽  
Vol 15 (4) ◽  
pp. 58
Author(s):  
Л. Ю. Логунова ◽  
Е. А. Маженина
Keyword(s):  
Political Culture ◽  
New Left ◽  
Political Protest ◽  
Self Awareness ◽  
Sociological Study ◽  
The Core ◽  
Long Term Study ◽  
History Of ◽  
The Individual ◽  
Left Movement

The article presents the results of a long-term study of protest as a cultural phenomenon, the transformation of values, realized in the activities of the best people of the planet and their followers. These values have absorbed the experience of many generations and the behavior of people defending the rights of an individual to dignity, equality before the law, fair attitude, freedom of thought. In the history of the development of political thought, values have formed that constitute the core of civil culture. The genesis of the birth of the nucleus of civil culture from the thinkers of Antiquity, ideologists of nonviolent resistance, leaders of the French bourgeois revolution, activists of the “new left” movement to the protests of our time is shown. The basis for updating the protection of these values is the socio-political situation, characterized by the divergence of interests of civil society and ruling political groups. The values of the core of civil culture (freedom of speech, freedom of conscience, freedom of assembly, human rights) acquire an acute urgency in situations of power crisis. This is the time of the birth of new values that will mobilize new generations of protesters. Protest, as an act of protecting the values of the individual, is a measure of the level of development of political culture in the state. The protest — it's not just a mass exit of dissent on the area. This is an indicator of the level of self-awareness of citizens and the development of the political culture of society. The symbols of political protest actions are a special text that expresses the meanings of values. The authors present the results of a sociological study, which used comparative, value-semantic, interpretive approaches, studied the meanings and values of political protests of the 20th — early 19th centuries, analyzed visual and publicistic evidence of protest actions: photo and video materials, publications in the press.

History of the formation and development of the institute of intellectual property in Japan

2021 ◽  
Vol 2021 (04-2) ◽  
pp. 207-213
Author(s):  
Viktor Shestak ◽  
Angelina Anikanova
Keyword(s):  
Intellectual Property ◽  
Legal System ◽  
State Policy ◽  
Property Law ◽  
Patent Office ◽  
High Court ◽  
Advanced Technologies ◽  
Economic Culture ◽  
Priority Direction ◽  
History Of

The development of the legal system of any country is impossible without the protection of intellectual property. Japan, as a country with an economic culture of exporting technologies and equipment, pays special attention to this issue. First of all, this is due to the priority direction of the state policy of Japan, a country of advanced technologies and innovations. The whole system of creation and protection of the intellectual property in Japan is regulated by the Copyright Act (Act No. 48 of 1970), Intellectual Property (Law No.122 of 2002), disputes shall be resolved in the Intellectual Property High Court, and the registration procedure takes place in the Japan Patent Office.

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