Separation of Powers, the Rule of Law & the Study of Political InstitutionsJudicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court. By Jesse H. Choper The Constitution between Friends: Congress, the President, and the Law. By Louis Fisher The Supreme Court, the Constitution, and Presidential Power. By Michael A. Genovese Social Order and the Limits of Law: A Theoretical Essay. By Iredell Jenkins Five-Branch Government: The Full Measure of Constitutional Checks and Balances. By Henry J. Merry

Polity ◽  
1982 ◽  
Vol 15 (1) ◽  
pp. 123-132
Author(s):  
Richard A. Brisbin,
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Social Order ◽  
Separation Of Powers ◽  
Political Process ◽  
Presidential Power ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
The Supreme Court

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

Rule of Law in Practice

2018 ◽  
pp. 63-104
Author(s):  
Harish Narasappa
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Basic Structure ◽  
Critical Examination ◽  
The Rule Of Law ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Rule Of Life ◽  
Political Understanding

In the first part, the interpretation and application of the rule of law by Indian courts, primarily the constitutional bench of the Supreme Court of India is analysed. A review of the major principles laid down by the Supreme Court in relation to equality and liberty is followed by a critical examination of the innovative jurisprudence developed by the Court while interpreting Article 21. The principles of judicial independence, separation of powers, and evolution of the basic structure doctrine, as well as their relationship with the rule of law is critically evaluated. In the second part the political understanding of the rule of law is examined, particularly focusing on Nehru’s comment that the rule of law should follow the ‘rule of life’ and its meaning and continued impact on lawmaking. The chapter concludes by identifying four broad themes of the Rule of Law in India.

scholarly journals 12. The Relationship between Parliament, the Executive and the Judiciary

2019 ◽  
pp. 325-357
Author(s):  
Alison L. Young
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Case Law ◽  
Checks And Balances ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
The Uk ◽  
The Relationship ◽  
Traditional Understanding

When examining the recent evolution of the Constitution, it is argued that the UK has become more ‘legal’ as opposed to ‘political’. The last twenty years has seen a growth in legislation and case law, particularly that of the Supreme Court, regulating aspects of the UK constitution. This chapter investigates this claim. It argues that, whilst we can point to a growth in both legislation and case law, when we look at the case law more closely we can see that the courts balance an array of factors when determining how far to control executive actions. These factors include an analysis of the relative institutional features and constitutional role of the legislature, the executive and the courts. This evidence, in turn, questions the traditional understanding of the separation of powers as a hidden component of the UK constitution. It is not the case that courts merely balance the rule of law and parliamentary sovereignty in order to determine how far to control executive actions. Rather, the courts determine how to make this balance through the lens of the separation of powers, evaluating institutional and constitutional features. In doing so, they are upholding necessary checks and balances in the UK constitution.

Separation of Powers

2018 ◽  
pp. 77-81
Author(s):  
Eric M. Freedman
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Burden Of Proof ◽  
Checks And Balances ◽  
The United Kingdom ◽  
Government Power ◽  
The Supreme Court ◽  
American Law ◽  
Role Allocation

“Separation of powers” means: - “allocation of roles,” assigning government power to appropriate officials and - “checks and balances,” creating mutually-restraining branches. As the Supreme Court of the United Kingdom recognized in 2017 in the context of Brexit, British judges from the sixteenth century onwards enforced the concept of role allocation in many legal situations, including ones invalidating royal actions. The idea passed smoothly, almost silently, into American law. Specifically, the role of the Crown was such that, as a consequence of the legal principal “the King can do no wrong,” the sovereign could not cause a person to suffer a legal hardship unless it was one affirmatively permitted by law. This meant that in habeas cases, the burden of proof was on the jailer to demonstrate a right to detain the prisoner, not on the latter to demonstrate a right to freedom. Post-Independence courts acted accordingly.

scholarly journals The role of interpretation of the law in the mechanism of bridging gaps in the law

2020 ◽  
pp. 107-112
Author(s):  
Yu. I. Matat
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Legal Regulation ◽  
Regulation Mechanism ◽  
Legal Cases ◽  
The Rule Of Law ◽  
Legal Norms ◽  
The Supreme Court ◽  
The Law

The article is devoted to the study of the legal nature of the interpretation of law, its features, as well as the role in overcoming gaps in the law. Attention is focused and substantiated that the interpretation of legal norms, being a necessary element of the legal regulation mechanism, plays the important role in the process of overcoming gaps in law. So, by means of various methods of interpretation, in particular, formal gaps are overcome, which, in turn, may arise as a result of an unsuccessful presentation of legal norms by the legislator. It is determined that when applying the rule of law by analogy, such a rule in the particular situation should be interpreted not as part of the institution from which it is borrowed, but as part of the institution, the gap in which it is designed to overcome. This is due to the fact that the rule applied by analogy is subject to double influence: on the one hand, it generally retains its original meaning, on the other - partially adapts to the characteristics of the institution in which the gap is overcome through it. The role of official interpretation in the process of application of the law in the conditions of gaps in the legislation is clarified, the role of recommendatory explanations provided by higher courts on the issues of application of the legislation is investigated. In Ukraine, these powers, in accordance with the Law of Ukraine "On the Judicial System and the Status of Judges" dated June 02, 2016, are assigned to the Plenum of the Supreme Court, in order to ensure the same application of the rules of law in solving certain categories of cases, generalizes the practice of applying substantive and procedural laws, systematizes and ensures the promulgation legal positions of the Supreme Court, as well as based on the results of the analysis of judicial statistics and generalization of judicial practice, it provides explanations of the recommendatory nature on the application of legislation in solving court cases. It is concluded that the importance of the interpretation of law is primarily to ensure full and accurate disclosure of the functions of legal acts as a source and form of existence of legal norms, other substantive elements of the legal system. The interpretation concretizes the law, which allows law enforcement agencies to ensure the resolution of legal cases in strict accordance with the constitutional principles of legal certainty, legality and the rule of law.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
House Of Representatives ◽  
Good Governance ◽  
Constitutional Court ◽  
Due Diligence ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Institutional Status ◽  
The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

scholarly journals Do juiz herói ao tribunal democrático

2019 ◽  
Vol 4 (1) ◽  
pp. 6-30
Author(s):  
Beatriz Nunes Diógenes ◽  
Diane Espíndola
Keyword(s):  
Public Reason ◽  
Separation Of Powers ◽  
Normative Theory ◽  
Checks And Balances ◽  
Political Issues ◽  
Institutional Dynamics ◽  
The Supreme Court ◽  
Political Model ◽  
Normative Standard

RESUMO:O objetivo deste artigo foi refletir sobre o atual papel do Poder Judiciário como porta-voz do texto constitucional e ator político em constante relação conflituosa com o legislativo. Discutiu-se sobre o ativismo judicial e a atuação do Supremo Tribunal Federal como legislador moral (superego da sociedade), a ideia do juiz herói e seus desdobramentos democráticos, principalmente quanto ao sistema de freios e contrapesos. Observou-se a existência de um movimento de hiperjudicialização de questões éticas e políticas, que acarreta o desequilíbrio da dinâmica institucional do modelo democrático. Conclui-se que a atuação do Poder Judiciário não deve ser marcada pelo decisionismo disfarçado de ordem de valores, nem tampouco deve atuar como legislador moral e nem permitir a ausência de vinculação ao padrão normativo. Foi sugerido, para tanto, o aperfeiçoamento da dinâmica institucional brasileira através da interação permanente entre o judiciário e o legislativo, em busca da formação de uma teoria normativa da separação de poderes que promova um debate qualitativo consubstanciado na razão pública, que resguarde direitos e tonifique a dimensão deliberativa do modelo político em vigor. Utilizou-se, para tal reflexão, do método de pesquisa bibliográfico.ABSTRACT:The purpose of this article was to reflect on the current role of the judiciary as a spokesperson for the constitutional text and political actor in constant conflicting relationship with the legislative. It was discussed about judicial activism and the performance of the Supreme Court as moral legislator (society’s superego), the idea of the judge hero and its democratic repercussions, especially regarding the system of checks and balances. The existence of a movement of hyperjudicialization of ethical and political issues was observed, which causes the imbalance of the institutional dynamics of the democratic model. It is concluded that the performance of the judiciary should not be marked by decisionism disguised as an order of values, nor should it act as a moral legislator or allow the absence of binding to the normative standard. To this end, it was suggested that the Brazilian institutional dynamics be improved through the permanent interaction between the judiciary and the legislature, seeking the formation of a normative theory of the separation of powers that promotes a qualitative debate embodied in public reason that safeguards rights and tones the deliberative dimension of the current political model. For such reflection, the bibliographic research method was used 

State, Sovereignty, and the People: A Comparison of the “Rule of Law” in China and India

2009 ◽  
Vol 68 (1) ◽  
pp. 55-100 ◽  
Author(s):  
Jonathan K. Ocko ◽  
David Gilmartin
Keyword(s):  
Rule Of Law ◽  
Social Order ◽  
The Political ◽  
British India ◽  
Fourth Section ◽  
The Rule Of Law ◽  
China And India ◽  
The People ◽  
History Of

This paper uses the concept of the “rule of law” to compare Qing China and British India. Rather than using the rule of law instrumentally, the paper embeds it in the histories of state power and sovereignty in China and India. Three themes, all framed by the rule of law and the rule of man as oppositional yet paradoxically intertwined notions, organize the paper's comparisons: the role of a discourse of law in simultaneously legitimizing and constraining the political authority of the state; the role of law and legal procedures in shaping and defining society; and the role of law in defining an economic and social order based on contract, property, and rights. A fourth section considers the implications of these findings for the historical trajectories of China and India in the twentieth century. Taking law as an instrument of power and an imagined realm that nonetheless also transcended power and operated outside its ambit, the paper seeks to broaden the history of the “rule of law” beyond Euro-America.

The oath of a judge – oath of office and judicial symbol

2021 ◽  
pp. 85-92
Author(s):  
O. Kravchuk ◽  
I. Ostashchuk
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Power ◽  
The Rule Of Law ◽  
Symbolic Action ◽  
The Supreme Court ◽  
Conscious Choice ◽  
Justice Process ◽  
The Moment ◽  
First Time

The oath of a judge as an oath of office and as an element of judicial symbolism is considered in the article. The oath of a judge belongs to the categories of oaths of office, taken by an official upon taking office. At the same time, it belongs to the judicial oaths used in the justice process and is an element of judicial symbols. The oath of a judge as an oath of office symbolizes the endowment of a judge as an official by the state (judicial) power, the moment of his acquisition of powers (it is the inauguration ceremony), and the duty of a judge as an official to perform his duties properly. The oath of a judge as a judicial symbol represents a public and solemn obligation of the judge to exercise a fair trial in all its manifestations, including: independence and impartiality of the court, adversarial proceedings, equality of arms, and the rule of law. The judge takes the oath in a solemn atmosphere in the presence of senior officials (in Ukraine – in the presence of the President of Ukraine). It is an important ritual – a symbol of giving a person judicial power. The oath itself is a symbolic action of conscious choice of responsible and impartial observance of the law in the professional functions of realization of the rule of law for the good of all people. The coronavirus pandemic has shown that gathering a large number of people in one room can be problematic, so the oath ceremony was held even outdoors. It is stated that holding a ceremony in one of the judicial bodies, for example, in the premises of the Supreme Court or (subject to quarantine restrictions) in the territory of the Supreme Court may symbolize the independence of the judiciary and each judge from other branches of power. The peculiarity of the oath of a judge in Ukraine is its one-time nature. It should be taken only by a person first appointed to the position of a judge. In case of an appointment or transfer to another court, the judge shall not take the oath again. In this aspect, the oath of a judge is similar to the oath of a civil servant, which is taken only by persons recruited for the first time.

Canadian Exclusion Jurisprudence post-Febles

2021 ◽  
Author(s):  
Molly Joeck
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Asylum Seekers ◽  
Refugee Status ◽  
The Rule Of Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
The Supreme Court ◽  
The Status ◽  
International Refugee Law

Abstract This article examines the state of Canadian refugee law since the decision of the Supreme Court in Febles v Canada (Citizenship and Immigration) [2014] 3 SCR 431. Drawing upon an analysis of a set of decisions of the Immigration and Refugee Board, the administrative tribunal tasked with refugee status determination in Canada, the article seeks to determine whether administrative decision makers are heeding the guidance of Febles when excluding asylum seekers from refugee protection on the basis of serious criminality pursuant to article 1F(b) of the 1951 Convention relating to the Status of Refugees. In doing so, it examines the controversy around article 1F(b) since its inception across various jurisdictions and amongst academic commentators, situating Febles within that controversy in order to demonstrate that the Supreme Court’s reluctance to clearly set out the purpose underlying article 1F(b) is in step with a longstanding tendency to understand the provision as serving a gatekeeping function, that prevents criminalized non-citizens from obtaining membership in our society. It argues that by omitting to set out a clear and principled standard by which asylum seekers can be excluded from refugee protection pursuant to article 1F(b), the Supreme Court failed to live up to a thick understanding of the rule of law. It concludes by calling for a reassertion of the rule of law into exclusion decision making, both nationally and internationally, in order to ensure that the legitimacy of the international refugee law regime is maintained.

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