Courts

A Comparative and Political Analysis

Author: Martin Shapiro

Publisher: University of Chicago Press

ISBN: 022616134X

Category: Law

Page: 256

View: 8466

In this provocative work, Martin Shapiro proposes an original model for the study of courts, one that emphasizes the different modes of decision making and the multiple political roles that characterize the functioning of courts in different political systems.

Courts, Law, and Politics in Comparative Perspective

Author: Herbert Jacob

Publisher: Yale University Press

ISBN: 9780300063790

Category: Law

Page: 408

View: 9682

This comprehensive book compares the intersection of political forces and legal practices in five industrial nations--the United States, England, France, Germany, and Japan. The authors, eminent political scientists and legal scholars, investigate how constitutional courts function in each country, how the adjudication of criminal justice and the processing of civil disputes connect legal systems to politics, and how both ordinary citizens and large corporations use the courts.For each of the five countries, the authors discuss the structure of courts and access to them, the manner in which politics and law are differentiated or amalgamated, whether judicial posts are political prizes or bureaucratic positions, the ways in which courts are perceived as legitimate forms for addressing political conflicts, the degree of legal consciousness among citizens, the kinds of work lawyers do, and the manner in which law and courts are used as social control mechanisms. The authors find that although the extent to which courts participate in policymaking varies dramatically from country to country, judicial responsiveness to perceived public problems is not a uniquely American phenomenon.

The Dynamics of Judicial Independence

A Comparative Study of Courts in Malaysia and Pakistan

Author: Lorne Neudorf

Publisher: Springer

ISBN: 3319498843

Category: Law

Page: 251

View: 3543

This book examines the legal principle of judicial independence in comparative perspective with the goal of advancing a better understanding of the idea of an independent judiciary more generally. From an initial survey of judicial systems in different countries, it is clear that the understanding and practice of judicial independence take a variety of forms. Scholarly literature likewise provides a range of views on what judicial independence means, with scholars often advocating a preferred conception of a model court for achieving ‘true judicial independence’ as part of a rule of law system. This book seeks to reorient the prevailing approach to the study of judicial independence by better understanding how judicial independence operates within domestic legal systems in its institutional and legal dimensions. It asks how and why different conceptualisations of judicial independence emerge over time by comparing detailed case studies of courts in two legally pluralistic states, which share inheritances of British rule and the common law. By tracing the development of judicial independence in the legal systems of Malaysia and Pakistan from the time of independence to the present, the book offers an insightful comparison of how judicial independence took shape and developed in these countries over time. From this comparison, it suggests a number of contextual factors that can be seen to play a role in the evolution of judicial independence. The study draws upon the significant divergence observed in the case studies to propose a refined understanding of the idea of an independent judiciary, termed the ‘pragmatic and context-sensitive theory’, which may be seen in contradistinction to a universal approach. While judicial independence responds to the core need of judges to be perceived as an impartial third party by constructing formal and informal constraints on the judge and relationships between judges and others, its meaning in a legal system is inevitably shaped by the judicial role along with other features at the domestic level. The book concludes that the adaptive and pragmatic qualities of judicial independence supply it with relevance and legitimacy within a domestic legal system.

Judicial Dissent in European Constitutional Courts

A Comparative and Legal Perspective

Author: Katalin Kelemen

Publisher: Routledge

ISBN: 1317110048

Category: Law

Page: 208

View: 2782

Dissent in courts has always existed. It is natural and healthy that judges disagree on legal issues of a certain importance and difficulty. The question is if it is reasonable to conceal dissent. Not every legal system allows judges to explain their disagreement to the public in a separate opinion attached to the judgment of the court. Most constitutional courts do. This book presents a comparative analysis of the practice of judicial dissent in constitutional courts from the perspective of the civil law tradition. It discusses the theoretical background, presents the history of the institution and today’s practice, thus laying down the basis for an accurate consideration of the phenomenon from a legal perspective.

Judges beyond Politics in Democracy and Dictatorship

Lessons from Chile

Author: Lisa Hilbink

Publisher: Cambridge University Press

ISBN: 113946681X

Category: Law

Page: N.A

View: 3572

Why did formerly independent Chilean judges, trained under and appointed by democratic governments, facilitate and condone the illiberal, antidemocratic, and anti-legal policies of the Pinochet regime? Challenging the assumption that adjudication in non-democratic settings is fundamentally different and less puzzling than it is in democratic regimes, this 2007 book offers a longitudinal analysis of judicial behavior, demonstrating striking continuity in judicial performance across regimes in Chile. The work explores the relevance of judges' personal policy preferences, social class, and legal philosophy, but argues that institutional factors best explain the persistent failure of judges to take stands in defense of rights and rule of law principles. Specifically, the institutional structure and ideology of the Chilean judiciary, grounded in the ideal of judicial apoliticism, furnished judges with professional understandings and incentives that left them unequipped and disinclined to take stands in defense of liberal democratic principles, before, during, and after the authoritarian interlude.

Courts Under Constraints

Judges, Generals, and Presidents in Argentina

Author: Gretchen Helmke

Publisher: Cambridge University Press

ISBN: 1107405203

Category: Law

Page: 242

View: 1530

This 2005 book is a study of how institutional instability affects judicial behavior under dictatorship and democracy.

Transitional Justice

Author: Ruti G. Teitel

Publisher: Oxford University Press

ISBN: 019988224X

Category: Political Science

Page: 404

View: 5402

At the century's end, societies all over the world are throwing off the yoke of authoritarian rule and beginning to build democracies. At any such time of radical change, the question arises: should a society punish its ancien regime or let bygones be bygones? Transitional Justice takes this question to a new level with an interdisciplinary approach that challenges the very terms of the contemporary debate. Ruti Teitel explores the recurring dilemma of how regimes should respond to evil rule, arguing against the prevailing view favoring punishment, yet contending that the law nevertheless plays a profound role in periods of radical change. Pursuing a comparative and historical approach, she presents a compelling analysis of constitutional, legislative, and administrative responses to injustice following political upheaval. She proposes a new normative conception of justice--one that is highly politicized--offering glimmerings of the rule of law that, in her view, have become symbols of liberal transition. Its challenge to the prevailing assumptions about transitional periods makes this timely and provocative book essential reading for policymakers and scholars of revolution and new democracies.

In Defense of a Political Court

Author: Terri Jennings Peretti

Publisher: Princeton University Press

ISBN: 9781400823352

Category: Law

Page: 272

View: 6671

Can the Supreme Court be free of politics? Do we want it to be? Normative constitutional theory has long concerned itself with the legitimate scope and limits of judicial review. Too often, theorists seek to resolve that issue by eliminating politics from constitutional decisionmaking. In contrast, Terri Peretti argues for an openly political role for the Supreme Court. Peretti asserts that politically motivated constitutional decisionmaking is not only inevitable, it is legitimate and desirable as well. When Supreme Court justices decide in accordance with their ideological values, or consider the likely political reaction to the Court's decisions, a number of benefits result. The Court's performance of political representation and consensus-building functions is enhanced, and the effectiveness of political checks on the Court is increased. Thus, political motive in constitutional decision making does not lead to judicial tyranny, as many claim, but goes far to prevent it. Using pluralist theory, Peretti further argues that a political Court possesses instrumental value in American democracy. As one of many diverse and redundant political institutions, the Court enhances both system stability and the quality of policymaking, particularly regarding the breadth of interests represented.

The Struggle for Constitutional Power

Law, Politics, and Economic Development in Egypt

Author: Tamir Moustafa

Publisher: Cambridge University Press

ISBN: 1139465112

Category: Law

Page: N.A

View: 7978

For nearly three decades, scholars and policymakers have placed considerable stock in judicial reform as a panacea for the political and economic turmoil plaguing developing countries. Courts are charged with spurring economic development, safeguarding human rights, and even facilitating transitions to democracy. How realistic are these expectations, and in what political contexts can judicial reforms deliver their expected benefits? This book addresses these issues through an examination of the politics of the Egyptian Supreme Constitutional Court, the most important experiment in constitutionalism in the Arab world. The Egyptian regime established a surprisingly independent constitutional court to address a series of economic and administrative pathologies that lie at the heart of authoritarian political systems. Although the Court helped the regime to institutionalize state functions and attract investment, it simultaneously opened new avenues through which rights advocates and opposition parties could challenge the regime. The book challenges conventional wisdom and provides insights into perennial questions concerning the barriers to institutional development, economic growth, and democracy in the developing world.

Law's Fragile State

Colonial, Authoritarian, and Humanitarian Legacies in Sudan

Author: Mark Fathi Massoud

Publisher: Cambridge University Press

ISBN: 1107026075

Category: Law

Page: 277

View: 6953

Uncovers how colonial administrators, postcolonial governments and international aid agencies have promoted stability and their own visions of the rule of law in Sudan.

Comparative Judicial Systems

Challenging Frontiers in Conceptual and Empirical Analysis

Author: John R. Schmidhauser

Publisher: Elsevier

ISBN: 148310060X

Category: Law

Page: 256

View: 4571

Comparative Judicial Systems: Challenging Frontiers in Conceptual and Empirical Analysis is a comprehensive and cohesive collection of investigative essays written by significant contributors in the field of comparative judicial institutions and politics. These essays seek to explain the judicial systems of different nations and analyze their implications. The book is divided into three parts. Part I deals with the integration of courts into the study of politics and conceptual frameworks in comparative cross-national legal and judicial research. Part II covers analyses of the judicial systems of a certain nation, while Part III compares and analyzes judicial systems of different nations as well as their judicial background in relation to their subculture. The text is recommended for lawyers as well as those in the field of political science and in the judicial branch, especially those who are looking to countries as examples for the improvement of their local systems.

Judicial Decision-Making in a Globalised World

A Comparative Analysis of the Changing Practices of Western Highest Courts

Author: Elaine Mak

Publisher: A&C Black

ISBN: 1782253645

Category: Law

Page: 290

View: 8544

Why do judges study legal sources that originated outside their own national legal system, and how do they use arguments from these sources in deciding domestic cases? Based on interviews with judges, this book presents the inside story of how judges engage with international and comparative law in the highest courts of the United Kingdom, Canada, the United States, France and the Netherlands. A comparative analysis of the views and experiences of the judges clarifies how the decision-making of these Western courts has developed in light of the internationalisation of law and the increased opportunities for transnational judicial communication. While the qualitative analysis reveals the motives that judges claim for using foreign law and the influence of 'globalist' and 'localist' approaches to judging, the author also finds suggestions of a convergence of practices between the courts that are the subject of this study. This empirical analysis is complemented by a constitutional-theoretical inquiry into the procedural and substantive factors of legal evolution, which enable or constrain the development and possible convergence of highest courts' practices. The two strands of the analysis are connected in a final contextual reflection on the future development of the role of Western highest courts.

The Limits of Judicial Independence

Author: Tom S. Clark

Publisher: Cambridge University Press

ISBN: 1139492314

Category: Political Science

Page: N.A

View: 5006

This book investigates the causes and consequences of congressional attacks on the US Supreme Court, arguing that the extent of public support for judicial independence constitutes the practical limit of judicial independence. First, the book presents a historical overview of Court-curbing proposals in Congress. Then, building on interviews with Supreme Court justices, members of Congress, and judicial and legislative staffers, the book theorizes that congressional attacks are driven by public discontent with the Court. From this theoretical model, predictions are derived about the decision to engage in Court-curbing and judicial responsiveness to Court-curbing activity in Congress. The Limits of Judicial Independence draws on illustrative archival evidence, systematic analysis of an original dataset of Court-curbing proposals introduced in Congress from 1877 onward and judicial decisions.

Courts and Democracies in Asia

Author: Po Jen Yap

Publisher: Cambridge University Press

ISBN: 1107192625

Category: Law

Page: 252

View: 934

This book illuminates how law and politics interact in the judicial doctrines and explores how democracy sustains and is sustained by the exercise of judicial power.

States and Social Revolutions

A Comparative Analysis of France, Russia, and China

Author: Theda Skocpol

Publisher: Cambridge University Press

ISBN: 1316453944

Category: Political Science

Page: N.A

View: 2453

State structures, international forces, and class relations: Theda Skocpol shows how all three combine to explain the origins and accomplishments of social-revolutionary transformations. Social revolutions have been rare but undeniably of enormous importance in modern world history. States and Social Revolutions provides a new frame of reference for analyzing the causes, the conflicts, and the outcomes of such revolutions. It develops a rigorous, comparative historical analysis of three major cases: the French Revolution of 1787 through the early 1800s, the Russian Revolution of 1917 through the 1930s, and the Chinese Revolution of 1911 through the 1960s. Believing that existing theories of revolution, both Marxist and non-Marxist, are inadequate to explain the actual historical patterns of revolutions, Skocpol urges us to adopt fresh perspectives. Above all, she maintains that states conceived as administrative and coercive organizations potentially autonomous from class controls and interests must be made central to explanations of revolutions.

Towards Juristocracy

The Origins and Consequences of the New Constitutionalism

Author: Ran Hirschl

Publisher: Harvard University Press

ISBN: 9780674038677

Category: Law

Page: 296

View: 2106

In countries and supranational entities around the globe, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The constitutionalization of rights and the establishment of judicial review are widely believed to have benevolent and progressive origins, and significant redistributive, power-diffusing consequences. Ran Hirschl challenges this conventional wisdom. Drawing upon a comprehensive comparative inquiry into the political origins and legal consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, Hirschl shows that the trend toward constitutionalization is hardly driven by politicians' genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. This self-interested coalition of legal innovators determines the timing, extent, and nature of constitutional reforms. Hirschl demonstrates that whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse. The global trend toward juristocracy, Hirschl argues, is part of a broader process whereby political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policymaking from the vicissitudes of democratic politics.

Opposing the Rule of Law

Author: Nick Cheesman

Publisher: Cambridge University Press

ISBN: 1107083184

Category: History

Page: 338

View: 8765

A striking new analysis of Myanmar's court system, revealing how the rule of law is 'lexically present but semantically absent'.

Limits to Pain

The Role of Punishment in Penal Policy

Author: Nils Christie

Publisher: Wipf and Stock Publishers

ISBN: 1556355971

Category: Law

Page: 122

View: 3667

Inflicting pain is a serious matter, often at variance with cherished values such as kindness and forgiveness. Attempts might therefore be made to hide the basic character of the activity, or to give various scientific reasons for inflicting pain. Such attempts are systematically described in this book, and related to social conditions. None of these attempts to cope with pain seem to be quite satisfactory. It is as if societies in their struggle with penal theories oscillate between attempts to solve an insoluble dilemma. Punishment is used less in some systems than in others. On the basis of examples from systems where pain is rarely inflicted, some general conditions for a low level of pain infliction are formulated. The standpoint is that if pain is to be applied, this should be done without a manipulative purpose and in a social form resembling that which is normal when people are in deep sorrow. Most of the material is from Scandinavia, but the book draws extensively on the crime control debate in the United Kingdom and USA.

The Court and the World

American Law and the New Global Realities

Author: Stephen Breyer

Publisher: Vintage

ISBN: 1101912073

Category: Law

Page: 400

View: 9853

"In this original, far-reaching, and timely book, Justice Stephen Breyer examines the work of the Supreme Court of the United States in an increasingly interconnected world, a world in which all sorts of activity, both public and private--from the conduct of national security policy to the conduct of international trade--obliges the Court to understand and consider circumstances beyond America's borders. It is a world of instant communications, lightning-fast commerce, and shared problems (like public health threats and environmental degradation), and it is one in which the lives of Americans are routinely linked ever more pervasively to those of people in foreign lands. Indeed, at a moment when anyone may engage in direct transactions internationally for services previously bought and sold only locally (lodging, for instance, through online sites), it has become clear that, even in ordinary matters, judicial awareness can no longer stop at the water's edge. To trace how foreign considerations have come to inform the thinking of the Court, Justice Breyer begins with that area of the law in which they have always figured prominently: national security in its constitutional dimension--how should the Court balance this imperative with others, chiefly the protection of basic liberties, in its review of presidential and congressional actions? He goes on to show that as the world has grown steadily "smaller," the Court's horizons have inevitably expanded: it has been obliged to consider a great many more matters that now cross borders. What is the geographical reach of an American statute concerning, say, securities fraud, antitrust violations, or copyright protections? And in deciding such matters, can the Court interpret American laws so that they might work more efficiently with similar laws in other nations? While Americans must necessarily determine their own laws through democratic process, increasingly, the smooth operation of American law--and, by extension, the advancement of American interests and values--depends on its working in harmony with that of other jurisdictions. Justice Breyer describes how the aim of cultivating such harmony, as well as the expansion of the rule of law overall, with its attendant benefits, has drawn American jurists into the relatively new role of "constitutional diplomats," a little remarked but increasingly important job for them in this fast-changing world."--Publisher's description.