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. (shrink)

This article reconsiders how to judge judicial independence by using the Japanese judicature, one of the allegedly-most dependent judiciary branches. In their influential work, Ramseyer and Rasmusen argue that judges who once belonged to a leftist group take longer to reach a under the long-term conservative rule of Japan. Their method does not, however, deal appropriately with the possibility of judges not reaching this position because the judge dies, retires early, or is still at the early stage of her (...) career. Ramseyer and Rasmusen also mistakenly assume that all judges will eventually obtain this position. This article develops a survival analysis model of judicial careers and attempts to solve the problems of censoring, left truncation, and split population. We also offer a way to utilize a matching procedure to estimate average treatment effects on censored time-to-event as well as event occurrence. We re-analyze a corrected version of Ramseyer and Rasmusen's data using their and our methods. One of the most important findings is that, contrary to what Ramseyer and Rasmusen argue, leftist judges are not discriminated against in terms of the timing of promotion. (shrink)

Judicial independence is generally understood as requiring that judges must be insulated from political life. The central claim of this work is that far from standing apart from the political realm, judicial independence is a product of it. It is defined and protected through interactions between judges and politicians. In short, judicial independence is a political achievement. This is the main conclusion of a three-year research project on the major changes introduced by the Constitutional Reform Act 2005, (...) and the consequences for judicial independence and accountability. The authors interviewed over 150 judges, politicians, civil servants and practitioners to understand the day-to-day processes of negotiation and interaction between politicians and judges. They conclude that the greatest threat to judicial independence in future may lie not from politicians actively seeking to undermine the courts, but rather from their increasing disengagement from the justice system and the judiciary. (shrink)

The concepts of judicial independence and the separation of powers are used more as terms of political rhetoric than legal concepts in the British constitution. Responsible government significantly merges the executive and the legislative while parliamentary sovereignty has meant that judicial independence has had a peculiar British meaning, rarely unpacked. In practice, in England, (and presumably in the other UK jurisdictions), individual judges are accorded a high degree of independence, while there is no effective independence of the judiciary (...) collectively as a branch of government. This article then asks what impact current constitutional changes will have on this state of affairs. Adherence to the EU, the growth of judicial review and other factors have already had an important impact; devolution, the Human Rights Act and the reform of the House of Lords may have impacts that will be different in both quality and degree. Coupled with other political changes the end result may well be a more effective separation of powers and more real independence for the judges as a branch of government; but that in turn may call for more open and meaningful democratic control over the appointment of judges. (shrink)

The application of artificial intelligence (AI) to judicial decision-making has already begun in many jurisdictions around the world. While AI seems to promise greater fairness, access to justice, and legal certainty, issues of discrimination and transparency have emerged and put liberal democratic principles under pressure, most notably in the context of bail decisions. Despite this, there has been no systematic analysis of the risks to liberal democratic values from implementing AI into judicial decision-making. This article sets out to (...) fill this void by identifying and engaging with challenges arising from artificial judicial decision-making, focusing on three pillars of liberal democracy, namely equal treatment of citizens, transparency, and judicial independence. Methodologically, the work takes a comparative perspective between human and artificial decision-making, using the former as a normative benchmark to evaluate the latter. -/- The chapter first argues that AI that would improve on equal treatment of citizens has already been developed, but not yet adopted. Second, while the lack of transparency in AI decision-making poses severe risks which ought to be addressed, AI can also increase the transparency of options and trade-offs that policy makers face when considering the consequences of artificial judicial decision-making. Such transparency of options offers tremendous benefits from a democratic perspective. Third, the overall shift of power from human intuition to advanced AI may threaten judicial independence, and with it the separation of powers. While improvements regarding discrimination and transparency are available or on the horizon, it remains unclear how judicial independence can be protected, especially with the potential development of advanced artificial judicial intelligence (AAJI). Working out the political and legal infrastructure to reap the fruits of artificial judicial intelligence in a safe and stable manner should become a priority of future research in this area. (shrink)

This work, in English "Struggle for power, organic crisis and judicial independence", has its origin in research academics of the IAEN carried out to provide expert advise to the Inter American Court of Human Rights in the case Quintana and others (Supreme Court of Justice) vs the State of Ecuador. The research is about the nature of the evolution of the ecuadorian state, the dynamics of its institutions, its players, parties, laws, its factors of instability, the way rights have (...) been deployed since the return to democracy in 1979, those who have benefited from neoliberal democracy and those who have paid the costs, and where in all this was the Supreme Court of Justice. The Introduction takes a look at this origin of the work and its intellectual import, provides a brief characterization of the Inter American Sistem of Human Rights Protection, how the Quintana Case fits within it, and an overview of the chapters and their logic. The first chapter analyzes the institutional and sociological factors that have contributed to Ecuador's historically unstable state, based primarily in an antagonistic struggle for power between the Executive and Legislative branches. The second chapter analyzes the economic and political factors that provoked an organic crisis, or crisis of hegemony, between 1997 and 2007 in Ecuador. The third chapter analyzes the evolution of the way in which judges are selected in Europe, the outcomes they have generated, and how they compare with the ecuadorian systems of judge selection in terms of securing judicial independence. The fourth chapter develops a theory of judicial independence in democracy and analyzes how Ecuador measures up to that standard, from when it became a neoliberal minimal democracy in 1981, to when it became a neoliberal false democracy as a consequence of instalation of a system evidently lacking in the people's support under the guise of the 1998 Constitution and its system of judge selection, and the new democratic horizons set by the 2008 Constitution, and the judicial system that springs from it. (shrink)

How are we to understand and analyse the constitutional tension in Turkey between the judiciary and the political sphere? In this article the issue is mirrored in the political crisis which started in April 2007 with the nomination of Abdullah G l as presidential candidate by the moderate Islamist Justice and Development Party (AKP). The more detailed empirical background consists primarily of the dress code problematics including the matter of party closure. Theoretically, the “hegemonic preservation” thesis elaborated by Ran Hirschl (...) turned out to be a useful instrument when it comes to explaining this political crisis as well as the origin of the so-called new constitutionalism. This is illustrated by the judicial activism in the headscarf affair as well as by the eagerness of the Republican People's Party (CHP), as the political representative of the secular establishment, to play the 'Atat rk card' and to submit the protection of their interest to an independent judiciary and not to the uncertainties of the mechanisms of majoritarian democracy. However, with regard to the current Turkish case my analysis also shows that Hirschl's thesis is too static and should be complemented with a more dynamic perspective of constitutional politics as a repeated game. One example of this is that even if the Turkish Constitutional Court (TCC) had declared the constitutional amendment on the headscarf invalid and voted for economic sanctions against the AKP, it did not close the party down. (shrink)

This paper is the result of my participation in a discussion event of Problema. Anuario de filosofía y teoría del derecho entitled “The Construction of Precedent in Civil Law: Debates, Concepts and Challenges”. Several colleagues with a vast knowledge on the subject of judicial precedent participated in this seminar, which also delved into the widely debated aspects of judicial precedent focused on the case of Chile. The entire discussion aimed at proposing solutions, as well as shedding some light (...) on some of its important aspects.Starting from such transcendental concepts as, rationality and argumentative use, it is possible to find certain problems arising from the improper use of the above concepts, which in turn leads us to stare decisis, a term that if used incorrectly may result in an act against the internal independence of judges. (shrink)

Many theories of liberal public reason exclude claims derived from religion on grounds that religious beliefs are not publicly ‘accessible’, because they are not amenable to meaningful evaluation by outsiders to the faith. Some authors, though, have argued that at least some religious beliefs are, in fact, publicly accessible. This paper examines the consequences of these arguments by exploring the accessibility requirement in relation to U.S. judicial precedent concerning religious accommodation. I first show that precedent accords de facto with (...) the accessibility requirement by precluding judicial evaluation of the content of religious beliefs. I then show that this norm is independent of the status of religious claims vis-à-vis accessibility: even granting the accessibility of religious beliefs, other important political ends weigh against judicial evaluation of the content of those beliefs. I then generalize this conclusion to the broader enterprise of public reason, suggesting the general inadequacy of the accessibility requirement. (shrink)

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for the (...) institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata. (shrink)

Australia has recently experienced what many regard as its greatest judicial crisis. The appointment of Timothy Carmody QC as Chief Justice of Queensland in 2014 emerged from a process that was tainted by the state government’s willingness to break confidences gained in the course of consultation for the appointment. Equally, a strongly negative and heterodox reaction to the appointment by the whole Queensland Supreme Court bench meant that, together, politicians and judges brought on a collapse of the traditional ethics (...) surrounding judicial appointments. Nevertheless, the extreme circumstances of the Carmody affair suggest that, where judges have a legitimate concern that a judicial appointment might put a fundamental constitutional value like judicial independence at risk, a court may be justified in publically expressing concern about the appointment. (shrink)

Judicial process is an integral part of legal systems. The process rests primarily on established principles of constitutional governance and responsibility. In the last ten years, the dynamism within judicial institutions and the judicial process has gained considerable attention. The dynamism is often viewed in light of the diversity of claims being addressed, the openness of courts to foreign material, and the use of non-legal studies and findings in court proceedings. How one views the judicial process (...) in the traditional sense, and in the light of the new experiences is an important question today. Also, what new theories explain this public sphere of activity? -/- In this regard, Dr. Pathak’s book "Judicial Process" is a noteworthy contribution. The book explores the complex nature of the judicial process, along with its wider constitutional, political, and social relevance. The book builds on an understanding that the judicial process, the courts, and the judges are central to constitutional governance. With that backdrop, it engages with four aspects of the judicial process, including (1) the nature of the judicial process, (2) the engagements and interactions within the judiciary, (3) the engagements and interactions between the courts and other institutions, and (4) the protection of rights and redressal of violations function performed by courts. -/- The book includes a detailed discussion on key concepts, practices, tests, and principles. The following chapters and discussions are particularly interesting. Chapter one involves a jurisprudential take on the subject while referring to the works of Blackstone, Holmes, and Cardozo. Particularly relevant in chapter one are Indian cases that have cited Cardozo while determining important judicial matters. Further, the chapter includes foreign case law which has been cited by the Indian courts to discuss the nature of the judicial process. Chapter three on Judicial Review discusses the scope of judicial review in India and its centralizing force in constitutional governance. The author carefully explores the expansion in a judicial capacity for review. The chapter highlights the dynamism attached to the practice of judicial review, moving from the review of constitutional amendments, to that of laws, administrative actions, and policy. Further, the chapter includes a discussion on the basic structure of the Indian Constitution. Chapter four on Law of Precedent includes a discussion on stare decisis, which the author refers to as a principle conferring legitimacy and stability to the judicial system. Recent scholarship on the nature of obiter dicta of higher courts and persuasive quality of foreign case law in domestic cases has been cited. Chapter five covers the Independence of the Judiciary debates in India. It discusses the issue of post-retirement appointments of judges and recusal from judicial matters. Chapter eight Judicial Activism traces the development of the concept from its early days to the present times. The chapter adopts the five core meanings offered by Keenan Kmiec to substantiate the old and the new avatars of judicial activism. The chapter discusses the role of social action litigation in India and its hand in defining the judiciary as a protector of rights and constitutional values. -/- The book provides sufficient guidance to study the nature of the judicial process. It also makes one curious about the changing nature of the judicial process and the new waves of constitutional ethics and governance. The following are some of the themes not attended to in the book. First, the judgments of the courts. The written judgments constitute an integral part of the judicial process. The judgments constitute public law reaching out to beneficiaries including litigants, people at large, as well as foreign institutions and courts. That being said, a discussion on judgements and the written or unwritten standards governing the same needs attention. Also included in this point is the role of dissenting judgments. How should one view or study dissent in judgments of constitutional significance? A normative framework to study the same is much needed. Second, the tools and indicators to measure judicial impact. The judicial impact can include (a) the impact of judicial decisions on the law, policy, and society (b) the impact of law/legislation on the judicial process, and (c) the impact of technological and scientific advancements on the judicial process. Tools like judicial impact assessment have been widely argued to be important to the working of the courts. Further, parameters to study compliance, policy integration, and the impact of judicial decisions on other state institutions have gained attention. (shrink)

This paper presents an analysis of the various dimensions of independence and impartiality. Among other things, I will argue that the two concepts, both of which are profoundly implicated in the rule of law, can be conceived as values and are perfectly distinguishable from each other. I will also propose a conception of neutrality, as a third distinct value that satisfies the requirement for non-redundancy with regard to independence and impartiality. Hence, judges and arbitrators must be independent, impartial and neutral. (...) Each of these values contributes in different ways to enabling the law to fulfil its distinctive function of facilitating social interaction in complex and plural societies. (shrink)

This book, formed as a series of essays in honour of Professor Carl Baudenbacher, addresses the very art of judicial reasoning, and features contributions from many of the foremost current or former national, supranational, or international judges. This unique volume is intended first and foremost for legal scholars, but its approachable style makes it readily accessible for students and for those with a general interest in the application of the law and justice in today's multi-layered world. The collection of (...) essays is rather more philosophical and reflective as opposed to doctrinal. Each contribution focuses on the nature and operation of justice, the independence of the judiciary, and on judicial style primarily from the perspective of the judges themselves. The book provides perspectives on what it means to be accountable and independent as a judge, the role of language and languages in the quest for justice, while other contributions acquaint readers with the some of the structures of courts themselves, or indeed question for whom judgments are written. Each chapter has been written by a presiding judge, or head of an institution and the book is divided into three parts: - Part I Art and Method - Part II Justice and the Judiciary - Part III Reasoning and Language(s). (shrink)

Courts play a key role in deciding on public health controversies, but the legitimacy of judicial intervention remains highly controversial. In this article I suggest that we need to carefully distinguish between different reasons for persistent disagreement in the domain of public health. Adjudicating between public health controversies rooted in factual disagreements allows us to investigate more closely the epistemic capacities of the judicial process. While the critics typically point out the lack of appropriate expertise of judges—in particular (...) with respect to health and public health—we should not move too fast in inferring from this a generalized competence problem. This article offers four reasons for vindicating the importance of judicial intervention in factual disagreements: the relative independence of judges from the political establishment, the judicial commitment to evidence, the specific nature of judicial reasoning and an additional voice for the people in the policy-making process. (shrink)

The article deals with the constitutional right of a person to apply to court. While construing this constitutionally entrenched right of a person, one analyses the doctrine of the right of a person to apply to court, which was formed in the jurisprudence of the Constitutional Court of the Republic of Lithuania. The right of a person to court is entrenched expressis verbis in Paragraph 1 of Article 30 of the Constitution whereby the person whose constitutional rights or freedoms are (...) violated shall have the right to apply to court. The doctrine of the Constitutional Court derives this right also from the constitutional principle of a state under the rule of law. The right of a person to court is inseparable from other norms and principles of the Constitution, which are equality of rights, the right to compensation of damage, the right to a proper court process, etc. (shrink)

Limited research has focused on the influence of judge independence on firms' corporate social responsibility (CSR), despite extensive literature examining the impact of the legal environment on CSR. To address this gap, we analyze the staggered adoption of judicial delocalization reform in China. This reform aimed to enhance local judges' independence and our analysis shows that firms have exhibited higher CSR scores since its implementation. Our channel analysis reveals an increase in lawsuits and monetary claims against firms due to (...) the reform, indicating that firms engage in CSR activities to mitigate the negative effects of legal proceedings. The impact of the reform on CSR is stronger for high-litigation-risk firms and weaker for politically connected firms. Moreover, the positive relationship between the reform and CSR is more pronounced in regions with higher levels of government interference with judges before the reform. In summary, our findings highlight the important role of a supportive legal environment in fostering CSR, emphasizing the influence of judge independence. (shrink)

The judicial appointments regime in England and Wales is unbalanced. The pre-2005 appointments regime conferred excessive discretion on the Lord Chancellor, but the post-2005 regime has gone much too far in the opposite direction. Today, the Lord Chancellor is almost entirely excluded from the process of selecting lower level judges and enjoys only limited say over the selection of senior judges. In this article I argue that the current regime places too little weight on the sound reasons for involving (...) the minister in individual selection decisions, including the scope for ministerial input to enhance judicial independence, to supply political leadership on judicial diversity and to render more effective the discharge of the Lord Chancellor’s systemic responsibility for the justice system as a whole. I argue that shortlists reconcile the need to more fully involve the Lord Chancellor whilst at the same time ensuring that candidates satisfy a merit threshold. (shrink)

Article III of the U.S. Constitution establishes an independent federal judiciary: federal courts constitute a separate branch of the national government, federal judges enjoy tenure during good behavior, and their salaries cannot be diminished while they hold office. The framers who drafted Article III in 1787 were not working from whole cloth. Rather, they were familiar with the preceding colonial and state practices, including those from New York. This essay provides a case study of New York's judicial history: the (...) Dutch period, 1621-1664; the Ducal proprietary period, 1664-1685; the Royal period, 1685-1776; and the early state period. As will be seen, New York—among the most significant of the original thirteen states—was a state groping towards a new ideal of judicial independence: an ideal that became a reality a decade after its own constitution was enacted in 1777 and at a different level of government. Significantly, the uncertain status of New York's judiciary had profound consequences for the ultimate expression of judicial independence, judicial review. (shrink)

In this book, Christopher F. Zurn shows why a normative theory of deliberative democratic constitutionalism yields the best understanding of the legitimacy of constitutional review. He further argues that this function should be institutionalized in a complex, multi-location structure including not only independent constitutional courts but also legislative and executive self-review that would enable interbranch constitutional dialogue and constitutional amendment through deliberative civic constitutional forums. Drawing on sustained critical analyses of diverse pluralist and deliberative democratic arguments concerning the legitimacy of (...) judicial review, Zurn concludes that constitutional review is necessary to ensure the procedural requirements for legitimate democratic self-rule through deliberative cooperation. Claiming that pure normative theory is not sufficient to settle issues of institutional design, Zurn draws on empirical and comparative research to propose reformed institutions of constitutional review that encourage the development of fundamental law as an ongoing project of democratic deliberation and decision. (shrink)

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate (...) democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation. (shrink)

Jeremy Waldron objects to judicial review of legislation on the ground that it effectively accords the views of a few judges ‘superior voting weight’ to those of ordinary citizens. This objection overlooks that representative government does the same. This article explores the concept of political representation and argues that delegates may be institutionally bound to heed the convictions of their constituents, but they are not their proxies. Rather, they are best viewed as their trustees. They ought to decide according (...) to what they think is in their constituents’ interest. In this sense, a strong element of independent judgment is involved in their institutional role. So, if we have no problem with assigning their views superior voting weight, it should not be thought particularly objectionable to give judges the same power. What is more, once we acknowledge the independence they enjoy, the question arises whether and by what institutional means we ought to constrain and check their power. The judiciary is well suited effectively to carry out this supervisory function, because it is immune from political pressure by the legislature that would reduce it to its instrument. Hence, in some cases the institution of judicial review is morally justified. (shrink)

The term “judicial restraint,” applied to courts engaged in judicial constitutional review, may refer to any one or more of three possible postures of such courts, which we here will distinguish as “quiescent,” “tolerant,” and “weak-form.” A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution’s name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonable sustainable, even though it independently (...) would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs. (shrink)

The article develops the modern significance of the legal doctrine in the post-Soviet legal system, describes its impact on lawmaking and on judicial practice. The authors argue in favor of the conclusion that the legal doctrine is an independent and important component of the Russian legal system, as it influences structuring and functioning of the legal system, and, being in demand in practice, is implemented in different components of the country’s legal system. In order to strengthen the role and (...) significance of legal doctrine in the post-Soviet space, the authors make a number of certain proposals on consideration of provisions of legal doctrine in lawmaking and in judicial practice. (shrink)

The essential nature of legislative power is to make the laws; that of executive power is to execute those law. The difference between the two is both substantial and significant; it is the difference between the rule of arbitrary power and the rule of law. This paper will seek to trace the genesis of an independent judicial power, in both theory and practice, through an examination of sections of The Constitutions of Clarendon, The Assize of Clarendon, Hobbes’ Leviathan, Locke’s (...) Second Treatise, Montesquieu’s Spirit of the Laws, as well as The Federalist Papers. Moreover, it will seek to establish its executive nature and to explain why it is so often (at least presently) misunderstood to be akin to the legislative power. (shrink)

Although the Canadian legal system has many virtues, it has at least one major weakness – its judicial appointments and promotion systems. The paper begins by identifying six key values that need to be considered in order to assess the legitimacy of a judicial appointments process – independence, impartiality, representativeness, transparency, accountability and efficiency. In the following sections, through the use of three case studies of appointments to the Supreme Court of Canada, the superior courts of Nova Scotia (...) and a promotion to the Federal Court of Canada, we demonstrate that Canada has failed to live up to these values. We conclude by suggesting that recent reforms to the judicial appointments processes by the current government are an improvement, but that more radical reforms are essential to enhance public confidence in the integrity of Canada’s judicial appointments and promotion systems. (shrink)

This work examines the development and performance of federal independent regulatory bodies in Canada in the period up to 1979, with particular attention to the operation of legislative schemes that include executive review and appeal powers. The author assesses the impact of the exercise of these powers on the administrative law process, and proposes new models for the generation, interpretation, implementation, review, and enforcement of regulatory policy. The study includes a series of representative case studies based on documentation and extensive (...) interviews with individuals drawn from government, agencies, and other parties, including counsel for public interest groups. This enables author, writing from her experience as a participant-observer embedded in the public interest legal sector, to draw on the experiences and perspectives of a broad range of participants in the regulatory process, including but not limited to those dealing with the regulated energy, transportation, communications, and foreign investment sectors. Legal principles identified as emergent in leading judicial decisions in administrative law are used to assess the powers and practices used in executive reviews and appeals. The author finds those powers and practices to be flawed and proposes changes. The proposed models are designed to accord with emerging legal principles and avoid flaws of the types identified in the review and appeal provisions. This work, written under contract with the Administrative Law Project of the Law Reform Commission of Canada, formed one part of a comprehensive study of administrative law at the federal level in Canada. (shrink)

Of the many ideological blind spots that have afflicted political perceptions and analysis, none has been more debilitating than the equation of democracy with liberalism. Thus those who attempt to derive propaganda value from such an equation are vulnerable, as the US government has found, to the rhetorical counter attack that in opposing democratically elected governments, such as that of Hamas or Hugo Chavez, they are not merely being anti-democratic, but are in illiberal opposition to human rights and civil liberties (...) also; an argument quite independent of the same charges emanating from their support of, for example, the governments of Bahrain and Saudi Arabia. Furthermore The Council of Europe has drawn attention to the US government’s inhumane, humiliating, degrading and cruel treatment, including torture, of prisoners, at Guantanamo, and the torture of prisoners in the supposedly secret or “black” prisons operated both by the CIA, and other countries, where the torture of prisoners, often illegally or extra judicially rendered to them, has been outsourced. In light of this the paper takes up a discussion of the nature of the relationship between Liberalism, Democracy and Torture as it is germane to the current legitimation crisis facing supposedly liberal democracies. (shrink)

This paper analyzes the rhetoric surrounding the profession’s presentations of auditor independence. We trace the evolution of thecharacter of the auditor from Professional Man in the early years of the twentieth century to the more public and abstract figures of Judicial Man and Economic Man. The changing character of the auditor in the profession’s narratives of legitimation reflects changes in the role of auditing, in the economic environment, and in the values of American society. Economic man is a self-interested (...) and shallow character who offered the auditing profession little protection against involvement in corporate scandals. In the wake of recent accounting scandals, the profession is calling for a return to the character of Professional Man to restore trust in audits and the financial markets.We also analyze the philosophical bases of the metaphors surrounding auditor independence. These metaphors, particularly the metaphor of independence as separation, create problems in conceptualizing independence concepts. How can you discuss appropriate relationships when your basic concept is one of separation, or no relationship? On the other hand, relational concepts of independence are also flawed if they are not based on a firm moral foundation. We suggest how the profession can act to rebuildits moral foundation through recognition of collective responsibility. (shrink)

While lawyers' independence initially developed as a way of protecting lawyers and their clients from the power of the state, it is now also associated with the protection of the public interest from lawyers who are too close to their clients. In this context independence is seen as a way of ensuring that lawyers act ethically, that is, with regard to their overriding duty to the court and the administration of justice rather than according to sectional, personal or economic interests. (...) It has been noted in various contexts that lawyers who work closely with powerful clients may be less able to withstand client pressure and uphold their obligations to the administration of justice. In-house lawyers are seen as particularly vulnerable due to their position within the client's organisational structure. On the other hand some have argued that the position of in-house lawyers gives them greater potential to exercise independent judgment and influence the ethical behaviour of their organisation. This paper argues that the concept of independence is multi-faceted with the essential aspect being the capacity for independent judgment or independence of mind. This is supported by status, power and structural protections. The paper goes on to critically consider the courts' interpretations of independence of in-house counsel in the context of claims of client legal privilege (also known as legal professional privilege). The paper argues that the judicial tests reveal a number of different approaches with limited connection to core concepts of independence. (shrink)

The Council on Ethical and Judicial Affairs of the American Medical Association examines physicians’ professional ethical responsibility in the event that the security of patients’ electronic records is breached.

Even though potential impacts of political and legal environments of business on ethical behavior of firms (EBOF) have been conceptually recognized, not much evidence (i.e., empirical work) has been produced to clarify their role. In this paper, using Bayesian causal maps (BCMs) methodology, relationships between legal and political environments of business and EBOF are investigated. The unique design of our study allows us to analyze these relationships based on the stages of development in 92 countries around the world. The EBOF (...) models structured through BCMs are used to explain how EBOF in a given country group are shaped by how managers perceive political, legislative, and protective environments of business in these countries. The results suggest that irregular payments and bribes are the most influential factors affecting managers’ perceptions of business ethics in relatively more advanced economies, whereas intellectual property protection is the most influential factor affecting managers’ perceptions of business ethics in less-advanced economies. The results also suggest that regardless of where the business is conducted in the world, judicial independence is the driving force behind managers’ perceptions of business ethics. In addition, the results of this study provide further support for scholars who argue that business ethics is likely to vary among countries based on their socio-economic factors. In addition to its managerial implications, the study provides directions for policy makers to improve the ethical conduct of businesses in their respective countries. (shrink)

The principle of omnia sunt interpretanda refers to the derivational conception and derivational theory of interpretation. The principle appears in disputes concerning the role of a judge in the process of interpretation, and this has produced an effect that Polish theory of law is currently getting closer to the conceptions presented in the American debate on activism and textualism. In the practice of jurisdiction, the principle of omnia sunt interpretanda is mostly invoked outside theoretical context. It becomes a manifestation of (...) a new dimension of judicial independence, namely an independent authority over the meaning of legal text. In the following paper the legal cultures and legal theories involved in the dispute are being disclosed in order to put in question the possibility of achieving a clear result of interpretation against a background of a crisis of the relations between law and law-making state, which manifests itself in the peculiar process of legal institutions becoming autonomous in relation to state institutions. In this context, the aforementioned principle constitutes the manifestation of the way in which courts come up with a new definition of the role of the third (sui generic) power. The certain organizational requirements placed upon the courts (especially the SAC and provincial administrative courts) are being scrutinized in order to find out in which mode it is possible to at least reduce the degree of inconsistency of the results of interpretation. Here, the attempt to organize a community of judges for the activities of legal interpretation undertaken by them plays a crucial role. (shrink)

Le volume réunit cinq essais qui abordent différents éléments du système judiciaire et réfléchissent sur leur fonctionnement et leur pertinence. Une part importante des exemples est empruntée à l'actualité canadiene et québécoise, mais le propos déborde ce contexte et envisage les mécanismes de la justice en tant que tels. Un exemple trop rare de réflexion sur l'appareil judiciaire qui, sans verser dans le populisme, demeure très abordable. [SDM].

The second edition of H. P. Lee's The Australian Judiciary provides a timely update to this seminal text. The only definitive survey of the entire Australian judiciary, this text describes and evaluates the work, techniques, problems and the future of the different tiers of courts and judges. It discusses the role of the judiciary as the third sector of government and analyses and comments on judicial conduct, judicial independence and impartiality, the work of judges beyond the courts, the (...) accountability of judges and the dangers to judicial institutions. It is an excellent reference work which will appeal to legal scholars and practitioners throughout Australia and internationally. (shrink)

Legal and political controversies persist about the performance of Kelsenian-type constitutional courts in democratic systems. One of the reasons is that the design of these institutions cannot easily accommodate simultaneous but conflicting demands for the strong protection of democracy and human rights, judicial independence and constitutional restraint. Challenging the dominant approach to the design of contemporary constitutional courts, this article proposes a new way to balance these three values through reforms to the structure of Kelsenian institutions. The proposal seeks (...) to institutionalize constitutional restraint, embedding it into courts’ internal functioning rules while, concurrently, emancipating constitutional judges from political control through a reform of appointment procedures. It is argued that the combined effects of these two reforms will produce constitutional courts that are more independent and able to protect the core elements of a democratic political community while, at the same time, increasing constitutional deference to the democratically elected legislator. (shrink)

Extensive urbanization is one of the most significant demographic and geopolitical phenomena of our time. Yet, with few exceptions, constitutional theory has failed to turn its attention to this crucial trend. In particular, the burgeoning constitutional literature aimed at addressing phenomena such as democratic backsliding, constitutional retrogression, and populist threats to judicial independence and the rule of law has failed to respond to the significance of place as an emerging cleavage in contemporary politics. An alarming disconnect has emerged between (...) constitutionalism's overwhelmingly statist (or Westphalian) outlook and the reality of geographically localized concentration of worldviews, policy preferences, and political identities. In this essay, I identify urban agglomeration and the accompanying resurgence of the urban-rural divide as posing a critical challenge to liberal constitutional democracy, and argue that the time is ripe to pay closer attention to the spatial dimension of constitutional governance and its impact on the rise of anti-establishment political resentment. To that end, in the essay's final part I identify several areas of constitutional law and theory that appear to hold some intellectual promise in thinking creatively about mitigating the urban-rural divide, and about the mounting urban challenge more generally. (shrink)

Margaret Reynolds: The Child in Poetry Ken Binmore: The Origins of Fair Play James Simpson: Bonjour Paresse: Waste and Recycling in Book 4 of Gower's Confessio Amantis Ian Hacking: Kinds of People: Moving Targets Adam Smith: Nation and Covenant: The Contribution of Ancient Israel to Modern Nationalism Louise Daston: The Marquis de Condorcet and the Meaning of Enlightenment R J Evans: Coercion and Consent in Nazi Germany Robert Douglas-Fairhurst: A E Housman's Rejected Addresses Bernard Bailyn: The Search for Perfection: Atlantic (...) Dimensions John Stachel: Einstein; Ian Donaldson, Shakespeare, Jonson and the Invention of the Author Neil MacCormick: Judicial Independence: Who Cares? Norman Hammond: Recovering Maya Civilisation Roy Foster: 'Now Shall I Make My Soul': Approaching Death in Yeats's Life and Work Robert Darnton: The Devil in the Holy Water: Political Libel in Eighteenth-Century France. (shrink)

This essay examines judicial decision-making from the perspective of Whiteheadian ‘process philosophy’. As such, it seeks to demonstrate how the explanatory categories of process thought can be applied to law and legal reasoning in such a way as to expose the nature of the processes that constitute their development. The essay begins with a description of the judicial task drawn from contemporary theorising about legal argumentation, identified in terms of the separation of contexts of decision-making: discovery and justification. (...) In light of this discussion, the essay then adopts Whiteheadian terminology to provide the basis for an alternative understanding and description of the way that a discrete instance of judicial decision-making develops and is maintained within the decision-making process. In this way, independent of any debate over the separation of contexts, the essay seeks not only to expose and unpack the otherwise hidden micro-processes that contribute to and constitute a legal decision but also, by utilising the same conceptual categories of Whiteheadian process thought, to provide a coherent and consistent account of the macro-processes more commonly observed on the level of law as a social realty. The essay argues that the explanatory power of the categoreal scheme of process thought provides a better tool for understanding these relations on all levels. (shrink)

It is a constitutional demand for judges to be objective. Ethical codes show that objectivity depends on rules enabling individuals to counter their subjectivity. Yet these codes focus on judges’ general behaviour while methodology strives for objectivity in the judges’ core task of applying the law on a specific case. Various methods are examined whether they guarantee or at least contribute to an objective interpretation of the law within the existing margin of interpretation. Conscious application of methodology is elaborated upon (...) as a demand of a democratic state under the rule of law. While the principle of judicial independence already limits control of the external result of the adjudication process, it is almost impossible to control the internal process of applying the law that takes place only inside the judge’s head. Thus, it is up to each judge to ensure objectivity by internally binding themselves to a conscious application of methods - therefore constituting an ethical demand. (shrink)

This article argues that the courts, not the Home Secretary, should be empowered to issue Terrorism Prevention and Investigation Measures. It explains that at the heart of the debate are three questions: whether measures like TPIMs should be viewed primarily from the perspective of security or liberty; how we should conceive the executive and the courts; and the empirical question of how these two arms of government answer these questions. The non-mechanistic nature of legal reasoning means that legal reasons may (...) be constructed to fit one’s normative viewpoint on each of the first two questions. Importantly, however, the case law on judicial scrutiny of control orders consistently demonstrates that the courts themselves regard TPIMs as being primarily a restriction on liberty, which require a fair hearing before an independent court. Whilst this does provide some protection of individual rights, the nature of law as an unfinished practice means that for stable protection of individual rights judicial independence must be promoted and nurtured in both the legal and political realms. The failure of the Terrorism Prevention and Investigation Measures Act 2011 to vest the power to issue TPIMs in the courts thus represents a missed opportunity to secure political endorsement of enhanced legal protection of individual liberty in cases involving national security. (shrink)

It is not easy to find a fair balance between inappropriate speech on the one hand and the appearance of constraint and inaccessibility on the other. Also judges must deal with this difficult task. They must take care not to endanger values that are protected to secure the functionality of justice. This article deals with questions of why and how judges can fulfil this task and what might happen if they fail to do so. The article argues in favour of (...) temperate speech using arguments from the fields of judicial ethics and normative ethics. It also offers examples of intemperate speech that might be dangerous to justice. Last but not least, the article mentions the relevance of judicial temperate speech for the concept of open justice thanks to which the judiciary might seek public confidence. (shrink)