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Frank I. Michelman takes up a proposition from John Rawls that a stricter constraint of constitutional fidelity applies to supreme court judges in a constitutional democracy than to citizens acting politically as litigants, voters, organizers, and otherwise as agitators for political causes to determine whether this proposition fits with Rawls’s other political ideas. It is, however, not immediately clear how this proposition can fit with Rawls’s proposed “liberal principle of legitimacy,” according to which a country’s constitution is to figure as a public procedural pact, by appeal to which citizens justify to each other their exertions of the coercive political powers that they hold as citizens in a democracy. Answering requires careful specification of the respects in which the fidelity constraint is to be looser for citizens than for judges, close analysis of the Rawlsian constitution-centered “principle of legitimacy,” and consideration of Rawls’s later writings that modify in some crucial respects the principle of legitimacy.
Connecticut, Rhode Island, and South Carolina do not use any form of popular election in selecting state judges. Selection is (or was) through either election by the legislature or appointment by the governor. In each of the three states, one or more controversies surrounding either the selection process or serving judges provided the impetus for changes that required persons selected as judges to have been screened and either approved or recommended by a committee or commission. In Connecticut and Rhode Island, the screening body forwards a short list to the selecting authority; in South Carolina, the screening body reviews applications from persons who desire to be on a list of those eligible for appointment in the future. To the extent that partisanship influenced the change process, it was primarily focused on the composition of the screening body rather than on whether there should be such a body.
Being represented has value. When another speaks for me, they can give voice to my perspective or interests in fora where my perspective or interests might otherwise go unheard or even unspoken. They may give voice to interests which I do not know how to express or which I do not even know I have. Our traditional understanding of political representation is that it is an activity that takes place only or mostly in discrete and easily recognizable legislative fora – for instance, the Senate or the House of Representatives. But, if we instead think of political representation as a practice of speaking or acting for others that could, in theory, arise anywhere a person’s or a group’s interests arise, then it turns out that political representation may take place anywhere there is a speaker or an actor and an audience.
This chapter explores the conundrum of what happens where government departments, employees and officials, and court officials, may be swept up within a class. Some legislatures in the Comparator Jurisdictions have sought to preclude this (potentially awkward) scenario by insisting that this type of governmental entity or individual must opt in to the class action. Others have not imposed that requirement, which has led to some interesting case law.
Cet article traite du concours « Le bon juge que j’aime le plus » organisé par la Cour Populaire Suprême de Chine (CPS) en 2017. Nous expliquerons l’importance du concours et les fins véritables qu’il sert dans le contexte judiciaire chinois marqué entre autres par l’exode des juges de la profession et la campagne anti-corruption du Parti Communiste Chinois. Les dossiers des dix juges modèles lauréats seront analysés afin de dégager certaines des attentes qui pèsent sur les juges chinois et le regard de la CPS sur divers enjeux de la justice. Le concours s’inscrit dans une tradition chinoise qui a traversé les siècles, le recours aux personnages modèles.
This paper examines the work of lawyers, judges and country experts involved in asylum and migration litigation. I begin by analysing their work in the wider semi-autonomous asylum field within which a number of powerful institutions operate to shape policy, define the roles of key actors and determine access to legal redress/justice by asylum applicants and migrants. To understand the work of these three legal actors, I analyse four very different types of legal cases involving asylum, foreign adoption and migration law. An analysis of these cases helps to identify the constraints on effective litigation on behalf of refugees and migrants against the British Home Office and it illustrates the fact that it is Home Office policy, and the decisions taken by Home Office officials, that created the injustice for the individuals concerned by blurring the ‘bright line’ differentiating between the rights of nationals and those of ‘foreigners’.
Together, the three biblical books Judges, Samuel, and Kings tell the larger part of the story of Israel and Judah as more-or-less independent nations on their own land. Their principal focus is on “rule,” good rule and bad rule: mostly royal rule (by kings), but also “rule” by judges and deliverers, and even by prophets. David is the key human ruler. God too “rules” in these books, but as “judge” rather than as “king.” Together with the book of Joshua, they constitute the sub-set of the Hebrew Bible called Former Prophets and the start of the historical books in an English Bible.
Judges ad hoc of the International Court of Justice have been widely criticized for their supposed lack of impartiality. This criticism may seem all the more powerful if one takes into account that judges ad hoc were created as a means to avoid the Court’s bias and appearance of bias. However, recent developments in the appointment of judges ad hoc indicate that, far from being a detriment to the states’ perception of the Court’s impartiality, judges ad hoc are a means to enhance the perception that the Court as a whole is impartial. Such developments include the increased frequency with which former elected judges are appointed judges ad hoc, the practice of electing judges from the ranks of former (or sitting) judges ad hoc, and the appointment of nationals or non-nationals as judges ad hoc. The institution of judges ad hoc has come full circle, and should be regarded as fulfilling the function for which it was created.
Commercial wealth is increasingly to be found in intellectual property rights. Protection of such rights is exclusively the domain of litigation, to be decided by judges who often will have no personal education or experience in the discipline involved. Thus expert witnesses in the relevant field will be required. Different procedures have evolved: court-appointed experts, assessors, the Hot Tub. How can the objectivity of expert witnesses be ensured? In a particular field there may be experts, but issues can still be decided by lay judges or juries without their assistance. Is this expert really necessary?
Over the years, through my research on sexual violence, it becomes clearer that these problems of disparate sentencing, lenient sentences for some rapists, the stigmatization of female and transgendered victims, and the punishment of women – both as victims and perpetrators – occupy a global space not confined to the United States. That is, judges globally are making poor decisions regarding rape and incest.
Chapter 2 contends that the seemingly innocent attempt to document citizens through Operation Family (1959–1965) developed into an instrument for consolidating state power. This Ministry of Justice campaign to legalize extra-legal unions and register undocumented Cubans provoked a surge in marriage, a direct consequence – this chapter demonstrates – of fixed-term laws that concurrently restricted the power of the judiciary. The chapter also argues that Cuban leadership advanced legal matrimony in order to supplant female heads of household, whose participation in the paid-labor force could support men engaged in illegal or counterrevolutionary activities. Las Villas and Matanzas, provinces where counterrevolutionaries most threatened revolutionary government authority, had the highest rates of legal marriage during the peak years of the marriage campaign. These two provinces were also predominantly white, suggesting that MINJUS prioritized the regulation and reformation of rural, Hispanic white couples over those of Afro-Cubans. The second half of the chapter examines the inauguration of Wedding Palaces and material benefits meant to incentivize marriage. Popular discourse suggested that Cubans were marrying (and divorcing) in high numbers in order to take advantage of the increased purchasing power allocated to newlyweds. In these ways, couples showed themselves reluctant to acquiesce to the state’s marital expectations.
Countermajoritarian institutions have shaped the course of modern Turkish politics. Because they have mainly acted as institutions of military tutelage, they have been identified as one of the greatest obstacles to democratization. The most notable countermajoritarian institutions in Turkey are the Constitutional Court, the High Council of Judges and Prosecutors, the National Security Council, and the Council of Higher Education. This chapter analyzes the deliberations on possible reform to these institutions in the writing commission of the Constitutional Conciliation Commission ‘Anayasa Uzlama Komisyonu, AUK’ from 2011 to 2013. It shows that delegates agreed on some issues and were close to reaching agreement on others. Yet, the requirement of consensus among all parties enabled certain actors to obstruct final agreements. The partial agreements ultimately yielded no lasting results. After adoption of constitutional amendments in 2017, it seems that countermajoritarian institutions now function as institutions of partisan, executive tutelage.
Although in the last decade an increasing number of studies have tried to deepen the understanding of judicial-decision making and generally the working of courts, there is still a substantial theoretical and empirical gap to be investigated. The present research attempts to advance the understanding of judicial decision-making in the rarely investigated field of international courts’. The international setting, representing the intersection of several national politics’ agendas, supplies results even more obscure to be interpreted than national courts.
The main research question raised is whether the usual theoretical pillars guiding damages awarding in judicial decision-making still applies herewith or whether a different approach should be adopted for international courts and specifically for the European Court of Human Rights the subject matter of the current study, in which for example the defendant is very often states rather than individuals. The empirical investigation shows patterns and regularities that might offer a reasonable explanation on how the international court decides and what is the likely meaning of the peculiar damages awarding scheme that seems mainly to go in the direction of performing an expressive function.
Chapetr 4 traces the reception and adaptation of Islamicate meteorology by writers and scientists in Northern and Western Europe. Fundamental to this was the growing body of planetary tables, based on versions of Ptolemy’s work, which made it possible to calculate the positions of the planets with much greater accuracy. The chapter traces the works of Latin astrometeorology that drew on this ability, and gives outlines of the processes involved in making actual weather forecasts, according to rival methods. Pioneers were Hermann of Carinthia, Robert of Ketton and John of Seville, who all made translations and then issued new treatises on the subject. Manuscript evidence for the transmission of this new astrometeorology is discussed. The roles of astrological textbooks, especially the Book of Nine Judges, are considered. The concluding part of the chapter weighs up the popularity of astrometeorological forecasting across Europe by the early thirteenth century, and argues that it was closely associated with the emergence of a new, highly technical, scientific discourse.
Chapter 6, The Visual Jurisprudence of Transition, theorises the Constitutional Court of South Africa’s art collection as a new kind of visual jurisprudence—the philosophy of the visual in law. I analyse the ways in which people, especially judges, talk about the art collection in order to show how artworks at the Court become central to the bodies of aesthetic knowledge that shape the appearance of justice and that shape how justice is understood. I argue that the artworks at the Court engage the moral imagination—a position which intersects with the debate in human rights scholarship over whether moral discourse or sentimental education is more effective in promoting respect for rights. In such close proximity to the Court, the art collection inhabits a unique position in which the assumptions of justice (and Justices) and what it means to uphold the Constitution can be probed. This creates a visual jurisprudence that reflects both the values which underpin the Court as well as the ways of practicing justice in post-apartheid South Africa.
China has confirmed its ambition to join the global competition for international business dispute resolution services by establishing the China International Commercial Court (CICC). The CICC has now begun operation following a judicial interpretation issued by the Supreme People's Court. By examining the trial process of the CICC as set out by the Supreme People's Court and comparing the rules with other international commercial courts, this article provides a detailed overview and critical analysis of the issues surrounding cases brought to the CICC. Overall, compared with the approaches adopted by other international commercial courts, the approach adopted by the CICC is conservative. Without bold innovations to China's existing judicial system, the competitiveness of the CICC is likely to be limited. This article argues that it is desirable for the Court to be more actively reformed. Such reforms might also promote judicial reform in China generally and increase China's institutional competitiveness in the global business world. This article also aims to outline the challenges that parties (in particular those from overseas) may face in litigation before the CICC and provide the international community with a critical analysis of the operation and framework of the CICC.
This chapter determines the extent to which Daniel S. Lev’s academic legacy remains relevant in the District Courts of greater Jakarta during Indonesia’s ‘Reform’ (reformasi) era from 1998 onwards. In other words, is modern Jakarta District Court ‘culture’ recognisable from Lev’s early works, authored during the Sukarno and Suharto eras? The regency or municipality-level District Courts (pengadilan negeri) try both civil and criminal cases across the Indonesian archipelago. However, this chapter’s case study focuses exclusively on sentencing decisions in criminal cases at first instance, which tend to dominate the case dockets of the District Courts. Criminal punishment, as a subject attracting strong views and even cultural fascination, and unconstrained in Indonesia’s predominantly civil law criminal justice system by formal case law precedents or sentencing guidelines, forms an ideal vehicle through which to analyse a jurisdiction’s ‘internal’ legal culture, as it manifests here in the attitudes and customs of judges. In brief, this chapter’s findings on Lev’s continuing influence are mixed: some of Lev’s earlier observations mirror the current attitudes and behaviours of greater Jakarta District Court judges in criminal cases, yet other observations are either no longer relevant after reformasi, or at the very least, may not be relevant at the District Court level or within greater Jakarta as a geographical region and cultural space.
The Indian Supreme Court has been called “the most powerful court in the world” for its wide jurisdiction, its expansive understanding of its own powers, and the billion plus people under its authority. Yet scholars and policy makers have a very uneven picture of the court’s functioning: deep knowledge about the more visible, “high-profile” cases but very little about more mundane, but far more numerous and potentially equally important, decisions. This chapter aims to address this imbalance with a rigorous, empirical account of the Court’s decisions from 2010 to 2015. We use the most extensive original dataset of Indian Supreme Court opinions yet created to provide a broad, quantitative overview of the social identity of the litigants that approach the court, the types of matters they bring to the court, the levels of success that different groups of litigants have before the Court, and the opinion-writing patterns of the various judges of the Supreme Court. This analysis provides foundational facts for the study of the Court and its role in progressive social change.