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Author : Niels Petersen
Publisher : Cambridge University Press
Page : 261 pages
File Size : 47,7 Mb
Release : 2017-03-02
Category : Law
ISBN : 9781107177987
This book uses empirical analysis to show that courts refrain from using the proportionality test as a means of judicial activism.
Author : Luís Pereira Coutinho,Massimo La Torre,Steven D. Smith
Publisher : Springer
Page : 206 pages
File Size : 55,5 Mb
Release : 2015-05-26
Category : Law
ISBN : 9783319185491
This volume offers different perspectives on judicial practice in the European and American contexts, both arguably characterized in the last decades by the emergence of novel normative and even policy arguments by judges. The central question deserving the attention of the contributors concerns the degree in which judicial exercises in practical reasoning may amount to forms of judicial usurpation of the legislative function by courts. Since different views as to the nature and scope of legal reasoning lead to different degrees of tolerance regarding what should be admissible to courts, that same nature and scope is thoroughly debated. The main disciplinary approach is that of general jurisprudence, but the contributions take stock of other disciplines in which judicial activism has been addressed, namely positive theories of judicial behavior. Accordingly, the book also explores the development of interdisciplinary dialogue about the theme.
Author : Kenneth M. Holland
Publisher : Springer
Page : 230 pages
File Size : 54,8 Mb
Release : 1991-06-18
Category : Law
ISBN : 9781349117741
The theme of this book is judicial activism in industrialized democracies, with a chapter on the changing political roles of the courts in the Soviet Union. Eleven contributors describe the extent to which the highest courts in their country of expertise have embraced the making of public policy.
Author : Stefanie Lindqquist,Frank Cross
Publisher : Oxford University Press
Page : 189 pages
File Size : 55,5 Mb
Release : 2009-04-23
Category : Law
ISBN : 9780195370850
'Measuring Judicial Activism' supplies empirical analysis to the widely discussed concept of judicial activism at the United States Supreme Court. The book seeks to move beyond more subjective debates by conceptualizing activism in non-ideological terms.
Author : David Duarte,Jorge Silva Sampaio
Publisher : Springer
Page : 200 pages
File Size : 42,8 Mb
Release : 2018-07-09
Category : Law
ISBN : 3319896466
This book addresses the principle of proportionality, which is currently one of the most important instruments of judicial review, from both analytical and theory of law perspectives. As such, the analysis provided is far more comprehensive and can be applied to all areas of law, not just constitutional law. On the one hand, the volume offers a broad perspective on several aspects related to proportionality, such as its structure, the balancing methodology and the distinction between rules and principles. On the other, it provides an innovative, normativist and analytical approach to proportionality, helping readers understand its structure and behaviour.
Author : Martin Belov
Publisher : Routledge
Page : 319 pages
File Size : 49,7 Mb
Release : 2021-09-22
Category : Law
ISBN : 9781000436419
This collection examines topical issues related to the impact of courts on constitutional politics during extreme conditions. The book explores the impact of activist courts on democracy, separation of powers and rule of law in times of emergency constitutionalism. It starts with a theoretical explanation of the concept, features and main manifestations of judicial activism and its impact in shaping the relationship between constitutional, international and supranational law. It then focuses on judicial activism in extreme conditions, for example, in times of emergencies and pandemics, or in the context of democratic backsliding, authoritarian constitutionalism and illiberal constitutionalism. Thus, the book may be considered as a contribution to the debates on judicial activism, including the discussion of the impact of courts on certainty, proportionality and balancing of rights, as well as on revolutionary courts challenging authoritarian context and generally over the role of courts in the context of illiberalism and democratic backsliding. The volume thus offers an explanation of the concept of judicial activism, its impact on both the legal system and the political order and the role of courts in shaping the structures of the legal order. These issues are explored in theoretical and comparative constitutional perspectives. The book will be a valuable resource for academics and researchers working in the areas of courts, constitutional law and constitutional politics.
Author : Mordechai Kremnitzer,Talya Steiner,Andrej Lang
Publisher : Cambridge University Press
Page : 689 pages
File Size : 48,5 Mb
Release : 2020-04-30
Category : Law
ISBN : 9781108497589
A comparative and empirical analysis of proportionality in the case law of six constitutional and supreme courts.
Author : Yutaka Arai-Takahashi
Publisher : Intersentia nv
Page : 263 pages
File Size : 46,8 Mb
Release : 2002
Category : Convention for the Protection of Human Rights and Fundamental Freedoms
ISBN : 9789050951951
5.2.3. Burden of Proof
Author : Josephine De Jaegere
Publisher : Unknown
Page : 0 pages
File Size : 42,5 Mb
Release : 2019
Category : Courts
ISBN : 1780686943
Focusing on the Constitutional Court of Belgium, the approach of this book is to combine normative ideas on how the Court should act with an empirical case law analysis. It explores the extent to which the Court performs as a deliberative institution, while operating within a consensual political system.
Author : Moshe Cohen-Eliya,Iddo Porat
Publisher : Cambridge University Press
Page : 183 pages
File Size : 52,9 Mb
Release : 2013-06-13
Category : Law
ISBN : 9781107244757
Although the most important constitutional doctrine worldwide, a thorough cultural and historical examination of proportionality has not taken place until now. This comparison of proportionality with its counterpart in American constitutional law - balancing - shows how culture and history can create deep differences in seemingly similar doctrines. Owing to its historical origin in Germany, proportionality carries to this day a pro-rights association, while the opposite is the case for balancing. In addition, European legal and political culture has shaped proportionality as intrinsic to the state's role in realizing shared values, while in the United States a suspicion-based legal and political culture has shaped balancing in more pragmatic and instrumental terms. Although many argue that the USA should converge on proportionality, the book shows that a complex web of cultural associations make it an unlikely prospect.
Author : David M. Beatty
Publisher : Oxford University Press, USA
Page : 228 pages
File Size : 52,5 Mb
Release : 2004
Category : Law
ISBN : 0199269807
The Ultimate Rule of Law addresses the age-old tension between law and politics by examining whether the personal beliefs of judges come into play in adjudicating on issues of religious freedom, sex discrimination, and social and economic rights. Decisions by the Supreme Courts of India, Japan, Canada, the United States, Ireland, Israel, the Constitutional Courts of Germany, Hungary, South Africa, and the European Court of Human Rights on such controversial issues as government funding of religious schools, abortion, same sex marriages, women in the military, and rights to basic shelter and life saving medical treatment are evaluated and compared. Beatty develops a radical alternative to the conventional view that in deciding these cases judges engage in an essentially interpretative, and thus subjective act, relying ultimately on their personal beliefs and political opinions. His analysis shows that it is possible to apply an impartial and objective method of judicial review, based on the principle of proportionality, which acts as an ultimate rule of law and is fully compatible with the ideals of democracy and popular sovereignty. Controversially, Beatty concludes that although this method of judicial review originated in the United States, American judges generally appear to be far less inclined to this conception of constitutional adjudication than their counterparts in Europe, Africa, and Asia.
Author : Aharon Barak
Publisher : Cambridge University Press
Page : 638 pages
File Size : 41,8 Mb
Release : 2012-01-19
Category : Law
ISBN : 1107401194
Having identified proportionality as the main tool for limiting constitutional rights, Aharon Barak explores its four components (proper purpose, rational connection, necessity and proportionality stricto sensu) and discusses the relationships between proportionality and reasonableness and between courts and legislation. He goes on to analyse the concept of deference and to consider the main arguments against the use of proportionality (incommensurability and irrationality). Alternatives to proportionality are compared and future developments of proportionality are suggested.
Author : Aharon Barak
Publisher : Princeton University Press
Page : 355 pages
File Size : 46,5 Mb
Release : 2009-01-10
Category : Law
ISBN : 9781400827046
Whether examining election outcomes, the legal status of terrorism suspects, or if (or how) people can be sentenced to death, a judge in a modern democracy assumes a role that raises some of the most contentious political issues of our day. But do judges even have a role beyond deciding the disputes before them under law? What are the criteria for judging the justices who write opinions for the United States Supreme Court or constitutional courts in other democracies? These are the questions that one of the world's foremost judges and legal theorists, Aharon Barak, poses in this book. In fluent prose, Barak sets forth a powerful vision of the role of the judge. He argues that this role comprises two central elements beyond dispute resolution: bridging the gap between the law and society, and protecting the constitution and democracy. The former involves balancing the need to adapt the law to social change against the need for stability; the latter, judges' ultimate accountability, not to public opinion or to politicians, but to the "internal morality" of democracy. Barak's vigorous support of "purposive interpretation" (interpreting legal texts--for example, statutes and constitutions--in light of their purpose) contrasts sharply with the influential "originalism" advocated by U.S. Supreme Court Justice Antonin Scalia. As he explores these questions, Barak also traces how supreme courts in major democracies have evolved since World War II, and he guides us through many of his own decisions to show how he has tried to put these principles into action, even under the burden of judging on terrorism.
Author : Rainer Arnold,José Ignacio Martínez-Estay
Publisher : Springer
Page : 446 pages
File Size : 55,7 Mb
Release : 2017-05-16
Category : Law
ISBN : 9783319551869
Judicial control of public power ensures a guarantee of the rule of law. This book addresses the scope and limits of judicial control at the national level, i.e. the control of public authorities, and at the supranational level, i.e. the control of States. It explores the risk of judicial review leading to judicial activism that can threaten the principle of the separation of powers or the legitimate exercise of state powers. It analyzes how national and supranational legal systems have embodied certain mechanisms, such as the principles of reasonableness, proportionality, deference and margin of appreciation, as well as the horizontal effects of human rights that help to determine how far a judge can go. Taking a theoretical and comparative view, the book first examines the conceptual bases of the various control systems and then studies the models, structural elements, and functions of the control instruments in selected countries and regions. It uses country and regional reports as the basis for the comparison of the convergences and divergences of the implementation of control in certain countries of Europe, Latin America, and Africa. The book’s theoretical reflections and comparative investigations provide answers to important questions, such as whether or not there are nascent universal principles concerning the control of public power, how strong the impact of particular legal traditions is, and to what extent international law concepts have had harmonizing and strengthening effects on internal public-power control.
Author : Matthias Jestaedt,Oliver Lepsius,Christoph Möllers,Christoph Schönberger
Publisher : Oxford University Press
Page : 257 pages
File Size : 44,8 Mb
Release : 2020-03-05
Category : Law
ISBN : 9780192512109
This translation into English of the leading German-language work on the Federal Constitutional Court gives an overview of the court's history and role as one of the most influential constitutional courts in recent years. The book consists of four extended, free-standing essays written by each of the authors. The essays cover the historical development and political context of the Court; the Court and the constitution; the Court's approach to judicial reasoning; and the Court in contemporary constitutional theory.