Rule Of Law Human Rights And Judicial Control Of Power

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Rule of Law, Human Rights and Judicial Control of Power

Rainer Arnold,José Ignacio Martínez-Estay
Rule of Law Human Rights and Judicial Control of Power Book PDF

Author : Rainer Arnold,José Ignacio Martínez-Estay
Publisher : Springer
Page : 446 pages
File Size : 45,8 Mb
Release : 2017-05-16
Category : Law
ISBN : 9783319551869

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Rule of Law, Human Rights and Judicial Control of Power by Rainer Arnold,José Ignacio Martínez-Estay Pdf

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.

Law, Liberty, and the Rule of Law

Imer B. Flores,Kenneth E. Himma
Law Liberty and the Rule of Law Book PDF

Author : Imer B. Flores,Kenneth E. Himma
Publisher : Springer Science & Business Media
Page : 196 pages
File Size : 41,6 Mb
Release : 2012-09-29
Category : Philosophy
ISBN : 9789400747425

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Law, Liberty, and the Rule of Law by Imer B. Flores,Kenneth E. Himma Pdf

In recent years, there has been a substantial increase in concern for the rule of law. Not only have there been a multitude of articles and books on the essence, nature, scope and limitation of the law, but citizens, elected officials, law enforcement officers and the judiciary have all been actively engaged in this debate. Thus, the concept of the rule of law is as multifaceted and contested as it’s ever been, and this book explores the essence of that concept, including its core principles, its rules, and the necessity of defining, or even redefining, the basic concept. Law, Liberty, and the Rule of Law offers timely and unique insights on numerous themes relevant to the rule of law. It discusses in detail the proper scope and limitations of adjudication and legislation, including the challenges not only of limiting legislative and executive power via judicial review but also of restraining active judicial lawmaking while simultaneously guaranteeing an independent judiciary interested in maintaining a balance of power. It also addresses the relationship not only between the rule of law, human rights and separation of powers but also the rule of law, constitutionalism and democracy.

Law, Liberty, and the Rule of Law

Imer B. Flores,Kenneth E. Himma
Law Liberty and the Rule of Law Book PDF

Author : Imer B. Flores,Kenneth E. Himma
Publisher : Springer
Page : 190 pages
File Size : 52,5 Mb
Release : 2012-09-29
Category : Philosophy
ISBN : 9400747446

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Law, Liberty, and the Rule of Law by Imer B. Flores,Kenneth E. Himma Pdf

In recent years, there has been a substantial increase in concern for the rule of law. Not only have there been a multitude of articles and books on the essence, nature, scope and limitation of the law, but citizens, elected officials, law enforcement officers and the judiciary have all been actively engaged in this debate. Thus, the concept of the rule of law is as multifaceted and contested as it’s ever been, and this book explores the essence of that concept, including its core principles, its rules, and the necessity of defining, or even redefining, the basic concept. Law, Liberty, and the Rule of Law offers timely and unique insights on numerous themes relevant to the rule of law. It discusses in detail the proper scope and limitations of adjudication and legislation, including the challenges not only of limiting legislative and executive power via judicial review but also of restraining active judicial lawmaking while simultaneously guaranteeing an independent judiciary interested in maintaining a balance of power. It also addresses the relationship not only between the rule of law, human rights and separation of powers but also the rule of law, constitutionalism and democracy.

Judicial Review in New Democracies

Tom Ginsburg
Judicial Review in New Democracies Book PDF

Author : Tom Ginsburg
Publisher : Cambridge University Press
Page : 322 pages
File Size : 42,5 Mb
Release : 2003-07-23
Category : Law
ISBN : 0521520398

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Judicial Review in New Democracies by Tom Ginsburg Pdf

New democracies around the world have adopted constitutional courts to oversee the operation of democratic politics. Where does judicial power come from, how does it develop in the early stages of democratic liberalization, and what political conditions support its expansion? This book answers these questions through an examination of three constitutional courts in Asia: Taiwan, Korea, and Mongolia. In a region that has traditionally viewed law as a tool of authoritarian rulers, constitutional courts in these three societies are becoming a real constraint on government. In contrast with conventional culturalist accounts, this book argues that the design and functioning of constitutional review are largely a function of politics and interests. Judicial review - the power of judges to rule an act of a legislature or national leader unconstitutional - is a solution to the problem of uncertainty in constitutional design. By providing insurance to prospective electoral losers, judicial review can facilitate democracy.

Separating Powers: International Law before National Courts

David Haljan
Separating Powers International Law before National Courts Book PDF

Author : David Haljan
Publisher : Springer Science & Business Media
Page : 335 pages
File Size : 46,5 Mb
Release : 2012-10-30
Category : Law
ISBN : 9789067048583

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Separating Powers: International Law before National Courts by David Haljan Pdf

The more international law, taken as a global answer to global problems, intrudes into domestic legal systems, the more it takes on the role and function of domestic law. This raises a separation of powers question regarding law–making powers. This book considers that specific issue. In contrast to other studies on domestic courts applying international law, its constitutional orientation focuses on the presumptions concerning the distribution of state power. It collects and examines relevant decisions regarding treaties and customary international law from four leading legal systems, the US, the UK, France, and the Netherlands. Those decisions reveal that institutional and conceptual allegiances to constitutional structures render it difficult for courts to see their mandates and powers in terms other than exclusively national. Constitutionalism generates an inevitable dualism between international law and national law, one which cannot necessarily be overcome by express constitutional provisions accommodating international law. Valuable for academics and practitioners in the fields of international and constitutional law.

National Courts and the International Rule of Law

André Nollkaemper
National Courts and the International Rule of Law Book PDF

Author : André Nollkaemper
Publisher : Oxford University Press
Page : 384 pages
File Size : 54,9 Mb
Release : 2012
Category : Law
ISBN : 9780191652820

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National Courts and the International Rule of Law by André Nollkaemper Pdf

This book explores the way domestic courts contribute to the maintenance of theinternational of law by providing judicial control over the exercises of public powers that may conflict with international law. The main focus of the book will be on judicial control of exercise of public powers by states. Key cases that will be reviewed in this book, and that will provide empirical material for the main propositions, include Hamdan, in which the US Supreme Court reviewed detention by the United States of suspected terrorists against the 1949 Geneva Conventions; Adalah, in which the Supreme Court of Israel held that the use of local residents by Israeli soldiers in arresting a wanted terrorist is unlawful under international law, and the Narmada case, in which the Indian Supreme Court reviewed the legality of displacement of people in connection with the building of a dam in the river Narmada under the ILO Indigenous and Tribal Populations Convention 1957 (nr 107). This book explores what it is that international law requires, expects, or aspires that domestic courts do. Against this backdrop it maps patterns of domestic practice in the actual or possible application of international law and determines what such patterns mean for the protection of the international rule of law.

Human Rights and Judicial Review: A Comparative Perspective

David M. Beatty
Human Rights and Judicial Review A Comparative Perspective Book PDF

Author : David M. Beatty
Publisher : BRILL
Page : 374 pages
File Size : 43,9 Mb
Release : 2021-09-27
Category : Law
ISBN : 9789004479401

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Human Rights and Judicial Review: A Comparative Perspective by David M. Beatty Pdf

Human Rights and Judicial Review: A Comparative Perspective collects, in one volume, a basic description of the most important principles and methods of analysis followed by the major Courts enforcing constitutional Bills of Rights around the world. The Courts include the Supreme Courts of Japan, India, Canada and the United States, the Constitutional Courts of Germany and Italy and the European Court of Human Rights. Each chapter is devoted to an analysis of the substantive jurisprudence developed by these Courts to determine whether a challenged law is constitutional or not, and is written by members of these Courts who have had a prior academic career. The book highlights the similarities and differences in the analytical methods used by these courts in determining whether or not someone's constitutional rights have been violated. Students and scholars of constitutional law and human rights, judges and advocates engaged in constitutional litigation will find the book a unique and valuable resource.

The Concept of the Rule of Law and the European Court of Human Rights

Geranne Lautenbach
The Concept of the Rule of Law and the European Court of Human Rights Book PDF

Author : Geranne Lautenbach
Publisher : OUP Oxford
Page : 272 pages
File Size : 49,5 Mb
Release : 2013-11-28
Category : Law
ISBN : 9780191650956

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The Concept of the Rule of Law and the European Court of Human Rights by Geranne Lautenbach Pdf

This book analyses the concept of the rule of law in the context of international law, through the case law of the European Court of Human Rights. It investigates how the court has defined and interpreted the notion of the rule of law in its jurisprudence. It places this analysis against a background of more theoretical accounts of the idea of the rule of law, drawing in ideas of political philosophy. It also provides a comparative assessment, demonstrating how the idea of the rule of law has evolved in the UK, France, and Germany. The book argues that at the core of the concept of the rule of law are the notions of legality and judicial safeguards. It states that the Court has developed the requirements of legality, which the work analyses in detail, based on that concept. It assesses the independence of the judiciary as an aspect of the rule of law in the context of the European Convention on Human Rights, and the relationship between the rule of law and the substantive contents of law. The book posits that the rule of law as seen at the Court is not mainly utilised with regard to 'freedom' rights, but is more concerned with procedural rights. It discusses the relationship between the rule of law and the view of the Convention as a constitutional instrument of the European public order, and shows that the rule of law and democracy are inextricably linked in the case law of the Court. Ultimately, the book demonstrates in its analysis of the Court's jurisprudence that the notion of the rule of law is a crucial part of the international legal order.

Constitutionalism - Human Rights - Separation of Powers

Georghios M. Pikis
Constitutionalism Human Rights Separation of Powers Book PDF

Author : Georghios M. Pikis
Publisher : BRILL
Page : 188 pages
File Size : 50,6 Mb
Release : 2006-08-02
Category : Law
ISBN : 9789047410218

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Constitutionalism - Human Rights - Separation of Powers by Georghios M. Pikis Pdf

The Constitution incorporates human rights as a dominant feature of its order pervading every aspect of the law and has been the sole source of authority, with the Judiciary cast as a watchdog trusted to ensure that no branch of the State transgresses the boundaries of its powers. The book chronicles through the case law of the Supreme Court, a precedent of constitutionalism worthy of the attention of every scholar of constitutional law.

Comparative Judicial Review

Erin F. Delaney,Rosalind Dixon
Comparative Judicial Review Book PDF

Author : Erin F. Delaney,Rosalind Dixon
Publisher : Edward Elgar Publishing
Page : 464 pages
File Size : 51,8 Mb
Release : 2018-09-28
Category : Law
ISBN : 9781788110600

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Comparative Judicial Review by Erin F. Delaney,Rosalind Dixon Pdf

Constitutional courts around the world play an increasingly central role in day-to-day democratic governance. Yet scholars have only recently begun to develop the interdisciplinary analysis needed to understand this shift in the relationship of constitutional law to politics. This edited volume brings together the leading scholars of constitutional law and politics to provide a comprehensive overview of judicial review, covering theories of its creation, mechanisms of its constraint, and its comparative applications, including theories of interpretation and doctrinal developments. This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.

Rule of Law

Barbara Faedda
Rule of Law Book PDF

Author : Barbara Faedda
Publisher : Ronzani Editore
Page : 293 pages
File Size : 44,7 Mb
Release : 2021-08-25
Category : Law
ISBN : 9791280382054

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Rule of Law by Barbara Faedda Pdf

Edited by Barbara Faedda Based on a division of powers and the supremacy of a constitution, the rule of law is not invulnerable, as was demonstrated in the violent attack against the U.S. Capitol on January 6, 2021. It can be used but also abused; it can be respected or exploited, exalted or undermined. It can even arouse skepticism, because it is not always effective against the realities of political life. In a world facing social division, polarization, poverty, climate change, and pandemics, it is crucial to understand the roles of those who manage, control, or are touched by the rule of law. This book’s primary goal is to showcase the variety of perspectives, cases, and methodologies of the people and institutions that bring a range of expertise to bear in many fields. The essays here – which encompass various geographic areas and social groups, as well as several historical periods – address racism, misinformation, human rights, the status of women, the treatment of indigenous peoples, the environment, and more. The rule of law is not merely a set of principles that guarantee a just society. It must be more than a tool in the hands of legal experts; it cannot be a concept out of the reach of ordinary people. It is essential that every citizen feel a clear responsibility to protect and promote the rule of law, to denounce inequalities and oppose imbalances of power, if the common goal is to enjoy freedom, democracy, and justice for all. Barbara Faedda is the executive director of the Italian Academy for Advanced Studies at Columbia University and adjunct associate professor in Columbia’s Department of Italian, where she teaches courses on contemporary Italy. Among her publications are the books Elite. Cultura italiana e statunitense tra Settecento e Novecento (Ronzani, 2020); From Da Ponte to the Casa Italiana: A Brief History of Italian Studies at Columbia (Columbia University Press, 2017); Present and Future Memory: Holocaust Studies at the Italian Academy, editor (Italian Academy Publications, 2016); and essays including “An Italian Perspective on the U.S.-Italy Relationship” (The White House Historical Association, 2016); “Neurolaw: come le neuroscienze potrebbero cambiare l’antropologia giuridica”; and “We are not racists, but we do not want immigrants.” In 2016 Dr. Faedda conceived the International Observatory for Cultural Heritage (IOCH), dedicated to all issues relating to the survival, protection, and conservation of cultural heritage. In 2019 she was appointed ambassador, permanent observer for the European Public Law Organization to the United Nations.

Principled Reasoning in Human Rights Adjudication

Se-shauna Wheatle
Principled Reasoning in Human Rights Adjudication Book PDF

Author : Se-shauna Wheatle
Publisher : Bloomsbury Publishing
Page : 224 pages
File Size : 48,5 Mb
Release : 2017-04-20
Category : Law
ISBN : 9781782259831

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Principled Reasoning in Human Rights Adjudication by Se-shauna Wheatle Pdf

Implied constitutional principles form part of the landscape of the development of fundamental rights in common law jurisdictions, affecting issues ranging from the remuneration of judges to the appropriation of property by the state. Principled Reasoning in Human Rights Adjudication offers thematic analysis of the use of the implied constitutional principles of the rule of law and separation of powers in human rights cases. The book examines the functions played by those principles in rights adjudication in Australia, Canada, the Commonwealth Caribbean, and the United Kingdom. It argues that a complete understanding of implied constitutional principles requires thoroughgoing analysis of the sources and methods of implication and of the specific roles played by such principles in the adjudicative process. By disaggregating particular functions and placing those functions within their respective institutional contexts, this book develops an understanding of the features of cases in which implied constitutional principles are invoked and the work done by those principles.

Extending Rights' Reach

Jud Mathews
Extending Rights Reach Book PDF

Author : Jud Mathews
Publisher : Oxford University Press
Page : 248 pages
File Size : 42,9 Mb
Release : 2018-03-13
Category : Law
ISBN : 9780190682934

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Extending Rights' Reach by Jud Mathews Pdf

Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations among private parties in most legal systems. Rights can have not only a vertical effect, within the hierarchical relationship between citizen and state, but also a horizontal one, on the citizen-to-citizen relationships otherwise governed by private law. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This book is about how different courts make those choices, and about the consequences that they have. The doctrines that courts build to manage the horizontal effect of rights speak to the most fundamental issues that constitutional systems address, about the nature of rights and of constitutionalism itself. These doctrines can also entrench or enhance judicial power, but in very different ways depending on the legal system. This book offers three case studies, of Germany, the United States, and Canada. For each, it offers a detailed account of the horizontal effect jurisprudence of its apex court-not in isolation, but as a central feature of a broader account of that country's constitutional development. The case studies show how the choices courts make about horizontal rights reflect existing normative and political realities and, over time, help to shape new ones.

Judicial Power and Canadian Democracy

Institute for Research on Public Policy
Judicial Power and Canadian Democracy Book PDF

Author : Institute for Research on Public Policy
Publisher : McGill-Queen's Press - MQUP
Page : 348 pages
File Size : 44,8 Mb
Release : 2001
Category : Political Science
ISBN : 9780773521315

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Judicial Power and Canadian Democracy by Institute for Research on Public Policy Pdf

Chiefly papers originally presented at Guiding the Rule of Law into the 21st Century, a conference held Apr. 16-17, 1999 at the University of Ottawa.

Human Rights and Judicial Review in Australia and Canada

Janina Boughey
Human Rights and Judicial Review in Australia and Canada Book PDF

Author : Janina Boughey
Publisher : Bloomsbury Publishing
Page : 357 pages
File Size : 47,6 Mb
Release : 2017-06-15
Category : Law
ISBN : 9781509907878

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Human Rights and Judicial Review in Australia and Canada by Janina Boughey Pdf

It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and have been a key driver of the modern expansion in judicial oversight of the executive arm of government. A number of commentators have pointed to Australian administrative law as evidence for this 'righting' hypothesis. They have suggested that the fact that Australia is an outlier among common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights explains why Australia alone continues to take an apparently 'formalist', 'legalist' and 'conservative' approach to administrative law. Other commentators and judges, including a number in Canada, have argued the opposite: that bills of rights have the effect of stifling the development of the common law. However, for the most part, all these claims remain just that – there has been limited detailed analysis of the issue, and no detailed comparative analysis of the veracity of the claims. This book analyses in detail the interaction between administrative and human rights law in Australia and Canada, arguing that both jurisdictions have reached remarkably similar positions regarding the balance between judicial and executive power, and between broader fundamental principles including the rule of law, parliamentary sovereignty and the separation of powers. It will provide valuable reading for all those researching judicial review and human rights.