This paper investigates the Turkish Constitutional Court (TCC)’s treatment of legal challenges brought against Turkey’s legal responses to the COVID-19 pandemic. Drawing on a detailed examination of the TCC’s institutional features, political origins and jurisprudential trajectory, and taking three politically salient judgments of the TCC concerning Turkey’s executive-dominated pandemic control as the point of departure, the paper argues that the TCC chose to exercise judicial restraint both in protecting fundamental rights and reviewing pandemic policies of the executive. (...) It also argues that the TCC’s judicial restraint during the pandemic was simply the re-manifestation of its ‘play-it-safe’ strategy — a judicial stance the TCC willingly adopted in the aftermath of the 2016 attempted coup despite possessing strong constitutional powers of judicial review, and its established attitude of assertive scrutiny in the past. From a more theoretical perspective, the analysis also explores how the passive role to which the TCC is consigned in an increasingly authoritarian regime since the 2016 failed coup relates to the global phenomenon of judicialization of authoritarian politics. (shrink)

Negative externalities pervade immigration law. For example, immigration rules can cause negative economic externalities by barring foreign nationals whose participation would make labor markets more efficient. On the other hand, sweeping executive-branch measures to assist immigrants may unduly expand executive power and yield adverse effects on governance. This essay divides immigration's negative externalities into three categories: economic, relational, and rhetorical. It then argues for specific legal and policy measures, including tailored executive discretion over deportation; more robust court (...) review of immigration restrictions that affect foreign nationals outside the United States; and classifying deportation of lawful permanent residents of the United States as punishment requiring advance notice that specific acts can prompt removal, like the notice the Constitution's Ex Post Facto Clause requires for criminal laws. (shrink)

Judicial review (richterliches Prüfungsrecht), administrative review (Verwaltungsgerichtbarkeit), and constitutional review (Verfassungsgerichtsbarkeit) are three different ways in which the judiciary has sought to control the executive and legislative powers of the state. Historically and functionally they are closely linked. I intend to discuss them in their German context, focussing, in particular, on the Weimar Republic, that is to say, on the period between 1919 and 1932. Although I shall not be addressing the highly interesting parallels with the U.S. Supreme (...) Court, or with the comparable courts in Italy, France, and, especially, Austria, I should like to invite attention to them, for there is really no Sonderweg in Germany as far as these developments are concerned. (shrink)

Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes and to reinterpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in "normal" times. This article explores the ways in which the American courts have responded to the tension between civil liberties and national security in times of crises. This history illustrates that courts have rejected both of the two polar positions that characterize public (...) discourse on these issues. Civil libertarians argue that political bodies are too easily gripped by passions, hysteria, and self-interest in these times and that courts therefore ought to play a central role in protecting liberty. Executive unilateralists argue that the qualities that uniquely characterize the executive branch, such as decisiveness, access to information, and efficiency, must become so dominant in these moments that few checks, if any, should constrain executive prerogatives. Oddly, civil libertarians and executive unilateralists find implicit consensus in the view that, in times of war, courts have tended not to play a significant role in overseeing executive power. We argue to the contrary: historically, a significant constitutional tradition of judicial scrutiny in the United States during times of war does exist. But this scrutiny does not take the form of courts making first-order substantive judgments about the content of liberty or other claimed constitutional rights. Nor does it take the form of judicial assessment of how significant or credible the national security claims of the executive branch might be. Instead, judicial oversight has been focused on preserving the institutional structures and processes through which decisionmaking on these issues takes place. The judicial role has centered on the second-order question of whether the right institutional processes have been used to make the decisions at issue, rather than on what the content of the underlying rights ought to be. This approach has historically rejected or resisted most claims of executive unilateralism. When courts have upheld the government's actions, they have done so only after a judgment that Congress, as well as the executive, has endorsed the action. This approach has also rejected the civil libertarian framework. When courts find bilateral institutional endorsement, they have typically accepted the joint political judgment of how liberty and security tradeoffs ought to be made. By focusing on congressional endorsement of emergency measures, the courts have created a broad-based political accountability for the actions taken in the name of national security. We suggest that even if congressional endorsement is more apparent than real in some of these contexts, the judicial maintenance of this structure of rhetorical justifications sustains desirable understandings of political structure. Because the President and Congress draw from different political constituencies in a presidential rather than a parliamentary system, we also raise questions about whether the American judicial approach to these questions should be limited to political systems with separated executive and legislative powers. (shrink)

This article refers to the issues associated with the crucial significance of the interpretation of tax law provisions made by administrative courts in the course of the judicial inspection of tax decisions, within the context of protecting the subjective rights of taxpayers. The analysis in that regard has been prepared based on the provisions of art. 153 of the Act of 25 July 2002 on Proceedings before Administrative Courts, which expresses the important rule of binding the court and the (...) administrative authority, whose act was the subject of an appeal, with a legal assessment and instructions regarding the further proceedings described in the decision of the administrative court. As a result of this rule, a decision of an administrative court exerts the results exceeding the scope of judicial administrative proceedings, while its effect also covers the future tax proceedings. If the legal assessment made by the court refers to the regulations that affect the subjective rights of a taxpayer, it means that the administrative court imposes the effects of “its” interpretation of those provisions on a tax authority. In turn, the tax authority is obliged to respect those rights in accordance with the opinions of the court, which usually affects the final resolution of a tax case. It should be borne in mind that a taxpayer, by submitting an appeal against a tax decision to an administrative court, demands not only an inspection of the acts of tax administration, but also - which should be emphasized - demands the execution of its rights, including its subjective rights. Therefore, we should not forget the crucial role of the administrative courts in the protection of the substantive rights of taxpayers. The instrument that allows the administrative courts to guard the subjective rights of taxpayers, consists in the procedural regulations included in the provisions on proceedings before administrative courts, and in particular art. 153 of the Act on Proceedings before Administrative Courts in Poland. (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)

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)

Over the past decade, U.S. officials have taken steps to institutionalize the practice of targeted killing of persons outside an identifiable war zone. In the past, such a policy would have been described as extra-judicial killings. Advocates of this policy claim that the practice is permissible because the executive reviews and authorizes every targeted strike. I examine the tenability of this claim in light of Aquinas’s understanding of the natural principles of justice and their implication for our definition (...) of murder and the duties of a sovereign judge to those subject to his judgment. I conclude that Aquinas’s understanding of murder is expansive enough to include the use of lethal force by public authorities when it proceeds from an act of judgment that disregards a presumption of innocence for the accused and her right to a fair trial. (shrink)

abstract During the current round of fighting in the Middle East, Israel has provoked considerable controversy as it turned to targeted killings or assassination to battle militants. While assassination has met with disfavour among traditional observers, commentators have, more recently, sought to justify targeted killings with an appeal to both self‐defence and law enforcement. While each paradigm allows the use of lethal force, they are fundamentally incompatible, the former stipulating moral innocence and the latter demanding the presumption of criminal guilt. (...) Putting aside the paradigm of law enforcement which demands due process and forbids extra‐judicial execution, the only possible avenue for justifying named killings lies in self‐defence. While named killings might be defensible on the grounds that there are no other ways to disable combatants when they fight without uniforms, the costs, including the cost of targeted killing emerging as an acceptable convention in its own right, should be sufficient to view the practice with a good deal of caution. (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)

Most accounts of Jeremy Bentham deal with him as a prophet of either utilitarianism or of liberal democracy. This book discusses a less familiar but very important aspect of his political thought: his theory of how government institutions should be organised in order to function as efficient and yet responsive guardians of the community's interests. It thus focuses on his programme for he executive and judicial branches of government rather than for the legislature and the electorate. Dr Hume (...) suggests that eighteenth-century political thought was richer in ideas about government that has usually been allowed, but that Bentham's special qualities of mind enabled him to widen and deepen those ideas much further than his contemporaries could have foreseen. (shrink)

I am the LawIt is hard to imagine two more disparate characters than Judge Joseph Dredd and Hercules J—the one an over-muscular, faceless and heavily armed street judge astride a Lawmaster motorcycle who overidentifies with his role ; the other devoid of any physical presence or image, and structurally decoupled from the execution of law by a fierce determination to maintain the separation of powers and accountability which Dredd so effortlessly ignores. Hercules J is the embodiment of an intellectualised, yet (...) creative, operationalisation of law. To the academic spirit, Hercules is infinitely preferable as a model of judicial activism: his world conjures a contemplative modality, ever alert to the requirements of rights and largely aligned with the temper of the post-Enlightenment. By contrast, Dredd is the personification of the worst aspects of law-and-order as the debased and politicised manifestation of the Rule of Law. His is an intensely visceral presence, the metonymic blindness of Themis replaced by the Dredd’s fractured eyeline: blindness as a signifier of impartiality yields to blindness as a symptom of institutional rage. This article interrogates the characters, actions and values of Hercules J and Dredd J, viewed primarily through the lens of Jacques Derrida’s Force of Law, focusing on the relationship between law and violence as it is exposed in Hercules’s and Dredd’s worlds, and then turning to judicial confrontation with the aporetic: the aporias, identified by Derrida and others, that law must confront. The interrogation continues, finally contemplating the current state of law in the common law world—the world of liberal democracies, suggesting that the high point of democracy may well have passed, and that we are on a Dredd-ward trajectory. (shrink)

This brief essay responds to the Supreme Court’s recent decision in Bucklew v. Precythe. It contends that the argument relied upon by the Court in that decision, as well as in Glossip v. Gross, is either trivial or demonstrably invalid. Hence, this essay provides a nonmoral reason to oppose the Court’s recent capital punishment decisions. The Court’s position that petitioners seeking to challenge a method of execution must identify a readily available and feasible alternative execution protocol is untenable, and must (...) be revisited. (shrink)

Ch. 1 defines activism as involving four judicial practices: refusing to take an attitude of deference for legislative or executive power or judgment; relaxing requirements for justiciability; breaking precedent; and loosely or controversially construing constitutions, statutes or precedents. I defend each element, through , in later chapters. I defend primarily in Ch. 2A-B, primarily in Ch. 2C, primarily in Ch. 3 and in Chs. 2 and 4. Ch. 1 concludes that - seem to have knowing change of the (...) law in common. Ch. 1 considers and rejects different definitions of activism. My definition explains what I call The Crossover Thesis, which says that two types of activism, and , are quite distinct, and what I call The Political Neutrality Thesis, which says activism and passivism are politically neutral in that neither is necessarily conservative or liberal, and neither is necessarily politically superior to the other. ;Ch. 2 defends activism against objections based on democracy by reconciling activism with democracy somewhat and by supporting some activism based on the Constitution's supreme legal authority. I give what I call The Ashwander Defense and the Carolene Defense of activism, which are named after famous judicial opinions I use to defend activism. ;Ch. 3 argues against stare decisis, which requires following precedent. The passivists' version of stare decisis is inadequately supported by arguments that stare decisis increases: the fairness of treating like cases alike; the predictability of the law; thereby the efficiency of judges in making decisions. ;Ch. 4 argues that courts should use due process more to support activism which clarifies the law. I show how much activism is justified by the vagueness doctrine, which constitutionally requires law's meaning to be reasonably accessible to ordinary people. ;Ch. 5 summarizes earlier chapters and shows how my defense of activism is restrained. (shrink)

The rise of private standards, including those involving multi-stakeholder processes, raises questions about whose interests are served and the kind of power that is exerted to maintain these interests. This paper critically examines the battle for ideas—the way competing factions assert their own narratives about value chain relations, the role of standards and related multi-stakeholder processes. Drawing on empirical research on the horticulture and floriculture value chains linking Kenya and the United Kingdom, the analysis explores the framing of sustainability issues, (...) especially around labor issues and good agricultural practice, and the choice of response with respect to private standards and multi-stakeholder initiatives since the late 1990s. We identify four competing narratives currently in play: a dominant global sourcing narrative, a pragmatic development narrative, a broader development narrative and a narrative we term potentially transformative. This last narrative is currently emerging through the unpacking of narratives in relation to the framing of sustainability problems and solutions, and in terms of legislative, executive and judicial governance. The paper contributes to emerging understanding of power in value chains, moving beyond material power to a consideration of how ideational power is exerted and resisted. (shrink)

This paper explores the phenomenon of revisionism in historiography, while focusing in particular on illegitimate revisionism and negationism. It is indisputably true that historiography must be subject to constant revisions. Like all scientific theories, it needs to be characterized by a sort of?conservative? openness towards new ideas; however, revisions and negations are often put forward without scientific grounding. They reject the well-established historiographical methods, while opening themselves to various kinds of ideologies, biases and manipulations. The paper further offers a synthesized (...) overview of the revisionist practice in dominant parts of the society and historiography in post-communist Serbia. The change in the ideological paradigm that occurred in the 1980s was accompanied by a politically motivated reinterpretation of the past, which primarily focused on World War II in Yugoslavia. In Serbia in the 1990s, Tito?s Partisans were no longer celebrated as national heroes and fighters against fascism; they were replaced by the royalist and nationalist Chetniks led by Draza Mihailovic, whose collaboration with the occupying forces was purposefully glossed over. The nationalist interpretation of history and the new revisionist politics in Serbia were supported by the state and the activities of its three branches: legislative, executive and judicial. In spite of the political changes that took place in Serbia in 2000, the dominant nationalist matrix in historical interpretations and revisionist politics remained unchanged. (shrink)

The significance of private standards and associated local level initiatives in agri-food value chains are increasingly recognised. However whilst issues related to compliance and impact at the smallholder or worker level have frequently been analysed, the governance implications in terms of how private standards affect national level institutions, public, private and non-governmental, have had less attention. This article applies an extended value chain framework for critical analysis of Private Standards Initiatives (PSIs) in agrifood chains, drawing on primary research on PSIs (...) operating in Kenyan horticulture (Horticulture Ethical Business Initiative and KenyaGAP). The paper explores the legislative, executive and judicial aspects of governance in these southern PSIs highlighting how different stakeholders shape debates and act with agency. It is argued that governance is exercised ‘beyond the vertical’ in that one can identify wider horizontal processes of governance, including how the scope of key debates is constructed (especially in legislative governance) but analysis of executive governance emphasises the dominant role of the lead buyers. (shrink)

Contemporary critiques of the administrative state are closely bound up with the distinctively American doctrine that republican freedom requires that the legislative, executive, and judicial powers be exercised by separate and distinct branches of government. The burden of this essay is to argue that legislative delegation and judicial deference to the administrative state are necessary, or at least highly desirable, features of a democratic separation of powers regime. I begin by examining the historical and conceptual roots of (...) the separation of powers doctrine, paying particular attention to the unique way in which it was adapted to fit the American case. I then examine three concerns that the resulting constitutional system raises about the republican freedom of those who are subject to it—which I call the accountability, legitimacy, and stability concerns—and argue that the administrative state is a useful, albeit imperfect, tool for reducing the unavoidable tension between these concerns. The thrust of this discussion is to push us away from “in principle” objections to the administrative state, and back toward the kinds of prudential considerations that are associated with ordinary liberal politics. More importantly, the aim of the essay is to encourage sober reflection on the real dangers that face the American constitutional system under current circumstances. (shrink)

As one of the most important episodes of change in the Ottoman Empire, the Tanzimat Era (1839-1876) was a phase when the state and its political and ideological formation witnessed structural transformation and reforms. During this period, privy councils were instituted at every level, as one of the basic changes in decision-making and the legislation process of the Ottoman State. Meclis-i Âlî-i Umûmî (the Supreme Council-General) is located at the top of the counsulting hierarchy of councils at the administrative piramid, (...) instituted in 1838. The Supreme Council-General also functioned as an equivalent to that of a “senate” of the modern parliament for the first time in this transition period. (shrink)

Despite clear legislative and judicial support, a well established ethical consensus, and increased efforts at information dissemination and education, proxy decision making for incapacitated patients continues to produce moral muddle and poor resolutions in end-of-life care.In her analysis of the proxy-doctor relationship, Nancy Dubler spells out the institutionalized patterns that keep the promise of proxy directives so often unrealized. Facing medically complex care of an incapacitated patient, health care teams are apt to view the proxy as a potentially indecisive (...) or unrealistically demanding decision-maker, less a stand-in for the patient than an interloper whose improper, misguided, or self-interested decisions will work against the patient's best interests. So perceived, proxies are routinely relegated to the edges of care planning discussions, left relatively uninformed and unconsulted, and then suddenly thrust center stage to face decisions they find overwhelming. Confronting such decisions, proxies need support and compassion. What they often find is isolation and distrust, a web of professional and institutional practices that trammel their efforts to understand and execute their role. (shrink)

This article examines non-statutory executive powers, which are commonly employed in the modern state but rarely studied as a distinct concept. The article assesses three treatments of these powers available in current English public law—prerogative, common law powers which rely on analogies between the state and legal persons, and judicial review—and argues that they fail to provide a proper balance between legality and need. Royal prerogative connotes a shrinking reservoir of ancient powers, while non-statutory powers respond to unexpected (...) futures and statute’s intrinsic eventual failings. Analogies to legal persons fail to address the particularities of executive powers. Judicial review provides only a partial solution, since absence of parliamentary approval is not, in itself, ground for special treatment of executive action. The author joins calls for theoretization of public law and advances a model of executive powers that draws on a composite theory of the executive branch and its functions.This article examines non-statutory executive powers, which are commonly employed in the modern state but rarely studied as a distinct concept. The article assesses three treatments of these powers available in current English public law—prerogative, common law powers which rely on analogies between the state and legal persons, and judicial review—and argues that they fail to provide a proper balance between legality and need. Royal prerogative connotes a shrinking reservoir of ancient powers, while non-statutory powers respond to unexpected futures and statute’s intrinsic eventual failings. Analogies to legal persons fail to address the particularities of executive powers. Judicial review provides only a partial solution, since absence of parliamentary approval is not, in itself, ground for special treatment of executive action. The author joins calls for theoretization of public law and advances a model of executive powers that draws on a composite theory of the executive branch and its functions. (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)

The research aims to investigate the characteristics and risks associated with the handling of sensitive data in the implementation of public policies within the digital government model. To achieve this, a hypothetical-deductive method and bibliographic and documentary procedures are employed, proposing an interdisciplinary discussion on technological advancement, data protection, transparency, and public policies. The justification revolves around the importance of a comprehensive, cohesive system that genuinely protects sensitive personal data, considering the need to keep pace with technological developments and maintain (...) a minimum level of security in the digital age at both national and international levels. There is no doubt that the judicious and strategic use of data has the potential to drive substantial improvements in policy evaluation, decision-making, and the relationship between government and citizens. However, dealing with personal data also means addressing risks with responsibility, transparency, and respect for individual rights. (shrink)

The well-established pattern of Executive expansionism and limited oversight of Executive action in times of terrorism is problematic from the civil libertarian point of view. How to limit such action has been the subject of much scholarship, a large amount of which focuses on perceptions of institutional competence rather than effectiveness. For the authors, the effective control of security-focused state action is to be judged by the extent to which it consists only of action that is necessary and (...) proportionate and thereby strikes an appropriate balance between security exigencies and individual rights. This article, written and structured in dialectic form, presents competing perspectives on effective oversight mechanisms: on the one hand, an extra-constitutionalism perspective, proposing a limited role for the Judiciary and emphasizing the need for legislative and democratic controls; and on the other, an argument for judicial muscularity. (shrink)

The research analyzes the process of formation of the ethics committee as a new institution in the system of regulation of genetic research. The external factors of this process are the increasing digitalization of medical and research practices, as well as the special situation that is developing in the field of genomic research and the use of genetic technologies, where issues of philosophy, jurisprudence and administration have generated many fundamentally new, and sometimes unexpected contexts. The author shows the similarity and (...) difference of approaches to the inclusion of the ethics committee in the national regulatory systems of different countries and determines the prospects for further integration of the new institution into normative and administrative-regulatory and law enforcement practices. The research applies all the main methods of system analysis and structural and functional analysis, as well as the comparative legal method. At the stage of generalization of empirical material, the author turns to the means and methods of philosophical phenomenology and phenomenological sociology. The study revealed that the ethics committee may have different institutional and regulatory functions in a variety of management and legal systems. Being hybrid in nature, the ethics committee performs various functions, and in various state legal systems and traditions it can combine elements of legislative, executive and judicial power. At times, the ethics committee may go beyond the scope of both a purely administrative and exclusively legal regulator. All this indicates that the integration of this institution into the legal system and into a variety of social practices is far from being completed. (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 misunderstood to be akin to the legislative power. (shrink)

Parliamentary privilege immunises certain activities of legislative bodies and their members from the ordinary law and judicial scrutiny. The rule of law, on the other hand, insists that everyone - including public officials - is subject to the law. Moreover, the rule of law is usually understood to involve judicial review of executive rather than legislative action. Thus, parliamentary privilege seems to establish a public sphere that is beyond the rule of law. Notwithstanding the tension that appears (...) between these two ideas, I argue that parliamentary privilege and the rule of law, properly understood, support rather than oppose one another. However, the ideas can be reconciled only if we reject the jurisdictional and categorical approach to parliamentary privilege adopted recently by the Supreme Court of Canada in Canada (House of Commons) v. Vaid [2005] 1 S.C.R. 667, 2005 SCC 30. This approach should be rejected because it trades on an unsustainable distinction between review of the scope of an asserted privilege and review its actual exercise, with the Court finding that only issues of scope are subject to review, even if important human rights are at stake. (shrink)

The dynamics of the superior judiciary in Pakistan have undergone a drastic transformation in its approach and working in post 2007 emergency followed by a landmark movement of civil and legal fraternity for restoration of constitutional supremacy. The neo-jurisprudence is being applauded and criticized at the same time. The excessive use of Suo-motto and public interest litigation at one hand and frequent judicial review of executive and legislative action on other have been the main source of contention between (...) judiciary and other two pillars of state, legislature and executive. The Superior Court is being recognized as the ultimate savior of fundamental rights and guardian of the constitution as well as rights of the people. At the other extreme, the criticism like activist judiciary; disrespect for popular will and making rather interpreting law are most commonly attributed to Superior Judiciary. The study is qualitative in nature and presents a comparative analysis of trends in Superior Court before and after Lawyers’ movement. The study also aims in justifying the proactive approach especially in providing social justice on failure of state organs to respond to the exigency of time. (shrink)

This paper provides a synopsis of the human rights enforcement in Bangladesh, which marks its 50 years in 2021 since its independence. After a theoretical background on how human rights are perceived as legal and political instruments, it critically discusses human rights provisions and explores the legal and institutional frameworks on human rights enforcement in Bangladesh—(re)construed in 50 years (1971–2021). Finally, it divulges the controversies in human rights enforcement and a roadmap to address them by making some suggestions: multiple legislative, (...) administrative, and judicial reforms are required to tackle human rights abuses to ensure punishment for the abusers and restitution for the victims. The paper concludes with the notion that the positive will of the relevant stakeholders (legislature, executive, and judiciary) is the key to upholding and protecting the human rights of Bangladeshi citizens. The significance of this paper lies in exploring the complexities associated with the laws and insular national politics, which often debars the enforcement of human rights and crucially compromises Bangladesh’s ability to empower its citizens. (shrink)

The availability of a constitutional framework that encourages deference to the judiciary, and the existence of a political environment conducive to judicial empowerment have helped bring about a growing reliance on adjudicative means for articulating, framing, and settling fundamental moral controversies and highly contentious political questions. This has resulted in the gradual erosion of the exclusive prerogatives of legislatures and executives.

The contemporary State power is concentrated in the hands of the legislative, executive and judicial powers, which is traditionally referred to as the principle of the division of State power. The separation of State power and the attribution of the function of the interpretation and application of statutory law to courts were like “letting the genie out of the bottle”. Having started with a mechanical application of the statutory law, the courts, armed with various doctrines on interpretation of (...) law, have in the meantime started creating rules themselves and turned into rivals to the legislator. In addition to having started making the law, the courts have also begun exerting control over both the legislative (constitutional justice) and the executive (administrative justice) powers. The acknowledgement of the fact that by interpreting and applying the law, the court is simultaneously making it, gives rise to a host of questions, e.g.: if the court is the guardian of law, who is the guardian of the court? How to separate the interpretation of law from its creation? If the court acts as a lawmaker, then maybe in future, the court will turn into a sole lawmaker?, etc. (shrink)

Judges wield enormous power in modern society and it is not surprising that scholars have long been interested in how judges think. The purpose of this article is to examine how US judges reason on language issues. To understand how courts decide on comprehension of constitutional rights by speakers with Limited English Proficiency (LEP), I analyzed 460 judicial opinions on appeals from LEP speakers, issued between 2000 and 2020. Two findings merit particular attention. Firstly, the analysis revealed that in (...) 36% of the interrogations, LEP speakers were advised of their rights only in English. This means that two decades after the Executive Order 13166 (2000) _Improving Access to Services for Persons with Limited English Proficiency_, law enforcement still doesn’t have adequate resources to advise LEP speakers of their constitutional rights in their primary languages. Secondly, the analysis revealed that some courts treat second language proficiency as an all-or-none phenomenon. This approach results in linguistic discrimination against LEP speakers who cannot comprehend legal language but are denied the services of an interpreter because they can answer basic questions in English. I end the discusson with recommendations for best practices in delivery of constitutional rights. (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.

Locke claimed that a government (with legislative, executive and judicial functions) is necessary to relieve people of the inconveniences of a state of nature. But those three functions can be provided by private arrangements in a state of nature.

In this article, I offer a reading of City of God 19.6 that is consonant with Augustine’s message to real judges. Often read as a suggestion that torture and execution are judicially necessary, I argue that 19.6 actually calls such necessities into question, though this is not its primary purpose; first and foremost, 19.6 is an indictment of Stoic apatheia. Situating 19.6 within Augustine’s larger polemic against the Stoics, I find that it presents the Stoic judge as a man who (...) lacks fellow feeling, and therefore, has only a parodic happiness, costly to himself and those judges. A new look at Augustine’s letters to judges confirms this reading, and shows that, for Augustine, the man of humanitas is the true model for the good judge, not the man of apatheia. (shrink)

The Law of the European Union is multilingual and multijural. Therefore, it is necessary to analyze the problems related to the use of several languages in the writing of European legal texts and to compare the interactions between law and language in the decision-making process at the executive and judicial levels. Finally, the study will focus on the contributions of translation as a linguistic mediation in the communication of the European message on the continent.

In recent years, the judicial systems of African countries have been increasingly ineffective, as demonstrated in cases as varied as the genocide in Rwanda and the land seizures in Zimbabwe. It is not only in cases involving individual rights and the state that the legal system is barely existent. The situation is just as bad, if not worse, in the administration of criminal justice. Whether it is the police, the prisons, or the courts, under both military and democratic governments, (...) we are confronted with evidence of the impotence of the judiciary. This article examines the relationship between the executive and judicial branches of government in Nigeria. It also makes recommendations to improve the responsiveness and effectiveness of African judiciaries in checking executive power. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Anchors of Democracy: A New Division of Powers, Representation, Sense of Limits by Rocco PezzimentiAdam CarringtonPEZZIMENTI, Rocco. The Anchors of Democracy: A New Division of Powers, Representation, Sense of Limits. Herefordshire, U.K.: Gracewing, 2021. 207 pp. Paper, $22.00Rocco Pezzimenti's The Anchors of Democracy: A New Division of Powers, Representation, Sense of Limits is an ambitious book. A professor at LUMSA, Rome, he seeks to consider anew the (...) nature, structure, and purposes of democracy as well as the society in which this form of government best operates. He sees this task as needed because, he argues, contemporary democracies face new challenges that threaten their legitimacy and their capacity to fulfill their just and needed purposes. He notes that democracies are not "infallible," either morally or in their ability to maintain themselves, and thus need conscious understanding and prudent maintenance.The subtitle establishes the three main themes by which he diagnoses and addresses democracy's trials. Pezzimenti orders his argument most through the lens of limits. While present in all spheres and regimes, popular government in particular partakes of limitation, since "mutual limitation... is the basis of our democracies." Limits for Pezzimenti stem from distinct elements of a society competing for finite power ordered toward action. Many of our political and social problems, both past and present, stem from denying limitations or misordering their interactions. The presentism that tempts democracy must be tempered by the limits the past places on it. Institutions are one helpful means for this interaction, which helps guard against a "utopianism which wants to solve everything immediately, deceiving itself that it can perform miracles." Law itself involves limits, placing boundaries on the action of private persons and public entities. So does pluralism and "polyarchy," whereby we recognize the limits particular persons and communities place on politics' universalism as well as how politics restrains these other elements from descending into intolerant, selfish particularity. Important to this point is Pezzimenti's discussion of sovereignty, which must not be reduced to a mere question of who rules and where but to the question of rightly pursuing a common good respectful of individual rights. True freedom inheres in the proper cohering of these elements.Pezzimenti turns to the distribution of powers within a community as part of the discussion of limits. He argues that "the traditional tripartition, theorized by Polybius and on to Montesquieu, today appears certainly insufficient." To define all political power as legislative, executive, and judicial, then to distribute them among competing institutions, does not fully account for the contemporary political landscape. Moreover, those [End Page 361] "classic" powers themselves need to be rethought to meet today's concerns. Legislative power must account for claims that its representative systems either are oligarchic in practice or lead to crass populism, and that they fail to account for group identities as opposed to class ones. The executive must evolve in pursuit of a better "efficiency and efficacy"—including speed of response to problems—that requires a better relationship with the modern bureaucracy, which he describes as "the other face of the executive." The judicial power must focus on a renewed impartiality, especially in relation to the additional powers Pezzimenti thinks need to be named and then tamed. The new powers that he says we must recognize include the press, mass media, technology, and more. Here, Pezzimenti categorizes as powers the functions of government (making, enforcing, and adjudication of the law) alongside avenues or means for exercising political influence, if not outright control. These other forces have distorted democracy's needed limits partly because law and custom have not adequately accounted for their evolving role in power.These issues lead to the last challenge, that of representation. The problem of representation threatens democracy's legitimacy, since this form of government is grounded more than any other in the idea that "power must be the expression of the community." Yet even here the issue of limits orders the discussion. The unaccounted-for new powers described above remove too many limitations either on crass populism or encroaching rule of elites. The former can abuse individual rights, which he says "are not negotiable," based on oppressive whims... (shrink)

This article develops an account of the nature and limits of the state’s legislative authority that closely attends to the challenge of harmonizing Kant’s ethical and juridical theories. It clarifies some key Kantian concepts and terms, then explains the way in which the state’s three interlocking authorities – legislative, executive, and judicial – are metaphysically distinct and mutually dependent. It describes the emergence of the Kantian state and identifies the preconditions of its authority. Then it offers a metaphysical (...) model of the Kantian state and uses it to argue that the activity of juridical lawgiving is an act of the omnilateral will itself. Legislative authority is limited in the sense that it does not include the capacity to create juridical laws that are conceptually incompatible with the idea of universal external freedom. I argue that my proposed account of the legislative authority is wholly consistent with that authority’s exclusive lawgiving capacity and does not threaten the possibility of ‘distributive justice’ – the legal finality that is the sine qua non of a civil condition. (shrink)

The Wisconsin Supreme Court, after adopting the doctrine of the objective patient standard, expanded it in bold and innovative ways over nearly four decades, until the Wisconsin legislative and executive branches drastically reversed this course. The saga has implications for other jurisdictions considering adoption or expansion of the objective patient standard doctrine.

Montesquieu was one of the great political philosophers of the Enlightenment. Insatiably curious and mordantly funny, he constructed a naturalistic account of the various forms of government, and of the causes that made them what they were and that advanced or constrained their development. He used this account to explain how governments might be preserved from corruption. He saw despotism, in particular, as a standing danger for any government not already despotic, and argued that it could best be prevented by (...) a system in which different bodies exercised legislative, executive, and judicial power, and in which all those bodies were bound by the rule of law. This theory of the separation of powers had an enormous impact on liberal political theory, and on the framers of the constitution of the United States of America. (shrink)

Kant développe en faveur de la séparation des pouvoirs d’autres arguments que les fondateurs de la théorie moderne de la division des pouvoirs ; or ses raisons sont les seules à conduire de manière contraignante à la triade aujourd’hui familière : pouvoir législatif, exécutif, judiciaire. L’article voudrait explorer ces raisons et montrer aussi précisément que possible à quel résultat elles concourent. En fin de compte, cinq questions demeurent ouvertes : 1 / Les raisons de Kant suffisent-elles à énumérer de manière (...) exhaustive les pouvoirs publics que doivent exercer différentes instances ? 2 / Nous offrent-elles un concept convainquant du pouvoir souverain en la personne du législateur ? 3 / Offrent-elles un concept convainquant du pouvoir juridictionnel ? 4 / Parviennent-elles à établir des digues efficaces contre l’abus du pouvoir public ? 5 / Permettent-elles au gouvernement de prendre en compte les intérêts auquel répond un État social ?Kant's arguments for separating the powers of a government are not those of Locke or Montesquieu. But only his reasons compelled to the now familiar triad of legislative, executive and judicial power. The essay intends to uncover those reasons, and shows to which result they meet. Finally there remain five questions : 1 / Are Kant's reasons sufficient to know the complete number of powers that have to be separated and handled by distinct bodies ? 2 / Do they give a convincing concept of supreme power in the person of a legislator ? 3 / Do they give a convincing concept of judicial power ? 4 / Can the separation effectively protect against abuses of governmental power ? 5 / Does Kant's connection of the different powers allow that the government looks after interests of civil welfare and not only for an abstract salus publica ? (shrink)

While Montesquieu (1689–1755) is often regarded as the thinker who discovered the importance of fundamental principles such as the rule of law and the separation of powers, systematic research of his theory of the state is surprisingly limited. In this article, I argue that his masterpiece, The Spirit of the Laws (1748), points to a theory of the non-arbitrary state. Montesquieu’s comparative study of various governments demonstrates that modern liberty depends on the rule of law. Since many states have laws (...) but few of them guarantee liberty, he stressed that the rule of law requires the separation of the judicial from the legislative and executive powers. The constitution of an independent judicial branch separates the sphere of justice from the political sphere, which creates the basic structure of the non-arbitrary state. Depending on the distribution of power in either of the two spheres, non-arbitrary states can guarantee their citizens more or less liberty. The concept of the non-arbitrary state thus illuminates Montesquieu’s significance for the variety of political projects that emerged in the age of revolutions. (shrink)

Like Hobbes and unlike Locke, Kant denied the possibility of a right to rebellion. But unlike Hobbes, Kant did not argue for a unitary head of state in whom legislative, judicial, and executive powers are inseparable, and thus did not believe that the executive power in a state to whom must be conceded a monopoly of coercion also defines all rights in the state. Instead, Kant insisted upon the necessary division of authority in a state into a (...) separate legislature, executive, and judiciary, and thus, while rejecting the idea that a people could ever rightfully overthrow their entire constitution or government, he could and did hold that a people represented by a parliament have genuine rights against the executive power within their state even though that executive power properly has a monopoly on the coercive enforcement of the parliament's laws. (shrink)

The paper seeks to understand India’s evolving rights framework in the backdrop of cow vigilantism. To that end it discusses the human right to food and nutrition, international discussion on minority rights issues in India and the relevant legal and constitutional discussion in India. It finds that India’s rights framework has evolved since proclamation of India as a Republic in 1950 based on the supremacy of its written constitution containing fundamental rights and directive principles of state policy interpreted finally by (...) its Supreme Court. The government took a wise step by not challenging a judicial rebalancing of the rights framework in response to certain executive measures and the Supreme Court interpreted the right to life to include not only the right to the choice of food but also the right to privacy and thereby underscored the obligation of the State to compensate the victims of cow vigilante violence. However, a constitutional polity and secular state would do all well if it did any further necessary to better guard against any recurrence of the breach of civil peace, much less violence, on purely secular issues, including by strengthening and increasing dialogue with all representative communities in all its decision-making on such matters. (shrink)

The questions of violence, justice and judgment define one of the most resonant and constant concerns of contemporary thought. In part, this is only a reflection of what are often called the ‘realities on the ground’ . In the few years of this century the logic of violence, and even its aestheticisation – whether as terror or as ‘shock and awe,’ or in the citizen’s daily vocation to be ‘alert but not alarmed’ – have become the familiar data of current (...) experience. They are a kind of weather, felt through the colour-coded threat scale of the Homeland Security Advisory System, or in the casual references to the ‘current climate.’ In view of these realities, and of an acclimatisation to them that informs general popular support for extensions of executive power and legislative activity, the urgency of the turn or return to questions of force and law is to be expected. In the fabric of recent debate, they are seams at which confrontations are staged and positions defined; but also, where the thought that remains closest to the ‘realities on the ground’ is forced into juxtaposition with the mythological and theological schemes that violence, justice and judgment inevitably conjure. Thus, contributors to this issue of Colloquy were invited to consider whether it was possible to account for a difference between violence, terror and revolution, without simplification or banalisation of the relationship between law and force. On the one hand, the editors envisaged that this question would be a provocation to reexamine contemporary representations of sovereignty, jurisdiction and the ‘state of exception,’ in a global context dominated by issues of security and the justification of extra-legal and extra-judicial force – occupation, detention, torture. On the other hand, the reference to the mythological and the theological was inevitable, inasmuch as contributors were invited to organise their reflections around two of the most significant interventions in twentieth-century jurisprudence and political theory, Walter Benjamin’s “Critique of Violence” and Jacques Derrida’s “Force of Law.” For as is well-known, Benjamin and Derrida pursue their distinctive lines of questioning in the direction of a ‘divine violence’ or of a ‘mystical foundation of authority.’ The reception of the two texts suggests that these concepts remain, for many, difficult to the point of being indigestible; at least in the ‘current climate.’. (shrink)