Temporary Appointments and Judicial Independence: Theoretical Analysis and Empirical Findings from the Supreme Court of Israel

2001 ◽  
Vol 35 (2-3) ◽  
pp. 481-523 ◽  
Author(s):  
Eli M. Salzberger
Keyword(s):  
Rule Of Law ◽  
Liberal Democracy ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Institutional Level ◽  
The Rule Of Law ◽  
Essential Condition ◽  
Individual Level ◽  
The Supreme Court ◽  
The Individual

Judicial independence is regarded as an essential condition for the rule of law and separation of powers — two pillars of liberal democracy. Judicial independence ought to include components to secure independence on the individual level, as well as components to secure independence on the institutional level of courts. The most important objects of judicial independence are the other branches of government, but some degree of independence from the general public and from other judges is required as well. These features of independence can be achieved by rigid and entrenched arrangements regarding tenure, immunity from wage decrease, special procedures for appointment and promotion of judges, mechanisms for the allocation of cases to judges and the composition of the benches, and more.

Part II Institutions and Constitutional Change, C The Courts, Ch.11 Courts, Administrative Agencies, and the Constitution

2017 ◽  
Author(s):  
Sossin Lorne
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
Judicial Independence ◽  
Access To Justice ◽  
Constitutional Change ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Administrative Agencies ◽  
The Common

This chapter sets out the constitutional foundation for courts and administrative agencies in Canada. It examines the constitutional foundations for Canadian courts, including Canada’s constitutional texts; unwritten constitutional principles such as judicial independence, access to justice, and the rule of law; quasi-constitutional statutes such as the Supreme Court Act; and the common law Constitution. The chapter next considers the constitutional foundations for administrative agencies, particularly around the extent to which agencies can implement and are subject to the Constitution. Finally, the chapter situates the discussion of administrative agencies against the backdrop of Canada’s separation of powers, including emerging dynamics flowing from Indigenous self-government.

Judicial Independence: Who Cares?

2007 ◽  
Author(s):  
Neil MacCormick
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
England And Wales ◽  
The Rule Of Law ◽  
Recent Developments ◽  
Constitutional Changes

This lecture discusses judicial independence. It notes that the increase in concern over judicial independence was due to recent developments in Scotland, England and Wales. The constitutional changes also led to new relationships between ministers and judges, which in turn has led to governmental declarations to respect the rule of law and judicial independence. The lecture also stresses the importance of considering and re-asserting the principles that justify judicial independence, as well as the underlying concept of separation of powers.

scholarly journals The faces of freedom in the concepts of a liberal and non-liberal state

2021 ◽  
Vol 43 (1) ◽  
pp. 155-172
Author(s):  
Justyna Przedańska
Keyword(s):  
Rule Of Law ◽  
Liberal Democracy ◽  
Freedom Of Expression ◽  
Civil Liberties ◽  
Political Rights ◽  
Slight Improvement ◽  
Liberal State ◽  
The Rule Of Law ◽  
The World ◽  
The Individual

The last decade has exposed the recession of freedom throughout the world. It arises from the latest Freedom in the World 2020 report that civil liberties and political rights have deteriorated in 64 countries, while only 37 have seen a slight improvement in these areas. The principles of liberal democracy (the rule of law, free elections, minority rights and freedom of expression) in Europe, historically the best-performing region in terms of freedom in the world, have come under serious pressure in recent years. In the article, starting from an analysis of the categories of freedom presented in many aspects, followed by a discussion of the assumptions and concepts of liberalism, as well as the political project referred to as non-liberal democracy, which has grown out of their criticism, the author identifies the problem of instrumentalization and relativization of freedom, which leads to the restriction of freedom of speech, freedom of minorities, religious freedom and sexual freedom, replacing the individual freedoms of the citizens with the so-called collective freedom.

Thesis and antithesis: To check or not to check the Judiciary

2018 ◽  
pp. 157-198
Author(s):  
Cristina E. Parau
Keyword(s):  
Rule Of Law ◽  
Institutional Design ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Theory And Practice ◽  
Critical Examination ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Network Community ◽  
Constitutional Meaning

This chapter analyses Network Community discourses in order to better expose the causal role of its hegemonic norms. Key assumptions held by the Community about the qualities of their agenda are brought to light. Classical Anglo-Saxon conceptions of the separation of powers, checks and balances, judicial independence, and the rule of law, the utility of which has stood the test of time, are compared to the theory and practice of the Network Community’s Judiciary institutional design Template. The Network conceives of the separation of powers, checks and balances, judicial independence, and the rule of law as emanating from the autonomy and supremacy of a Judiciary so empowered as invariably to subordinate all other contestants in case of conflict with itself over constitutional meaning. The chapter ends with a systematic catalogue and critical examination of those few acts of state which the Network Community conceive as legitimate checks and balances on their Judiciary design.

scholarly journals Rule of Law and Its Guidelines and Indicators for Judiciary in Human Rights Issues

2016 ◽  
Vol 10 (1) ◽  
pp. 98
Author(s):  
Ebad Rouhi ◽  
Leila Raisi Dezaki ◽  
Mahmoud Jalali Karveh
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Public Law ◽  
Judicial System ◽  
The Rule Of Law ◽  
The Relationship ◽  
Domestic Level ◽  
Rights Issues

The rule of law is one of the very polemical and controversial concepts in the field of public law and political thoughts. This concept has been acclaimed in both international and domestic level and can be observed in the practice of the United Nations and many of states practically. In the light of the principle of the rule of law at the meantime ruling by law can be strengthened and also security and peace, development, democracy and human rights can be protected and promoted. The rule of law and human rights as two concepts with mutually interacting to each other has noteworthy great importance. An independent and impartial judiciary such as linkage has an important role in strengthening both of them.Human rights, separation of powers and judicial independence are regarded as some basis of the rule of law and as well as its consequence. Thus, in this regard rule of law has p very guidelines and indicators which some of them related to the judicial systems of states. In the light of exercise of these guidelines human rights are better protected and promoted.These instructions and guidelines generally are provided in international and regional human rights instruments to enforce in every sector of the state and especially for judges and judicial power to protection and promotion of human rights. This article investigates the relationship between rule of law and judicial system to introduce some measures and indicators of the rule of law to enforce them in the judiciary for better protection and promotion of human rights.

Terrorism Prevention and Investigation Measures: Constitutional Evolution, Not Revolution?

2013 ◽  
Vol 77 (6) ◽  
pp. 562-582 ◽  
Author(s):  
Ben Middleton
Keyword(s):  
Rule Of Law ◽  
Evolutionary Change ◽  
General Level ◽  
The Rule Of Law ◽  
Individual Level ◽  
Counter Terrorism ◽  
Constitutional Evolution ◽  
Control Orders ◽  
The Individual ◽  
Terrorism Prevention

This article analyses the Terrorism Prevention and Investigation Measures (TPIM) regime, which replaced the controversial system of control orders, and examines recent jurisprudence. It suggests that changes can be made to individual TPIM notices and to constitutional oversight mechanisms both of the regime and in counter-terrorism law generally. At the individual level, reform to TPIM notices would help further the evolution of counter-terrorism law towards ideals intrinsic to the rule of law. At a more general level, increased constitutional safeguards should be considered, not just as a feature of the TPIM regime, but also as a template for evolutionary change to other counter-terrorism powers. The ultimate aim should be to relinquish the use of TPIMs in favour of prosecution and surveillance strategies.

Rule of Law in Practice

2018 ◽  
pp. 63-104
Author(s):  
Harish Narasappa
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Basic Structure ◽  
Critical Examination ◽  
The Rule Of Law ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Rule Of Life ◽  
Political Understanding

In the first part, the interpretation and application of the rule of law by Indian courts, primarily the constitutional bench of the Supreme Court of India is analysed. A review of the major principles laid down by the Supreme Court in relation to equality and liberty is followed by a critical examination of the innovative jurisprudence developed by the Court while interpreting Article 21. The principles of judicial independence, separation of powers, and evolution of the basic structure doctrine, as well as their relationship with the rule of law is critically evaluated. In the second part the political understanding of the rule of law is examined, particularly focusing on Nehru’s comment that the rule of law should follow the ‘rule of life’ and its meaning and continued impact on lawmaking. The chapter concludes by identifying four broad themes of the Rule of Law in India.

Part VI Constitutional Theory, D The Role of Constitutional Principles in Canadian Constitutional Law, Ch.48 The Rule of Law, the Separation of Powers and Judicial Independence in Canada

2017 ◽  
Author(s):  
Newman Warren J
Keyword(s):  
Rule Of Law ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Constitutional Theory ◽  
First Principle ◽  
The Rule Of Law ◽  
Administrative Action ◽  
Parliamentary Sovereignty

This chapter considers the meaning, scope, and application of three constitutional principles of surpassing importance in Canada. The rule of law is foundational to Canada’s constitutional framework and may properly be characterized as the first principle of Canadian constitutional law. It is linked to, and in some respects, forms the underpinning for other fundamental principles, including constitutionalism, federalism, democracy, and parliamentary sovereignty. As the latter principles are the focus of chapters by other commentators in this Handbook, this chapter will examine the rule of law primarily in relation to the separation of powers and judicial independence. The principle of judicial independence is also essential to the functioning and structure of the Constitution, given the role the courts are called upon to play in policing the constitutional limits of legislative power and administrative action. The separation of powers is still an emerging principle in Canada, but also increasingly viewed as fundamental.

The Supreme Court of Israel: Present Trends and Concepts

1985 ◽  
Vol 20 (2-3) ◽  
pp. 175-181
Author(s):  
Meir Shamgar
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Modern Society ◽  
Evolutionary Approach ◽  
Human Beings ◽  
The Rule Of Law ◽  
The Third ◽  
The Supreme Court ◽  
Democratic System ◽  
The Individual

Our concepts and values are part and parcel of a philosophy broader than law, according to the expression used by Justice Robert Jackson in his description of the place of the Supreme Court as a unit in the complex and interdependent scheme of the democratic system of government. Drawing from the multitude of conceptions and ways of thought which characterize the Weltanschauung of the protagonists of a system of law based on the belief in the rights of the individual and in the rule of law, I would like to mention three aspeots and dwell on two of them in some detail. The first is represented by the evolutionary approach in the interpretation of the law; the second aspect is the permanent concern for judicial independence, and the third is transmuted into the ongoing mission of the court to enable human beings, as such, to confront the problems created by the effacing effects of modern society. The three above-mentioned aspects are separate but, in my opinion, not only do they overlap when we try to classify the phenomena representing them, but they are at least co-related and often even interdependent. Let us turn first of all to what I termed the evolutionary approach.

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