Judicial Review and Political Accountability: The Case of the High Court of Justice in Israel

1998 ◽  
Vol 32 (3) ◽  
pp. 448-474 ◽  
Author(s):  
Yoav Dotan
Keyword(s):  
Public Opinion ◽  
Executive Branch ◽  
The Other ◽  
Institutional Autonomy ◽  
Constitutional Courts ◽  
High Court ◽  
Academic Literature ◽  
Court Of Justice ◽  
Decision Making Processes ◽  
The Subject

The inter-relation between government policies, public opinion and court decisions are the subject of intense discussion in academic literature. Constitutional theorists maintain that courts are required to defend individual rights, especially minority rights. Courts are also expected to refrain from excessive interference in decision-making processes conducted by the other two branches of government. Both these themes are derived from the assumption that courts, unlike the legislature and the executive branch, are not representative institutions. They are not required to reflect the preferences of the majority in their decisions. Rather, the reverse is expected: to confront decisions which endanger the rights of minorities. The “success” of courts in maintaining their institutional autonomy — according to this view — is evaluated by their ability to withstand political pressures and effect their counter-majoritarian role.Political scientists, on the other hand, are concerned with the extent to which courts in fact fulfill this counter-majoritarian role. Some argue that the counter-majoritarian function of the court is no more than a doctrinal aspiration, perhaps even a myth. Constitutional courts, they argue, serve more to legitimize socio-political reforms and broader cultural propensities which were previously endorsed by the political establishment and public opinion, than to confront majoritarian decisions. Others maintain that, while courts are not wholly insulated from public opinion, they still manage, on many occasions, to retain their institutional autonomy vis-à-vis political pressures.

Finally, Our Own Brown! (?)

2012 ◽  
Vol 45 (2) ◽  
pp. 267-289 ◽  
Author(s):  
Yifat Bitton
Keyword(s):  
African American ◽  
Theoretical Analysis ◽  
Supreme Court Decision ◽  
The Other ◽  
Court Decision ◽  
High Court ◽  
Court Of Justice ◽  
Us Supreme Court ◽  
Distinctive Group ◽  
Contextual Reality

The decision in Noar Kahalacha, an anti-segregation in education case that was recently delivered by the Israeli High Court of Justice, has been ‘naturally’ celebrated as the ‘Israeli Brown’. But is it? This article points to the differences between the monumental US Supreme Court decision of Brown and the Israeli Brown-equivalent – Noar Kahalacha. It contends that the two cases bear differences that stem from the divergent patterns of discrimination they represent, and that they reflect these differences squarely. The discrimination patterns reflected by the cases differ by virtue of traits that are traditionally overlooked in antidiscrimination theoretical analysis. Comparing the two cases, therefore, allows us an opportunity to revisit the notion of discrimination and its antidote, antidiscrimination. Drawing on the dichotomous concepts of de jure/de facto discrimination and difference/sameness discrimination, the article shows how these dual theoretical notions are determinative in shaping the distinctiveness of each of these cases. While the African American victims in Brown were easily recognised as a distinctive group suffering from de jure discrimination, the Mizrahi victims in Noar Kahalacha – who suffer from de facto discrimination within a Jewish hegemonic society – lacked such clear recognition. Accordingly, the discrimination narrative that Noar Kahalacha provides is very incomplete and carries only limited potential for effective application in future struggles to eliminate discriminatory practices against Mizrahis in Israel. Brown, on the other hand, carries a converse trait. Though criticised, Brown, nevertheless, strongly signifies the recognition by White America of its overarching discriminatory practices, and implies a genuine dedication to break from it. This understanding further illuminates the limitations embedded in the possibility of ‘importing’ highly contextual antidiscrimination jurisprudence from abroad into our system's highly contextual reality of discrimination.

Judicial Review of Knesset Decisions by the High Court of Justice

1994 ◽  
Vol 28 (1) ◽  
pp. 43-56 ◽  
Author(s):  
Meir Shamgar
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Limited Range ◽  
Democratic Regime ◽  
High Court ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Subject

Some fifteen years ago, an address on the subject of judicial review of the actions of the Knesset would have been extremely short and quite familiar to English jurists. Our practice was basically the same as in England: the Parliament is sovereign, its laws inviolate, and its inner proceedings immune from review.Beginning with two decisions in the early 1980s, Flato-Sharon and Sarid, the Court has gradually recognized the justiciability of a limited range of Knesset decisions. While the precise level of review varies according to the type of decision at issue, the Court's review has been motivated in all cases by the need to preserve the rule of law and the integrity of our democratic regime.

The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law

2015 ◽  
Vol 16 (6) ◽  
pp. 1343-1374 ◽  
Author(s):  
Giuseppe Martinico
Keyword(s):  
Constitutional Law ◽  
The Other ◽  
Preliminary Ruling ◽  
Eu Law ◽  
Constitutional Courts ◽  
Cautious Approach ◽  
Court Of Justice ◽  
The One ◽  
The Eu

Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”

Constitutional Courts, Preliminary Rulings and the “New Form of Law”: The Adjudication of the European Stability Mechanism

2015 ◽  
Vol 16 (6) ◽  
pp. 1771-1790 ◽  
Author(s):  
Samo Bardutzky
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
The Other ◽  
Constitutional Courts ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
The Supreme Court ◽  
European Stability Mechanism ◽  
New Form

In 2012 and 2013, we observed how the European Stability Mechanism (ESM) was adjudicated by “EU courts, plural”: a number of high courts of the Member States (among them “Kelsenian” constitutional courts as well as representatives of a more hybrid model of judicial review of constitutionality) and the European Court of Justice (CJEU) were seized by challenges to the mechanism. What attracted attention was the fact that only one court, the Supreme Court of Ireland, decided to submit a preliminary reference to the CJEU, while the other courts, as would appear from their judgments, did not even consider the option. This was a suboptimal example of judicial dialogue in the case of ESM adjudication.

The Protection of Human Dignity in Interrogations: May Interrogative Torture Ever Be Tolerated? Reflections in Light of Recent German and Israeli Experiences

2011 ◽  
Vol 44 (1-2) ◽  
pp. 229-262 ◽  
Author(s):  
Miriam Gur-Arye ◽  
Florian Jessberger
Keyword(s):  
War On Terror ◽  
The Other ◽  
Court Ruling ◽  
Criminal Proceedings ◽  
High Court ◽  
Fair Treatment ◽  
Court Of Justice ◽  
The One ◽  
The Individual ◽  
German Court

The issue of whether interrogative torture may ever be tolerated has been discussed explicitly by both the Israeli High Court of Justice and the Frankfurt Regional Court in Germany. The Israeli court ruling related to the use of interrogative torture in the war on terror; the case brought before the German court was one of routine police work. This paper analyzes the two rulings in depth and offers a comparative reading of the rulings. The comparative analysis reveals that, despite some fundamental differences, the Israeli and German rulings should both be seen as an attempt to uphold the ban on torture, on the one hand, and yet to grant fair treatment to an individual interrogator who used, or threatened to use, force in order to save innocent lives, on the other. While determining the lessons to be learned from the German and Israeli experiences, this paper raises doubts as to whether it is possible to keep the ban on torture intact while either excusing the individual interrogator (Israel) or significantly mitigating his punishment (Germany). The paper further suggests that, in order to provide a real barrier against the practice of interrogative torture, the evidence resulting from such interrogations should be inadmissible in any criminal proceedings.

scholarly journals INDONESIAN MUSLIM WEBSITES PICTURING AUSTRALIA

2019 ◽  
Vol 7 (4) ◽  
pp. 991-996
Author(s):  
Twediana Budi Hapsari
Keyword(s):  
Public Opinion ◽  
Blended Learning ◽  
Religious Group ◽  
The Other ◽  
Education Students ◽  
The Subject

Purpose: The relations between the neighbors Indonesia and have become interesting over the last several decades. Methodology: We have shown the important role of blended learning in the maintenance and development of the subject-subject model of interaction between students and teachers. The implementation of subject-subject interaction was considered on the example of the discipline "General and professional pedagogy", the electronic course of which is presented on the Moodle platform. Result: As the largest religious group in Indonesia, Indonesian Muslims play significant roles in shaping public opinion within society. Since the Bali Bombing 2002, there has been intense attention devoted to Australia and Indonesian Muslim issues. This paper explains how five different Indonesian Muslim websites (Arrahmah.com; hti.com; dakwatuna.com; nu.or.id & republika.co.id) portrayed Australia from 2011 to 2013. Applications: This research can be used for the universities, teachers and education students. Novelty/Originality: The ‘up and down’ tension between the ‘up and down’ tension between these countries, is influenced not only by their governments but also their citizen’s perceptions, about the other country.

Some Suggestions respecting the Care of the Feeble-minded under the Mental Deficiency Bill, 1913

1913 ◽  
Vol 59 (246) ◽  
pp. 487-492 ◽  
Author(s):  
A. R. Douglas
Keyword(s):  
Public Opinion ◽  
Mental Deficiency ◽  
The Other ◽  
House Of Commons ◽  
Standing Committee ◽  
The Face ◽  
The Subject ◽  
The One ◽  
And Control

In dealing with any subject in connection with the burning question of the care and control of the feeble-minded, some reference will be expected to the second Mental Deficiency Bill recently introduced into the House of Commons by the Home Secretary. For the purposes of this paper it is unnecessary to do more than quote the Clause, which defines the classes of persons who are mentally defective and deemed to be defectives within the meaning of the Act. Taken all round, it is a much better Bill than its predecessor of last year, but it should be noted that in the present measure no allusion is made to the undesirability of procreation of children by defectives, or to any intention to penalise persons wittingly bringing about a marriage between defectives. These proposals, which were likely to arouse uncompromising disapproval, may be the less regretted, as their inclusion might doubtless have been instrumental in the blocking of the Bill as a whole. Their effacement, it is hoped, may do away with the opposition which is at present invariably evoked by any attempt to infringe upon the so-called liberty of the subject, and may also give opportunity for educating public opinon, so that in time it may be clear to all that the prevention of amentia can only be attained by life segregation on the one hand, and by the prohibition of marriage on the other. The promoters of the Bill have gone as far as they possibly could in the face of uneducated public opinion, and those of us who were present at the discussion of last year's measure in Standing Committee cannot but admire the courage and resourcefulness of Mr. McKenna in presenting the new Bill after the repeated discouragement which he had to face in connection with his first effort last year.

scholarly journals PARENTING IN CONFLICT – PARENTAL ALIENATION: NETNOGRAPHIC RESEARCH

2021 ◽  
Vol 5 (2) ◽  
pp. 83-98
Author(s):  
MAGDALENA ROSZAK
Keyword(s):  
Theoretical Analysis ◽  
English Language ◽  
The Other ◽  
Parental Alienation ◽  
Academic Literature ◽  
Custodial Parent ◽  
High Conflict ◽  
The Subject ◽  
The Relationship ◽  
Published Research

Parental alienation is a phenomenon that appears after the divorce or break-up in a situation, where there is high conflict between the separating parents accompanying the termination of the relationship. It includes actions intentionally taken by one of the sides, who is seeking to distort the relationship between the child and the other parent. As a result of the alienation, the child starts to excessively prefer the custodial parent and intensively reject the non-custodial parent. The discussion concerning parental alienation was initiated by Richard Gardner, a psychiatrist, who introduced the idea of PAS ‘parental alienation syndrome’. His concept was widely commented by its supporters as well as by sceptics and opponents, as a result of which its modified version, PA ‘parental alienation’, was developed. Published research concerning the subject can be found in English-language scientific articles as early as in 1998. However, in Polish academic literature parental alienation is almost non-existent. The objective of this article is to open a discussion on this subject. Apart from theoretical analysis of the phenomenon, the narratives of parents who believe to experience PA were analysed. The analysis regarded aspects such as: definition, characteristics and sources of parental alienation. The article analyses also actions, which are the alienated parents’ reactions to PA. The performed analysis was of netnographic nature.     

Verfassungsgerichtliche Entscheidungsfindung und ihre Folgen

2020 ◽  
Author(s):  
Maria Abad Andrade
Keyword(s):  
Decision Making ◽  
Theoretical Models ◽  
Case Law ◽  
Decision Making Process ◽  
Constitutional Court ◽  
Institutional Autonomy ◽  
Constitutional Courts ◽  
Law And Politics ◽  
Decision Making Processes ◽  
First Time

How do constitutional courts decide and how do institutional factors affect decision-making processes and their outcomes? This book answers these questions—in a way that is relevant for law and politics—in two steps. In the first place, it develops possible theoretical models of constitutional courts’ decision-making. Thereafter, they are applied to the politically significant Turkish Constitutional Court (1962–2012) for the first time. Using interviews with former judges and analyses of court rulings, the author proposes that ‘unfavourable coupling’ takes place at the Turkish Constitutional Court in the form of a decision-making logic that follows majority principles combined with a process that requires a willingness to compromise and seek consensus for the court to function appropriately. This coupling affects the court’s decision-making process, its case law and, indirectly, even its ability to gain institutional autonomy and authority.

Cautious But Engaged—An Empirical Study of the Australian High Court's Use of Foreign and International Materials in Constitutional Cases

2014 ◽  
Vol 42 (3) ◽  
pp. 437-470
Author(s):  
Elisa Arcioni ◽  
Andrew McLeod
Keyword(s):  
Political Life ◽  
Constitutional Courts ◽  
High Court ◽  
Foreign Law ◽  
The Us ◽  
The World ◽  
Political Controversy ◽  
The Subject ◽  
Foreign Governments ◽  
Academic Debate

The issue of whether constitutional courts should refer to foreign law has become the subject of debate and discussion around the world. In the US in particular, a heated judicial and academic debate on the issue has spilled into a political controversy extending to the introduction of federal and State Bills to prohibit judicial citation of foreign law and to Congressional proposals for such citation to be an impeachable offence. The use of foreign law, for some, is in tension with national sovereignty: one Congressman claimed that citation amounted to a surrender of lawmaking ‘to the control of foreign courts and foreign governments', and potentially represented the start of an internationalist slide in foreign policy and security and military strategy as well. However, these normative debates about foreign law play at best a muted role in Australian jurisprudential and political life, and we do not directly engage with them here. Rather, we consider to what extent, andhow, Australian High Court judges engage with foreign and international legal materials in constitutional cases. In this article we track the frequency of citation in constitutional cases and provide a substantive analysis of the ways in which those materials are used.

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