The rule of law and the role of courts

2021 ◽  
Vol 10 (1) ◽  
pp. 91-105
Author(s):  
JEREMY WALDRON
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
The Political ◽  
The Rule Of Law ◽  
Judicial Supremacy ◽  
Political Program ◽  
Political Ideal ◽  
Constitutional Constraints

AbstractWhat role do courts play in advancing or upholding the political ideal that we call ‘the rule of law’? Does the rule of law require that courts should have authority over all other branches of government, including the legislature? And does it impose constraints on the sort of reasoning and decision-making that courts engage in? This article explores an array of possible answers to these questions, and considers the possibility that the ascendancy of courts in a constitution may represent a form of judicial supremacy that looks remarkably like the uncontrolled rule of men, which the rule of law is supposed to prevent. To preclude that possibility, it is particularly important for courts to recognize that their authority is limited in scope and that they should not be guided by any overall political program other than the program of seeing that constitutional constraints on government are upheld.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

State, Sovereignty, and the People: A Comparison of the “Rule of Law” in China and India

2009 ◽  
Vol 68 (1) ◽  
pp. 55-100 ◽  
Author(s):  
Jonathan K. Ocko ◽  
David Gilmartin
Keyword(s):  
Rule Of Law ◽  
Social Order ◽  
The Political ◽  
British India ◽  
Fourth Section ◽  
The Rule Of Law ◽  
China And India ◽  
The People ◽  
History Of

This paper uses the concept of the “rule of law” to compare Qing China and British India. Rather than using the rule of law instrumentally, the paper embeds it in the histories of state power and sovereignty in China and India. Three themes, all framed by the rule of law and the rule of man as oppositional yet paradoxically intertwined notions, organize the paper's comparisons: the role of a discourse of law in simultaneously legitimizing and constraining the political authority of the state; the role of law and legal procedures in shaping and defining society; and the role of law in defining an economic and social order based on contract, property, and rights. A fourth section considers the implications of these findings for the historical trajectories of China and India in the twentieth century. Taking law as an instrument of power and an imagined realm that nonetheless also transcended power and operated outside its ambit, the paper seeks to broaden the history of the “rule of law” beyond Euro-America.

13. The judiciary

2021 ◽  
pp. 303-326
Author(s):  
Anne Dennett
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Judicial Power ◽  
Executive Power ◽  
The Rule Of Law ◽  
External Influences ◽  
Political Interference ◽  
The Uk

This chapter examines the role of the judiciary in the UK constitution, the critically important concepts of judicial independence and neutrality, accountability of judges, and judicial power. The UK courts administer justice; uphold the rule of law; and act as a check on executive power. Judicial independence requires that judges should be free from external influences in their decision-making, and make decisions without political interference or fear of reprisal. Meanwhile, judicial neutrality means that judges should determine legal disputes impartially, objectively, and solely by applying the law. At first sight, judicial accountability seems inconsistent with being independent, but it is essential that the judiciary adheres to the highest standards in carrying out its functions. In the absence of a codified constitution, the boundaries of judicial power operate within a framework of constitutional principles and conventions, but there is debate over the limits of that power.

Modern slavery in global context: ending the political economy of forced labour and slavery

2019 ◽  
pp. 29-46
Author(s):  
Aidan McQuade
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
The Political ◽  
The Rule Of Law ◽  
Global Context ◽  
Modern Slavery ◽  
Political Economies ◽  
Forced Labour ◽  
Human Rights Standards

This chapter begins by setting out the root causes of slavery, and demonstrating the fundamental role of the failure of the rule of law in enabling slavery to persist. It then sets out how particular failures in the rule of law give rise to four ‘peacetime’ political economies of slavery (i.e. state-sponsored slavery, state-tolerated slavery, state-facilitated slavery, state-muddled slavery). Where international mechanisms exist to uphold human rights standards, these political economies may be reformed somewhat. However, in addition, what is needed is a more fundamental reform of the nature of all political economies to establish processes to empower vulnerable individuals and groups and to uphold human rights standards. The chapter then sets out what forms these reforms must take to establish political economies with the potential to reduce slavery, if not eliminate it completely.

scholarly journals Role of formal and informal institutions in the civil society development

2020 ◽  
Vol 2 ◽  
pp. 7-18
Author(s):  
Sergey Zyryanov ◽  
◽  
Anatoly Lukin ◽  
Keyword(s):  
Civil Society ◽  
Rule Of Law ◽  
Informal Institutions ◽  
The Political ◽  
The Rule Of Law ◽  
Social Sphere ◽  
Institutional Approach ◽  
Formal And Informal Institutions ◽  
Ways Of Thinking

Today, scientific discussions on the specifics of the development of civil society in Russia do not stop. The institutional approach allows us to look at this problem through the prism of formal and informal institutions existing in society. Researchers and practitioners should not focus only on the rule of law, official prescriptions and orders, setting the framework for interactions between authorities and citizens, promoting private initiatives, and realizing the rights and freedoms of the population. If they do not correspond to the prevailing norms, stereotypes, ways of thinking and actions for centuries, then the most useful, at first glance, innovations in the political and social sphere may not take root. This does not mean, however, that informal institutions remain unchanged under any circumstances. They also evolve. This process can be targeted. It is important to understand all the actors involved in the development of civil society in our country.

13. The judiciary

2019 ◽  
pp. 288-310
Author(s):  
Anne Dennett
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Judicial Power ◽  
Executive Power ◽  
The Rule Of Law ◽  
External Influences ◽  
Political Interference ◽  
The Uk

This chapter examines the role of the judiciary in the UK constitution, the critically important concepts of judicial independence and neutrality, accountability of judges, and judicial power. The UK courts administer justice; uphold the rule of law; and act as a check on executive power. Judicial independence requires that judges should be free from external influences in their decision-making, and make decisions without political interference or fear of reprisal. Meanwhile, judicial neutrality means that judges should determine legal disputes impartially, objectively, and solely by applying the law. At first sight, judicial accountability seems inconsistent with being independent, but it is essential that the judiciary adheres to the highest standards in carrying out its functions. In the absence of a codified constitution, the boundaries of judicial power operate within a framework of constitutional principles and conventions, but there is debate over the limits of that power.

“Fair Notice” in the Age of AI

2020 ◽  
pp. 753-768
Author(s):  
Kiel Brennan-Marquez
Keyword(s):  
Artificial Intelligence ◽  
Machine Learning ◽  
Decision Making ◽  
Rule Of Law ◽  
Legal System ◽  
Tripartite Model ◽  
Input Output ◽  
The Rule Of Law ◽  
Key Concepts

This chapter examines the concept of “fair notice,” both in the abstract and as it operates in U.S. constitutional doctrine. Fair notice is paramount to the rule of law. The maxim has ancient roots: people ought to know, in advance, what the law demands of them. As such, fair notice will be among the key concepts for regulating the scope and role of artificial intelligence (AI) in the legal system. AI—like its junior sibling, machine learning—unleashes a historically novel possibility: decision-making tools that are at once powerfully accurate and inscrutable to their human stewards and subjects. To determine when the use of AI-based (or AI-assisted) decision-making tools are consistent with the requirements of fair notice, a sharper account of the principle’s contours is needed. The chapter then develops a tripartite model of fair notice, inspired by the problems and opportunities of AI. It argues that lack of fair notice is used interchangeably to describe three distinct properties: notice of inputs, notice of outputs, and notice of input-output functionality. Disentangling these forms of notice, and deciding which matter in which contexts, will be crucial to the proper governance of AI.

The Limits of Positivist Legal Ethics: A Brief History, a Critique, and a Return to Foundations

2017 ◽  
Vol 30 (2) ◽  
pp. 443-465 ◽  
Author(s):  
W. Bradley Wendel
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Political Community ◽  
The Political ◽  
Legal Ethics ◽  
The Rule Of Law ◽  
Positive Law ◽  
The Law ◽  
Anglo American

The “positivist turn” in legal ethics has found many scholars in the Anglo-American common-law world relating the duties of lawyers to the rights and duties assigned by the law to their clients. On this view, the role of lawyers should be understood as contributing to the law’s function of resolving conflict and establishing a framework for cooperation in a pluralist society. Critics of positivist legal ethics have suggested that it is impossible for lawyers to avoid resorting to moral considerations when representing clients. These critics claim that the guidance provided by law runs out at critical moments, leaving a lawyer no choice but to fall back on the moral considerations supposedly pre-empted by positive law. In particular they argue that the law cannot determine its own application, and normative questions remain regarding the interpretive attitude lawyers ought to take when representing clients. This paper responds to critics of positivist legal ethics by returning to foundations, specifically the values underpinning the rule of law as a practice of giving reasons based on norms established in the name of the political community.

Keeping the Internal Tension Under Check

2021 ◽  
pp. 289-320
Author(s):  
Margit Cohn
Keyword(s):  
Decision Making ◽  
Public Sphere ◽  
Rule Of Law ◽  
Public Deliberation ◽  
Political Life ◽  
Direct Access ◽  
The Rule Of Law ◽  
The Public ◽  
The Public Sphere

Concerned with the role of the judiciary as a constraining agent of fuzzy law, the chapter is laid out in two layers. First, in light of the special problems attached to reliance on fuzzy law, it advances arguments that call for enhanced review in this context. Secondly, the chapter joins the ongoing general debate over the role of the judiciary in the shaping of the public sphere. The argument for active review is based both on the principles reflected in the rule of law ideal, and on an argument from governance. Setting judicial review in a framework that seeks to enhance participation, the judiciary, stripped of accusations of supremacy over all other forms of decision-making, operates as an intermediator by offering members of society, especially those who do not have direct access to government corridors, an additional forum for voicing their concerns and thereby contributing to public deliberation over all contested aspects of social and political life.

The Impersonal Rule of Law

1992 ◽  
Vol 5 (2) ◽  
pp. 299-308 ◽  
Author(s):  
Kenneth Henley
Keyword(s):  
Rule Of Law ◽  
Practical Wisdom ◽  
Political Community ◽  
The Political ◽  
The Rule Of Law ◽  
Legal Rules ◽  
Internal Morality ◽  
Political Ideal ◽  
The Law ◽  
Rules And Standards

The rule or supremacy of law is a political ideal requiring that the authority of the political community be exercised only within the confines of ordained structures, established procedures, and known legal rules and standards, creating reasonable expectations on the part of those subject to the law. Recent accounts of this ideal often include a list of principles or precepts of the rule of law. Lon Fuller’s list has been rightly influential: generality of law, promulgation, non-retroactivity, clarity, consistency of laws, not requiring the impossible, constancy of law through time, and congruence between official action and declared rule; these principles of the ‘internal morality of the law’ can conflict with each other, so that practical wisdom is required in balancing their demands.

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