8. Parliamentary Privilege

2021 ◽  
pp. 197-220
Author(s):  
Ian Loveland

This chapter, which examines the so-called parliamentary privileges of the House of Commons and the House of Lords, begins by discussing Article 9 of the Bill of Rights 1689. It then explores over three hundred years of the history of parliamentary privilege in five general areas: (i) the houses’ power to regulate their own composition through the admission, retention, and expulsion of their members; (ii) the publication of details of house business; (iii) the admissibility before the courts of such published material; (iv) the concept of ‘contempt of the house’; and (v) the regulation of MPs’ ethical standards. The chapter also analyses several seminal cases in which the courts have adjudicated on both the nature and extent of parliamentary privilege and considers how case law in relation to this area of the constitution balances the sometimes competing concepts of the sovereignty of Parliament, the rule of law, and the separation of powers.

2018 ◽  
Author(s):  
Peter M. Shane

The George W. Bush administration's use of signing statements embodied a disturbingly thin and formalist view of the rule of law that goes hand-in-hand with its vision of the separation of powers. Its signing statement practice was notable both for the extremity of the constitutional vision that these statements typically asserted—especially with regard to the so-called "unitary executive”—and with regard to their sheer volume, unmatched in the entire history of the executive. To understand the latter phenomenon, the Bush signing statements need to be understood not just as an expression of a constitutional philosophy, but also as an effort to institutionalize through faux law a highly presidential ethos as a fundamental element of the spirit with which the government conducts business.


Author(s):  
Ian Loveland

This chapter, which examines the privileges of Parliament, begins by discussing Article 9 of the Bill of Rights. It then explores over three hundred years of the history of parliamentary privilege in five general areas: (i) the houses’ power to regulate their own composition through the admission, retention, and expulsion of their members; (ii) the publication of details of house business; (iii) the admissibility before the courts of such published material; (iv) the concept of ‘contempt of the house’; and (v) the regulation of MPs’ ethical standards.


2016 ◽  
Vol 1 (35) ◽  
Author(s):  
Mauricio Costa Mesurini

História do Direito Administrativo no Brasil (1937-1964): o debate em torno das delegações legislativasThe history of the Administrative Law in Brazil (1937-1964): the debate about legislative delegation Mauricio Costa Mesurini[1] RESUMO: Trata-se de um trabalho sobre história do Direito Administrativo no Brasil, notadamente no período de 1937 a 1964. O objetivo é mostrar alguns aspectos da trajetória do campo, em especial as transformações favorecidas pela tendência modernizadora, entre elas, o debate em torno das delegações legislativas, um tema que se desenvolveu na doutrina a partir e à margem das disposições constitucionais da época. É inegável a importância da lei para o direito público moderno. Mas o que é a lei? Quem tem o poder de confeccioná-la? “O governo das leis” em substituição ao “governo dos homens”, em verdade uma tautologia, encobre o problema sobre a fonte de onde emanam as leis. Assim sendo, mesmo em um Estado de Direito, a disputa político-jurídica permanece latente e continua em jogo a definição de quem são os “senhores” da legislação. O artigo investiga o debate jurídico em torno das delegações legislativas abordando quatro juristas da época: Francisco Campos, Victor Nunes Leal, Bilac Pinto e Themistocles Cavalcanti. PALAVRAS-CHAVE: Direito Administrativo. Direito Constitucional. Delegações legislativas. Separação de poderes. ABSTRACT: This paper is a study on the history of administrative law in Brazil, notably in the period 1937-1964. The purpose is to present some aspects of the development of this field of study, especially the changes favored by the modernization process through which Brazil has passed, such as the debate about legislative delegation, a theme that was developed in the legal doctrine from and beyond the constitutional arrangement of the period. It is undeniable the importance of the legislation to modern public law. But what is legislation? Who has the power to make it? The “rule of law” replacing the “government of men”, in fact a tautology, conceals the problem of the source from where the law emanates. Therefore, even in the bases of the rule of law, the legal-political dispute remains latent, and the definition about who establishes the law remains open. More specifically, the paper analyzes the debate about legislative delegation in Brazil by four legal experts of the period: Francisco Campos, Victor Nunes Leal, Bilac Pinto and Themistocles Cavalcanti. KEYWORDS: Administrative law. Constitutional law. Legislative delegation. Separation of powers.[1] Doutor em História do Direito pela Universidade Federal de Santa Catarina – UFSC, 2016. Mestre em 2008 e graduado em 2005 pela Direito Público Universidade Federal de Santa Catarina – UFSC. Professor de Direito Administrativo da Faculdade Cenecista de Joinville


2021 ◽  
Vol 40 (1) ◽  
pp. 119-148
Author(s):  
Johnny M Sakr ◽  
Augusto Zimmermann

In this article, the authors explore the concept of judicial activism and its application in the Australian domestic cases of Australian Capital Television Pty Ltd v Commonwealth and Love v Commonwealth, and in the US case of Obergefell v Hodges. The article highlights the devastating effects of judicial activism on legal interpretation, arguing that such activism compromises the doctrine of separation of powers and affects the realisation of the rule of law, resulting in a method ofinterpretation that incorporates personal biases and political opinion, thus ignoring the original intent of the framers of the Australian Constitution. Moreover, the article highlights that implementing a federal Bill of Rights might further exacerbate these ongoing problems concerning judicial activism in Australia.


2020 ◽  
Vol 10 (2) ◽  
Author(s):  
Joanne Cave

This paper examines Canadian case law to assess how judges determine whether morally charged questions are justiciable. The author applies Robert Cover’s philosophical concept of “responsibility mitigation mechanisms” to argue that judges may define justiciability narrowly to avoid complex moral questions. Using Charter litigation as a case study, the author explores whether the justiciability of moral or political questions can be subjective and how that subjectivity may have significant implications for the scope and limits of rights, the separation of powers and the rule of law in Canada.


Author(s):  
Daniel N. Robinson

Throughout its history, the insanity defense specifically and the more general concept of mental defect or incompetence have been grounded in the assumption that those people fit for the rule of law are able to give and to comprehend reasons for their actions. This chapter traces the evolution of perspectives on the nature of mental illness and the manner in which cultural and extra-scientific influences have shaped perspectives. These perspectives are most saliently expressed in statutory provisions and relevant case law summarized here and covering historical developments from ancient Greece and Rome to the present. Significant interactions between law and psychiatry are further highlighted and informed by core and controversial philosophical assumptions. Attention is given to differences between juridical and medical conceptions of responsibility.


ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.


2021 ◽  
Vol 7 (3) ◽  
pp. 379-398
Author(s):  
David Parra Gómez

Democracy is an instrument at the service of a noble purpose: to ensure the freedom and equality of all citizens by guaranteeing the civil, political and social rights contained in constitutional texts. Among the great principles on which this instrument rests is the division of powers, which consists, substantially, in the fact that power is not concentrated, but that the various functions of the State are exercised by different bodies, which, moreover, control each other. Well, the increasingly aggressive interference of the Executive and, to a lesser extent, the Legislative in material spheres that should be reserved exclusively for the Judiciary, violates this principle and, for this reason, distorts the idea of democracy, an alarming trend that, for some time now, are observed in European Union countries such as Hungary, Poland and Spain. Preventing the alarming degradation of European democracy, of which these three countries are an example, requires not only more than necessary institutional reforms to ensure respect for these principles and prevent the arbitrariness of the public authorities, but also a media network and an education system that explains and promotes these values and principles, that is, one that makes citizens aware of and defend constitutionalism. Keywords: Rule of law; Democracy; Separation of powers; judicial independence; Europe.


2018 ◽  
Vol 43 (3) ◽  
pp. 274-313
Author(s):  
Enver Hasani

Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent history. The author uses a comparative analysis to discuss the role of the Court in light of the work and history of other European constitutional courts. This approach sheds light on the Court’s current role by analyzing Kosovo’s constitutional history, which shows that there has been a radical break with the past. This approach reveals the fact that Kosovo’s current Constitution does not reflect the material culture of the society of Kosovo. This radical break with the past is a result of the country’s tragic history, in which case the fight for constitutionalism means a fight for human dignity. In this battle for constitutionalism, the Court has been given very broad jurisdiction and a role to play in paving the way for Kosovo to move toward Euro-Atlantic integration in all spheres of life. Before reaching this conclusion, the author discusses the specificities of Kosovo’s transition, comparing it with other former communist countries. Among the specific features of constitutionalism in Kosovo are the role and position of the international community in the process of constitution-making and the overall design of constitutional justice in Kosovo. Throughout the article, a conclusion emerges that puts Kosovo’s Constitutional Court at the forefront of the fight for the rule of law and constitutionalism of liberal Western provenance.


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