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.

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.

Unelected does not Equate with Undemocratic: Parliamentary Sovereignty and the Role of the Judiciary

2008 ◽  
Vol 13 (2) ◽  
pp. 1
Author(s):  
Marilyn Warren
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
Judicial Power ◽  
Executive Power ◽  
Judicial Activism ◽  
The Rule Of Law ◽  
Parliamentary Sovereignty ◽  
The Common

<p>One feature of judicial life that strikes most appointees to judicial office early on is the silence of the Judiciary outside our judgments and statements in court. We are also struck, when we deliver our first judgment that raises controversy or higher public interest, by the vulnerability of the Judiciary to<br />criticism, sometimes vehement and trenchant. Judges do not answer back. With the exception of Chief Justices, judges are generally only heard in court, unless the speaking occasion involves an extra-curial or academic discussion on the law or judicial life. This is properly so. Yet, when the criticism comes, it is troubling. Judges understand the constitutional and<br />governmental conventions that operate and within which they work. The conventions are not complicated, in fact quite simple. The only regret is that they are forgotten or overlooked when the criticism is made. For this<br />evening’s purpose I would wish to reflect on the conventions that judges work within. I will set out the traditional and modern views on parliamentary sovereignty. I will address the doctrine of separation of powers and the role of judicial power. I will postulate that, in modern government, it is the rule of law that is sovereign. I will consider the judicial role and the development of the common law. I will address the topics of<br />judicial activism, the election of judges and judicial accountability. I will conclude with the view that the complaint of judicial activism is misplaced and involves a misapprehension of the judicial function. For some, the high<br />water mark of judicial activism was Mabo.1 For some, the nadir of judicial ‘inactivism’ was Al Kateb.2 These swings of the pendulum in the discussion of judges’ work are not new. In 1956, Boilermakers’3 was an unsatisfactory outcome for some. Similarly, in 1948, the Bank Nationalisation4 decision provoked criticism. When Chief Justice Dixon restrained the Victorian Government from carrying out the execution in Tait,5 criticism ensued. However, each time judicial power prevailed over parliamentary and executive power. Was that undemocratic? My discussion does not say anything new. It has been said before. But, it needs to be said again. I turn then to the topic for consideration.</p>

Περιμένοντας τους Bαρβάρους. Law in a Time of Constitutional Crisis.

2021 ◽  
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Review ◽  
Judicial Independence ◽  
The Rule Of Law ◽  
European Dimension

Περιμένοντας τους Bαρβάρους. Law in a Time of Constitutional Crisis is not a typical celebratory book offered to the dedicatee for an academic jubilee. The studies offered to Professor Mirosław Wyrzykowski present the readers with essays analysing the most pressing problems of modern constitutionalism in its European dimension. The primary themes of the book are topics dear to Wyrzykowski: the rule of law, human rights, the crooked paths of European constitutionalism, and last, but not least, one that binds them all: judicial independence and judicial review, as well as the role of the courts in upkeeping the rule of law.

scholarly journals The Anti-enlightenment Tradition as a Source of Cynicism in the European Union

2020 ◽  
Author(s):  
Tamas Dezso Ziegler
Keyword(s):  
Decision Making ◽  
European Union ◽  
Rule Of Law ◽  
State Level ◽  
First Century ◽  
The European Union ◽  
The Rule Of Law ◽  
Refugee Law ◽  
Ideological Background ◽  
The Uk

AbstractThis article analyses the effect of the anti-Enlightenment tradition on the functioning of the European Union. This tradition covers a lack of belief in liberal values, human rights, egalitarianism, the rule of law, individualism, tolerance, and the respectful cooperation among people. Its ideological background is not new: its existence is also the reason why scholars started to talk about post-fascism in the twenty-first century. In a number of European Union member states, where autocratic tendencies have recently been witnessed (like in Hungary or Poland), it started to dominate decision-making, while its presence is also visible elsewhere, like in the UK, Germany, and Italy. This article selects four prime examples (the rule of law backlash, refugee law, Brexit, and changes to the single market) to show how arguments containing elements of the anti-Enlightenment tradition are used in a cynical way to support partisan and oppressive politics while maintaining a seemingly inclusive façade of democratic decision-making. In the European Union, this can result in dubious, un-explained measures and great policy changes both at EU and member state level.

Conflict and Courts: Civil War and Judicial Independence across Democracies

2018 ◽  
Vol 72 (3) ◽  
pp. 700-713
Author(s):  
Brad Epperly ◽  
Jacqueline Sievert
Keyword(s):  
Civil War ◽  
Rule Of Law ◽  
Civil Liberties ◽  
Judicial Independence ◽  
Executive Power ◽  
The Rule Of Law ◽  
Legal Studies ◽  
Federal Judiciary ◽  
Cross National

Many argue that during conflict, executive power expands at the expense of the judiciary and civil liberties. Although this is a common conjecture, no systematic study of conflict and judicial independence exists. We argue that conflict, rather than strictly inhibiting independence, is instead a critical juncture that increases the possibility of institutional change, either positive or negative. We assess this claim in three ways: cross-national analyses of (1) de facto and (2) de jure judicial independence after the onset of conflict, and (3) a case study of statutory and jurisdictional changes to the federal judiciary after the outbreak of the U.S. Civil War. Each illustrates that conflict onset is associated with a higher likelihood of changing levels—both decreases and increases—rather than unidirectional decreases in judicial independence. We then present preliminary hypotheses and analyses for three factors that, given conflict onset, should be associated with either improved or worsened conditions for the judiciary. This study has implications for research on conflict, courts, and the rule of law in both political science and legal studies.

scholarly journals JUDICIOUS REVIEW: THE CONSTITUTIONAL PRACTICE OF THE UK SUPREME COURT

2018 ◽  
Vol 77 (2) ◽  
pp. 349-374
Author(s):  
Jo Eric Khushal Murkens
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
The Rule Of Law ◽  
Judicial Intervention ◽  
Parliamentary Sovereignty ◽  
The Will ◽  
Uk Supreme Court ◽  
The Uk ◽  
Constitutional Jurisprudence

AbstractThe role of the UK Supreme Court (UKSC) as conventionally understood is to give effect to, and not to challenge, the will of Parliament. At the same time, the UK's constitution forces the UKSC to develop a constitutional jurisprudence to resolve clashes of higher-order principles, for instance between parliamentary sovereignty and the rule of law. This development puts the legitimacy of unelected and unaccountable judges invalidating legislation under the spotlight. Instead of arguing for US-style strike-down powers, I argue that cautious and corrective judicial intervention is constitutionally mandated and democratically legitimate.

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.

“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.

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.

Part III The Right to Justice, C Restrictions on Rules of Law Justified By Action to Combat Impunity, Principle 30 Restrictions on the Principle of the Irremovability of Judges

2018 ◽  
Author(s):  
Gosnell Christopher
Keyword(s):  
Rule Of Law ◽  
Justice System ◽  
Judicial Independence ◽  
Theoretical Framework ◽  
Judicial Power ◽  
Historical Background ◽  
The Rule Of Law ◽  
The Right

Principle 30 deals with restrictions on the principle of the irremovability of judges. Judicial independence, both institutional and individual, is essential in any justice system and must be respected in a trans-regime setting. At the same time, it is necessary for the judiciary to adjudicate the crimes of a past regime with adequate vigour. This can present a major dilemma between necessary continuity and necessary reform, one that Principle 30 is designed to address. According to Principle 30, judges may not be removed if they were appointed ‘in conformity with the requirements of the rule of law’, but may be removed if they were ‘unlawfully appointed’ or ‘derive their judicial power from an act of allegiance’. This chapter first provides a contextual and historical background on Principle 30 before discussing its theoretical framework and how judges are treated in a trans-regime setting.

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