The Republic of France

2021 ◽  
pp. 157-188
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
French Revolution ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The United States ◽  
Executive Power ◽  
Checks And Balances ◽  
Fifth Republic ◽  
National Assembly ◽  
The Republic

This chapter looks at French judicial review. From the French Revolution of 1789 up until the adoption in 1958 of the Constitution of the Fifth Republic, the Republic of France refused to tolerate any kind of judicial review of the constitutionality of legislation. The traditional French view was that judicial power is oligarchic, opposed to progressive causes, and should be contained as much as possible. The 1958 French Constitution provides an elaborate system of checks and balances with its bicameral legislature consisting of the National Assembly and the Senate; with its division of the executive power between the president and the prime minister (who can be from opposite political parties); and with its increasing focus on decentralization. As such, just as federalism umpiring helped to give rise to judicial review in the United States, Canada, Australia, Switzerland, and India, so too did separation of powers umpiring help to give rise to judicial review in France. Judicial review in France was hugely expanded in 1971, for rights from wrongs reasons; in 1974, for insurance and commitment reasons; and in 2008, for borrowing reasons.

scholarly journals An Attack on the Separation of Powers? Strategic Climate Litigation in the Eyes of U.S. Judges

2021 ◽  
Vol 13 (15) ◽  
pp. 8335
Author(s):  
Jasmina Nedevska
Keyword(s):  
Social Sciences ◽  
Climate Change ◽  
United States ◽  
Separation Of Powers ◽  
The United States ◽  
Checks And Balances ◽  
Climate Politics ◽  
The Social ◽  
Domestic Courts ◽  
Research Plan

Climate change litigation has emerged as a powerful tool as societies steer towards sustainable development. Although the litigation mainly takes place in domestic courts, the implications can be seen as global as specific climate rulings influence courts across national borders. However, while the phenomenon of judicialization is well-known in the social sciences, relatively few have studied issues of legitimacy that arise as climate politics move into courts. A comparatively large part of climate cases have appeared in the United States. This article presents a research plan for a study of judges’ opinions and dissents in the United States, regarding the justiciability of strategic climate cases. The purpose is to empirically study how judges navigate a perceived normative conflict—between the litigation and an overarching ideal of separation of powers—in a system marked by checks and balances.

Conclusion The American and Westminster Models

2021 ◽  
pp. 391-396
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Human Rights ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
The United States ◽  
State Of Emergency ◽  
The United Kingdom ◽  
European Court

This concluding chapter identifies the four major causes of the growth and origin of judicial review in the G-20 common law countries and in Israel. First, the need for a federalism umpire, and occasionally a separation of powers umpire, played a major role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, in India, and most recently in the United Kingdom. Second, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the European Court of Human Rights prior to 1998. This proves that judicial review of the constitutionality of legislation often occurs in response to a deprivation of human rights. Third, the seven common law countries all borrowed a lot from one another, and from civil law countries, in writing their constitutions. Fourth, and finally, the common law countries all create multiple democratic institutions or political parties, which renders any political attempt to strike back at the Supreme Court impossible to maintain.

Introduction The Birth and Growth of Judicial Review: 1607–2020

2021 ◽  
pp. 1-14
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Charismatic Leadership ◽  
The United States ◽  
Boundary Line ◽  
Constitutional Courts ◽  
Supreme Courts ◽  
Checks And Balances ◽  
The Third

This introductory chapter discusses how judicial review of the constitutionality of legislation has usually emerged historically for a combination of four reasons. First, judicial review of the constitutionality of legislation is a response to a nation’s need for an umpire to resolve federalism or separation of powers boundary line disputes. The second main cause of the origins and growth of judicial review of the constitutionality of legislation is what can be called the rights from wrongs hypothesis; judicial review very often emerges as a response to an abominable deprivation of human rights. The third major cause is the out-and-out borrowing of the institution of judicial review of the constitutionality of legislation from either the United States’ model; the German Civil Law model; and, most recently, from the Canadian Second Look judicial review constitutional model. The fourth major cause is the existence of a system of checks and balances, which gives Supreme Courts and Constitutional Courts political space to grow in. Revolutionary charismatic constitutionalism can also lead to the growth of judicial review as Professor Bruce Ackerman has explained in an important new book, REVOLUTIONARY CONSTITUTIONS: CHARISMATIC LEADERSHIP AND THE RULE OF LAW (2019).

Introduction The Birth and Growth of Judicial Review in the Civil Law World

2021 ◽  
pp. 1-8
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
South Africa ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
The Political ◽  
The United Kingdom

This book is about the stunning birth and growth of judicial review in the civil law world, since 1945. In Volume I of this two-volume series, I showed that judicial review was born and grew in common law G-20 constitutional democracies and in Israel primarily: (1) when there is a need for a federalism or a separation of powers umpire, (2) when there is a rights from wrongs dynamic, (3) when there is borrowing, and (4) when the political structure of a country’s institutions leaves space within which the judiciary can operate. The countries discussed in Volume I were the following: (1) the United States, (2) Canada, (3) Australia, (4) India, (5) Israel, (6) South Africa, and (7) the United Kingdom....

scholarly journals Raymond Carré de Malberg – mało znany inspirator V Republiki Francuskiej

2020 ◽  
Vol 29 (5) ◽  
pp. 329
Author(s):  
Kazimierz Michał Ujazdowski
Keyword(s):  
French Revolution ◽  
Executive Power ◽  
Intellectual Culture ◽  
Fifth Republic ◽  
Logical Sequence ◽  
Scientific Justification ◽  
French Theory ◽  
Power Restoration ◽  
The Republic ◽  
The One

<p>The Fifth French Republic owes its originality and permanence to Charles de Gaulle’s constitutional convictions and his determination to reform. However, in the case of France, which intellectual culture presupposes that institutions are shaped by a logical sequence of ideas, also the scientific justification of the political change must have been of great importance. The author of the theoretical rationalization of the Fifth Republic and its institutional revolution within the republican tradition was the forgotten lawyer Raymond Carré de Malberg. Pioneering nature of his writings may not raise any doubts. Carré de Malberg challenged a theory of parliament’s sovereignty from the republican perspective, which had an impact on thinking of the juristic elites participating in drafting the Fifth Republic Constitution. Carré de Malberg opened the door of republican tradition wide to the general presidential elections and referendum. He delineated the solution he recommended as the one that was in full accord with the notions and principles of the French Revolution. He applied the legal language to underscore the fact that the republic democratization would allow for the subjectivization of the executive power, restoration of the constituting power of the nation, primacy of the constitution and, consequently, the review of the constitutionality of bills. Carré de Malberg made a breakthrough in the French theory of constitutional law and thus opened up an opportunity for staging a republican institutional revolution that was an act of the founders of the Fifth Republic.</p>

The United States: Creation, Reconstruction, the Progressives, and the Modern Era

2021 ◽  
pp. 97-182
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Judicial Review ◽  
Separation Of Powers ◽  
State Legislatures ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
American People ◽  
State Governments ◽  
State Laws

This chapter focuses on the origins and growth of judicial review of the constitutionality of federal and state legislation in the United States. American judicial review emerged from the vertical federalism umpiring of the King-in-Council, which reined in errant colonies; and from the open political space created by bicameralism, the separation of powers, and federalism, which gave the federal courts the political leeway to engage in judicial review of the constitutionality of federal and state laws. American judicial review took its present form of allowing horizontal separation of powers and enumerated powers vertical judicial review during the critical years between 1776 and 1803 when the faith of the American people shifted away from state legislatures and state governments and toward stronger executives and courts and a much stronger national government. This theory is set forth correctly by Professor Gordon S. Wood in both articles he has shared with me and in conversation. The addition of the three Reconstruction Amendments, and the enormous statutory expansions of federal court jurisdiction and of the number of lower federal court judges after the Civil War, occurred for rights from wrongs reasons. They led, after the incorporation of the Bill of Rights against the states between 1940 and 1970, to a situation where the Supreme Court now reins in errant state legislatures in much the same way the King-in-Council used to rein in errant colonial legislatures.

Judicial review and codification

Legal Studies ◽  
2000 ◽  
Vol 20 (4) ◽  
pp. 517-537 ◽  
Author(s):  
Timothy H. Jones
Keyword(s):  
United States ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The United States ◽  
Democratic Legitimacy ◽  
Administrative Procedure ◽  
Advantages And Disadvantages ◽  
Administrative Action ◽  
Further Development

This article addresses the potential advantages and disadvantages of codifying the grounds of judicial review of administrative action. The four principal legal values associated with codification are described: certainty; clarity; democratic legitimacy; and rationality. The extent to which codification might further these values is considered in the light of two comparative models: the United States Administrative Procedure Act 1946 and the Australian Administrative Decisions (Judicial Review) Act 1977 (Cth). It is concluded that codification offers no solution to the practical and theoretical problems of judicial review. Codification places the content of the principles of judicial review in the hands of politicians. Australian legislation limiting the grounds of review available in migration cases shows the danger to the separation of powers inherent in codification. If it is thought desirable to foster the further development of the principles of judicial review, this can best be achieved by leaving the task to the judiciary.

Tocqueville's Constitutionalism

1987 ◽  
Vol 81 (4) ◽  
pp. 1175-1195 ◽  
Author(s):  
Robert P. Kraynak
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Moral Virtue ◽  
The United States ◽  
Popular Sovereignty ◽  
Modern World ◽  
Constitutional Theory ◽  
Checks And Balances ◽  
Private Rights ◽  
Constitutional System

For the ancient philosophers, constitutionalism meant classifying regimes and constructing regimes to form virtuous citizens. In the modern world it generally means checks and balances, institutional mechanisms limiting the power of government and protecting private rights. In Democracy in America Tocqueville attempts to combine both views in his interpretation of the U.S. constitutional system. He employs the regime analysis of ancient constitutionalism to understand the new phenomenon of popular sovereignty and its potential for despotic control over the minds and characters of citizens. At the same time, he shows how the constitutional devices found in the United States—such as federalism, judicial review, and the separation of powers—can be adapted to inculcate a kind of moral virtue by teaching citizens to exercise liberty with moral responsibility and to govern themselves. The result is a constitutional theory that weaves ancient and modern principles into an original and coherent whole.

scholarly journals THE “DEFERENCE” OF JUDICIAL AUTHORITY TO THE STATE*

Obiter ◽  
2021 ◽  
Vol 33 (1) ◽  
Author(s):  
Nomthandazo Ntlama
Keyword(s):  
South Africa ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The State ◽  
Constitutional Court ◽  
Main Function ◽  
Checks And Balances ◽  
New Process ◽  
State Authority ◽  
The Republic

The adoption of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”), provided an opportune moment for the courts, especially the Constitutional Court to ensure an appropriate balance in the development of the principles and values of the doctrine of separation of powers vis-à-vis those of judicial review. The Constitution is framed in a manner that entrenches a system of checks and balances (this is deduced from the manner in which the various chapters of the Constitution are structured, dealing with the roles of the legislature, executive and the judiciary). This system gives the general public a legislative and executive authority that is accountable to them subject to judicial review by an independent judiciary. The system of checks and balances affirms the limited power of the legislative and executive authorities which is confined within the constraints of constitutional values and principles. The importance of checks and balances is similarly endorsed by Edwards as a system that has ushered in a new process of the regulation of state authority in the new dawn of democracy. This system envisages a move away from a culture of authority of the apartheid rule to one of justification of the new constitutional dispensation. He substantiates his argument by pointing out that the new process of regulating state authority has enabled the courts to educate other branches of government through principled and robust articulations of the foundational and constitutional values of the Constitution in a democratic society. Against this background, the purpose of this note is to provide a brief overview of the Merafong Demarcation Forum v President of the Republic of South Africa (2008 (10) BCLR 968, hereinafter “Merafong”) judgment. The particular emphasis on this judgment is its potential to defer the judicialauthority (which the author refer to as a “political doctrine”) to the state. The objective is to analyse this doctrine and evaluate it against the development of substantive principles of judicial review. This purpose is motivated by Chaskalson CJ’s argument in Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa (2000 (3) BCLR 241). Chaskalson CJ in this case held that the Constitutional Court cannot allow itself to be diverted from its main function as the final andindependent arbiter in the contest between the state and its citizens. In Merafong, the court created an impression of having misconstrued this purpose and the objectives it has to fulfil. This note is limited to the “political approach” which the court emphasisedwithout much thought, and attempt to address the question of public involvement in legislative processes raised in this case. It alsoacknowledges that the court has affirmed its independence as the guardian of the Constitution in the regulation of state authority and advancement of the principles of judicial review, but its lack of consistency in its adopted approach is a worrying factor and a causefor concern for the regulation of state authority.

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