The institutionalisation of public opinion: Bentham’s proposed constitutional role for jury and judges

Legal Studies ◽  
2007 ◽  
Vol 27 (2) ◽  
pp. 216-235
Author(s):  
Oren Ben-Dor
Keyword(s):  
Public Opinion ◽  
Separation Of Powers ◽  
Public Debate ◽  
Popular Sovereignty ◽  
Abuse Of Power ◽  
Legal Proceedings ◽  
Radical Reform ◽  
The People ◽  
Good Government ◽  
Free Interaction

Jeremy Bentham’s constitutional writings are innovative and radical. Unlike constitutional arrangements that sought to attain virtue though the institutional complexity entailed by the doctrine of Separation of Powers, Bentham’s constitution was socially dynamic and designed to facilitate constant and efficient interaction between amorphous public opinion and officials. Furthermore, it was in constant and free interaction between public opinion and officials that Bentham envisioned the determination and effectuation of constitutional limits, namely both the justification and limitation of coercion. The paper begins by outlining Bentham’s principles for a good constitution. It then discusses in detail Bentham’s proposals for incorporating public opinion into legal proceedings through radical reform to the jury. Such incorporation, he believed, would intensify and help to focus public gaze by which officials’ aptitude, and as a result a good government, would be attained with the minimal expense. The proposed institutionalisation of public opinion enabled Bentham to entrust the judiciary with a constitutional role. Judges were conceived as the interface between officialdom and focused manifestations of popular sovereignty. So entrusted, judges could determine constitutional limits, thus protecting against abuse of power. The reforms discussed in this paper are a testimony of the extent to which Bentham saw virtue both in the people and in free public debate.

scholarly journals Perspective on the Doctrine of the Separation of Powers Based on the Response to Court Orders in Kenya

2016 ◽  
Vol 1 (1) ◽  
pp. 220-235
Author(s):  
Emmanuel Kibet ◽  
Kimberly Wangeci
Keyword(s):  
Separation Of Powers ◽  
The Other ◽  
Sovereign Power ◽  
Democratic Ideal ◽  
Abuse Of Power ◽  
Constitutional Order ◽  
The People ◽  
Court Orders

The Constitution of Kenya provides that the sovereign power of the people shall be vested in the executive, the legislature and the judiciary, reflecting the democratic ideal that if power is concentrated in the hands of a few, it is prone to misuse. This provision aims to safeguard against arbitrary and capricious governance and the abuse of power. In the new constitutional order, there has been instances of tensions between the judiciary and the other arms of government. Unfortunate incidents of members of the Legislature referring to court orders as stupid and idiotic with blatant disregard for court orders have been witnessed. In a government whose legitimacy is vindicated by a court, it is ironical to observe a selective attitude towards respecting subsequent court orders. This paper aims to consider the disregard of court orders against the backdrop of the separation of powers and other relevant principles of constitutionalism.

Constitutionalism

2018 ◽  
Author(s):  
Ulrich K. Preuss
Keyword(s):  
Political System ◽  
Separation Of Powers ◽  
The Self ◽  
Popular Sovereignty ◽  
The Rule Of Law ◽  
The People ◽  
Popular Government ◽  
Arbitrary Rule ◽  
The Right ◽  
Selection Of

Constitutionalism comprises a set of ideas, principles and rules, all of which deal with the question of how to develop a political system which excludes as far as possible the chance of arbitrary rule. While according to one of the classic sources of constitutionalism, article sixteen of the 1789 French Declaration of the Rights of Man and of the Citizen, ‘any society in which rights are not guaranteed, or in which the separation of powers is not defined, has no constitution’, the scope of constitutional principles is in fact broader. In addition to these two defining principles, the following are essential: popular sovereignty; the rule of law; rules about the selection of powerholders and about their accountability to the ruled; and principles about the making, unmaking, revision, interpretation and enforcement of a constitution. Despite close affiliations, constitutionalism and democracy are not the same. Whereas democracy is an institutional device which realizes the right of the people to govern themselves, constitutionalism aims to establish institutional restraints on the power of the rulers, even if they are popularly elected and legitimized. Constitutionalism embodies the self-rationalizing and self-restraining principles of popular government.

The essence of democracy

1915 ◽  
Vol 9 (1) ◽  
pp. 50-56 ◽  
Author(s):  
Wilhelm Hasbach
Keyword(s):  
Public Opinion ◽  
Social Democracy ◽  
The State ◽  
Popular Sovereignty ◽  
Active Citizenship ◽  
Political Democracy ◽  
Constituent Power ◽  
Democratic Socialism ◽  
The People ◽  
European Science

Mr. W. J. Shepard, in a review of my work, Die moderne Demokratie, remarks that I have forgotten its spirit in the study of its forms. “It is not the vitalizing spirit,” he writes, “the impelling motive force, the broadly based popular sentiment of democracy that is of interest, but only the forms and mechanism ‥‥ of democratic-republican states.” Now I have in the fifth chapter of the second book presented the theory of political democracy, in the sixth that of social democracy, and in the seventh that of democratic socialism; and in the first of these three chapters I have discussed popular sovereignty and active citizenship, the supremacy of the majority in a democracy, the unlimited constituent power of the people (pouvoir constituant), in which European science has conceived the essence of this form of the state to reside in contradistinction to other forms. But Mr. Shepard has a different conception of its nature. He has raised an interesting question in this connection which I should like to discuss in the following pages.Brief though his statement on this point is, no one can doubt that he considers the supremacy of public opinion as the essence of democracy, since he writes: “No discussion of the nature, elements and effects of public opinion, no appreciation of the spirit of democracy is to be found in the covers of this volume.” As a matter of fact I have treated of this subject in the above-mentioned first division of the fifth chapter, which is devoted to the discussion of popular sovereignty, though certainly in the brief compass which appeared to me sufficient for the understanding of the nature of democracy.

scholarly journals Independence of the Judiciary in the Modern Understanding of the Separation of Powers

2019 ◽  
Vol 6 (1) ◽  
pp. 89-97
Author(s):  
Ilia Vladislavovich Ruzanov
Keyword(s):  
Law Enforcement ◽  
Political Development ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Popular Sovereignty ◽  
Judicial Power ◽  
Executive Power ◽  
Abuse Of Power ◽  
American Experience ◽  
Formal Control

The independence of judicial power is researched from the natural law viewpoint. It is shown that the principle of separation of powers is not static, it is changing under the inf luence of time.The sharp increase of executive branch of power’s role marks the contemporary stage of social-political development. It is shown that such a situation is inevitable. However, the problem is that executive branch fulfills both rulemaking function and law-enforcement one. It causes the risks of abuse of power, which scared the creators of separation of powers principle.In this light the constitutional law faces the aim to reveal legal and political tools which can provide the very essence of separations of powers - to avoid the complete concentration of power in one center. The two innovations which can help to solve this problem are suggested in the article.One of them is to broad the types of direct popular sovereignty. It is demonstrated, based on American experience that notice and comment requirement can restrain the arbitrariness of executive branch and therefore to be a bulwark against usurpation.The nature of judicial power activity also changes. It must turn from formal control over the executive power to theanalysis of the essence of its decisions.

The Influence of Modern Party System on the Development of Parliamentarism in Russia: Institutional, Political and Psychological Aspects

2018 ◽  
Vol 42 ◽  
pp. 266-273
Author(s):  
Ivan S. Palitai
Keyword(s):  
Public Opinion ◽  
Party System ◽  
Psychological Aspects ◽  
Political Activity ◽  
The Public ◽  
Political Processes ◽  
The People ◽  
Voting System ◽  
New Ideas ◽  
Opinion Polls

The article is devoted to the modern Russian party system. In the first part of the article, the author shows the historical features of the parties formation in Russia and analyzes the reasons for the low turnout in the elections to the State Duma in 2016. According to the author the institutional reasons consist in the fact that the majority of modern political parties show less and less ability to produce new ideas, and the search for meanings is conducted on the basis of the existing, previously proposed sets of options. Parties reduce the topic of self-identification in party rhetoric, narrowing it down to “branded” ideas or focusing on the image of the leader. In addition, the author shows the decrease in the overall political activity of citizens after the 2011 elections, and points out that the legislation amendments led to the reduction of the election campaigns duration and changes in the voting system itself. The second part of the article is devoted to the study of the psychological aspects of the party system. The author presents the results of the investigation of images of the parties as well as the results of the population opinion polls, held by the centers of public opinion study. On the basis of this data, the author concludes that according to the public opinion the modern party system is ineffective, and the parties don’t have real political weight, which leads to the decrease of the interest in their activities and confidence in them. The author supposes that all this may be the consequence of the people’s fatigue from the same persons in politics, but at the same time the electorate’s desire to see new participants in political processes is formulated rather vaguely, since, according to the people, this might not bring any positive changes.

ЕКАТЕРИНА ВЕЛИКАЯ И ДИАЛЕКТИКА ПРОСВЕЩЕННОЙ МОНАРХИИ

2020 ◽  
Vol 15 (1) ◽  
pp. 39
Author(s):  
С. И. Дудник ◽  
И. Д. Осипов
Keyword(s):  
Cultural Policy ◽  
Separation Of Powers ◽  
Point Of View ◽  
Human Sciences ◽  
The Rule Of Law ◽  
Political Ideas ◽  
The People ◽  
Specific Interpretation ◽  
The Difference ◽  
Conservative Values

The article discusses the problems of evolution and the formation of the ideology of an enlightened monarchy in Russia. In this regard, the philosophical and political ideas of Catherine the Great, as well as their theoretical and ideological premises, are analyzed. It is noted that the philosophy of education in Russia was closely connected with the concepts of Voltaire, Didro, Montesquieu, Beccaria, Bentham, their views on natural law and human freedom, humanism and the rule of law. These concepts in the philosophy of Catherine received a specific interpretation, due to the sociocultural conditions of Russia. This was manifested in the famous work of Catherine the Great “The Nakaz”, which recognized Montesquieu's argument in favor of the autocracy, but at the same time, his point of view on the separation of powers was rejected. The specificity of the doctrine of enlightened monarchy lies in the combination of liberal and conservative values, which form eclectic forms. This was the dialectic of the supreme power, the difference between the enlightened monarchy and the ideology of absolutism. The article also notes that education in Russia is associated with fundamental socio-political reforms, processes of secularization of culture. At this time, the natural and human sciences are developing. The changes positively influenced the development of medicine, beautification of towns and public education. Also considered are the views on the autocracy of the opposition nobility intelligentsia: A. N. Radishchev and noted that his criticism of the autocracy was determined by an alternative cultural policy, proceeding from the protection of the interests of the people. The doctrine of enlightened monarchy is characterized by internal worldview inconsistency and political inconsistency, which did not allow solving the pressing social problems of the establishment of legal state, democratization of society and the abolition of serfdom.

KEY ASPECTS OF TRANSFORMATION OF THE STATE AUTHORITIES IN THE WORLD AND TO THE MODERN SOVERUM UKRAINE: A JOINT AND PERSONALITY

2018 ◽  
Vol 1 (11) ◽  
pp. 164-174
Author(s):  
Оlena Fedorіvna Caracasidi
Keyword(s):  
Separation Of Powers ◽  
Human Life ◽  
State Power ◽  
The State ◽  
Public Power ◽  
The People ◽  
Large Numbers ◽  
The World ◽  
Distribution Of Power ◽  
Key Aspects

The article deals with the fundamental, inherent in most of the countries of the world transformation of state power, its formation, functioning and division between the main branches as a result of the decentralization of such power, its subsidiarity. Attention is drawn to the specifics of state power, its func- tional features in the conditions of sovereignty of the states, their interconnec- tion. It is emphasized that the nature of the state power is connected with the nature of the political system of the state, with the form of government and many other aspects of a fundamental nature.It is analyzed that in the middle of national states the questions of legitima- cy, sovereignty of transparency of state power, its formation are acutely raised. Concerning the practical functioning of state power, a deeper study now needs a problem of separation of powers and the distribution of power. The use of this principle, which ensures the real subsidiarity of the authorities, the formation of more effective, responsible democratic relations between state power and civil society, is the first priority of the transformation of state power in the conditions of modern transformations of countries and societies. It is substantiated that the research of these problems will open up much wider opportunities for the provi- sion of state power not as a center authority, but also as a leading political structure but as a power of the people and the community. In the context of global democratization processes, such processes are crucial for a more humanistic and civilized arrangement of human life. It is noted that local self-government, as a specific form of public power, is also characterized by an expressive feature of a special subject of power (territorial community) as a set of large numbers of people; joint communal property; tax system, etc.

Popular Resource Sovereignty

2018 ◽  
Author(s):  
Leif Wenar
Keyword(s):  
Human Rights ◽  
Natural Resources ◽  
Large Scale ◽  
Good Reason ◽  
Resource Curse ◽  
Civil Conflict ◽  
Popular Sovereignty ◽  
State Sovereignty ◽  
The People ◽  
Rich Countries

Article 1 of both of the major human rights covenants declares that the people of each country “shall freely dispose of their natural wealth and resources.” This chapter considers what conditions would have to hold for the people of a country to exercise this right—and why public accountability over natural resources is the only realistic solution to the “resource curse,” which makes resource-rich countries more prone to authoritarianism, civil conflict, and large-scale corruption. It also discusses why cosmopolitans, who have often been highly critical of prerogatives of state sovereignty, have good reason to endorse popular sovereignty over natural resources. Those who hope for more cosmopolitan institutions should see strengthening popular resource sovereignty as the most responsible path to achieving their own goals.

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