Juristocracy vs. Theocracy: Constitutional Courts and the Containment of Sacred Law

2009 ◽  
Vol 1 (2) ◽  
pp. 129-165 ◽  
Author(s):  
Ran Hirschl
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
The Political ◽  
Political Movements ◽  
Social Forces ◽  
Constitutional Courts ◽  
Law And Courts ◽  
Political Interests ◽  
Formal Recognition

AbstractOne of the fascinating yet seldom explored phenomena in predominantly religious polities in the Middle East and elsewhere is the growing reliance on constitutional courts and their jurisprudential ingenuity to contain the spread of religiosity or advance a pragmatic version of it. In this article, I explore the scope and nature of this phenomenon. I proceed in several main steps. First, I define what may be termed "constitutional theocracy" with its often conflicting legal commitments, political interests, and social realities. Second, I examine the main epistemological, juridical and political reasons why constitutional law and courts are so appealing to secularist, modernist, cosmopolitan, and other non-religious social forces in polities facing deep divisions along secular/religious lines. Third, I look at various modes of interpretive ingenuity drawn upon by constitutional courts in Egypt, Pakistan, Israel, and Turkey in order to contain, limit, and mitigate the resurgence of religiosity in their respective polities. All of these countries have experienced a growth in the influence of religious political movements, with a commensurate increase in the levels of popular support that they receive. Despite the considerable differences in these countries' formal recognition of, and commitment to, religious values, there are, however, some striking parallels in the way that the constitutional courts in these (and in other similarly situated countries) have positioned themselves as important secularizing forces within their respective societies. I conclude by drawing some general lessons concerning the political construction of judicial review and the secularizing role of constitutional courts in an increasingly religious world.

scholarly journals Gita Philosophy and its Influence on Nepali Politics

2020 ◽  
Vol 33 (1) ◽  
pp. 167-178
Author(s):  
Girdhari Dahal
Keyword(s):  
First Generation ◽  
The Political ◽  
Political Movements ◽  
Political Leaders ◽  
Democratic Movement ◽  
The People ◽  
Political Interests ◽  
History Of ◽  
The Republic

The people of Nepal have witnessed different political movements in the political history of Nepal. The political movements are influenced by different philosophies. Gita philosophy as well has marked distinct impact in the politics of Nepal. The people of Nepal had to bear a lot of injustice, oppression and exploitation during Rana rule. Although the governments prior to Rana rule were also not so much democratic, to some extent they were directed to public welfare. At the time of Rana rule there had taken place many reformations in global politics, but Nepali people were denied off very common citizen rights. So, there was a need for a democratic movement in Nepal. In the campaigns for democratic movements then, there was a very significant impact of Gita philosophy. It is found from this study that four martyrs of 1997BS and founder leaders of Nepali Congress and Nepal Communist Party were influenced by the ideas of Gita philosophy and the general public has a great faith on the Gita philosophy. Gita philosophy has formed the foundations for the democratic movement in Nepal. And even after the establishment of democracy in Nepal, there were series of political changes in Nepal. And in the revolutions or campaigns for restoration of democracy or for the republic, there has been a role of different political leaders and as many of the first-generation leaders are still in active politics, we can find direct or indirect influence of Gita philosophy in Nepalese politics. Though the later generations of leadership seem to have less knowledge about Gita, their activities and the political interests matched with the principles of Gita philosophy.

Judges and the idea of ‘principle’ in constitutional adjudication

2017 ◽  
Author(s):  
Tom Hickey
Keyword(s):  
Deliberative Democracy ◽  
Judicial Review ◽  
Constitutional Law ◽  
Public Deliberation ◽  
The Political ◽  
Reasonable Disagreement ◽  
Judicial Supremacy ◽  
Constitutional Adjudication ◽  
Democracy Theory

Tom Hickey’s chapter seeks to reconcile the principles-oriented contribution that constitutional adjudication (or judicial review) can make to overall public deliberation with the fact of reasonable disagreement on rights. Part I assesses the school of ‘legal constitutionalism’ in the context of Irish constitutional law and experience. Part II introduces a distinctive way of understanding the role of principle in judicial review; one that works from a conception of deliberation that – in contrast to contemporary deliberative democracy theory – embraces disagreement and thus, it is argued, better accounts for the political and contestable nature of rights. The chapter then closes by combining the ideas in these parts to argue that the intuition shared by many to support outright judicial supremacy does not stand up to scrutiny, but that the primary cause of that intuition – the principled nature of judicial review – demands and justifies a more constrained form of judicial power.

WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?

2010 ◽  
Vol 28 (1) ◽  
pp. 1-24 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Moral Rights ◽  
Constitutional Change ◽  
Principal Function ◽  
Fundamental Law

AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.

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.

Introduction

2021 ◽  
pp. 3-30
Author(s):  
Alejandro Linares-Cantillo
Keyword(s):  
Transitional Justice ◽  
Constitutional Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Amendments ◽  
Leading Role ◽  
Comparative Constitutional Law ◽  
The Republic

This introductory chapter provides an overview of the twenty essays compiled for the XIII conference of the Constitutional Court of the Republic of Colombia, which was held in Bogota in January of 2019. The collection is divided into three thematic parts which illustrate five subjects at the spotlight of comparative constitutional law, in light of the growing circulation and intensification of the idea of constitutionalism. The first part examines the evolving and leading role of constitutional courts in constitutional democracies. The second part allows constitutional experiences speak for themselves and discusses tensions and debates in three topics: (A) the growing trend to judicially enforce 'constitutional unamendability' under the doctrine of 'unconstitutional constitutional amendments'; (B) the idea of 'transformative constitutionalism' in the area of social rights enforcement; and (C) the models of transitional justice and their implementation in the Colombian case. Finally, the third part analyses vertical and horizontal movements of constitutional law doctrines and decisions.

Constitutionalism, Liberalism, and Democracy

2021 ◽  
pp. 35-53
Author(s):  
Andrei Marmor
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
The Political ◽  
Constitutional Courts ◽  
Liberal Politics ◽  
Similar Tendency ◽  
External Threats ◽  
The People ◽  
Democratic System ◽  
Constitutional Judicial Review

This chapter describes the tension between democratic decision-making procedures and constitutional judicial review. It shows that the liberal values that justify a democratic self-government may also vindicate some limits on majoritarian decision-making procedures, but not necessarily in the form of the current constitutional regimes. The chapter argues that constitutional courts are not a necessary feature of a liberal regime. It also acknowledges that democratic decision-making has many defects. These defects concern the fate of persistent vulnerable minorities, the tendency towards short-sightedness, a similar tendency to downplay people's rights and liberties for the sake of greater economic gains or in the force of external threats, and finally the dangers of populism and anti-liberal politics gaining ground within a democratic system. The chapter then depicts courts as essentially conservative institutions which are not — and cannot be — as counter-majoritarian as depicted by legal scholars, mainly because their legitimacy and the acceptance of their decisions depends on the people. It contends that the acceptance and efficacy of judicial review is context dependent, but that some fights still need to be fought in the political, not the legal arena.

The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law

2015 ◽  
Vol 16 (6) ◽  
pp. 1343-1374 ◽  
Author(s):  
Giuseppe Martinico
Keyword(s):  
Constitutional Law ◽  
The Other ◽  
Preliminary Ruling ◽  
Eu Law ◽  
Constitutional Courts ◽  
Cautious Approach ◽  
Court Of Justice ◽  
The One ◽  
The Eu

Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”

Politicians, Judges, and the Charter

2008 ◽  
Vol 21 (1) ◽  
pp. 227-238
Author(s):  
L.W. Sumner
Keyword(s):  
Judicial Review ◽  
Political System ◽  
Common Law ◽  
Recent Book ◽  
The Political ◽  
Court Decisions ◽  
Democratic Process ◽  
Political Views ◽  
Political Right

The complaint is a familiar one: unelected, politically unaccountable judges are using their powers of judicial review to subvert the democratic process by shaping public policy in accordance with their own personal moral/political views. It is tempting to dismiss this complaint as the grumbling of those, usually (though not invariably) on the political right, who have been disaffected by court decisions with which they personally disagree. But this temptation must be resisted, since the critics of judicial review, such as Jeremy Waldron, raise important issues about the role of judges in a democratic political system. In his recent book A Common Law Theory of Judicial Review, Wil Waluchow responds to the critics' arguments. This Critical Notice outlines his response and assesses its adequacy.

The Politics of Culture: Understanding Local Political Resistance to Detracking in Racially Mixed Schools

1996 ◽  
Vol 66 (1) ◽  
pp. 93-119 ◽  
Author(s):  
Amy Stuart Wells ◽  
Irene Serna
Keyword(s):  
Cultural Capital ◽  
The Political ◽  
Social Forces ◽  
Political Resistance ◽  
Reform Initiatives ◽  
Political Struggles ◽  
Politics Of Culture ◽  
Racially Mixed

In this article, Amy Stuart Wells and Irene Serna examine the political struggles associated with detracking reform. Drawing on their three-year study of ten racially and socioeconomically mixed schools that are implementing detracking reform, the authors take us beyond the school walls to better understand the broad social forces that influence detracking reform. They focus specifically on the role of elite parents and how their political and cultural capital enables them to influence and resist efforts to dismantle or lessen tracking in their children's schools. Wells and Serna identify four strategies employed by elite parents to undermine and co-opt reform initiatives designed to alter existing tracking structures. By framing elite parents' actions within the literature on elites and cultural capital, the authors provide a deeper understanding of the barriers educators face in their efforts to detrack schools.

Ideological closure in newspaper political language during the U.S. 1872 election campaign

2014 ◽  
Vol 15 (2) ◽  
pp. 255-291
Author(s):  
Dafnah Strauss
Keyword(s):  
Gilded Age ◽  
The Political ◽  
Late Nineteenth Century ◽  
Political Language ◽  
Editorial Content ◽  
Political Role ◽  
Political Interests ◽  
Late Nineteenth ◽  
The U.S

This paper studies political language in late nineteenth century partisan newspapers by (a) evaluating the degree of pragmatic force, or ideological closure in political editorial content published during the 1872 election year in three leading Iowa newspapers; and (b) linking variations in the degree of ideological closure of these texts to the institutional and social-political contexts of their production, i.e. the political role of editors and the web of relationships within which they performed their work. The degree of ideological closure is evaluated by analysing a range of rhetorical and discursive practices. The study identified variations in degree of closure both between newspapers affiliated with the same party and within a single newspaper over time. Such variations are interpreted as reflecting editors’ need to mitigate an intricate set of political interests and obligations. The analysis also brings to light the richness of partisan editorial language of this time. These finds demonstrate the complexity of the political language and discourse of Gilded Age newspapers.

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