Keep Your (Horse) Hair On? Experimental Evidence on the Effect of Exposure to Legitimising Symbols on Diffuse Support for the High Court

2020 ◽  
Vol 48 (3) ◽  
pp. 382-400
Author(s):  
Ingrid Nielsen ◽  
Zoe Robinson ◽  
Russell Smyth
Keyword(s):  
Decision Making ◽  
Experimental Evidence ◽  
Rule Of Law ◽  
Decision Making Process ◽  
Institutional Legitimacy ◽  
High Court ◽  
The Rule Of Law ◽  
The Public ◽  
Horse Hair ◽  
Diffuse Support

Positivity theory posits that the courts rely on powerful legitimising symbols—such as elaborate judicial attire, honorific forms of address and imposing courtroom design—to ensure legitimacy in the eyes of the public in the absence of an electoral mandate. The argument is that such legitimising symbols evoke images of learning and pageantry and create the presumption that the process by which the decision was made was fair. Typically, positivity theory has been tested by examining whether people who have a greater awareness or knowledge of the courts express higher diffuse support for their decisions. Yet, such an approach assumes that those who know more about the courts will have greater exposure to their legitimising symbols. It does not directly test if exposure to the courts’ legitimising symbols causes people to be more acquiescent with decisions with which they disagree. In this article we use a survey-based experiment to examine if exposure to the legitimising symbols of the High Court makes people more willing to accept decisions of the Court with which they disagree. We assess whether the decision of the High Court Justices to simplify their attire, including, since 1988, ceasing to wear wigs when sitting on the Bench, has adversely affected the Court’s institutional legitimacy by removing some of the mystique associated with the decision-making process. We find that exposure to the Court’s legitimising symbols is associated with higher acquiescence with decisions which people disagree with, but the Court’s decision to simplify the Justices’ attire has not adversely affected diffuse support for its decisions. Our findings are important because the Court is reliant on maintaining legitimacy to enforce the rule of law. Our results speak directly to how the Court can best take steps to increase its institutional legitimacy in the eyes of the public.

scholarly journals A REVISIT ON THE APPEALS HEARD BY THE SELANGOR APPEAL BOARD: IS JUSTICE HEARD A JUSTICE SERVED?

2020 ◽  
Vol 5 (18) ◽  
pp. 12-18
Author(s):  
Noraziah Abu Bakar ◽  
Siti Sarah Sulaiman
Keyword(s):  
Rule Of Law ◽  
Local Level ◽  
Secondary Data ◽  
Local Planning ◽  
High Court ◽  
The Rule Of Law ◽  
The Public ◽  
The Right ◽  
The Town ◽  
Planning Authority

This study tries to review the roles and functions of the Selangor Appeal Board in disposing of appeal cases registered at the tribunal. It is imperative to ascertain that the right of appeal provided under the Town Country and Planning Act 1976 (TCPA 1976) is carried out in order to serve justice to the aggrieved parties whose application for planning orders have been rejected by the Planning Authority at the local level. The decision of the Appeal Board is final and can only be brought to the High Court for judicial review. Thus, the tribunal should be independent and fair in disposing of any appeal. The study employs a combination of doctrinal and empirical research. In the doctrinal analysis, the study analyses the primary and secondary data that include the TCPA 1976 and analysing the statistics of appeal cases from 1991 until 2019. Interviews were carried out in order to examine the law in reality. Accordingly, it can reflect the impartiality of the tribunal in the disposal of the appeals. In brief, the Selangor Appeal Board has proven its ability to hear appeals according to the rule of law since in recent years lesser appeals have been filed that indicate fewer grievances of the public against the decision of the local planning authority.

Cabinet Immunity in Canada: The Legal Black Hole

2019 ◽  
Vol 63 (2) ◽  
pp. 315-374
Author(s):  
Yan Campagnolo
Keyword(s):  
Decision Making ◽  
Black Hole ◽  
Supreme Court ◽  
Decision Maker ◽  
Rule Of Law ◽  
Decision Making Process ◽  
The Rule Of Law ◽  
Relevant Evidence ◽  
The Supreme Court ◽  
Theory Of Law

Fifteen years ago, in Babcock v. Canada (A.G.), the Supreme Court of Canada held that section 39 of the Canada Evidence Act, which deprives judges of the power to inspect and order the production of Cabinet confidences in litigation, did not offend the rule of law and the provisions of the Constitution. The aim of this article is to revisit this controversial ruling and challenge the Supreme Court’s reasoning. The first part seeks to demonstrate that the Supreme Court adopted a very thin conception of the rule of law in its jurisprudence, a conception which is of limited use as a normative framework to assess the legality of statutory provisions. To that end, the author turns to the thicker theory of law as justification which insists upon the requirements of fairness, transparency, and accountability. Pursuant to the theory of law as justification, an executive decision to exclude relevant evidence in litigation must comply with two requirements: it must be made following a fair decision-making process; and it must be subject to meaningful judicial review. The second part seeks to demonstrate that section 39 does not comply with these requirements. The decision-making process established by Parliament under section 39 is procedurally unfair, in violation of paragraph 2(e) of the Canadian Bill of Rights, because: the identity of the final decision-maker—a minister or the Clerk of the Privy Council—gives rise to a reasonable apprehension of bias; and the decision-maker is not required to properly justify his or her decision to exclude relevant evidence. In addition, section 39 infringes the core, or inherent, jurisdiction and powers of provincial superior courts, in violation of section 96 of the Constitution Act, 1867, as it unduly limits their authority to: control the admissibility of evidence in litigation; and review the legality of executive action. As a result of these flaws, the author argues that section 39 is an unlawful privative clause, a form of legal black hole, which offends the rule of law and the provisions of the Constitution.

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.

scholarly journals La discrétion administrative et la mise en oeuvre d'une politique

2005 ◽  
Vol 19 (1) ◽  
pp. 187-232
Author(s):  
William J. Atkinson
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Decision Making Process ◽  
Discretionary Power ◽  
Administrative Discretion ◽  
The Rule Of Law ◽  
Administrative Policy ◽  
Exercise Of Discretion ◽  
The Impact

This article deals with the relationships between the exercise of administrative discretion and the implementation of a policy. Chapter I defines administrative discretion as a power to make a choice in a particular case. This choice may be technical or political but in both instances relates to the implementation of a policy. The exercise of discretion is also situated within a system under the Rule of Law using H.L.A. Hart's concepts of primary and secondary rules. Chapter II deals with the exercise of discretion in relation to policy. First, if refers to K.C. Davis' model of confining, structuring and checking discretion. To confine discretion is to set the limits within which it should be exercised. To structure it is define the manner by which it is to be exercised notably in opening the decision-making process. To check discretion is to subject the decision to another authority. The next three sections of this chapter are concerned with legislative, regulatory and administrative policy. The first section studies legislative expressions of policy and their impact on the exercise of discretion. Secondly, the question of the choice between regulation and administrative discretion is analysed as is the control over that choice and the nature of regulation over it is decided to adopt it. Finally, the impact of an administrative discretion is seen when attacked by the citizen on the grounds that it fetters discretion, constitutes bias or when relied upon by the citizen. It is seen that in most cases, the administrator may structure his discretionary power in a manner respected by the courts.

The penholder system and the rule of law in the Security Council decision-making: Setback or improvement?

2019 ◽  
Vol 33 (1) ◽  
pp. 139-156
Author(s):  
Marie-Eve Loiselle
Keyword(s):  
United States ◽  
Decision Making ◽  
United Kingdom ◽  
Rule Of Law ◽  
Security Council ◽  
The United States ◽  
Decision Making Process ◽  
The Rule Of Law ◽  
The United Kingdom ◽  
Council Decision

AbstractThis article analyses the decision-making process of the UN Security Council when it adopts outcome documents, such as resolutions, Presidential statements and press statements. It is commonly assumed that because of their veto power and permanency China, France, Russia, the United Kingdom, and the United States have greater influence than their elected counterparts in shaping those outcomes. In recent years, that control has been strengthened by the penholdership system. Under this practice, one or more members, usually France, the United States or the United Kingdom (P3), take leadership over a situation on the agenda of the Council. When ‘holding the pen’ a member often decides what action the Council should take, then drafts an outcome document that it negotiates with other permanent members before sharing the text with elected members. This article explores the development of this practice and its impact on the respect for the rule of law in the Security Council’s decision-making process. It argues that, while concentrating power in the hands of the P3, hence diminishing transparency and the opportunity for all members to participate in the decision-making of the Council, at the same time the penholdership system also provides an avenue to strengthen elected members’ influence in ways that promote respect for the international rule of law.

The ECtHR's Role as a Guardian of Discourse: Safeguarding a Decision-Making Process Based on Well-Established Standards, Practical Rationality, and Facts

2018 ◽  
Vol 31 (2) ◽  
pp. 335-361
Author(s):  
BJÖRNSTJERN BAADE
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Rule Of Law ◽  
Practical Rationality ◽  
European Convention ◽  
Decision Making Process ◽  
The Rule Of Law ◽  
European Court ◽  
Basic Standards

AbstractThis article argues that understanding the role of the European Court of Human Rights (ECtHR or the Court) to be that of a guardian of discourse would respect legitimate disagreement among pluralist democracies, while enabling the Court to safeguard human rights in a meaningful and effective way.From the European Convention on Human Rights (ECHR or the Convention) and the Court's jurisprudence, three basic standards of review can be distilled: First, wherever the Convention's requirements are sufficiently concrete, the Court holds contracting states to well-established standards. Second, when applying broad, abstract and relative Convention rights, the Court safeguards the practical rationality of a democratic decision-making discourse under the rule of law – a substantive review standard that is influenced by procedural factors. Third, the Court also needs to check the facts underlying the case, in order to render its control effective.By setting ‘soft’ precedent in the form of factors that guide future decision-making without entirely prejudging it, and by taking into account second-order reasons concerning its legitimacy to intervene, the Court is acting as a second player in states’ decision-making discourse. Its task is not to replace the institutions originally responsible for taking the decision, but to ensure that they conform to their own role.

LEGAL ESSENCE OF ANCIENT PROVERBS AND SAYS AND THEIR SOCIAL SIGNIFICANCE

2020 ◽  
Author(s):  
Angela Dranishnikova ◽  
Ivan Semenov
Keyword(s):  
Public Sphere ◽  
Rule Of Law ◽  
Social Significance ◽  
The Rule Of Law ◽  
The Public ◽  
Moral Standards ◽  
The Social ◽  
The Law ◽  
The Public Sphere ◽  
Status Position

The national legal system is determined by traditional elements characterizing the culture and customs that exist in the social environment in the form of moral standards and the law. However, the attitude of the population to the letter of the law, as a rule, initially contains negative properties in order to preserve personal freedom, status, position. Therefore, to solve pressing problems of rooting in the minds of society of the elementary foundations of the initial order, and then the rule of law in the public sphere, proverbs and sayings were developed that in essence contained legal educational criteria.

The Rule of Law and the Public Transcript

2020 ◽  
Vol 66 (4) ◽  
pp. 498-518
Author(s):  
Michelle Dionne Thompson
Keyword(s):  
Rule Of Law ◽  
The Rule Of Law ◽  
The Public

scholarly journals Decision Making in Committees: Transparency, Reputation, and Voting Rules

2007 ◽  
Vol 97 (1) ◽  
pp. 150-168 ◽  
Author(s):  
Gilat Levy
Keyword(s):  
Decision Making ◽  
Career Concerns ◽  
Decision Making Process ◽  
Voting Rules ◽  
The Public ◽  
Voting Rule ◽  
The Right

In this paper I analyze the effect of transparency on decision making in committees. I focus on committees whose members are motivated by career concerns. The main result is that when the decision-making process is secretive (when individual votes are not revealed to the public), committee members comply with preexisting biases. For example, if the voting rule demands a supermajority to accept a reform, individuals vote more often against reforms. Transparent committees are therefore more likely to accept reforms. I also find that coupled with the right voting rule, a secretive procedure may induce better decisions than a transparent one. (JEL D71, D72)

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