The Problem with Normality: Taking Exception to “Permanent Emergency”

2006 ◽  
Vol 31 (2) ◽  
pp. 191-213 ◽  
Author(s):  
Mark Neocleous
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
War On Terror ◽  
September 11 ◽  
The Rule Of Law ◽  
Emergency Powers ◽  
Historical Developments ◽  
The Relationship ◽  
Emergency Measures

This article challenges the increasingly prevalent idea that since September 11, 2001, we have moved into a state of permanent emergency and an abandonment of the rule of law. The article questions this idea, showing that historical developments in the twentieth century have actually placed emergency powers at the heart of the rule of law as a means of administering capitalist modernity. This suggests we need to rethink our understanding of the role of emergency measures in the “war on terror” and, more generally, to reconsider the relationship between the rule of law and violence.

scholarly journals CORRUPTION, CAPITAL ABUNDANCE AND ECONOMIC DEVELOPMENT: EVIDENCE FROM THE EUROPEAN UNION COUNTRIES

2016 ◽  
Vol 10 (2) ◽  
Author(s):  
Vlatka Bilas ◽  
Mile Bošnjak ◽  
Sanja Franc
Keyword(s):  
European Union ◽  
Economic Development ◽  
Law Enforcement ◽  
Rule Of Law ◽  
Explanatory Power ◽  
The European Union ◽  
The Rule Of Law ◽  
European Union Countries ◽  
The Relationship

The aim of this paper is to establish and clarify the relationship between corruption level and development among European Union countries. Out of the estimated model in this paper one can conclude that the level of corruption can explain capital abundance differences among European Union countries. Also, explanatory power of corruption is higher in explaining economic development than in explaining capital abundance, meaning stronger relationship between corruption level and economic development than between corruption level and capital abundance. There is no doubt that reducing corruption would be beneficial for all countries. Since corruption is a wrongdoing, the rule of law enforcement is of utmost importance. However, root causes of corruption, namely the institutional and social environment: recruiting civil servants on a merit basis, salaries in public sector competitive to the ones in private sector, the role of international institutions in the fight against corruption, and some other corruption characteristics are very important to analyze in order to find effective ways to fight corruption. Further research should go into this direction.

scholarly journals A European convergence towards a stare decisis model?

2015 ◽  
pp. 173 ◽  
Author(s):  
Stefano Civitarese
Keyword(s):  
Rule Of Law ◽  
Deep Understanding ◽  
The European Union ◽  
Stare Decisis ◽  
The Rule Of Law ◽  
Law System ◽  
Legal Space ◽  
The One ◽  
The Relationship

The article revolves around the doctrine of precedent within the so-called European legal space, wondering whether and to what extent we can speak of a convergence towards a stare decisis model boosted by the harmonizing role of the Court of Justice of the European Union. The article argues that although there are still some differences between civil law and common law legal systems they regard more the style of reasoning and the deep understanding of the relationship between the present decision of a court and past judicial decisions than the very existence of the constraints of the latter upon the former. The article concludes that a sort of mechanism of stare decisis has in fact been created, even though, on the one hand, uncertainty remains as to the way in which the binding force of a precedent concretely operates in the system, and on the other hand, this mechanism relates exclusively to the relationships between past and future decisions of higher courts (horizontal effect). This change, far from being a shift towards a truly judge-made law system or a consequence of the final abandonment of the dictates of the rule of law, enhances legal certainty contributing to the fundamental requirement of stability of law as a feature of the ideal of the rule of law.

The Moral Dimension of Constitutional Faith

2011 ◽  
Author(s):  
Sanford Levinson
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
Social Order ◽  
Moral Dimension ◽  
The Rule Of Law ◽  
Law And Morality ◽  
The Relationship

This chapter considers the relationship between the Constitution—and the sovereign people ostensibly represented in its terms—and morality. Constitution faith requires the linkage of law and morality even as most twentieth-century jurisprudence has emphasized their analytic separation. All calls for renewed faith in the rule of law and renewal of the constitutional covenant imply that submission to the Constitution will create not only order but also the conditions of a social order worthy of respect. In order to see the logic and desirability of submission to the rule of the Constitution, the assumed linkage between it and morality must be closely examined.

Weaving a Tangled Web:Hapeand the Obfuscation of Canadian Reception Law

2008 ◽  
Vol 45 ◽  
pp. 55-96 ◽  
Author(s):  
John H. Currie
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Potential Role ◽  
Supreme Court Of Canada ◽  
Customary International Law ◽  
The Rule Of Law ◽  
Legal Obligations ◽  
Canadian Law ◽  
The Relationship

SummaryThe majority Supreme Court of Canada judgment inHape— a case concerning extraterritorial applicability of theCanadian Charter of Rights and Freedoms— is premised on three aspects of the relationship between international and Canadian law: (1) the interaction of customary international law and Canadian common law; (2) the role of Canada’s international legal obligations inCharterinterpretation; and (3) the potential role of customary international law as a source of unwritten principles of the Canadian Constitution. This article reviews pre-existing law in all three of these areas and analyzes a number of innovations apparently introduced thereto, with little or no explanation, by the majority inHape. It concludes thatHapeseriously exacerbates an already uncertain relationship between international and Canadian law, with fundamental consequences for the rule of law in Canada.

Theoretical Foundations of Liberal Order

2013 ◽  
Author(s):  
Casper Sylvest
Keyword(s):  
Twentieth Century ◽  
International Relations ◽  
Rule Of Law ◽  
Representative Government ◽  
The Rule Of Law ◽  
Early Twentieth Century ◽  
Late Nineteenth ◽  
The Relationship ◽  
Theoretical Foundations

This chapter draws on the writings of late nineteenth- and early twentieth-century liberal writings to show how, mainly British, liberals campaigned for the moralization, reform, or regulation of international relations. It demonstrates how contemporary liberal theories have lost connection to the moral and normative articulations of a century or so ago and that the meaning and value of many key liberal terms and concepts have changed significantly. As an example, the chapter shows that, although the relationship between liberalism and democracy appears inseparable today, a century and a half ago liberals were apprehensive about democracy. Liberals were devoted to the rule of law and representative government but, for many, democracy raised the spectre of the tyranny of an uneducated and potentially debased majority.

‘Belief’ in the Rule of Law and the Hindu Nation and the Rule of Law

2019 ◽  
pp. 353-372 ◽  
Author(s):  
Ratna Kapur
Keyword(s):  
Gender Equality ◽  
Rule Of Law ◽  
Religious Freedom ◽  
The Rule Of Law ◽  
Indian Nation ◽  
Indian State ◽  
And Gender ◽  
Role Of Religion ◽  
The Relationship

Ratna Kapur illustrates how the Indian judiciary, through mobilizing a politics of ‘belief,’ has endorsed the identity of the Indian state as a Hindu nation through the discourse of rights and has underscored such practice through the constructed opposition between Islam and gender equality in the advocacy of the Hindu Right. The article analyses the role of religion in the constitutional discourse of secularism in India and how this has been used as a technique to establish and reinforce Hindu majoritarianism. The article focuses on the relationship between secularism, equality, and religion in law, which is pivotal to the Hindu Right’s project of constructing the Indian Nation as Hindu. Kapur notes that the judiciary has played a central role in legitimizing the Hindutva project, and that this project has gained traction in the legal arena to reshape the meaning of equality, gender equality, and religious freedom.

4. The Royal Prerogative

2018 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
Judicial Review ◽  
Civil Service ◽  
Administrative Law ◽  
Revolutionary Era ◽  
The Rule Of Law ◽  
The Relationship

This chapter considers the fate of the royal prerogative in the courts during the twentieth century. The discussions cover the relationship between statute, the prerogative, and the rule of law; the traditional perspective on judicial review of prerogative powers and its erosion; Council of Civil Service Unions v Minister for the Civil Service (GCHG) as the pivotal case in the development of judicial review of the prerogative; post-GCHG developments; and the notion of justiciability. The chapter concludes that the courts supervise the government’s use of prerogative powers more closely now than in the pre-revolutionary era. There has been an increase in the theoretical reach of the courts’ power of review since the 1967 decision in Lain. Administrative law also seems to treat prerogative and statutory powers in the same way.

Principles, Passions, and the Paradox of Modern Law: A Comment on Bybee

2013 ◽  
Vol 38 (01) ◽  
pp. 196-205 ◽  
Author(s):  
Patricia Ewick
Keyword(s):  
Rule Of Law ◽  
Social Life ◽  
Social World ◽  
Modern State ◽  
The Rule Of Law ◽  
Modern Subject ◽  
Historical Developments ◽  
The Relationship ◽  
Widespread View

In All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (2010), Keith Bybee considers the hypocrisy of modern law—that is, the widespread view that judges are both principled and partisan—by drawing an analogy with courtesy. Both law and courtesy contain and manage the diverse and potentially divisive interests that would, were they not contained, disrupt social life. In this essay I extend this argument by considering whether the relationship between law and courtesy is more than merely analogical. I suggest that both systems are aspects of larger historical developments out of which emerged the modern subject and the modern state, creating a social world made up of apparently bounded individuals and institutions. As such, law and courtesy do more than conceal and contain interests and subjectivity; they produce the unruly, partisan subjects they are designed to manage.

scholarly journals THE COMMONWEALTH PRINCIPLES (LATIMER HOUSE) ON THE RELATIONSHIP BETWEEN THE THREE BRANCHES OF GOVERNMENT: TWENTY YEARS ON

2019 ◽  
Vol 30 (2) ◽  
pp. 101-119
Author(s):  
Peter Slinn ◽  
Karen Brewer
Keyword(s):  
Rule Of Law ◽  
Future Development ◽  
Good Governance ◽  
Good Practice ◽  
The Rule Of Law ◽  
Twentieth Anniversary ◽  
Specific Implementation ◽  
The Relationship ◽  
Heads Of Government

2018 marks the twentieth anniversary of the Latimer House ‘process’ which commenced with the drafting of the Latimer House Guidelines for the Commonwealth on Good Practice Governing Relations between the Executive, Parliament and the Judiciary. Since then the Latimer House Guidelines have been transformed into the Commonwealth Principles (Latimer House) on the Relationship between the Three Branches of Government which have been endorsed by Commonwealth Heads of Government on several occasions. This article assesses the role of the Latimer House process over the last two decades against the background of the Commonwealth’s evolving commitments to good governance and the rule of law. In Part 1 explores the role of the Commonwealth in supporting good governance and the rule of law whilst Part 2 considers and evaluates the Latimer House process itself. Part 3 reviews the development of the Commonwealth Principles in practice whilst in Part 4 some specific implementation issues concerning the Judiciary are discussed. Part 5 considers the future development of the Commonwealth Principles whilst Part 6 provides a conclusion and overview.

4. The Royal Prerogative

2021 ◽  
pp. 76-102
Author(s):  
Ian Loveland
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
Judicial Review ◽  
Civil Service ◽  
The Rule Of Law ◽  
Rigorous Approach ◽  
House Of Lords ◽  
The Relationship

This chapter considers the evolving constitutional status of the royal prerogative in the courts during the twentieth century. The discussions cover the relationship between statute, the prerogative, and the rule of law; the traditional perspective on judicial review of prerogative powers and the rejection of that traditional perspective in the House of Lords’ judgment in Council of Civil Service Unions v Minister for the Civil Service (GCHQ). The chapter continues by analysing the ways in which the new organising principle of ‘justiciability’ which emerged in the GCHQ judgment in the 1980s has since been applied in several leading cases, and suggests that in recent years the courts have adopted an increasingly rigorous approach to the supervision of governmental actions claimed to be taken under prerogative powers.

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