A Human Rights Act for Australia: A Transfer of Power to the High Court, or a More Democratic Form of Judicial Decision-Making?

2012 ◽  
Author(s):  
Emma Hoiberg
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
High Court ◽  
Human Rights Act

scholarly journals Who are judicial decisions meant for? The ‘global community of law’ in Southern Africa

2018 ◽  
Vol 39 (5) ◽  
pp. 585-599 ◽  
Author(s):  
Peter Brett
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Indigenous Rights ◽  
Judicial Decision ◽  
Global Community ◽  
Judicial Decision Making ◽  
High Court ◽  
Judicial Decisions ◽  
First Case ◽  
Vexed Question

Rationalist models of judicial decision-making expect courts to defend their institutional integrity in politically sensitive cases. This article presents two African case studies of courts not doing so. They have elicited predictable backlash from executives and placed their institutions in avoidable danger. I argue that judges’ desire for esteem from emerging global judicial networks can explain this otherwise puzzling behaviour. These new networks become particularly salient in human rights cases. This conclusion partially supports Anne-Marie Slaughter’s controversial claims about the significance of ‘the global community of law’ but also identifies risks this poses for courts’ domestic authority. The argument is made with reference to two recent and well-known decisions by the High Court of Botswana and the Southern African Development Community Tribunal. The first case, Sesana (2006), dealt with the vexed question of indigenous rights in Africa. The second case, Campbell (2008), concerned the compensation of expropriated commercial farmers from Zimbabwe.

The European Court of Human Rights and Transnational Judicial Dialogue

ICL Journal ◽  
2015 ◽  
Vol 9 (3) ◽  
Author(s):  
Carla M Zoethout
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Case Law ◽  
Judicial Decision ◽  
Council Of Europe ◽  
Judicial Decision Making ◽  
The Past ◽  
European Court ◽  
Foreign Law ◽  
The Us

AbstractOver the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the case-law of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).

Historical Institutionalism and Judicial Decision-Making

2017 ◽  
Vol 70 (1) ◽  
pp. 53-85 ◽  
Author(s):  
Erik Bleich
Keyword(s):  
Decision Making ◽  
Hate Speech ◽  
Analytical Framework ◽  
Historical Institutionalism ◽  
Judicial Decision ◽  
Change Over Time ◽  
Judicial Decision Making ◽  
High Court ◽  
Original Dataset ◽  
Over Time

This article integrates insights from different veins of historical institutionalism to offer an analytical framework that specifies how ideas, institutions, and actors account for key aspects of judicial decision-making, including change over time. To the extent that ideas are widely distributed, highly salient, and stable among actors in the judicial field, they can affect patterns of rulings in a particular issue area. The distribution, salience, and stability of norms, however, may change over time for reasons embedded in the institutional structures themselves. Existing policies, laws, or treaties create the potential for new actors to enter the judicial field through processes that theorists of institutional change have identified as intercurrence, displacement, conversion, layering, and drift. New actors can shift the relative salience of ideas already rooted in the judicial field. This ideational salience amplification can alter patterns of judicial decision-making without the fundamental and often costly battles involved in wholesale paradigm change. French high court hate speech decisions provide the context for the development of this framework and serve to illustrate the dynamic. The author uses evidence from an original dataset of every ruling by the French Court of Cassation regarding racist hate speech from 1972 through 2012 to explain the varying propensity of the high court to restrict speech that targets majorities compared to minorities.

scholarly journals POLICE, PROSECUTION, COURTS AND WARTIME DEMONSTRATIONS: ADELA PANKHURST IN THE AUSTRALIAN HIGH COURT

2012 ◽  
Vol 23 (1) ◽  
pp. 65-91 ◽  
Author(s):  
Jocelynne Scutt
Keyword(s):  
Decision Making ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
High Court ◽  
Majority Opinion ◽  
Police Powers ◽  
Court Of Justice ◽  
European Court ◽  
Disorderly Conduct ◽  
The Law

Rights of assembly and freedom of speech are a rich ground for decision-making by police, prosecutors and courts in determining a balance with obligations of authorities to keep the peace and prevail against disorderly conduct or riot. Recent claims of abuse of police powers through “kettling” have reached the European Court of Justice. These cases directly address the scope and exercise of police authority in maintaining order during demonstrations. Yet not only police powers are in issue at times of political disputation. Two cases heard early last century by the Australian High Court illustrate the way in which both the decision to prosecute and judicial decision-making may be influenced by socio-political considerations, particularly in time of war. Pankhurst v Porter and Pankhurst v Kiernan saw Adela Pankhurst, youngest daughter in the redoubtable Pankhurst family of Suffragette fame, testing the limits of the law during the struggles to ensure that sending wheat abroad to feed the troops would not justify pricing bread out of the reach of ordinary, working-class households. The success of the appeal in Pankhurst v Porter exposed error in the prosecutorial process. The failure of the appeal in Pankhurst v Kiernan exposed flawed reasoning in the majority opinion and the strength of the dissenting judgment in it’s application of the law to the facts and the need to maintain objectivity or at least neutrality as to the particular appellant.

Human Dignity in the Jurisprudence of the European Court of Human Rights

2013 ◽  
Author(s):  
Jean-Paul Costa
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Human Dignity ◽  
Legal Reasoning ◽  
Central Element ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Judicial Decisions ◽  
European Court ◽  
Conceptual Link

The chapter first gives several examples of where ‘dignity’ (or ‘a person’s dignity’, or ‘human dignity’) has been a central element in the reasoning of the Court, or in the arguments advanced by judges in separate opinions. Based on this analysis, the principal question addressed is why the Court draws on ‘dignity’, a word neither explicitly nor, implicitly mentioned in the text of the Convention or the Protocols. What are the reasons for having—or not having—recourse to the concept of dignity in judicial decisions? Is there any objective reason for such choice? Or does it depend on the subjective preferences of the judges sitting on the bench? Is ‘dignity’ necessary for judicial decision-making in order to reach a specific conclusion in a case? Or does ‘dignity’ simply reinforce the legal reasoning of the Court, enabling the Court to give more weight to the arguments of one of the parties in the case? Finally, the chapter looks for a possible conceptual link between human dignity and human rights, insofar as this arises from the jurisprudence of the Strasbourg Court.

Context Effects in Judicial Decision Making

2009 ◽  
Author(s):  
Jeffrey J. Rachlinski ◽  
Chris Guthrie ◽  
Andrew J. Wistrich
Keyword(s):  
Decision Making ◽  
Context Effects ◽  
Judicial Decision ◽  
Judicial Decision Making
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