scholarly journals How Obama’s Immigration “Executive Action” Respects the Rule of Law

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Rule Of Law ◽  
Undocumented Immigrants ◽  
Justice Department ◽  
The Rule Of Law ◽  
Executive Authority ◽  
Statutory Authority ◽  
Executive Action

This article defends President Obama’s actions on immigration as consistent with the rule of law: they were rooted in statutory authority; the President did not advance innovative claims of inherent executive authority to support the DHS programs; the Justice Department articulated limiting principles for DHS non-enforcement discretion that plainly and persuasively distinguished the DHS programs from other cases in which courts have condemned administrative inaction as an abdication of statutory responsibility; the programs enhanced DHS accountability for the administration of the deportation system; and the programs reduced the exercise of arbitrary discretion in the handling of individual cases involving undocumented immigrants.

Licence to Kill: The Murderous Outrages Act and the rule of law in colonial India, 1867–1925

2015 ◽  
Vol 50 (2) ◽  
pp. 479-517 ◽  
Author(s):  
MARK CONDOS
Keyword(s):  
Rule Of Law ◽  
Legal Culture ◽  
The Rule Of Law ◽  
North West ◽  
Colonial India ◽  
The North ◽  
Executive Authority ◽  
The Creation ◽  
The Government ◽  
Exceptional Character

AbstractIn 1867, the Government of India passed one of the most brutal-minded and draconian laws ever created in colonial India. Known as the ‘Murderous Outrages Act’, this law gave colonial officials along the North-West Frontier wide powers to transgress India's legal codes in order to summarily execute and dispose of individuals identified as ‘fanatics’. Arguments for the creation and preservation of this law invariably centred around claims about the purportedly ‘exceptional’ character of frontier governance, particularly the idea that this was a region that existed in a perpetual state of war and crisis. Far from being peripheral in its impact, this article explores how this law both drew upon and enabled a wider legal culture that pervaded India in the wake of 1857. It argues that this law was a signal example of British attempts to mask the brute power of executive authority through legalistic terms, and was also evocative of a distinctly ‘warlike’ logic of colonial legality.

MI5, the Cold War, and the Rule of Law

2020 ◽  
Author(s):  
Keith Ewing ◽  
Joan Mahoney ◽  
Andrew Moretta
Keyword(s):  
Cold War ◽  
Rule Of Law ◽  
Limited Extent ◽  
The Rule Of Law ◽  
Statutory Authority ◽  
The Cold War ◽  
The Way

This title is concerned with the powers, activities, and accountability of MI5 principally in the period from 1945 to 1964. It was a body without statutory authority, with no statutory powers, and with no obvious forms of statutory accountability. It was established as a counter-espionage agency, yet was beset by espionage scandals on a frequency that suggested if not high levels of incompetence, then high levels of distraction and the squandering of resources. The book addresses the evolution of MI5’s mandate which set out its role and functions and to a limited extent the lines of accountability, the surveillance targets of MI5, and the surveillance methods that it used for this purpose, with a focus in two chapters on MPs and lawyers, respectively; the purposes for which this information was used, principally to exclude people from certain forms of employment; and the accountability of MI5 or the lack thereof for the way in which it discharged its responsibilities under the mandate.

Investors will be cautious over Saudi judicial reforms

2018 ◽  
Keyword(s):  
Rule Of Law ◽  
International Capital ◽  
Content Type ◽  
Investor Confidence ◽  
The Rule Of Law ◽  
Doing Business ◽  
The World Bank ◽  
Executive Authority ◽  
Speed Up ◽  
Commercial Courts

Significance In its efforts to stem such sell-offs and attract new international capital, Riyadh has introduced multiple reforms, including attempts to make the creaky judicial system more efficient. It brought in specialised commercial courts in September 2017, as well as new options to carry out procedures online. However, the broader rule of law remains questionable. Impacts The rollout of specialised commercial courts should speed up the processes of dispute resolution and contract enforcement. New courts send a positive signal to investors and may impact the World Bank ‘Doing Business’ rankings over time. Labour courts planned for 2019 should hasten the resolution of cases involving expatriates, who dominate the private-sector workforce. Further precedents may boost investor confidence that Saudi Arabia will respect and enforce international arbitration. Businesses will worry that the rule of law remains questionable, given the extensive and growing powers of the executive authority.

South Africa and Terrorism

Worldview ◽  
1968 ◽  
Vol 11 (2) ◽  
pp. 6-8
Author(s):  
Mary Jean Pew
Keyword(s):  
South Africa ◽  
West Africa ◽  
Rule Of Law ◽  
Southern Africa ◽  
Law And Order ◽  
The Rule Of Law ◽  
South West ◽  
South West Africa ◽  
Executive Action

World attention has been drawn in recent years to the intensification of organized militant action by Africans against the white ruling powers of southern Africa. The incidents have been sporadic, inadequately organized and equipped, doomed to fail from the outset. Nevertheless the governments have responded with comprehensive legislative and executive action to maintain “law and order” — undoubtedly a legitimate responsibility of any government, but one presumably to be reached by means that accord with norms of justice and the rule of law. Thirty-six men from South West Africa are currently being tried in South Africa for some allegedly terrorist activities on the basis of a law reflective more of a government that intends to maintain power by any means than one that is cognizant of standards of justice with which it, as much as any individual, should comply.

Regal Power and the Rule of Law: a Tudor Paradox

1964 ◽  
Vol 3 (2) ◽  
pp. 24-56 ◽  
Author(s):  
William Huse Dunham
Keyword(s):  
Sixteenth Century ◽  
Rule Of Law ◽  
Political Action ◽  
Public Law ◽  
The Rule Of Law ◽  
Political Crises ◽  
Executive Authority ◽  
The Law

Tudor statesmen, in their statutes and debates, and Tudor jurists, in reports and treatises, recorded their awareness of an antithesis between regal power and political law. Political action and juridical argument made them increasingly sensitive to an oppugnancy between executive authority and constitutional control. Medieval men of law, too, had noted this inconsonance in England's polity. Sir John Fortescue, while Henry VI's Chancellorin-exile in 1468, faced the dilemma; but he resolved it only verbally. He wrote: “regal power is restrained by political law.” Then he added, “such is the law of the Kingdom” of England. So facile a formula as Fortescue's might make nice theory, yet it was one easier to prescribe than to apply to a live monarch.The pragmatic Tudors, however, succeeded in surmounting the antithesis between political law and regal power, paradoxically, by augmenting both. To solve immediate political crises and to enhance the effectiveness of government, Privy Councilors and parliamentarians passed act after act that increased the King's prerogatives. At the same time, moreover, these very statutes afforced, by implication, the principles of political, or public, law. Kings and queens, judges and councilors, Lords and Commons during the sixteenth century formulated a concept of the rule of law and made it transcendant. By the 1590's they had accorded the rule of law statutory, judicial, and regal recognition. For the Tudor time-being, this principle served to balance regal power and political law and to give to this antinomy a congruity.

The Phantom Wahhabi: Liberalism and the Muslim fanatic in mid-Victorian India

2012 ◽  
Vol 47 (1) ◽  
pp. 22-52 ◽  
Author(s):  
JULIA STEPHENS
Keyword(s):  
Rule Of Law ◽  
Public Security ◽  
The Rule Of Law ◽  
Police Powers ◽  
Executive Authority ◽  
British Colonial ◽  
The Government ◽  
Colonial Government ◽  
Anglo Indian

AbstractIn the late 1860s and early 1870s the British colonial government in India suppressed an imagined Wahhabi conspiracy, which it portrayed as a profound threat to imperial security. The detention and trial of Amir and Hashmadad Khan—popularly known as the Great Wahhabi Case—was the most controversial of a series of public trials of suspected Wahhabis. The government justified extra-judicial arrests and detentions as being crucial to protect the empire from anti-colonial rebels inspired by fanatical religious beliefs. The government's case against the Khan brothers, however, was exceptionally weak. Their ongoing detention sparked a sustained public debate about the balance between executive authority and the rule of law. In newspapers and pamphlets published in India and Britain, Indian journalists and Anglo-Indian lawyers argued that arbitrary police powers posed a greater threat to public security than religious fanatics. In doing so, they embraced a language of liberalism which emphasized the rule of law and asserted the role of public opinion as a check on government despotism. Debates about the Great Wahhabi Case demonstrate the ongoing contest between authoritarian and liberal strands of imperial ideology, even at the height of the panic over the intertwined threat of Indian sedition and fanatical Islam.

In the Shadow of War: The Effects of Conflict on Liberal Democracy

2009 ◽  
Vol 63 (1) ◽  
pp. 177-210 ◽  
Author(s):  
Ronald R. Krebs
Keyword(s):  
International Relations ◽  
Rule Of Law ◽  
International Conflict ◽  
Democratic Governance ◽  
Security Threats ◽  
The Rule Of Law ◽  
Liberal Democratic ◽  
Small Wars ◽  
Executive Authority ◽  
Long Run

AbstractEvents of and since 11 September 2001 have renewed interest in age-old questions about liberal-democratic governance in the shadow of insecurity, crisis, and war. Academic lawyers in particular have engaged in a vigorous debate about how liberal polities can confront security threats while maintaining their commitment to the rule of law. Yet few empirical political scientists, and even fewer scholars of international relations, have weighed in. The short- and especially long-run effects of international conflict on liberal-democratic institutions and processes remain an underexplored aspect of the second-image-reversed. Prompted by recent research in law, this article finds that prominent arguments often rest on shaky theoretical and empirical foundations. It argues that the two most notable traditions of thought on war and democracy are complementary, not competing; that small wars may also have substantial consequences; and that analysts must distinguish clearly among three distinct causal phenomena—threat, mobilization, and warfare—when considering conflict's impact on democracy. The article critically reviews the effects of conflict on both participation and contestation; identifies the salient outstanding questions and suggests hypotheses addressing them; and explores the implications for contemporary normative debates over executive authority and emergency powers.

scholarly journals Facts, Threats and Reds: Common Law Constitutionalism and the Rule of Law

2009 ◽  
Vol 14 (1) ◽  
pp. 79
Author(s):  
John Morss
Keyword(s):  
Communist Party ◽  
Rule Of Law ◽  
Common Law ◽  
Executive Power ◽  
The Rule Of Law ◽  
States Of Emergency ◽  
The Status ◽  
Executive Action ◽  
Control Orders ◽  
High Court Of Australia

In a concurring judgment in Thomas v Mowbray, a High Court of Australia case turning on the Constitutional validity of terrorism-related control orders, Callinan J offers a re-evaluation of the Court’s earlier decision in the Australian Communist Party case to curtail executive power. According to Callinan J, factual matters knowable (but not known) at the time of the earlier decision might have given rise to a different outcome. In a dissenting judgment by Kirby J in the same case the Court’s reasoning in the Australian Communist Party case is robustly defended. These contested issues connect with the theoretical dispute between ‘common law constitutionalism’ and ‘constitutional positivism’ analysed by Dyzenhaus in the context of states of emergency where the limits of executive action and the role of supporting facts become particularly salient. They press the question of the status of the rule of law in the international as well as in the municipal sphere.

scholarly journals Continuities and Discontinuities: Antiziganism in Germany and Italy (1900-1938)

2020 ◽  
pp. 51-80
Author(s):  
Jennifer Illuzzi
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Concentration Camps ◽  
State Of Exception ◽  
Nation State ◽  
The Rule Of Law ◽  
Weimar Germany ◽  
Executive Authority ◽  
Legislative Policies ◽  
The Law

In both Germany and Italy before WWI, populations labelled as Gypsies found themselves in a “state of exception” which aimed at their elimination from the nation-state by targeting them with policies emanating from the executive. Both states adhered to the liberal idea of equality before the law, but used the flexibility provided by executive authority to pressure Gypsies to leave the state. After WWI, both Germany and Italy were forced to retain “Gypsies” inside the state as a result of changing geopolitical circumstances. However, in fascist Italy before WWII, executive authorities continued to operate in a “state of exception” and ceased adhering to the rule of law, interning Gypsies in concentration camps and seeking to eliminate them through forced assimilation. In Weimar Germany, legislative policies sought to eliminate Gypsies through bringing them inside of the law. The contradiction between increasingly racialized notion of Gypsy inassimilability and forced assimilation’s inevitable failures certainly laid the groundwork for extreme measures in both places during WWII.

The Imperial Presidency and the Rule of Law

2018 ◽  
Author(s):  
Claire Finkelstein
Keyword(s):  
Rule Of Law ◽  
Executive Branch ◽  
The Other ◽  
Presidential Power ◽  
The Rule Of Law ◽  
Imperial Presidency ◽  
Executive Authority ◽  
The Face ◽  
The Impact ◽  
New Situation

The Presidency of Donald Trump poses a deepening challenge to democratic theory: How could a democracy designed so carely around rule of law governance be so lacking in resources against a president who seems determined to dismantle the rule of law? The country seems to be largely helpless in the face of Trump’s repeated challenges to the limits of executive authority and his rejection of both legal and customary constraints on presidential power. The challenge is perceived as so serious that some have charged we are in the process of instituting an “imperial presidency,” an accusation that at present seems compelling. The mistake, however, lies in thinking that this presents a new situation. The current expansion of executive authority did not start with the current administration. Since 9/11, there has been a steady augmentation of presidential power relative to the other two branches of government, with the result that the other branches have become steadily weaker relative to the executive branch. As the drama of the Trump presidency unfolds, we are additionally confronted with the impact of personal character traits on the rule of law. We struggle to disentangle the person of the president from the office of the presidency and to discern those aspects that are critical to the preservation of democratic values. This chapter will attempt to diagnose current challenges to the rule of law in light of both history and character, as well as to present recommendations for preserving rule of law values in a constitutional democracy.

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