Separation of Powers and Executive Clemency in the Civil Law World

2020 ◽  
pp. 58-75
Author(s):  
Sonsoles Arias ◽  
Antonios Kouroutakis
Keyword(s):  
Separation Of Powers ◽  
Civil Law ◽  
Executive Clemency

scholarly journals Some changes in the field of civil law

2006 ◽  
Vol 78 (9) ◽  
pp. 395-412
Author(s):  
Dušan Nikolić
Keyword(s):  
Separation Of Powers ◽  
Civil Law ◽  
Social Value ◽  
European Court Of Justice ◽  
The Other ◽  
The European Union ◽  
The Public ◽  
Public Benefit ◽  
Court Of Justice ◽  
European Court

In the first part of the paper, the author has outlined some changes that have happened in the field of civil law during the history, and in the second part of the paper, the author has paid attention to the modern trends, produced by the process of globalization. By analyzing certain sectors, the author has come to the conclusion that ownership title and public office are being slightly shifted from state to non-state authorities. On the other hand, this trend of the global (re)privatization has contributed to the change of attitude toward the title. The owner is expected to ewoy his title both for his own and for the public benefit. One of the most recent judgments of the European Court of Justice speaks in favor of this and it has been mentioned in this paper. This judgment supports the view that the property is not absolute and that it has a social value. The special attention is paid to the so called new institutionalism and need to question the concept of separation of powers within the European Union.

Introduction The Birth and Growth of Judicial Review in the Civil Law World

2021 ◽  
pp. 1-8
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
South Africa ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
The Political ◽  
The United Kingdom

This book is about the stunning birth and growth of judicial review in the civil law world, since 1945. In Volume I of this two-volume series, I showed that judicial review was born and grew in common law G-20 constitutional democracies and in Israel primarily: (1) when there is a need for a federalism or a separation of powers umpire, (2) when there is a rights from wrongs dynamic, (3) when there is borrowing, and (4) when the political structure of a country’s institutions leaves space within which the judiciary can operate. The countries discussed in Volume I were the following: (1) the United States, (2) Canada, (3) Australia, (4) India, (5) Israel, (6) South Africa, and (7) the United Kingdom....

The Federative Republic of Brazil

2021 ◽  
pp. 201-230
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Civil Law ◽  
Constitutional Court ◽  
Military Government ◽  
Military Dictatorship ◽  
Stare Decisis ◽  
German Constitutional Court ◽  
The Military ◽  
The U.S

This chapter looks at Brazilian judicial review. Judicial review in Brazil originated because it was borrowed from the U.S. Constitution. It emerged in amplified form in Brazil’s 1988 Constitution because, by 1988, the normative appeal of judicial review was widely appreciated all over the world. Moreover, the Hybrid Model of judicial review in Brazil, whereby the Supreme Federal Tribunal is both, at the apex of a diffuse system of judicial review, and is also a Constitutional Court, reflects widespread appreciation for the value of a system like the German Constitutional Court in a civil law jurisdiction. The power of such a court to issue rulings with erga omnes effect is especially important in civil law countries like Brazil, which lack systems of stare decisis. First, judicial review emerged in Brazil as the result of borrowing. Second, it emerged as a rights from wrongs reaction to abuses of power during Fascism and during the military dictatorship, which ruled Brazil for 1964 until 1984. Third, judicial review is necessary in Brazil for both federalism and separation of powers umpiring reasons. Fourth, judicial review in Brazil also emerged because the constitution-writing elite wanted to entrench its liberal and socialist values to forestall the emergence of yet another military government in the country. And, fifth, the Brazilian Constitution divides and allocates power among so many federal and state entities that the Supreme Federal Tribunal has the political space it needs to play a really big role in governing the country.

The Push for Precedent in Russia's Judicial System

2012 ◽  
Vol 37 (1) ◽  
pp. 1-30 ◽  
Author(s):  
Max Gutbrod ◽  
William Pomeranz
Keyword(s):  
Separation Of Powers ◽  
Civil Law ◽  
Judicial Independence ◽  
Judicial System ◽  
Court Decisions ◽  
Law System ◽  
Practical Standpoint ◽  
Anglo American ◽  
Civil Law System

AbstractRussia is currently undergoing a spirited public debate over the role of precedent in a civil-law system. This article examines this debate from a theoretical and practical standpoint, exploring the nature of Russian court decisions and the extent to which they correspond to the Anglo-American theory of precedent. The article further analyzes how the Russian Higher Arbitrazh Court has carved out a narrow right to issue binding precedent and how this authority could impact Russia's civil-law understanding of such concepts as separation of powers and judicial independence.

Austria

2015 ◽  
Author(s):  
Alice Perscha ◽  
Richard Frimston
Keyword(s):  
Federal Republic ◽  
Legal System ◽  
Separation Of Powers ◽  
Civil Law ◽  
Roman Law ◽  
The Third ◽  
The Republic ◽  
Constitutional System

The Republic of Austria is a federal republic, divided into nine states (‘Bundesländer’), which have legislative competences of their own. The judiciary is considered to be the third pillar of the Austrian constitutional system, together with legislation and administration; the doctrine of a separation of powers, judiciary, and administration (executive) means that they are separated in all instances. Austria is a civil law country; its legal system is based on Roman law.

The Civil Law Legal Tradition

2021 ◽  
pp. 9-26
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Civil Law ◽  
Roman Law ◽  
Jury Trial ◽  
Constitutional Court ◽  
Legal Tradition ◽  
Constitutional Courts ◽  
Supreme Courts ◽  
Council Of State

This chapter traces the origins and development of the civil law legal tradition, which assigns to judges only a mechanical, highly constrained form of decision-making. The civil law legal tradition is characterized globally by a historical reliance on Roman law; a modern rationalist code and no body of judge-made case law under the code; textualism and formalism; and the absence of jury trial and an inquisitorial approach to civil and criminal procedure. The civil law tradition allows judicial review, which has been seen as being inherently political, to be exercised soley by a separate institution, called a Constitutional Court, which alone interprets and enforces the Constitution and which is de facto the most important court in the country, even though de jure there are coequal courts of cassation and councils of state. Traditionally, judges received little social deference and were low on the hierarchy of status in civil law countries, whereas scholars and codifiers came first. The civil law legal tradition conceives of the separation of powers in a very wooden, ahistorical way that precludes judges from ever making policy by deciding administrative law and constitutional law cases. It was therefore necessary to create powerful constitutional courts as a specially chosen fourth branch of government in order for judicial review to work in civil law countries. The chapter conclude by looking at the court systems in civil law countries, which typically have three supreme courts: 1) a constitutional court; 2) a court of cassation; and 3) a council of state.

Parliamentary Sovereignty, the Rule of Law, and the Separation of Powers

2016 ◽  
pp. 264-282
Author(s):  
Marianne Ojo
Keyword(s):  
United States ◽  
Separation Of Powers ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
Vital Role ◽  
Statutory Interpretation ◽  
Environment Impact ◽  
Parliamentary Sovereignty ◽  
Legitimate Expectations

This chapter is aimed at highlighting how common law has evolved over the centuries, namely through the flexibility accorded to judicial precedents, as well as through the evolutionary nature evidenced in the processes and rules applied in statutory interpretation. In addition to illustrating how informational asymmetries can be mitigated through de centralization, facilitated with courts employing the use of non-legal agents such as expert witnesses - as evidenced in the Daubert case, Pepper v Hart also illustrates how common law has evolved through the scope and permissibility of aids to statutory interpretation. Whilst financial markets and changes in the environment impact legislators, and whilst it is widely accepted that legislation constitutes the supreme form of law, the necessity for judges to introduce a certain level of flexibility will also contribute towards ensuring that legitimate expectations of involved parties are achieved - particularly where the construction of the words within a statute gives rise to considerable ambiguity. By way of reference to landmark rulings in the United States, cases such as Daubert and The Estate of Edgar A. Berg v. Commissioner, this paper also aims to illustrate the vital role increasingly assumed by non-legal actors, and why this approach should constitute a trend to be adopted in European common and civil law jurisdictions. This being the case given the failures and flaws of references to Parliamentary material and whether these should be permitted as an aid to the construction of legislation which is ambiguous or obscure, as illustrated in the case of Pepper v Hart.

Four Models of Clemency

2019 ◽  
pp. 39-65
Author(s):  
Daniel Pascoe
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Death Penalty ◽  
Separation Of Powers ◽  
Theoretical Framework ◽  
Political Regime ◽  
Empirical Literature ◽  
Monitoring Group ◽  
Executive Clemency ◽  
System Time

Chapter 2 provides the theoretical framework for a comparative study of clemency in death penalty cases. It begins by clarifying the terminology used throughout the book, including the local terms used in Southeast Asian legal systems for executive ‘clemency’. Then, drawing in particular from the work of Douglas Hay et al (1975), Leslie Sebba (1977a; 1977b); Kathleen Dean Moore (1989), Daniel Kobil (1991; 2003; 2007), Elizabeth Rapaport (1998–2000; 2001), and Austin Sarat (2005; 2008), Chapter 2 suggests four models of clemency in death penalty cases, based upon the previous academic literature: (1) ‘mercy from the sovereign’ granted solely for the ruler’s benefit; (2) retributivist clemency; (3) redemptive clemency; and (4) clemency for political benefit or utilitarian reasons. Finally, Chapter 2 also summarizes the results of the few multi-jurisdictional studies on capital clemency conducted in the past (e.g. Turrell 2000; Pascoe 2017b; Sebba 1977b; Baumgartner and Morris 2001; The Parliamentary Monitoring Group 2004; Dascalu 2012; Novak 2015; Strange 1996; Tait 2000–1), together with factors that the theoretical literature suggests may contribute to clemency frequency or scarcity. In summary, the theoretical and empirical literature points to the following potential determinants of death penalty clemency: political regime, separation of powers, clemency decision-making structure, structural opportunities for leniency at earlier phases, procedural idiosyncrasies in the criminal justice system, time spent on death row, and predominant religion.

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