In defence of judicial innovation and constitutional evolution

2017 ◽  
Author(s):  
Fiona de Londras
Keyword(s):  
Judicial Power ◽  
Constitutional Interpretation ◽  
Final Word ◽  
Constitutional Evolution ◽  
Constitutional Tradition

Fiona de Londras’ chapter argues that judicial innovation is an important and legitimate part of constitutional evolution, taking into account the broader constitutional tradition and structure within which Irish superior courts operate. de Londras defends judicial power generally based on her claims that it leads to better outcomes and that it should be understood as just one part of a broader and ongoing constitutional ‘eco-system’. This chapter mounts a defence of such innovation, arguing that persistent discomfort is founded on (a) an over-weighting of the role of the courts and failure to recognise the ecosystemic nature of constitutional interpretation, (b) a restricted conception of the constitution that underplays its teleological nature, and (c) a misrecognition of judicial pronouncements as ‘the final word’.

Victor Yanukovych’s entourage seizing legislative, executive and judicial power in Ukraine (2010 – early 2011)

2020 ◽  
pp. 42-53
Author(s):  
V.I. Denysenko
Keyword(s):  
National Security ◽  
Communist Party ◽  
Presidential Elections ◽  
Judicial Power ◽  
Judicial Reform ◽  
Security Service ◽  
Formal Procedures ◽  
Actual Control ◽  
Self Defence

The article describes the President Yanukovych and his entourage’s actions taken to establish control over the key branches of power in Ukraine. The role of the Donetsk clan’s particular representatives, mainly AndriiKliuev and SerhiiLyovochkin, in implementing the authority concentration schemes, is explored. The context of building up the floor-crossers coalition (officially named “Stability and Reforms”) in 2010 is highlighted. The reasons for Donetsk clan choosing the non-constitutional way of seizing control over the Parliament are explained, such as: rate of action, low price of deputies’ engagement, keeping up the ideological confrontation façade with Julia Tymoshenko’s Bloc and «Our Ukraine – People’s Self-Defence» parliamentary alliance. MykolaAzarov’s cabinet (named March 11, 2010) is analyzed, with specific influential groups identified within its composition, such as MykolaAzarov’s, AndriiKliuev’s, RinatAkhmetov’sDmytroFirtash’s and Victor Yanykovych’s clientele. The quotas of Litvin’s Block, Ukraine’s Communist Party and Russian lobbies have been distinguished. The responsible assignments in security ministries data has been generalized. The fact that Victor Yanukovych’s entourage had established full actual control over top officials of the Prosecutor General’s Office of Ukraine in the eve of the Presidential Elections 2010 decisive second ballot is emphasized. The Prosecutor General’s Office, Security Service, Foreign Intelligence, Border Police and National Security and Defense Council’s governing authorities personnel has been analyzed. Specific attention has been paid to AndriiPortnov’s role in implementing the judicial reform aimed at depriving the Ukrainian judiciary of any independence, with the Presidential Office, namely AndriiPortnov, gaining the decisive impact over its activities and preserving but formal procedures and formulas from the relatively autonomous judiciary built under Victor Yushchenko. The facts of placing pressure upon the judges voicing dissent over the reform have been revealed.

scholarly journals De Officio Praesidis – On the Service of the Administrator of a Province, With Special Emphasis on Judicial Activity / De Officio Praesidis - o službi upravnika provincije, sa posebnim osvrtom na sudbenu djelatnost

2015 ◽  
Vol 5 (5) ◽  
pp. 177
Author(s):  
Dževad Drino ◽  
Benjamina Londrc
Keyword(s):  
Bosnia And Herzegovina ◽  
Judicial Power ◽  
Latin Text ◽  
Text Corpus ◽  
Valuable Source ◽  
Topographical Distribution ◽  
Judicial Ruling ◽  
The Village ◽  
Judicial Role

Preserved terminational or border- writings from the area of today’s Bosnia and Herzegovina, point towards the judicial role of the administrator of the province in disputes about the borders of land, belonging to particular tribes and they most certainly represent a valuable source in tracing the topographical distribution of certain tribes, but also point towards the type of organisation and execution of judicial power in the provinces. Thus, from the writings on bedrock near the village of Vaganj (the municipality of Šipovo, near Jajce), we learn that the governor of the Dalmatia province, Lucius Camillus Scribonianus, during the reign of Emperor Claudius, authorised the centurion of the VII legion to mark the borders of the Sapuat and Lamatin tribes, which he did. The writings begin with the name of the governor of the province, so the judicial ruling was always made at his order or decree (ex decreto, ex iussu, ex sententialetc), according to Roman jurist Callistratus. Justinian’s Digesta in the first volume and XVIII titulus with 21 fragment and 11 paragraphs, based on the fragments from the works of some of the most significant Roman jurists: Ulpian, Paulus, Julius, Modestinus, Papinianus and others, along with other officials, also regulate the responsibilities of the governor of the province. The paper was based on the Latin text Corpus IurisCivilis, vol.1, 1st edition, 1872, edited by Theodorus Mommsen and XI edition, edited by Paulus Krueger, based on the Liber Florentinus and the translation into the Serbian language by AntunMalenica, PhD.

Markedness Universals and the Acquisition of Voicing Contrasts by Korean Speakers of English

1996 ◽  
Vol 18 (1) ◽  
pp. 69-90 ◽  
Author(s):  
Roy C. Major ◽  
Michael C. Faudree
Keyword(s):  
Native Speakers ◽  
Word List ◽  
Final Word ◽  
Natural Languages ◽  
Korean Speakers ◽  
L1 Acquisition

This study of five native speakers of Korean investigates the role of universals in their acquisition of English obstruent voicing contrasts. The data were gathered from a passage and a word list containing voiced and voiceless obstruents in initial, medial, and final word positions. Results reflected principles of markedness universals of L1 acquisition and adult natural languages, suggesting that interlanguage systems behave according to universals of natural languages.

Prejudice, Moral Progress, and Not Being on the Wrong Side of History

2020 ◽  
pp. 127-153
Author(s):  
Linda C. McClain
Keyword(s):  
White Supremacy ◽  
Well Being ◽  
Moral Progress ◽  
Constitutional Interpretation ◽  
Same Sex ◽  
Majority Opinion ◽  
Same Sex Couples ◽  
Wrong Side ◽  
The Supreme Court

This chapter argues that evaluating the arguments the parties made in Loving v. Virginia (1967), the iconic case in which the Supreme Court struck down Virginia’s anti-miscegenation law, aids in understanding puzzles about bigotry. Virginia attempted a modern, sociological defense of its racist law. Loving illustrates the role of generational moral progress in constitutional interpretation: laws justified by appeals to nature, God’s plan for the races, and children’s well-being were repudiated as rooted in racial prejudice, intolerance, and white supremacy. The chapter then considers Loving’s crucial (but contested) role in constitutional challenges to bars on same-sex marriage, first analyzing the successful challenge to Virginia’s defense of marriage law. It then analyzes the majority opinion in Obergefell v. Hodges, holding that same-sex couples have a fundamental right to marry; the dissenters argued Loving was inapt. The chapter concludes by discussing the role of moral progress and new insight in constitutional interpretation.

A Constitutional Tradition in the Making: The Presidents’ Cases and the Role of Kosovo’s Constitutional Court in the Process of Democratic Consolidation

ICL Journal ◽  
2013 ◽  
Vol 7 (1) ◽  
Author(s):  
Qerim Qerimi ◽  
Vigan Qorrolli
Keyword(s):  
Political Stability ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Political Landscape ◽  
First Case ◽  
Head Of State ◽  
Judicial Supremacy ◽  
The Republic ◽  
Constitutional Tradition

AbstractIn a period of less than a year, two decisions of the newly established Constitu­tional Court of the Republic of Kosovo resulted in the resignation of two Presidents of the new State. Ruling on the unconstitutionality of the act of simultaneously holding the position of the head of State and that of his political party, in one case; and ruling on the unconstitutionality of his election due to procedural irregularities in the other, the Court prompted fundamental changes to the political landscape of Kosovo that in the first case led to new and extraordinary elections, whereas in the second to a political arrangement that would ultimately lead to constitutional reforms. Following the Court’s decisions, both Presidents (Sejdiu and Pacolli) resigned from their posts.This article offers a textual analysis of the merits and controversies surrounding both decisions, which will be situated in the broader context of the seemingly powerful role of Constitutional Courts in certain societies in transition. The overall analysis demonstrates the weaknesses inherent to the initial stages of State formation, and to the foundational con­stitutional instrument, indicating the importance of the Constitution’s clarity for political stability. In an environment characterized by a dominant perception of a politicized judiciary, the Court’s decisions testify to the judicial activism of the Constitutional Court and, in terms of the substance and consequences of its key decisions, also to judicial supremacy. The Court’s decisions have also had some significance for testing the country’s political culture, a test that has been met in both cases eventually with compliance by those most affected.

Rethinking the Role of Judicial Independence in Socialist-Transforming East Asia

2007 ◽  
Vol 56 (4) ◽  
pp. 837-870 ◽  
Author(s):  
John Gillespie
Keyword(s):  
Political Influence ◽  
Judicial Independence ◽  
Judicial Power ◽  
International Agencies ◽  
Trade Offs ◽  
Political Patronage ◽  
Private Investors ◽  
Judicial Determinations ◽  
Discretionary Powers

AbstractThis article argues that judicial independence is a poor indicator of the capacity of courts effectively to resolve commercial disputes. Judicial power is a more accurate measure because it assesses whether courts have sufficient jurisdiction, discretionary authority and enforcement powers to make decisions over socially meaningful commercial problems. In fact, judicial independence may reduce the power of newly emerging commercial courts in socialist-transforming Asia, which need politics to protect them from interference by powerful governments and private investors. This article explores the trade-offs between judicial power and political patronage by inquiring into the circumstances where patronage may slide into interference. It also investigates the conditions in which judges are most likely to acquire or arrogate discretionary powers to understand politics on their terms. Finally, this article analyses the highly polarized views in this region about what constitutes valid judicial determinations. The message for international agencies contemplating judicial reforms is that reducing political influence and promoting law-based decisions will not uniformly generate popular support and legitimacy for courts.

The Human Right to Water in Latin America

2018 ◽  
Vol 3 (2) ◽  
pp. 1-94
Author(s):  
Anna Berti Suman
Keyword(s):  
Water Management ◽  
Latin American ◽  
Management Systems ◽  
Water Law ◽  
Human Right ◽  
The Social ◽  
Constitutional Evolution ◽  
The Right ◽  
The Impact

AbstractThis monograph investigates the development of the right to water (RtW) and of water law in the Latin American context. Specifically, it examines the significance of Latin American (la) constitutional evolution, doctrine, and jurisprudential contribution in stimulating the social, political, and economic debate on the RtW, regionally and worldwide. Firstly, an overview on the RtW inlaconstitutions is provided and the impact of the findings is highlighted. The mainlawater management systems are then reviewed with an acknowledgment that an analysis of the RtW has to take account of its application in specific contexts. The intrinsic connection between the RtW and the role of the private sector is examined through specific insights into the highly privatized Chilean water services. Lessons learnt from thelaexperience are outlined in the conclusion and their relevance for the global debate on the RtW is illustrated.

scholarly journals PERANAN PENASEHAT HUKUM DALAM MEWUJUDKAN KEADILAN

2018 ◽  
Vol 5 (2) ◽  
pp. 1
Author(s):  
Ahkam Jayadi
Keyword(s):  
Judicial Power ◽  
Public Understanding ◽  
Legal Assistance ◽  
Legal Problem ◽  
Judicial Process

Law No. 48 of 2009 concerning Judicial Power has affirmed that the judicial process is carried out based on principles, "justice" must be realized in every judge's decision because it is the mandate of God Almighty. One sub-system that plays a role in the handling of a crime starting from the investigation until the decision is made by the judge in court is an advocate (Law No. 18 of 2003 and Law No. 16 of 2011). Only unfortunately, the use of advocate services by the community that is involved with a legal problem has not been maximized. The causes include: lack of public understanding of advocate institutions, weak legal awareness of the community and the need for not a small amount of money in using the services of an advocate. For this reason, the implications of this study are that follow-up is needed to socialize the role of advocates and legal assistance in the community. Keywords: Advocates, courts, justice AbstrakUndang Undang No. 48 Tahun 2009 tentang Kekuasaan Kehakiman telah menegaskan bahwa proses peradilan di laksanakan berdasarkan prinsip, “keadilan” harus dapat diwujudkan di dalam setiap putusan hakim karena itu amanah Tuhan Yang Maha Esa. Salah satu sub sistem yang berperan di dalam penanganan sebuah tindak pidana mulai dari penyelidikan sampai dengan dijatuhkannya putusan oleh hakim di pengadilan  adalah advokat (UU No. 18 tahun 2003 dan UU No. 16 Tahun 2011). Hanya sayangnya, pemanfaatan jasa advokat oleh masyarakat yang tersangkut dengan sebuah masalah hukum belum maksimal. Penyebabnya antara lain: kurangnya pemahaman masyarakat tentang institusi advokat, kesadaran hukum masyarakat yang lemah dan dibutuhkannya biaya yang tidak sedikit dalam menggunakan jasa seorang advokat.  Untuk itu implikasi dari penelitian ini adalah, dibutuhkan tindak lanjut untuk mensosialisasikan peran advokat dan bantuan hukum  di tengah masyarakat.Kata Kunci : Advokat, pengadilan, keadilan

scholarly journals O Papel da Interpretação Constitucional na Jurisdição Constitucional Brasileira e no Judicial Review Norte-Americano: um Estudo Comparado

2012 ◽  
Vol 7 (1) ◽  
Author(s):  
Isabella Karla Lima dos Santos
Keyword(s):  
Judicial Review ◽  
Conceptual Analysis ◽  
Control Model ◽  
Fundamental Rights ◽  
Constitutional Interpretation ◽  
Constitutional Courts ◽  
Democratic State ◽  
The Will ◽  
Key Aspects

Resumo: Este trabalho busca analisar o instituto da Interpretação Constitucional no direito americano e brasileiro, de maneira comparada. Nosso objetivo é demonstrar as semelhanças e diferenças entre os dois países, no que diz respeito ao âmbito de incidência da interpretação constitucional e ao espaço de liberdade conferido ao intérprete judicial, bem como demonstrar a influência do modelo de controle de constitucionalidade norte-americano (difuso) sobre o brasileiro (misto). Para tanto, iremos fazer uma breve análise conceitual sobre aspectos fundamentais ao entendimento do tema deste trabalho e, em seguida, estudaremos os modelos de controle de constitucionalidade dos dois países de modo comparado, com ênfase no papel do intérprete constitucional e o seu âmbito de atuação dentro de cada modelo. Buscamos demonstrar que o fundamental não é o modo como se interpreta a Constituição, mas o resultado obtido, que deve ser sempre a efetivação dos direitos fundamentais. Tanto o Judiciário americano quanto o brasileiro recebem críticas quanto ao caráter contramajoritário de suas decisões, contudo, deixamos claro que um Estado Democrático de Direito se faz não só através do respeito à vontade da maioria, mas também quando há a concretização dos direitos fundamentais dos cidadãos por meio das decisões das Cortes Constitucionais. Palavras-chave: Direito Comparado; Jurisdição Constitucional; Judicial Review of Legislation; Interpretação Constitucional; Direitos Fundamentais. Abstract: This paper seeks to analyse the Constitutional Interpretation Institute in American and Brazilian Law, comparative way. Our goal is to demonstrate the similarities and differences between the two countries, with regard to the scope of constitutional interpretation and impact to the area of freedom conferred upon the court interpreter, as well as demonstrate the influence of constitutionality control model (diffuse) on the Brazilian (mixed). To this end, we will do a brief conceptual analysis on key aspects to understanding of the topic of this work and then we will study the models of judicial review of the two countries so compared with emphasis on the role of constitutional interpreter and its scope of action within each model. We seek to demonstrate that the key is not how to interpret the Constitution, but the results obtained, which should always be the practice of fundamental rights. Both the American and Brazilian Courts receive criticism about the against majority character of their decisions, however, we are clear that a democratic State of law is made not only by respecting the will of the majority, but also when there is the realization of the fundamental rights of citizens by means of decisions of Constitutional Courts. Keywords: Comparative Law; Constitutional Jurisdiction; Judicial Review of Legislation; Constitutional Interpretation; Fundamental Rights.

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