Reappraising judicial supremacy in the Irish constitutional tradition

2017 ◽  
Author(s):  
Eoin Daly
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Democratic Citizenship ◽  
Strong Form ◽  
Political Life ◽  
Individual Freedom ◽  
Irish Context ◽  
Judicial Supremacy ◽  
Rights Discourse ◽  
Constitutional Tradition

In his chapter, Eoin Daly casts a sceptical eye on judicial supremacy. Daly argues that the doctrine goes almost unquestioned in Irish constitutional scholarship (and practice) and that its value and potential is vastly overstated, while its costs – particularly its tendency to stultify rights-discourse in the sphere of ordinary politics – go largely under-appreciated. consider how various familiar, principled objections to strong-form judicial review, of the sort typically aired in other Anglophone jurisdictions, may be borne out in the Irish context. Two arguments in particular are salient in the Irish experience. First, the understanding of strong-form judicial review as being ‘good for rights’ conceives of rights narrowly, ignoring the connection between individual freedom and citizenship, and overlooking problems of domination in social and political life. Secondly, rights-based review of legislation undermines democratic citizenship in the Irish context, not because it undermines majority decision-making as such, but rather, because it has meant that ever-increasing areas of political argument are framed in esoteric constitutional terms.

Women in Power and Decision making Positions : Conditions and Restraints

1970 ◽  
pp. 53-57
Author(s):  
Azza Charara Baydoun
Keyword(s):  
Decision Making ◽  
Political Participation ◽  
Political Life ◽  
The Political ◽  
Decision Making Process ◽  
Power Structures ◽  
Policies And Procedures ◽  
The Social ◽  
The Status ◽  
Slow Progress

Women today are considered to be outside the political and administrative power structures and their participation in the decision-making process is non-existent. As far as their participation in the political life is concerned they are still on the margins. The existence of patriarchal society in Lebanon as well as the absence of governmental policies and procedures that aim at helping women and enhancing their political participation has made it very difficult for women to be accepted as leaders and to be granted votes in elections (UNIFEM, 2002).This above quote is taken from a report that was prepared to assess the progress made regarding the status of Lebanese women both on the social and governmental levels in light of the Beijing Platform for Action – the name given to the provisions of the Fourth Conference on Women held in Beijing in 1995. The above quote describes the slow progress achieved by Lebanese women in view of the ambitious goal that requires that the proportion of women occupying administrative or political positions in Lebanon should reach 30 percent of thetotal by the year 2005!

Men and citizens in international relations

1981 ◽  
Vol 7 (1) ◽  
pp. 23-37 ◽  
Author(s):  
Andrew Linklater
Keyword(s):  
International Relations ◽  
Public Institutions ◽  
Political Life ◽  
Significant Advance ◽  
Modern World ◽  
Individual Freedom ◽  
Positive Aspect ◽  
Human Equality ◽  
Public World ◽  
The Right

Since Rousseau political theorists have had frequent recourse to a contrast between the fragmented nature of modern social and political life and the allegedly communitarian character of the Greek polis. At the heart of this opposition was the belief that the polis represented a condition of unsurpassable harmony in which citizens identified freely and spontaneously with their public institutions. Unlike their ancient counterparts, modern citizens exhibited less identification with their public world than resolution to advance their separate individual interests and pursue their private conceptions of the good. Nevertheless, the disintegration of the polis was not depicted in the language of unqualified loss. History had not been simply an unmitigated fall, because the individual's claim to scrutinize the law of the polis on rational grounds involved a significant advance in man's self-consciousness. The positive aspect of its decline was man's transcendence of a parochial culture in which neither the right of individual freedom nor the principle of human equality had been recognized. If the modern world had lost the spontaneous form of community enjoyed by the ancients, it surpassed that world in its understanding and expression of freedom.

scholarly journals Hukum Internasional sebagai Alat Interpretasi dalam Pengujian Undang-Undang

2018 ◽  
Vol 15 (1) ◽  
pp. 73
Author(s):  
Umbu Rauta ◽  
Ninon Melatyugra
Keyword(s):  
Human Rights ◽  
International Law ◽  
Judicial Review ◽  
Review Process ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Republic ◽  
Constitutional Tradition ◽  
The Relationship

Tulisan ini ingin menjawab dua isu utama mengenai hubungan hukum internasional dan pengujian undang-undang oleh Mahkamah Konstitusi RI (MKRI). Isu pertama adalah legitimasi penggunaan hukum internasional sebagai alat interpretasi dalam pengujian undang-undang, sedangkan isu kedua adalah urgensi penguasaan hukum internasional oleh hakim MKRI. Tulisan ini merupakan penelitian hukum yang menggunakan pendekatan konseptual dan pendekatan historis dalam menjelaskan perkembangan pengujian undang-undang di Indonesia sekaligus menemukan legitimasi penggunaan hukum internasional oleh MK RI. Kesimpulan dari tulisan ini menegaskan bahwa hukum internasional memiliki sumbangsih yang penting dalam perannya sebagai alat interpretasi dalam proses pengujian undang-undang oleh Mahkamah Konstitusi, khususnya terkait hak asasi manusia. Justifikasi keabsahan praktik penggunaan hukum internasional tersebut ditarik dari tradisi ketatanegaraan yang secara implisit dikehendaki UUD NRI Tahun 1945. Manfaat positif yang diberikan hukum internasional nyatanya harus disertai juga dengan penguasaan hukum internasional oleh hakim MK RI supaya hukum internasional dapat digunakan secara tepat. Pembahasan dalam tulisan ini dibagi ke dalam empat sub bahasan inti yakni, pengujian undang-undang, penggunaan hukum internasional sebagai the interpretative tool dalam pengujian undang-undang oleh MK, legitimasi penggunaan hukum internasional sebagai the interpretative tool dalam pengujian undang-undang, pentingnya penguasaan hukum internasional oleh hakim MK.This article intentionally answers two principal issues regarding the relationship between international law and judicial review by the Constitutional Court of the Republic of Indonesia. The first issue is the legitimacy of international use as an interpretative tool in judicial review. The second issue talks about the necessity of urgent international law mastery by the Constitutional Court’s judges. This legal research utilizes both a conceptual approach and a historical approach to explain the development of judicial review in Indonesia, and to find legitimacy of international law by the Constitutional Court. The analysis in this article affirms that international law positively contributes as an interpretative tool in judicial review by the Constitutional Court, particularly pertaining to human rights. A justification of a legitimate international law use is withdrawn from constitutional tradition which is implicitly desired by the Indonesian Constitution (UUD NRI 1945). Since international law has provided better insights into norms, a mastery of international law should be encouraged. There are four main discussions in this article: judicial review, application of international law in judicial review process, legitimacy of international law application in judicial review, and the importance of international law mastering by Constitutional Court judges.

scholarly journals Alternative Dispute Resolution: Use and Abuse of Information and Specialized Knowledge

1995 ◽  
Vol 33 (2) ◽  
pp. 301
Author(s):  
Judith A. Snider ◽  
C. Kemm Yates
Keyword(s):  
Decision Making ◽  
Dispute Resolution ◽  
Judicial Review ◽  
Alternative Dispute Resolution ◽  
Specialized Knowledge ◽  
Natural Justice ◽  
The Subject ◽  
The Relationship

The authors examine the subject of Alternative Dispute Resolution ("ADR") with a focus on the issue of specialized knowledge and its use in two particular spheres of ADR: regulatory tribunals and arbitration. The authors define "specialized knowledge" and compare it to the concept of evidence in order to determine whether it is evidence which can be relied upon by regulators and arbitrators in the context of their ADR decision-making. The relationship between specialized knowledge and the rules of natural justice is explored — in particular, the audi alteram pattern rule and the rule against bias. The authors conclude by suggesting guidelines to be used by arbitrators and regulatory tribunals in adjudicating on matters before them in order to avoid challenges, by judicial review, to their decisions on the basis of misuse or "abuse" of their specialized knowledge.

Internal review systems and administrative justice

2021 ◽  
Author(s):  
Tom Mullen
Keyword(s):  
Decision Making ◽  
Public Administration ◽  
Judicial Review ◽  
Cost Effective ◽  
Administrative Organization ◽  
Initial Decision ◽  
Internal Review ◽  
Administrative Justice

Internal review is a process whereby an administrative organization reconsiders its own decisions. The rationales typically offered for internal review are that it provides a means of challenging administrative decisions which is more accessible, quicker, and more cost-effective than external remedies such as appeals to tribunal and judicial review, and encourages improvement in the quality of initial decision-making in public administration. This chapter reviews the use made of internal review and evaluates the performance of several existing systems of internal review, concluding that they have failed to deliver the benefits claimed for them. Possible reasons for this failure are discussed and suggestions made as to what is required for internal review systems to achieve the aims to providing effective remedies for bad decisions and to contributing to improving initial decision-making.

The State

2021 ◽  
pp. 187-213
Author(s):  
Dan Taylor
Keyword(s):  
Social Cohesion ◽  
Free Speech ◽  
The State ◽  
Political Life ◽  
Primary Role ◽  
Individual Freedom ◽  
Mutual Assistance ◽  
Role Of The State ◽  
Reduced Scale

Chapter 7 turns to the state, and Spinoza’s ideas in the TP about the role of the state in establishing the conditions for peace, piety and mutual assistance. Does Spinoza champion a proto-liberal sovereignty of reduced scale, founded in deliberation, toleration and free speech, or should the state actively intervene in the lives of its subjects? If he seems to emphasise both, why, and are the two compatible? What late and new role does the multitude play in the establishment and maintenance of social cohesion? The TP itself has been under-appreciated in providing a deeper exposition of the pre-eminence of the affects to political life. Here the multitude appear on stage, and their common feelings and desires take a primary role in the freedom and security of the state. The chapter identifies Spinoza’s aim in this late, unfinished work as one to describe a reasonable republic, that is, an optimum state whose foundation and laws are strictly, scientifically reasonable. I then critically assess Spinoza’s attempt to load the burden of becoming freer onto the state itself, resulting in some potentially unresolvable paradoxes for individual freedom

Institutional Structures

2021 ◽  
pp. 32-64
Author(s):  
Paul Daly
Keyword(s):  
Decision Making ◽  
Decision Maker ◽  
Judicial Review ◽  
Decision Makers ◽  
Administrative Action ◽  
Institutional Structures ◽  
General Aspects ◽  
Individual Self ◽  
Personal Interests ◽  
Or History

This chapter is concerned with the structure of administrative decision-making institutions. Two general aspects of this important topic are particularly relevant to the law of judicial review of administrative action. First, the no-bias principle ensures that decision-making is impartial, by preventing decision-makers from acting where their personal interests, conduct or history could conceivably raise a concern about their ability to make a dispassionate decision on the merits. Second, the principle that a decision-maker must retain their discretion prevents decision-makers from delegating their powers (subject to an exception in the case of government ministers) and limits the scope for the development of policies about how discretionary powers will be exercised in the future. These principles can be understood as being structured by the values of individual self-realisation, good administration, electoral legitimacy and decisional autonomy.

Constitutionalism, Liberalism, and Democracy

2021 ◽  
pp. 35-53
Author(s):  
Andrei Marmor
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
The Political ◽  
Constitutional Courts ◽  
Liberal Politics ◽  
Similar Tendency ◽  
External Threats ◽  
The People ◽  
Democratic System ◽  
Constitutional Judicial Review

This chapter describes the tension between democratic decision-making procedures and constitutional judicial review. It shows that the liberal values that justify a democratic self-government may also vindicate some limits on majoritarian decision-making procedures, but not necessarily in the form of the current constitutional regimes. The chapter argues that constitutional courts are not a necessary feature of a liberal regime. It also acknowledges that democratic decision-making has many defects. These defects concern the fate of persistent vulnerable minorities, the tendency towards short-sightedness, a similar tendency to downplay people's rights and liberties for the sake of greater economic gains or in the force of external threats, and finally the dangers of populism and anti-liberal politics gaining ground within a democratic system. The chapter then depicts courts as essentially conservative institutions which are not — and cannot be — as counter-majoritarian as depicted by legal scholars, mainly because their legitimacy and the acceptance of their decisions depends on the people. It contends that the acceptance and efficacy of judicial review is context dependent, but that some fights still need to be fought in the political, not the legal arena.

13. The nature of judicial review

2020 ◽  
pp. 277-308
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision ◽  
Public Bodies

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. Emphasis is also placed on the fact that the jurisdiction exists to control the exercise of power by public bodies. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is outlined.

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