Comparative Law in the Supreme Court 2010-11

2012 ◽  
Vol 1 (2) ◽  
pp. 20-24 ◽  
Author(s):  
John Bell
Keyword(s):  
Supreme Court ◽  
Comparative Law ◽  
The Supreme Court

Comparative Law in the NJAC Judgment

2018 ◽  
pp. 197-207
Author(s):  
Suhrith Parthasarathy
Keyword(s):  
Supreme Court ◽  
Comparative Law ◽  
Judicial Independence ◽  
International Experience ◽  
Judicial Appointments ◽  
The Supreme Court

This essay is an overview of the use of comparative law in the NJAC Case, and offers a critique of the Supreme Court’s analysis of comparative law in judicial appointments. The essay argues that the Supreme Court adopted an isolationist approach by shunning international experience from fifteen countries cited before it by the Union of India to drive home the point that executive presence in judicial appointments does not, by itself, impinge upon judicial independence. The author contests the Supreme Court’s cursory dismissal of relevant international experience on the ground that India, with its peculiar set of circumstances cannot replicate the experiences of other nations in judicial appointments. The author argues that this is self-serving and the judgment would have been better served by a surer grasp of comparative law and its rationales.

scholarly journals O Supremo Tribunal Federal e o Argumento de Direito Constitucional Comparado: Uma Leitura Empírica a partir dos Casos de Liberdade de Expressão no Brasil / The Supreme Court and the Comparative Constitutional Law’s Argument: An Empirical Reading from the Cases of Freedom of Expression in Brasil

2016 ◽  
Author(s):  
Cecilia Caballero Lois ◽  
Gabriel Lima Marques
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Freedom Of Expression ◽  
Comparative Law ◽  
Constitutional Court ◽  
The Supreme Court ◽  
Cases Study ◽  
Qualitative Characteristics

Resumo: O presente artigo tem por escopo verificar empiricamente quais são as peculiaridades que envolvem o uso do argumento de direito constitucional comparado no Supremo Tribunal Federal. Para tanto, valendo-se da coleta de dados obtidos a partir de um estudo de casos pertencentes à jurisprudência do Supremo, nos quais a liberdade de expressão constava como matéria em debate, serão apresentadas as características quantitativas e qualitativas que permeiam tal práxis. A partir daí, consoante à leitura dos acórdãos e desempenhadas as devidas considerações com fulcro em instrumental bibliográfico específico, será traçado um perfil da corte constitucional brasileira no particular do mencionado exercício, onde serão por fim fornecidas as conclusões que apontam para um uso em geral, descontextualizado e carente de metodologiaPalavras-chave: Direito Constitucional; Direito Comparado; Suprema CorteAbstract: This article has for scope, verify empirically which are the peculiarities that involves the use of comparative constitutional law's argument in Brazilian Supreme Court. To achieve this, using a set of data obtained from a cases study that belongs to the jurisprudence of the Supreme Court, and in which ones the freedom of expression consisted as a matter for debate, will be presented the quantitative and qualitative characteristics that permeate this practice. From there, according with the reading of the judgments and performed the appropriate considerations with  fulcrum in a specific bibliographic instrumental, we will in the end, trace a profile of the Brazilian constitutional court in this sense, and present the findings that pointing to an use in general, decontextualized and with a lacking of methodology.Keywords: Constitutional Law; Comparative Law; Supreme Court

Interventions in Judicial Review Proceedings

2020 ◽  
pp. 75-80
Author(s):  
Nathalie Lieven
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Supreme Court ◽  
International Law ◽  
Judicial Review ◽  
Exponential Growth ◽  
Comparative Law ◽  
The Supreme Court ◽  
Human Rights Act ◽  
Judicial Proceedings

This chapter examines the growth and value of interventions in judicial proceedings. It argues the exponential growth in interventions is largely attributable not to the CPR, but the introduction of the Human Rights Act. The decision whether or not to allow an intervention, and then whether to give any weight to its content is wholly discretionary. Interventions are part of a wider trend to an increasingly inquisitorial jurisdiction, beyond the adversarial contest between the parties. Two reasons for the growth in interventions are courts’ willingness to take into account broader policy considerations in judicial review proceedings, and relatedly the willingness of the courts to hear international law and comparative law arguments and place weight on them. The Supreme Court, in particular, has encouraged interventions in recent years, and Baroness Hale has made clear in writing how useful she finds them. Although interveners are now subject to the risk of adverse costs orders under the Criminal Justice and Courts Act 2015 for interventions deemed to be unhelpful, to date these provisions do not appear to have been applied, which suggests that that this part of the Government’s efforts to discourage interveners has been unsuccessful.

Judicial Review of the Legislative Process

2006 ◽  
Vol 39 (2) ◽  
pp. 182-247 ◽  
Author(s):  
Suzie Navot
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Due Process ◽  
Comparative Law ◽  
Legislative Process ◽  
Basic Rights ◽  
Legislative Procedures ◽  
The Supreme Court ◽  
Israeli Supreme Court ◽  
The Relationship

Should the process by which laws are enacted affect their legislative validity? This Article attempts to provide a justification for judicial review of the legislative process and suggests that the court should encourage legislative due process. Lawmaking means responsible lawmaking, and the court should thus be able to ensure a minimal due process of lawmaking by reviewing the legislative process. To date the Israeli Supreme Court has refrained from judicial review of Knesset legislation by virtue of flaws in the legislative process. Recently however, Supreme Court judgments seem to have endorsed a form of judicial review of the legislative process, at least de jure. This Article presents the theoretical and comparative frameworks for judicial review of the legislative process and scrutinizes the law in those countries that conduct judicial review of procedurally defective laws together with an examination of the particular features of the rules governing such review. In comparative law, the characteristics of judicial review of the legislative procedures are similar to those manifested in the question of judicial review of legislation, and based on the same premises. In Israel as well, judicial review of legislation is based on the existence of a supreme constitutional norm, of basic rights and fundamental principles. The Article concludes by proposing that the main characteristics of judicial review: constitutionality, proportionality, and restraint should dictate the relationship between the Supreme Court and the Parliament in all aspects of judicial review.

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