Judicial Agency and Legal Means in Judicialization of Politics

Law’s autonomy from politics has been in decline. Theories have been formulated to provide explanations for the development. However, these debates have overlooked the role of judicial agency in the construction of the Court’s own fate. Judicial agency has a lot to determine when courts embark on their mission of embracing political circumstances surrounding them. The present paper argues that insistence on neutral principles by Legal Process School can be guiding for courts to devise judicial techniques that enable warranted appearance of neutrality. Two cases decided by the Israeli Supreme Court will be discussed to elaborate on the argument defended in the paper. In these cases, the Israeli Supreme Court constructs its institutional security by engaging in a principled line of reasoning across its evolving jurisprudence on the same political issue, namely by first exhausting more solid legal arguments and imposing conclusive constitutional resolutions once these less controversial decisions are implemented.

Ignoring Implementation: Defects in Canada’s “Rape Shield” Policy Cycle

This article employs a “policy cycle” framework to explore Bill C-51, legislation which contains Canada’s latest amendments to the “rape shield.” Through an in-depth evaluation of earlier rape shield reforms, as well as a content analysis of the legislative proceedings of Bill C-51, this paper reveals that, while the impetus for introducing rape shield legislation is to protect the equality and privacy rights of sexual assault complainants, the legislative process of these “policy cycles” focuses disproportionately on remedying due process concerns and less on the problems that arise in judicial implementation of the provisions. We situate this finding within the larger trend towards the “judicialization of politics,” and trace some of the institutional and structural obstacles that impede Parliamentarians from more effectively legislating to improve sexual assault trials for complainants.