Judicial and Prosecutorial Independence and the Rule of Law
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The Normative Cycle of Shaping Judicial Independence in Domestic
Chicago Journal of International Law Volume 10 Number 1 Article 13 6-1-2009 The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges Shimon Shetreet Follow this and additional works at: https://chicagounbound.uchicago.edu/cjil Recommended Citation Shetreet, Shimon (2009) "The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges," Chicago Journal of International Law: Vol. 10: No. 1, Article 13. Available at: https://chicagounbound.uchicago.edu/cjil/vol10/iss1/13 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in Chicago Journal of International Law by an authorized editor of Chicago Unbound. For more information, please contact [email protected]. The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges Shimon Shetreet* I. INTRODUCTION The creation of the culture of judicial independence has been a combined process of national and international developments. The process consists of a cycle of normative and conceptual impact of national law on international law and later, of international law on national law. In the cycle's first phase, which began in 1701 with England's enactment of the Act of Settlement,' judicial independence was conceived domestically. In the second phase, which began shortly thereafter, this domestic development crossed national boundaries and impacted the thinking of scholars and political leaders in the international community. -
Chinese Communist Law: Its Background and Development
Michigan Law Review Volume 60 Issue 4 1962 Chinese Communist Law: Its Background and Development Luke T. Lee Research Fellow in Chinese Law at Harvard University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Comparative and Foreign Law Commons, Law and Philosophy Commons, Legal Education Commons, Legal History Commons, and the Legal Profession Commons Recommended Citation Luke T. Lee, Chinese Communist Law: Its Background and Development, 60 MICH. L. REV. 439 (1962). Available at: https://repository.law.umich.edu/mlr/vol60/iss4/3 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. CHINESE COMMUNIST LAW: ITS BACKGROUND AND DEVELOPMENTt Luke T. Lee* I. INTRODUCTION T is perhaps axiomatic to state that law is more than an instru I ment for the settlement of disputes and punishment of wrong doers; it is, more importantly, a reflection of the way of life and the philosophy of the people that live under it. Self-evident though the above may be, it bears repeating here, for there is a much greater need for understanding Chinese law now than ever before. China's growing ideological, political, economic, and military impact on the rest of the world would alone serve as a powerful motivation for the study of its law. Certainly, we could not even begin to understand China's foreign policies, its future role in international organizations, its treatment of foreign rights and interests in China, and, above all, the acceptability of the Com munist regime to the Chinese people, without some knowledge of its legal system and its concepts of justice and law, both domestic and international. -
The Rule of Law and Judicial Independence: Protecting Core Values in Times of Change
THE RULE OF LAW AND JUDICIAL INDEPENDENCE: PROTECTING CORE VALUES IN TIMES OF CHANGE Antonio Lamer' I. Introduction For many, Ivan C. Rand is a name from the past. For me, he is far more than that. When I was called to the Bar of Québec in 1957, Ivan Rand was still a member of the Supreme Court of Canada. The contribution that Ivan Rand made to this country remains significant even after his untimely death in 1969. The Rand formula remains a part of our labour law lexicon. The many thoughtful articles that he contributed to legal journals over the course of his career, as a practitioner, as a judge, and finally as a legal academic, continue to stimulate and to enlighten us. Most importantly the judgments that he wrote, particularly in the area of constitutional law, still provide us with inspiration and guidance as we face the challenges that confront our legal system, particularly those posed by the Charter. In fact, it is a rare decision of the Supreme Court of Canada that deals with one of the fundamental freedoms in the Charter for the first time and does not invoke a passage from one of Justice Rand’s memorable decisions from the 1950s, such as Boucher v. R.,1 Saumur v. Québec (City of),2 or Switzman v. Elbling.3 What makes the decisions of Justice Rand such useful sources of guidance on the interpretation and application of the fundamental freedoms of the Charter is that, unlike most Canadian judges prior to the advent of the Charter, Justice Rand recognized the importance of analyzing issues of constitutional policy in terms of the fundamental or core values of our system of government. -
Why Judicial Independence Fails
Copyright 2021 by Aziz Z. Huq Printed in U.S.A. Vol. 115, No. 4 WHY JUDICIAL INDEPENDENCE FAILS Aziz Z. Huq ABSTRACT—Judicial independence seems under siege. President Trump condemns federal courts for their political bias; his erstwhile presidential opponents mull various court-packing plans; and courts, in turn, are lambasted for abandoning a long-held constitutional convention against institutional manipulation. At the same time, across varied lines of jurisprudence, the Roberts Court evinces a deep worry about judicial independence. This preoccupation with threats to judicial independence infuses recent opinions on administrative deference, bankruptcy, patent adjudication, and jurisdiction-stripping. Yet the Court has not offered a single, overarching definition of what it means by the term “judicial independence.” Nor has it explained how its disjointed doctrinal interventions add up to a coherent theory of institutional autonomy. And it remains unclear how debates on judicial independence among jurists relate to debates about the same term in the larger public sphere. This Article’s first contribution is to analyze how the Roberts Court understands the term judicial independence and how its doctrinal rules fall far short of realizing even the aspirations the Court has for that term. This case study in doctrinal specification illuminates the gap between the Justices’ own ethical aspiration toward judicial independence and its institutional realization—a gap that generates confusion, uncertainty, and opportunities for circumvention. This Article then abstracts away from the particulars of the Roberts Court’s jurisprudence to explore the origins of this aspiration– implementation gap. To motivate this more general analysis, it first demonstrates that there is a large range of constitutional-design options for a founder seeking to create independent courts. -
The Rule of Law, the Separation of Powers and Judicial Independence in Canada
Chapter 48 The Rule of Law, the Separation of Powers and Judicial Independence in Canada Warren J. Newman* The Constitution of Canada was modelled on the British tradition of unwritten principles and conventions governing the exercise of legal power to produce a constitutional mon- archy, parliamentary democracy, and responsible government, as well as the American paradigm of constitutional supremacy embodied in written provisions, required in turn by the federal rather than unitary structure of the state. This hybrid model is reflected in the Canadian understanding of the rule of law, which is embodied implicitly in the preamble to the Constitution Act, 1867— Canada was to enjoy ‘a Constitution simi- lar in Principle to that of the United Kingdom’—and explicitly in the preamble to the Canadian Charter of Rights and Freedoms (itself a part of the Constitution Act, 1982)— ‘Whereas Canada is founded upon principles which recognize the supremacy of God and the rule of law’. The idea of the rule of law is also intrinsic to provisions such as section 7 of the Charter, guaranteeing the right to life, liberty, and security of the per- son and the right not to be deprived thereof ‘except in accordance with the principles of fundamental justice’; section 15, protecting and expanding upon Dicey’s1 understanding * BA, BCL, LL.B (McGill), LL.M (Osgoode), Ad E; of the Bars of Quebec and Ontario; Senior General Counsel, Constitutional, Administrative and International Law Section, Department of Justice of Canada. The views expressed in this chapter do not bind the Department. 1 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. -
Bureaucracy and Law a Study of Chinese Criminal Courts and Social Media
BUREAUCRACY AND LAW A STUDY OF CHINESE CRIMINAL COURTS AND SOCIAL MEDIA A dissertation presented by Yu Zhang to The School of Criminology and Criminal Justice In partial fulfillment of the requirements for the degree of Doctor of Philosophy in the field of Criminology and Criminal Justice Northeastern University Boston, Massachusetts August, 2014 1 BUREAUCRACY AND LAW A STUDY OF CHINESE CRIMINAL COURTS AND SOCIAL MEDIA by Yu Zhang ABSTRACT OF DISSERTATION Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Criminology and Justice Policy in the College of Social Sciences and Humanities of Northeastern University August, 2014 2 Abstract Born in a firmly-rooted bureaucratic society, Chinese judiciary has never gained the opportunity to build its own identity. Concurrently, Chinese people, immersed in a bureaucratic culture, always pin their dream of justice on a powerful bureaucracy rather on a weak judiciary. The current study discusses the thousands years of Chinese history and the significant impact of bureaucracy on Chinese society and courts, and then look into the potential change in a global era revolutionized with technology and internet. A story-telling mode is used to analyze eleven important criminal cases to disclose the operations of criminal courts in China. Large amount of social media data are presented to showcase the dynamic legal community and online activism. We do not know exactly the impact of government monitoring of the social media and it is an open question. Chinese online legal activism derives its methods and vitality from multiple and intersecting forces, including the particular internet transmitting formats, actual contemporary protest forms, incipient public space promotion. -
Preserving a Fair, Impartial and Independent Judiciary
Preserving a Fair, Impartial and Independent Judiciary A white paper prepared by the Judicial Independence Committee of the American Board of Trial Advocates Inside: 3 Introduction 4 Historical Background 7 Jury Trials and Judicial Independence 8 Political Interference and Intimidation 2001 Bryan St., Suite 3000 10 The Skyrocketing Costs of Judicial Elections Dallas, Texas 75201 14 Judicial Independence Maintained Through Adequate Funding www.abota.org 15 White Paper Conclusion Founded in 1958, ABOTA is a national association of experienced trial lawyers and judges. ABOTA and its members are dedicated to the preservation and promotion of the civil jury trial right provided by the Seventh Amendment to the U.S. Constitution. The Foundation of ABOTA is an affiliated charitable entity, the mission of which is to support the purposes of ABOTA through education and research. ABOTA membership consists of more than 7,000 lawyers and judges spread among 97 Chapters in all 50 States and the District of Columbia. ABOTA publishes VOIR DIRE magazine, which features in-depth articles on current and historical issues related to constitutional rights, in particular the Seventh Amendment right to trial by jury. ©2013 by the American Board of Trial Advocates 2001 Bryan St., Suite 3000, Dallas, Texas 75201 All rights reserved. No part of this product may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system, without the express written permission of ABOTA unless such copying is expressly permitted by federal copyright law. 2 Produced in the United States of America Preserving a Fair, Impartial and Independent Judiciary Introduction eginning with the Declaration of Independence and culminating in the Constitution and Bill of Rights, the Founders of our nation adhered to a steadfast dedication to the rule of law. -
Separation of Powers and Independence of Constitutional Courts and Equivalent Bodies” Rio De Janeiro, 16-18 January 2011
2nd Congress of the World Conference on Constitutional Justice “Separation of Powers and Independence of Constitutional Courts and Equivalent Bodies” Rio de Janeiro, 16-18 January 2011 "Separation of Powers and Independence of the Constitutional Court of the Republic of Latvia" Laila Jurcena Adviser to the President of the Constitutional Court of the Republic of Latvia [1] Role of the Principle of Separation of Powers in Independence of the Court and the Judges. The Latvian View. The principle of separation of powers plays a substantial role in a democratic state because it not only restricts discretion of the state power but also facilitates ensuring rights and freedoms of persons. This principle functions as a balance between branches of power by giving a possibility to one branch of power to restrict other branches of power in accordance with the authority conferred by the Constitution. Regardless the precise definition of authority of each branch of power established in the Constitution, a democratic state cannot be imagined without an institution that exercises constitutional review disregarding the fact whether it belongs to the judicial power or does not fall under the system of division of power. According to Article 85 of the Constitution of the Republic of Latvia, this function in Latvia is exercised by the Constitutional Court, an institution belonging to the judicial power. The Constitutional Court can exercise constitutional review, namely, it can carry out its function of safeguarding the respect for the constitution and protecting human rights if it is genuinely independent from branches of power and institutions, the activates of which it controls. -
JUDICIAL INDEPENDENCE AS an ESSENTIAL ASPECT of the RULE of LAW1 Thomas S
Thomas S. Masuku J 3 JUDICIAL INDEPENDENCE AS AN ESSENTIAL ASPECT OF THE RULE OF LAW1 Thomas S. Masuku J2 The Importance of Judicial Gatherings to Advocate for Judicial Independence and the Rule of Law The independent judiciary and the rule of law is a modern “gospel” that should be spread across the continent. Vast amounts of money and time is spent for the political elites across Africa to come together and discuss these issues. This practice leads to a recurring question. Why should we meet and expend money only to preach, as it were, to the converted? Would it not be better and more beneficial for the political elites to leave the comfort and serenity of air-conditioned and beautifully adorned venues and instead go to the highways and by-ways of this region. They could look for the “heathen” so to speak, in order to preach the “gospel” or good tidings related to the independence of the judiciary and the rule of law. This premise is based on an assumption that the judiciary acts in a way separate from the other members of the trias politica, namely members of the executive and legislative organs of State. These two “usual suspects” have become notorious for continuously violating the twin core principles of an independent judiciary and the rule of law. Additionally, there may be other constituencies who have joined the bandwagon in this regard, including some captains of business and other people with financial and political muscle and prowess or those who have untrammelled access to political influence in various countries. -
Protecting the Supreme Court: Why Safeguarding the Judiciary’S Independence Is Crucial to Maintaining Its Legitimacy
Protecting the Supreme Court: Why Safeguarding the Judiciary’s Independence is Crucial to Maintaining its Legitimacy Democracy and the Constitution Clinic Fordham University School of Law Isabella Abelite, Evelyn Michalos, & John Roque January 2021 Protecting the Supreme Court: Why Safeguarding the Judiciary’s Independence is Crucial to Maintaining its Legitimacy Democracy and the Constitution Clinic Fordham University School of Law Isabella Abelite, Evelyn Michalos, & John Roque January 2021 This report was researched and written during the 2019-2020 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, where students developed non-partisan recommendations to strengthen the nation’s institutions and its democracy. The clinic was supervised by Professor and Dean Emeritus John D. Feerick and Visiting Clinical Professor John Rogan. Acknowledgments: We are grateful to the individuals who generously took time to share their general views and knowledge with us: Roy E. Brownell, Esq., Professor James J. Brudney, Christopher Cuomo, Esq., Professor Bruce A. Green, and the Honorable Robert A. Katzmann. The report greatly benefited from Gail McDonald’s research guidance and Stephanie Salomon’s editing assistance. Judith Rew and Robert Yasharian designed the report. Table of Contents Executive Summary .....................................................................................................................................1 Introduction .....................................................................................................................................................4 -
JUDICIAL INDEPENDENCE: Promoting Justice and Maintaining Democracy
JUDICIAL INDEPENDENCE: Promoting Justice and Maintaining Democracy August 2019 BOSTON BAR ASSOCIATION JUDICIAL INDEPENDENCE WORKING GROUP Renée Landers (Co-Chair) is a Professor of Law and Faculty Director of the Health and Biomedical Law Concentration at Suffolk University Law School. She is a former BBA President and served as Vice Chair of the Commission on Judicial Conduct. She also sat on the task force that drafted the revised Massachusetts Code of Judicial Conduct and currently is a member of the Committee on Judicial Ethics which advises judges on compliance with the Code. Lisa Goodheart (Co-Chair) is a partner at Sugarman, Rogers, Barshak & Cohen, P.C., where her litigation practice includes environmental, energy, land use, real estate, insurance, and business matters. In addition to being a former President of both the BBA and the BBF, Lisa has served as Chair of both the Judicial Nominating Commission and the Court Management Advisory Board. Jon Albano (Boston Bar Association President) is a partner at Morgan Lewis, where he focuses his practice on trial and appellate work in commercial, media, and First Amendment matters. Before becoming BBA President, Jon co-chaired the Civil Rights and Civil Liberties Steering Committee. Hon. Robert Cordy (Ret.) was appointed to the Supreme Judicial Court in 2001 and served for 16 years as associate justice. Currently, as partner at McDermott, Will & Emery, he focuses his practice on white- collar defense, internal investigations, and appellate work. For the last 18 years he has worked with judiciaries from around the world on furthering rule of law principles, adversarial justice and judicial independence. -
On the Organisation of the Ordinarycourts
Strasbourg, 20 November 2017 CDL-REF(2017)046 Opinion n° 904 /2017 Or.ang. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) POLAND ACT (*) ON THE ORGANISATION OF THE ORDINARYCOURTS ________________ (*) Translation provided by the Polish authorities Ce document ne sera pas distribué en réunion. Prière de vous munir de cet exemplaire. www.venice.coe.int CDL-REF(2017)046 - 2 - Dz.U.2016.2062 2017.01.01 amended by Dz.U.2016.2261 Article 111 2017.01.06 amended by Dz.U.2016.2103 Article 1 2017.03.01 amended by Dz.U.2016.1948 Article 62 2017.05.04 amended by Dz.U.2017.803 Article 1 2017.06.21 amended by Dz.U.2017.1139 Article 2 2017.08.12 amended by Dz.U.2017.1452 Article 1 ACT of 27 July 2001 LAW ON THE ORGANISATION OF COMMON COURTS (uniform text) PART I Common Courts Chapter 1 General Provisions Article 1. § 1. Common courts include district courts, regional courts, and courts of appeal. § 2. Common courts administer justice within the scope beyond the authority of administrative courts, military courts, and the Supreme Court. § 3. Common courts also perform other tasks within the scope of legal protection, entrusted thereto by way of acts or by international law that binds the Republic of Poland, or law enacted by an international organisation if the agreement which binds the Republic of Poland states that it is to be applied directly. § 4. Whenever a reference to courts is made herein, without any more detailed specification, such reference means common courts. Article 2.