This paper investigates the Turkish Constitutional Court (TCC)’s treatment of legal challenges brought against Turkey’s legal responses to the COVID-19 pandemic. Drawing on a detailed examination of the TCC’s institutional features, political origins and jurisprudential trajectory, and taking three politically salient judgments of the TCC concerning Turkey’s executive-dominated pandemic control as the point of departure, the paper argues that the TCC chose to exercise judicial restraint both in protecting fundamental rights and reviewing pandemic policies of the executive. It also (...) argues that the TCC’s judicial restraint during the pandemic was simply the re-manifestation of its ‘play-it-safe’ strategy — a judicial stance the TCC willingly adopted in the aftermath of the 2016 attempted coup despite possessing strong constitutional powers of judicial review, and its established attitude of assertive scrutiny in the past. From a more theoretical perspective, the analysis also explores how the passive role to which the TCC is consigned in an increasingly authoritarian regime since the 2016 failed coup relates to the global phenomenon of judicialization of authoritarian politics. (shrink)

Ending the influence which politicalparties exercised over judicial appointmentswas a prominent aim of the project of reformingthe Belgian criminal justice system in the1990s. However, focusing on various highprofile scandals affecting public confidence inthe judiciary, this paper questions whether thepolitical nature of the judiciary is capable ofbeing eradicated. Drawing on the work ofChantal Mouffe, this analysis starts with aconsideration of the discursive element inpolitical identity, which is furthercorroborated by the semiotics of Saussure andGreimas. Applying this perspective to theBelgian situation in (...) the 1990s, it is arguedthat a redefinition of politics in terms of an``us/them'' divide between citizens andinstitutions took place. In this process,judges were targeted as part of theestablishment and cast as the constitutiveoutside buttressing the collectiveidentification between the media, victims ofcrime and the general public. In explaining theinstitutional gap, individual traits of judgesconstituted a significant focus, as can beshown through the extraordinary visibility ofone judge who courted media attention when hewas tried for sadomasochistic activities in1997. (shrink)

The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all (...) judicial decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from theprima facieinterpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies. (shrink)

The term “judicial restraint,” applied to courts engaged in judicial constitutional review, may refer to any one or more of three possible postures of such courts, which we here will distinguish as “quiescent,” “tolerant,” and “weak-form.” A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution’s name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonable sustainable, even though it independently (...) would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs. (shrink)

Judicial independence is generally understood as requiring that judges must be insulated from political life. The central claim of this work is that far from standing apart from the political realm, judicial independence is a product of it. It is defined and protected through interactions between judges and politicians. In short, judicial independence is a political achievement. This is the main conclusion of a three-year research project on the major changes introduced by the Constitutional Reform Act 2005, (...) and the consequences for judicial independence and accountability. The authors interviewed over 150 judges, politicians, civil servants and practitioners to understand the day-to-day processes of negotiation and interaction between politicians and judges. They conclude that the greatest threat to judicial independence in future may lie not from politicians actively seeking to undermine the courts, but rather from their increasing disengagement from the justice system and the judiciary. (shrink)

Nuestro trabajo ofrece algunas claves de lectura del proceso por el cual fue posible que la actividad de los tribunales de justicia, a comienzos de los años '90 en Latinoamérica en general y en Argentina de manera significativa, adquiriese una relevancia y una consideración singular respecto al ejercicio del poder político. Este fenómeno, habitualmente denominado "judicialización de la política", supone una tendencia a procesar y dar respuesta a conflictos de índole política, a través de instituciones judiciales. En relación a ello, (...) nos interesa mostrar las interconexiones, puntos de apoyo, resortes a través de los cuales es posible ligarlo al diagrama de relaciones de poder y procesos de subjetivación que caracterizan a la gubernamentalidad neoliberal. Our paper offers some lecture keys on the process through which made it possible the political relevance of judicial activity during the 1990's in Latin American in general, and in Argentina in particular. This phenomenon, commonly known as 'judicialization of politics', supposes a tendency of processing political conflicts through the judiciary. Related to that our paper proposes to show, to make it visible, interconnections and supports through which it is possible to understand it emergence within the diagram of power relations and processes of subjectivation that characterizes neoliberal governmentality. (shrink)

Maks Del Mar’s book, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication, proposes a rich and generative conception of judicial imagination. This essay reflects upon and then deplo...

This paper seeks a better understanding of the role of public reason in alimenting or defusing religious conflicts by looking at how courts apply it in deciding cases arising out of them. Recent scholarship and judicial decisions suggest, paradoxically, that courts can be biased towards either the secular or the religious. This risks alienating both religious majorities and religious and secular minorities. Judicial public reason is uniquely equipped to protect minorities, and its costs to religious majorities may be (...) mitigated by accepting religious morality and identity claims in the political and legislative realm. Despite the political fragilities of judicial public reason, it is not intrinsically hostile to religious claims. It ought in fact to be fully equipped to recognize the equality and religious freedom rights that religious groups and individuals might assert in pursuing exemptions from general secular laws. Judicial public reason does have the potential to defuse religious conflicts, however much it falls short in practice. (shrink)

This article engages legal positivism conceived of as a political project rather than as a descriptive account of law. Jeremy Waldron’s ‘democratic jurisprudence’ represents such a politicized legal positivism—a normative argument for legal positivism rather than a non-normative claim that legal positivism is true. Unsurprisingly, the essential institutional elements of this democratic jurisprudence turn out to be the familiar features of classical legal positivism, and the case Waldron makes against judicial review grows out of his overarching political position. But, (...) consequently, if there are reasons to doubt the strength of Waldron’s case against judicial review, there are surely reasons to doubt the normative bases of his case for positivism, and in turn, descriptive or conceptual positivism more generally. This article investigates this claim, noting that Waldron’s political case for positivism is based on Kantian notions about moral autonomy given circumstances of moral disagreement, but that Waldron’s conclusions about the role of judges undermine both these Kantian foundations and the aims of democratic jurisprudence. While Waldron’s arguments revive a tradition of political positivism that goes back to Bentham, engagement with those arguments suggests that legal positivism ultimately must embrace a radical democratic form of anti-constitutionalism. (shrink)

Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy and regulation, or the evolution of new modes of governance to avoid encountering a great deal of law and courts. In On Law, Politics, and Judicialization, two of the world's leading political scientists present the best of their research, focusing on how to build and test a social science of law (...) and courts. The opening chapter features Shapiro's classic 'Political Jurisprudence,' and Stone Sweet's 'Judicialization and the Construction of Governance,' pieces that critically redefined research agendas on the politics of law and judging. Subsequent chapters take up diverse themes: the strategic contexts of litigation and judging; the discursive foundations of judicial power; the social logic of precedent and appeal; the networking of legal elites; the lawmaking dynamics of rights adjudication; the success and diffusion of constitutional review; the reciprocal impact of courts and legislatures; the globalization of private law; methods, hypothesis-testing, and prediction in comparative law; and the sources and consequences of the creeping 'judicialization of politics' around the world. Chosen empirical settings include the United States, the GATT-WTO, France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria. Written for a broad, scholarly audience, the book is also recommended for use in graduate and advanced undergraduate courses in law and the social sciences. (shrink)

The availability of a constitutional framework that encourages deference to the judiciary, and the existence of a political environment conducive to judicial empowerment have helped bring about a growing reliance on adjudicative means for articulating, framing, and settling fundamental moral controversies and highly contentious political questions. This has resulted in the gradual erosion of the exclusive prerogatives of legislatures and executives.

La "judicialización" es un fenómeno amplio, que resulta de la confluencia de innumerables tendencias históricas y que produce diversos efectos en las prácticas económicas, sociales y políticas. Algunos analistas contemporáneos han advertido que la judicialización implica una profunda transformación sobre las prácticas de gobierno. Este artículo sostiene quela judicialización, especialmente la denominada "judicialización de la política", tienen estrechos vínculos con el neoliberalismo. El problema consiste en que, al día de hoy, son escasos los estudios capaces de corroborar tal relación. ¿Cómo (...) y hasta qué punto la judicialización fue promovida por el neoliberalismo? Para contestar esta pregunta, se procederá al análisis genealógico de una serie de documentos redactados a mediados del siglo XX, siguiendo la hipótesis de que allí emerge un programa de gobierno donde la judicialización no sólo es admitida e incluso promovida, sino además propuesta como una práctica privilegiada de intervención estatal sobre la sociedad. "Judicialization" is a broad phenomenon, which is the result of the confluence of innumerable historical trends and that produces diverse effects on economic, social and political practices. Some contemporary analysts have observed that the judicialization implies a profound transformation in government practices. This article argues that judicialization, especially the so-called "judicialization of politics", has close relations with neoliberalism. The problem is that, at present, there are few studies capable of corroborating this relationship. How and to what extent was the judicialization promoted by neoliberalism? To answer this question, we make a genealogical analysis on a set of documents written in the mid-twentieth century. According to our hypothesis, these documents emerge a program of government where the judicialization is not only admitted and even promoted, but also proposed as a privileged practice of state intervention on society. (shrink)

This pioneer work in comparative political analysis manifests once more the growing influence of behavioral approaches on the study of politics. In this case the general topic is the voting pattern of justices on the highest courts of several Pacific nations and India. Various heuristic and explanatory models are employed to determine the influence of such variables as age, culture, and political orientation on the adjudicative behavior of these men over a determinate period. Although the articles by twelve different (...) authors are not all of the same analytic caliber as those contributed by the editors themselves, they collectively offer an insight into the possibilities as well as into the pitfalls of behavioral studies of the judiciary. As the editors note, such a work is necessarily hypothetical and exploratory, raising more questions than it answers. Philosophers will be interested mainly in the methodological problems of concept formation and explanation which this book raises and seeks to resolve. The article by Edward J. Weissman, "Mathematical Theory and Dynamic Models," is particularly valuable from that point of view. Moreover, by classifying and comparing the other contributions to this volume, Weissman's article furnishes a certain unity which the book as a whole sorely lacks. Geared primarily for those who are familiar with such techniques as smallest-space analysis and the use of recursive causal models, this work nevertheless can be read with profit by social philosophers, philosophers of law and those interested in general questions of methodology.--T. R. F. (shrink)

Este artículo estudia críticamente el concepto de Ius Constitutionale Commune Latinoamericanum como fenómeno de judicialización de la política a nivel regional. Partiendo de la afirmación de que el derecho constitucional es político, se analizan algunos rasgos del ICCAL como la ideología que lo inspira, la teoría en que se apoya el concepto y el arreglo institucional que lo sostiene, para problematizar su carácter "común". Bajo el entendido que cualquier proyecto constitucional está indisolublemente ligado a un diseño institucional que lo lleva (...) a cabo, se critica la apuesta por un modelo juricentrista, anclado en la interpretación que la Corte Interamericana de Derechos Humanos hace de los derechos reconocidos como universales, para proponer un sistema basado en procedimientos deliberativos e igualitarios que fortalezcan la democratización de la región. This article critically examines the concept of Ius Constitutionale Commune Latinoamericanum as a phenomenon of judicialization of politics at the regional level. To problematize its "common" character and based on the assertion that constitutional law is political, some features of the ICCAL are analyzed: the ideology that inspires it, the theory in which the concept is supported and the institutional arrangement that sustains it. Under the understanding that every constitutional project is inextricably linked to an institutional design that carries it out, the commitment to a jury-centered model, anchored in the interpretation that the Inter-American Court of Human Rights makes of the rights recognized as universal is criticized. Proposing, in contrast, a system based on deliberative and egalitarian procedures that strengthen the democratization of the region. (shrink)

Resumen: Mediante la metodología de una reconstrucción inmanente del mejor argumento de quienes se oponen al reconocimiento jurídico del matrimonio entre personas del mismo sexo, este artículo muestra por qué el juez o el legislador no debe aceptar dicho argumento. Con ello se señala solo indirectamente o de modo negativo por qué sí debe ser reconocido dicho matrimonio. En este artículo se reconstruye la estructura y los diferentes contenidos de las justificaciones opositoras, buscando identificar la más robusta de ellas; esto (...) es, aquella con mayor capacidad para -recurriendo a argumentos adecuados a sociedades plurales- traspasar el peso de la prueba al lado de la demanda por dicho reconocimiento. Dicha capacidad se comprueba mostrando concretamente cómo tal justificación logra argumentos de defensa, de crítica a dicha demanda, así como incorporar argumentos del mundo progresista. Pese a su robustez y luego de una evaluación detenida, se concluye que esa justificación no es sostenible bajo medios racionales.: Through a methodology of an immanent reconstruction of the best argument of those who oppose the legal recognition of same-sex marriage, this article shows why the judge, or the legislator should not accept this argument. With this, it is pointed out indirectly and in a negative way why that marriage should be recognized. In this article the structure and the different contents of the conservative justifications are reconstructed, trying to identify the most robust of them; that is, the one with the highest capacity for -using adequate arguments to plural societies- to transfer the burden of proof to the side of the demand for such recognition. This capacity is demonstrated by showing precisely how such a justification achieves arguments of auto-defense, of criticism of said demand, as well as incorporating arguments from the progressive world. Despite its robustness and after a careful evaluation, it is concluded that this justification is nor sustainable under rational means. (shrink)

"The main argument of this paper is that there are reasons for judges not only to evaluate the substantive merit of legislation, but to advert to the fact that the place of elected legislatures in our scheme of government gives legislation a standing, an entitlement to consideration, that may go beyond judicial estimates of its intrinsic merit." [Is this just a statement of procedural legitimacy?] "To answer the question [of who assigns rights], courts must take a view as to (...) the proper role of courts vis-a-vis legislatures; they must take a view about the allocation of power in our legal/political system. In drawing this line, courts can take one of two approaches. First, they can make decisions solely on the basis of considerations internal to the relevant clauses of the Constitution, perhaps by giving them a moral reading. Second, they can include in their thinking institutional considerations regarding the role of popular decision-making bodies in our governmental structure." Claims that Dworkin advocates the first [which is false], and that we should accept the second, which is advocated by advocates of judicial restraint. It is appropriate for a judge to give weight to the fact that a decision was reached by a legislature. "Specifically, I think it appropriate that courts presume the constitutionality of such laws, understanding that their own role demands that they overturn them if they are not merely different from what the judges might have decided on their own, but are beyond acceptability." Reasons for the presumption of constitutionality: value of compromise, allocation of power ), appropriateness of humility, integrity and community. (shrink)

In this book, a distinguished international group of legal theorists re-examine legal positivism as a prescriptive political theory and consider its implications for the constitutionally defined roles of legislatures and courts. The issues are illustrated with recent developments in Australian constitutional law.

This paper examines Jeremy Waldron’s ‘core case’ against judicial review. Waldron’s arguments, it shows, exaggerate the importance of voting to our judgements about the legitimacy and democratic credentials of a society and its government. Moreover, Waldron is insufficiently sensitive to the ways that judicial review can provide a legitimate avenue of political activity for those seeking to rectify historic injustice. While judicial review is not necessary for democratic government, the paper concludes that Waldron is wrong to believe (...) that it is a threat to democracy. (shrink)

The main argument of this paper is that there are reasons for judges not only to evaluate the substantive merit of legislation, but to advert to the fact that the place of elected legislatures in our scheme of government gives legislation a standing, an entitlement to consideration, that may go beyond judicial estimates of its intrinsic merit.

La judicialización de la política argentina abre un hiato entre el creciente activismo en materia política desarrollado por los tribunales de justicia y la tradicional legitimidad atribuida al judicial en tanto que poder conservador de la constitución. Este déficit de legitimidad del poder judicial ha intentado subsanarse mediante el recurso a instancias participativas, inspiradas en el modelo de la democracia deliberativa. Esto ha dado lugar a una serie de innovaciones institucionales en la corte suprema argentina, como la admisión (...) de amigos del tribunal y la celebración de audiencias públicas. La evaluación de estas experiencias permite, sin embargo, identificar una concepción de la participación ciudadana que apunta a la intervención de especialistas y que privilegia la intermediación de abogados y juristas. The judicialization of Argentine politics opens a gap between the activism in political matters developed by the judges and the legitimacy traditionally attributed to the judiciary, as the power in charge of the conservation of the constitution. Recent efforts to supersede this deficit in terms of legitimacy pointed to participatory processes, inspired by the model of deliberative democracy. In this sense, the Argentine supreme court has developed a series of institutional innovations, such as the admission of amici curiae and the holding of public hearings. The evaluation of these experiences allows nonetheless to identify an underlying conception of citizen participation focused on the intervention of specialists and the intermediation of lawyers and legal scholars. (shrink)

Many scholars believe that it is procedurally undemocratic for the judiciary to have an active role in shaping the law. These scholars believe either that such practices as judicial review and creative statutory interpretation are unjustified, or that they are justified only because they improve the law substantively. This Article argues instead that the judiciary can play an important procedurally democratic role in the development of the law. Majority rule by legislatures is not the only defining feature of democracy; (...) rather, a government is democratic to the extent to which it provides egalitarian forms of political participation. One such form of participation can be the opportunity to influence the law through the courts, either directly by participating in a case or indirectly by advocating litigation. Arguing from several examples, this Article shows that judicial decision-making allows different voices to be heard that may not necessarily have influence or power in majoritarian legislative structures or popular initiatives. Giving citizens the opportunity to change, to preserve, and to obtain authoritative clarification of the law through the courts can thus make a government procedurally more democratic. (shrink)

In this revised and updated edition of a classic text, one of America's leading constitutional theorists presents a brief but well-balanced history of judicial review and summarizes the arguments both for and against judicial activism within the context of American democracy. Christopher Wolfe demonstrates how modern courts have used their power to create new "rights" with fateful political consequences and he challenges popular opinions held by many contemporary legal scholars. This is important reading for anyone interested in the (...) role of the judiciary within American politics. Praise for the first edition of Judicial Activism: "This is a splendid contribution to the literature, integrating for the first time between two covers an extensive debate, honestly and dispassionately presented, on the role of courts in American policy. —Stanley C. Brubaker, Colgate University. (shrink)

Judicial Deliberations compares how and why the European Court of Justice, the French Cour de cassation and the US Supreme Court offer different approaches for generating judicial accountability and control, judicial debate and deliberation, and ultimately judicial legitimacy. Examining the judicial argumentation of the United States Supreme Court and of the French Cour de cassation, the book first reorders the traditional comparative understanding of the difference between French civil law and American common law judicial (...) decision-making. It then uses this analysis to offer the first detailed comparative examination of the interpretive practice of the European Court of Justice. Lasser demonstrates that the French judicial system rests on a particularly unified institutional and ideological framework founded on explicitly republican notions of meritocracy and managerial expertise. Law-making per se may be limited to the legislature; but significant judicial normative administration is entrusted to State selected, trained, and sanctioned elites who are policed internally through hierarchical institutional structures. The American judicial system, by contrast, deploys a more participatory and democratic approach that reflects a more populist vision. Shunning the unifying, controlling, and hierarchical French structures, the American judicial system instead generates its legitimacy primarily by argumentative means. American judges engage in extensive debates that subject them to public scrutiny and control. The ECJ hovers delicately between the institutional/argumentative and republican/democratic extremes. On the one hand, the ECJ reproduces the hierarchical French discursive structure on which it was originally patterned. On the other, it transposes this structure into a transnational context of fractured political and legal assumptions. This drives the ECJ towards generating legitimacy by adopting a somewhat more transparent argumentative approach. (shrink)

Americans cannot live with judicial review, but they cannot live without it. There is something characteristically American about turning the most divisive political questions - like freedom of religion, same-sex marriage, affirmative action and abortion - into legal questions with the hope that courts can answer them. In Judicial Review in an Age of Moral Pluralism Ronald C. Den Otter addresses how judicial review can be improved to strike the appropriate balance between legislative and judicial power (...) under conditions of moral pluralism. His defense of judicial review is predicated on the imperative of ensuring that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. Den Otter ties this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and argues that a law that is not sufficiently publicly justified is unconstitutional, thus addressing when courts should invalidate laws and when they should uphold them even in the midst of reasonable disagreement about the correct outcome in particular constitutional controversies. (shrink)

I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an ethics of adjudication. I (...) offer an adjudicative theory in the realm of non-ideal theory: I adopt a view of law that has achieved consensus in legal philosophy, make some plausible assumptions about human politics, and then consider directly the question of how judges should reason. Ultimately, I argue that judges should be cognizant of the goods that are at stake on particular occasions of adjudication and that this requires treating legal requirements transparently, i.e., as sensitive to their moral justifications. (shrink)

Ch. 1 defines activism as involving four judicial practices: refusing to take an attitude of deference for legislative or executive power or judgment; relaxing requirements for justiciability; breaking precedent; and loosely or controversially construing constitutions, statutes or precedents. I defend each element, through , in later chapters. I defend primarily in Ch. 2A-B, primarily in Ch. 2C, primarily in Ch. 3 and in Chs. 2 and 4. Ch. 1 concludes that - seem to have knowing change of the law (...) in common. Ch. 1 considers and rejects different definitions of activism. My definition explains what I call The Crossover Thesis, which says that two types of activism, and , are quite distinct, and what I call The Political Neutrality Thesis, which says activism and passivism are politically neutral in that neither is necessarily conservative or liberal, and neither is necessarily politically superior to the other. ;Ch. 2 defends activism against objections based on democracy by reconciling activism with democracy somewhat and by supporting some activism based on the Constitution's supreme legal authority. I give what I call The Ashwander Defense and the Carolene Defense of activism, which are named after famous judicial opinions I use to defend activism. ;Ch. 3 argues against stare decisis, which requires following precedent. The passivists' version of stare decisis is inadequately supported by arguments that stare decisis increases: the fairness of treating like cases alike; the predictability of the law; thereby the efficiency of judges in making decisions. ;Ch. 4 argues that courts should use due process more to support activism which clarifies the law. I show how much activism is justified by the vagueness doctrine, which constitutionally requires law's meaning to be reasonably accessible to ordinary people. ;Ch. 5 summarizes earlier chapters and shows how my defense of activism is restrained. (shrink)

There have been few studies of the Law Lords, and no study of them by a political scientist for more than ten years. This book concentrates on the arguments the Law Lords use in justifying their decisions, and is concerned as much with the legal methodology as with the substance of their decisions. Very close attention is paid to the different approaches and styles of judicial argument, but the book is not restricted to this traditional analytic approach. One chapter (...) applies the statistical techniques Americans call 'jurimetrics' and have successfully used on the US Supreme Court. The main theme is that the Law Lords enjoy and fully utilise far more discretion in their judgements than is normally admitted, and that much depends on exactly which judges happen to hear a case. the second part of the book shows the impact this extreme discretion has had in shaping both public law and areas of civil law. (shrink)

This article shows that judicial review has a democratic justification even though judges may be no better at protecting rights than legislatures. That justification is procedural, not consequentialist: reflecting the ability of judicial review to express and protect citizen’s interests in political participation, political equality, political representation and political accountability. The point of judicial review is to symbolize and give expression to the authority of citizens over their governors, not to reflect the wisdom, trustworthiness or competence of (...) judges and legislators. Above a threshold level of competence – which may be impossible to determine a-priori – the legitimacy of judicial review does not turn on the special wisdom, virtue or personal qualities of judges. Instead, it reflects the importance that democracies properly attach to the ordinary virtues and competences of individuals in justifying power and authority. Hence, this article takes issue with the defence of judicial review in Eisgruber and Brettschneider, as well as with the critiques of judicial review found in Waldron and Bellamy. (shrink)

How are we to understand and analyse the constitutional tension in Turkey between the judiciary and the political sphere? In this article the issue is mirrored in the political crisis which started in April 2007 with the nomination of Abdullah G l as presidential candidate by the moderate Islamist Justice and Development Party (AKP). The more detailed empirical background consists primarily of the dress code problematics including the matter of party closure. Theoretically, the “hegemonic preservation” thesis elaborated by Ran Hirschl (...) turned out to be a useful instrument when it comes to explaining this political crisis as well as the origin of the so-called new constitutionalism. This is illustrated by the judicial activism in the headscarf affair as well as by the eagerness of the Republican People's Party (CHP), as the political representative of the secular establishment, to play the 'Atat rk card' and to submit the protection of their interest to an independent judiciary and not to the uncertainties of the mechanisms of majoritarian democracy. However, with regard to the current Turkish case my analysis also shows that Hirschl's thesis is too static and should be complemented with a more dynamic perspective of constitutional politics as a repeated game. One example of this is that even if the Turkish Constitutional Court (TCC) had declared the constitutional amendment on the headscarf invalid and voted for economic sanctions against the AKP, it did not close the party down. (shrink)

How should judges deal with the manifestation of religious symbols in public educational institutions? In light of the important role of human rights in our legal and political system, courts should grant maximum protection under the freedom of religion or belief. The central thesis of this article is that the European Court of Human Rights fails to live up to this standard. In order to reach this conclusion, the article analyzes relevant case law of the European Court and compares its (...) case law with that of the high courts of Canada and South Africa. In addition, the article assesses the case law of all three courts from the angle of interpretation theory and particularly Cass R. Sunstein’s theory of judicial minimalism. Adoption of a more consistently minimalist methodology by the European Court might lead to a greater protection granted to individuals and groups. However, a wide and deep ruling is first required to overturn the current line of reasoning. The European Court can draw inspiration from Canada and South Africa for such a judgment. (shrink)

This essay defends judicial review on procedural grounds by showing that it is an integral part of American democracy. Critics who object to judicial review using counter-majoritarian and epistemic arguments raise important concerns that should shape our understanding of the Supreme Court. Nevertheless, critics often fail to account for the formal and informal mechanisms that overcome these difficulties. Critics also fail to show that other branches of government could use the power of Constitutional interpretation more responsibly. By defending (...) judicial review in the American context, this essay demonstrates that judicial review is not inherently undemocratic. (shrink)

Many theories of liberal public reason exclude claims derived from religion on grounds that religious beliefs are not publicly ‘accessible’, because they are not amenable to meaningful evaluation by outsiders to the faith. Some authors, though, have argued that at least some religious beliefs are, in fact, publicly accessible. This paper examines the consequences of these arguments by exploring the accessibility requirement in relation to U.S. judicial precedent concerning religious accommodation. I first show that precedent accords de facto with (...) the accessibility requirement by precluding judicial evaluation of the content of religious beliefs. I then show that this norm is independent of the status of religious claims vis-à-vis accessibility: even granting the accessibility of religious beliefs, other important political ends weigh against judicial evaluation of the content of those beliefs. I then generalize this conclusion to the broader enterprise of public reason, suggesting the general inadequacy of the accessibility requirement. (shrink)

This paper articulates an egalitarian conception of judicial humility and justifies its value on the grounds that it importantly advances the legal and political ideal of fraternity. This account of the content and value of the virtue of humility stands in sharp contrast with the dominant view of judicial humility as deference or judicial restraint. The paper concludes by discussing some ways in which the account of humility and of its value provided in the paper furthers our (...) understanding of the judicial virtues and of the political implications of giving virtue a role in adjudication. (shrink)

This article reconsiders how to judge judicial independence by using the Japanese judicature, one of the allegedly-most dependent judiciary branches. In their influential work, Ramseyer and Rasmusen argue that judges who once belonged to a leftist group take longer to reach a under the long-term conservative rule of Japan. Their method does not, however, deal appropriately with the possibility of judges not reaching this position because the judge dies, retires early, or is still at the early stage of her (...) career. Ramseyer and Rasmusen also mistakenly assume that all judges will eventually obtain this position. This article develops a survival analysis model of judicial careers and attempts to solve the problems of censoring, left truncation, and split population. We also offer a way to utilize a matching procedure to estimate average treatment effects on censored time-to-event as well as event occurrence. We re-analyze a corrected version of Ramseyer and Rasmusen's data using their and our methods. One of the most important findings is that, contrary to what Ramseyer and Rasmusen argue, leftist judges are not discriminated against in terms of the timing of promotion. (shrink)

The normally staid topics of judicial ethics and the standards for judicial recusal have become the focus of political debates, editorials and letter writing campaigns. Most of the recent focus falls on conservative justices of the US Supreme Court and in particular on their anticipated participation in what is expected to be an important ruling on the constitutionality of the heath care reforms championed by President Obama and the Democratic Party. But the issue is not simply about partisan (...) politics. It's also about the structure of the US federal judiciary and the need to think about the impact of two-career couples on the judicial recusal rules. (shrink)

The application of artificial intelligence (AI) to judicial decision-making has already begun in many jurisdictions around the world. While AI seems to promise greater fairness, access to justice, and legal certainty, issues of discrimination and transparency have emerged and put liberal democratic principles under pressure, most notably in the context of bail decisions. Despite this, there has been no systematic analysis of the risks to liberal democratic values from implementing AI into judicial decision-making. This article sets out to (...) fill this void by identifying and engaging with challenges arising from artificial judicial decision-making, focusing on three pillars of liberal democracy, namely equal treatment of citizens, transparency, and judicial independence. Methodologically, the work takes a comparative perspective between human and artificial decision-making, using the former as a normative benchmark to evaluate the latter. -/- The chapter first argues that AI that would improve on equal treatment of citizens has already been developed, but not yet adopted. Second, while the lack of transparency in AI decision-making poses severe risks which ought to be addressed, AI can also increase the transparency of options and trade-offs that policy makers face when considering the consequences of artificial judicial decision-making. Such transparency of options offers tremendous benefits from a democratic perspective. Third, the overall shift of power from human intuition to advanced AI may threaten judicial independence, and with it the separation of powers. While improvements regarding discrimination and transparency are available or on the horizon, it remains unclear how judicial independence can be protected, especially with the potential development of advanced artificial judicial intelligence (AAJI). Working out the political and legal infrastructure to reap the fruits of artificial judicial intelligence in a safe and stable manner should become a priority of future research in this area. (shrink)

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for the (...) institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata. (shrink)

On Thursday June 12th 2003, a press release concerning a Cabinet reshuffle declared as a footnote that the office of Lord Chancellor was to be abolished and that a new Supreme Court would replace the House of Lords as the highest court in the United Kingdom. In response to intense criticism of the Government for announcing these judicial reforms without holding any prior debate or consultation, Charles Banner and Alexander Deane have sought the views of several constitutional experts – (...) including judges, leading QCs, legal and political academics, commentators and MPs. This book is the product of their research: citing the interviewees at length, it critically analyses the Government’s proposals and looks at the various alternative models for appointing judges and for a new court of final appeal. The future of the QC system, which the Government has again indicated a desire to abolish, is also discussed in the book. (shrink)