Judicialpower and popular control
Introduction: republican dilemmas of judicial power
In this chapter we continue our discussion concerning the translation of republican ideas at the level of institutional design. While many contemporary republicans favour a model of accountable government along the lines considered
in Chapter 3, there is no settled consensus as to the appropriate boundaries
of judicialpower in the republican State. In particular, republicans differ as to
whether or not parliamentary legislation ought to be subject to judicial review
Democratization is a major political phenomenon of the age and has been the focus of a burgeoning political science literature. This book considers democratization across a range of disciplines, from anthropology and economics, to sociology, law and area studies. The construction of democratization as a unit of study reflects the intellectual standpoint of the inquirer. The book highlights the use of normative argument to legitimize the exercise of power. From the 1950s to the 1980s, economic success enabled the authoritarian governments of South Korea and Taiwan to achieve a large measure of popular support despite the absence of democracy. The book outlines what a feminist framework might be and analyses feminist engagements with the theory and practice of democratization. It also shows how historians have contributed to the understanding of the processes of democratization. International Political Economy (IPE) has always had the potential to cut across the levels-of-analysis distinction. A legal perspective on democratization is presented by focusing on a tightly linked set of issues straddling the border between political and judicial power as they have arisen. Classic and contemporary sociological approaches to understanding democracy and democratization are highlighted, with particular attention being accorded to the post-1989 period. The book displays particularities within a common concern for institutional structures and their performance, ranging over the representation of women, electoral systems and constitutions (in Africa) and presidentialism (in Latin America). Both Europe and North America present in their different ways a kind of bridge between domestic and international dimensions of democratization.
This chapter offers a legal perspective on democratization
by focusing on a tightly linked set of issues straddling the
border between political and judicialpower as they have
arisen in, first, the United Kingdom, second, Britain’s relationship with the European Union, and third, the wider
international system. The discussion illustrates the claim
that no analysis of democratization can be complete without taking into account the dimension of judicialpower
and its implications for democratic accountability even,
a republican analysis of judicialpower (as we considered from a
different angle in Chapter 4). However, from an alternative standpoint, interpretivist adjudication might find republican support. Republicans might argue that,
far from appropriating public philosophy to an unaccountable elite forum, principled adjudication might in fact – as Eisgruber argues – enhance public deliberation on foundational values.19 While a positivist concept of adjudication might
limit the arbitrariness of judicialpower – in accordance with the traditional concept of the rule of law
This book aims to revisit the county study as a way into understanding the
dynamics of the English civil war during the 1640s. It explores gentry culture
and the extent to which early Stuart Cheshire could be said to be a ‘county
community’. It investigates the responses of the county’s governing elite and
puritan religious establishment to highly polarising interventions by the
central government and Laudian ecclesiastical authorities during Charles I’s
Personal Rule. The second half of the book provides a rich and detailed analysis
of the petitioning movements and side-taking in Cheshire during 1641-42. This
important contribution to understanding the local origins and outbreak of civil
war in England will be of interest to all students and scholars studying the
Ralph Knevet's Supplement of the Faery Queene (1635) is a narrative and allegorical work, which weaves together a complex collection of tales and episodes, featuring knights, ladies, sorcerers, monsters, vertiginous fortresses and deadly battles – a chivalric romp in Spenser's cod medieval style. The poem shadows recent English history, and the major military and political events of the Thirty Years War. But the Supplement is also an ambitiously intertextual poem, weaving together materials from mythic, literary, historical, scientific, theological, and many other kinds of written sources. Its encyclopaedic ambitions combine with Knevet's historical focus to produce an allegorical epic poem of considerable interest and power. This new edition of Knevet's Supplement, the first scholarly text of the poem ever published, situates it in its literary, historical, biographical, and intellectual contexts. An extensive introduction and copious critical commentary, positioned at the back of the book, will enable students and scholars alike to access Knevet's complicated and enigmatic meanings, structures, and allusions.
. International law differs from national legal
systems in the following respects:
The international legal order has no central legislative, executive,
International sources of law, such as treaties, customary law, and
binding decisions of international organisations, are at the centre
of international legal research
arm for the efficacious exercise of even this faculty.
This key passage added two further justifications for judicial review. First, that because the judiciary was weaker than the Congress and the presidency, the courts could be better entrusted with the power to oversee the actions of other branches of government. Second, the nature of judicialpower made it the appropriate place to vest the authority to interpret and apply the Constitution. For in Hamilton’s terms, the judiciary exercised ‘neither FORCE nor WILL, but merely judgment’. In other words, judicial
means that the opinions expressed on the bench
tend to be in line with the thinking of key players in the executive and
legislative branches, over a period of time.
Judicial activism or judicial restraint?
The question of how to use its judicialpower has long exercised the American
Court, and different opinions have been held by those who preside over it.
Some have urged an activist Court, whilst others err on the side of judicial
restraint. The latter is the notion that the Court should not seek to impose its
views on other branches of government or on the states
the three cases discussed above indicate the complex blend of the personal, the political and the legal that is involved in the work of the Supreme Court. Nevertheless, although there is clearly much more to the Court’s role in American government than law, the basic fact that needs to be understood is that the Supreme Court was established as a court, endowed with judicialpower.
This means that the personal and political dimensions of issues such as race equality and abortion are channelled into judicial procedures that are, in many respects, typical of courts