Common law courts as regulators, an exposition: The Judiciary as a regulatory mechanism (original) (raw)
Common Law Courts: The Judiciary as a Regulatory Mechanism
Journal of Comparative Law, 2017
This article suggests that courts regulate constitutional rights. As such, some may attribute to its author little in the way of revolutionary legal scholarship. “Do Courts regulate?” appears to the uninitiated to be a rhetorical question because when courts make decisions, and decisions are regulations, then courts must be regulators. The syllogistic answer to the above question is superficially yes: courts are regulators and “so what”?However, therein lies an overlooked consideration: although courts do regulate, what is meant by regulation in the judicial context and where does that power originate? What exactly do courts regulate? Is this a legitimate exercise, or a mislabeling of judicial activism?
An Argument in Support of Constitutional Courts
2020
In this paper I tackle the vexata quaestio of constitutional courts and their justification. I argue for the integral necessity of constitutional court for liberal democratic systems. Departing from a liberal definition of democratic legitimacy, which identifies political obligation with democratic rule of law, I show that constitutional review of laws is inseparable from liberal democracy as a concept. To demonstrate this I survey the issue of Common Law and the political reality in the United Kingdom, which lacks a codified constitution. I conclude by taking up the question on whether the judiciary power should be separated from constitutional review as such, arguing for a separation that recognises the different but similar functions of the two powers.
The Judiciarys Self-Determination, the Common Law and Constitutional Change
European Public Law
The Brexit debate is often analysed from the perspective of politicians, and in particular their views on and understandings of European law and politics. In contrast, this article concentrates on identifying the views of the senior judiciary. To do so, it analyses five extra-judicial speeches made between October 2013 to February 2014, a period particularly fertile in cases in the UK’s top courts concerning the law of the European Union or the European Convention of Human Rights. In doing so the article charts the senior judiciary’s vision of Europe. More particularly, it highlights the judiciary’s strategies to limit the impact of both European treaties on the British constitution in what might be termed ‘a search for judicial self-determination’. In addition, the article argues that a new extra-judicial process of constitutional change might be emerging. Finally, it concludes on the advantages and drawbacks of such a process of change.
Judicial Policy-Making and the Peculiar Function of Law
2007
While the nature of legal systems is a perpetually contested question, it is fairly uncontroversial that each must contain certain essential characteristics. First, each must suppose some picture of the appropriate way for human beings subject to it to live together in society. Second, to secure that proper arrangement, each must employ, to a greater or lesser degree, the device of general rules of conduct. Finally, in all but the simplest systems, the effectiveness of those rules must be guaranteed by some process of adjudication. The relationships among these three factors - social values, legal rules and judging - comprise much of our study of jurisprudence. In this essay, I want to reprise that theme, paying particular attention to the mutual tensions these elements create in the practical operation of a legal system. I want, that is, to review the difficulties inherent in the use of abstract rules to vindicate social policies in concrete cases.
Revista de Drept Constituțional
The practice of constitutional courts worldwide reveals the growing importance they have on the evolution of constitutions through jurisprudential interpretation. From the "drawing" of some implicit limits of the amendment of the constitutions, as in the basic structure theory found in some constitutional systems, to the defining the fundamental rights, deduction of the procedures applicable in concrete situations not foreseen by the constituent legislators, or the strict staking of the legislation that we identify in other systems, constitutional courts are increasingly active in saying what the Constitution is. Starting from the concrete example of the Romanian Constitutional Court and its evolution within multilevel constitutionalism specific to the European Union, this study proposes a debate on the interpretation that the Constitutional Courts give to their own powers established by the Constitution. In the framework of the specific relationship between Courts in the European Union, this debate has a particular side, meaning the drawing of the limits of competence between the constitutional courts of the Member States and the Court of Justice of the European Union. However, the debate is of general interest because the observance of the limits of competence of public authorities and, from this perspective, the definition of these limits is a fundamental component of the rule of law. Expanding or not the powers of the constitutional courts and the way to achieve this objective is, in our opinion, a key issue of constitutional reform.
On the Genesis and Nature of Judicial Power
The essential nature of legislative power is to make the laws; that of executive power is to execute those laws; what, however, is the essential nature of judicial power? Superficially, it is to judge; at bottom, it is to judge according to the laws. The difference between the two is both substantial and significant; it is the difference between the rule of arbitrary power and the rule of law. The refinement and moderation in the application of the laws that results from this difference was the product of the concerted work of both theory and practice over many centuries. That judicial power, properly understood, is executive in nature (and not legislative in nature, as is now maintained by adherents to the school of the legal realism inaugurated by Oliver Wendell Holmes), is demonstrated by English history, that is, by the jurisdictional conflicts between the independent courts of the baronies and ecclesiastics, on the one hand, and the centralized King’s Bench, on the other. This paper will seek to trace the genesis of an independent judicial power, in both theory and practice, through an examination of sections of The Constitutions of Clarendon, The Assize of Clarendon, Hobbes’ Leviathan, Locke’s Second Treatise, Montesquieu’s Spirit of the Laws, as well as The Federalist Papers. Moreover, it will seek to establish its executive nature and to explain why it is so often (at least presently) misunderstood to be akin to the legislative power.
Looking Beyond the Traditional: A Multi-dimensional Account of the Modern Judicial Role
Judicial Review, 2024
This article makes quite a simple claim: that it is appropriate to conceptualise the role of judges in today’s constitution as one which is multi-dimensional. This article considers how we understand ‘the judicial role’ within the constitution historically before mapping out notable moments in that history to document the evolution of the role from ‘old’ to ‘new’. Next, the article asks us to think about who our judges are by offering a brief reflection on the state of the modern judiciary and its composition. The article then moves to its main focus of examining its central claim that the role of judges today is best understood as a number of, sometimes overlapping, dimensions. In adopting this conceptualisation, I suggest that we are helpfully able to identify three possible ‘dimensions’ to the modern judicial role: the traditional, the regulatory and the leadership dimensions. In doing so, we are broadening and deepening our appreciation of a wider range of aspects of the work of all judges across the judiciary. The aim of this article is, therefore, relatively modest. In thinking about the various dimensions of judicial work, we are able to capture in any analysis a richer and more complete picture of the judicial role, judicial behaviour and, overall, judicial power. Not only is this more accurate but it is hoped that being deliberate in thinking about the judicial role in this way helps us all – academics, practitioners, media professionals and the wider public – to conceive of judicial power in a more systematic and holistic fashion.