Within the classical tripartition of powers, courts and tri- bunals have always held the most marginal role, limited by the interpretation of laws. In the last decades, however, judiciaries have been increasingly addressed with the task of resolving moral issues and political questions, drawing power away from representative institutions. The intention of this essay is to analyse the judicialisation of politics and how this emergent phenomenon is slowly reshaping the skeleton of political structures and mutating the political environment — particularly (...) within the United Kingdom. In order to provide beneficial outcomes, this phenomenon should be accompanied by an attempt to embrace more democratic principles, seeking to promote a more inclusive space in the light of greater political responsibility, dialogue, and plurality of opinion. (shrink)

Two-tiered mixed theories of punishment hold that legislatures should act according to consequentialism, but the judiciary should act according to retributivism. A major motivation for these theories is wanting to preserve the idea that punishment is ultimately justified on consequentialist grounds, without falling prey to the Punishing the Innocent objection. Yet this benefit is illusory. While two-tiered mixed theories successfully avoid the Punishing the Innocent objection narrowly construed, they do not successfully escape the point behind it. This is because (...) cases can be constructed with the same problems as those used to describe the classic Punishing the Innocent objection, just bumped up to the legislature. (shrink)

Commentators of the judicial decisions of Justice Holmes have often situated the decisions inside the doctrines of freedom of expression and the rules and tests approach to legal analysis. This Paper situates his judgments in the context of a political theory. Drawing from his articles, lectures and correspondence, the Paper highlights Holmes’ reaction to the idealism and rationalism of the intellectual current before him. His view of human nature, conditioned by his war experience, is elaborated. The Paper especially examines his (...) theory of political struggle with the process-oriented view that the dominant social groups invariably become the political elite. The Paper then connects his theory of human nature to his legal doctrines, the role of the judiciary, the nature of the state, and a legal right. (shrink)

Pardon powers are common but difficult to justify. A pardon power is, roughly, a power that is (a) possessed by a non-judicial official, (b) used to cancel legal liability to a criminal sanction in a particular case without thereby altering the law, and (c) unconstrained by law. So defined, pardon powers seem to be at odds with two constitutional principles. Contrary to the separation of powers, the pardon power gives to someone other than a judge a decisive role in determining (...) criminal liability in particular cases. Contrary to the rule of law, the pardon power is neither constrained nor ruled by law. -/- Here I provide a novel defence of pardon powers, in three steps. First, even an optimal legal code requires suboptimal results in some cases. In such cases there is a “gap” between what is required by the code we should have and what we should do absent that code. Adhering to the code in every gap case is undesirable: while it would avoid suboptimal results, it would create too much unpredictability. Deviating from the code in every gap case is also undesirable: while it would ensure predictability, it would produce too many suboptimal results. The best strategy is to adhere in some cases and to deviate in others, that is, to selectively deviate. The most important thing about selective deviation is that it leads to like cases being treated differently. This is the second step in the argument. Third, pardon powers are an appropriate vehicle for selective deviation. Selective deviation calls for a power that can be used to set aside the code without changing it. It calls for a power that can be used inconsistently. Moreover, it calls for a power that is not in the hands of a body institutionally disposed towards consistency in decision-making, such as the judiciary. That is, it requires a power with features (a)-(c) – a pardon power. -/- This argument overcomes the various objections to pardon powers. Contrary to the objection from the separation of powers, selective deviation is a task better carried out by non-judicial officials. Contrary to the objection from the rule of law, a power of selective deviation must be unconstrained to preserve the law’s guiding function. Overall, the features of pardon powers that seemed to be in tension with the separation of powers and the rule of law turn out to be favoured by those same principles. (shrink)

The struggle by black people to obtain freedom, justice, and dignity is as old as this nation. At times, great and inspiring leaders rose out of desperate situations to give confidence and feelings of empowerment to the black community. Most of these leaders urged their people to strive for racial equality. They were firmly wedded to the idea that the courts and judiciary were the vehicle to better the social position of blacks. In spite of dramatic civil rights movements (...) and periodic victories in the legislatures, black Americans by no means are equal to whites. Racial equality is, in fact, not a realistic goal. By constantly aiming for a status that is unobtainable in a perilously racist America, black Americans face frustration and despair. Over time, our persistent quest for integration has hardened into self-defeating rigidity. (shrink)

Recent work in democratic theory has seriously questioned the dominant pluralist model of self-government and recommended the adoption of a ‘deliberative’ conception of constitutional democracy. With this shift in basic political theory, the objection to judicial review, often voiced in jurisprudential theory, as an anti-democratic instance of paternalism merits another look. This paper argues that the significant differences between four recent theories of constitutional review—put forward by Ely, Perry, Dworkin, and Habermas—are best understood as arising from different positions taken on (...) two cross-cutting distinctions that have been inherited from Locke and Rousseau: democratic processes as aggregative versus deliberative, and democratic legitimacy as substantive versus procedural. A reconstruction and critical evaluation of the four theories of judicial review, with special emphasis on their underlying theories of constitutional democracy, yields a set of criteria for adequate accounts of democratic processes, democratic legitimacy, and their relation to judicial review. I argue that the best understanding of constitutional review is yielded by Habermas’s theory because it combines a conception of popular sovereignty in terms of the collective process of citizens’ deliberative attempt to institutionalize the general will through law, with a resolutely proceduralist conception of democratic legitimacy. However, I also argue that some of the specific proposals Habermas makes concerning the institutionalization of constitutional review in an independent, non-accountable judiciary and the scope of duties for such a body need to be modified in the light of his overriding commitments to participatory deliberative processes and procedural legitimacy. (shrink)

Sentencing outcomes turn on moral and evaluative determinations. For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole. A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty. Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof? A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to our (...) sentencing case law,” as the Supreme Court recently put it. Kansas v. Carr, 577 U.S. 108, 119 (2016). According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply. -/- Implicit in these rulings is a controversial view of the nature of moral judgment. This Article traces the contours of the view and argues that it is out of step with the way the broader public thinks about morality and fails to address the issues defendants have raised. Courts should avoid wading into such controversial waters for two reasons. First, the judiciary has historically maintained neutrality on issues of significant public concern. Second, even if moral determinations are not factual, applying a standard of proof to at least some moral decisions at sentencing would change the outcome of the sentencer’s deliberations, and improve the legitimacy of the legal system. For the reasonableness of doubt depends on context; and moral questions—"are you certain the defendant deserves death?”—make salient the stakes relative to which a person should decide what to believe about ordinary empirical matters. On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized "factual findings” in the guilt phase to control outcomes at sentencing. (shrink)

In current legal and political atmospheres, when governments are embracing notions such as pollution prevention and the three ”R’s” – reduce, reuse and recycle, while discarding command and control types of regulatory enforcement, some may be surprised to learn that since 1971 Pennsylvania law has permitted the exemption of corporate assets from capital stock valuation for the purpose of paying capital stock taxes, if the assets are devoted to pollution control or abatement. Straightforward though the idea of tax exemption for (...) pollution control assets may seem, the execution of the statutory exemption, together with the regulation which was promulgated thereunder, yields a wide variety of hermeneutic fruit under the scrutiny of the judiciary and the advocacy of lawyers. (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)

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about whether (...) a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by s. 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded on their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable” given what the accused knew, the legal definition of consent in section 273.1 is easily over-looked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. -/- That is precisely what we see here; the result is often failure to enforce the law. The author proposes: -/- (a) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and -/- (b) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent. (shrink)

It could be argued that tort law is failing, and arguably an example of this failure is the recent public liability and insurance (‘PL&I’) crisis. A number of solutions have been proposed, but ultimately the chosen solution should address whatever we take to be the cause of this failure. On one account, the PL&I crisis is a result of an unwarranted expansion of the scope of tort law. Proponents of this position sometimes argue that the duty of care owed by (...) defendants to plaintiffs has expanded beyond reasonable levels, such that parties who were not really responsible for another’s misfortune are successfully sued, while those who really were to blame get away without taking any responsibility. However people should take responsibility for their actions, and the only likely consequence of allowing them to shirk it is that they and others will be less likely to exercise due care in the future, since the deterrents of liability and of no compensation for accidentally self-imposed losses will not be there. Others also argue that this expansion is not warranted because it is inappropriately fueled by ‘deep pocket’ considerations rather than by considerations of fault. They argue that the presence of liability insurance sways the judiciary to award damages against defendants since they know that insurers, and not the defendant personally, will pay for it in the end anyway. But although it may seem that no real person has to bear these burdens when they are imposed onto insurers, in reality all of society bears them collectively when insurers are forced to hike their premiums to cover these increasing damages payments. In any case, it seems unfair to force insurers to cover these costs simply because they can afford to do so. If such an expansion is indeed the cause of the PL&I crisis, then a contraction of the scope of tort liability, and a pious return to the fault principle, might remedy the situation. However it could also be argued that inadequate deterrence is the cause of this crisis. On this account the problem would lie not with the tort system’s continued unwarranted expansion, but in the fact that defendants really have been too careless. If prospective injurers were appropriately deterred from engaging in unnecessarily risky activities, then fewer accidents would ever occur in the first place, and this would reduce the need for litigation at its very source. If we take this to be the cause of tort law’s failure then our solution should aim to improve deterrence. Glen Robinson has argued that improved deterrence could be achieved if plaintiffs were allowed to sue defendants for wrongful exposure to ongoing risks of future harm, even in the absence of currently materialized losses. He argues that at least in toxic injury type cases the tortious creation of risk [should be seen as] an appropriate basis of liability, with damages being assessed according to the value of the risk, as an alternative to forcing risk victims to abide the outcome of the event and seek damages only if and when harm materializes. In a sense, Robinson wishes to treat newly-acquired wrongful risks as de-facto wrongful losses, and these are what would be compensated in liability for risk creation (‘LFRC’) cases. Robinson argues that if the extent of damages were fixed to the extent of risk exposure, all detected unreasonable risk creators would be forced to bear the costs of their activities, rather than only those who could be found responsible for another’s injuries ‘on the balance of probabilities’. The incidence of accidents should decrease as a result of improved deterrence, reduce the ‘suing fest’, and so resolve the PL&I crisis. So whilst the first solution involves contracting the scope of tort liability, Robinson’s solution involves an expansion of its scope. However Robinson acknowledges that LFRC seems prima facie incompatible with current tort principles which in the least require the presence of plaintiff losses, defendant fault, and causation to be established before making defendants liable for plaintiffs’ compensation. Since losses would be absent in LFRC cases by definition, the first evidentiary requirement would always be frustrated, and in its absence proof of defendant fault and causation would also seem scant. If such an expansion of tort liability were not supported by current tort principles then it would be no better than proposals to switch accident law across to no-fault, since both solutions would require comprehensive legal reform. However Robinson argues that the above three evidentiary requirements could be met in LFRC cases to the same extent that they are met in other currently accepted cases, and hence that his solution would therefore be preferable to no-fault solutions as it would only require incremental but not comprehensive legal reform. Although I believe that actual losses should be present before allowing plaintiffs to seek compensation, I will not present a positive argument for this conclusion. My aim in this paper is not to debate the relative merits of Robinson’s solution as compared to no-fault solutions, nor to determine which account of the cause of the PL&I crisis is closer to the truth, but rather to find out whether Robinson’s solution would indeed require less radical legal reform than, for example, proposed no-fault solutions. I will argue that Robinson fails to show that current tort principles would support his proposed solution, and hence that his solution is at best on an even footing with no-fault solutions since both would require comprehensive legal reform. (shrink)

Certain principle aspects of the fundamental science state in Ukraine as of 2014 were analyzed. It was shown that no awareness exists in the country that the main although not unique task of the science consists in the creation of new knowledge. The special attention was paid to state academies of science, in particular, to the National academy of science of Ukraine. It was demonstrated that the active law concerning science as well as the project of the new law have (...) substantial shortcomings from the judiciary viewpoint and inhibit a free progress of science in line with general trends of the developed countries. The existing status of the autonomous state academies, being a peculiar symbiosis the non-governmental organization and state institution, was criticized. The concept of a scientific elite was analyzed, which was used to determine its true level. Certain scientometric data on the Ukrainian science were presented. A very unsatisfactory situation with social sciences and humanities was shown. Criteria were discussed for the future audit of the Ukrainian science in order to reform it in the European style. (shrink)

This paper concerns two topics which, I hope to show, are vitally connected. One is the distinctive importance of appellate adjudication in the legal system of United States. The other is the workings of entangled concepts in the law. That appellate adjudication is important in some sense may seem obvious to everybody (to a few it will seem obvious that appellate adjudication is unimportant). My point will be that via appellate adjudication courts engineer entangled legal concepts, and it is this (...) aspect of appellate adjudication that is both crucial and unique to it, at least in the U.S. legal system. Entangled concepts intertwine description and evaluation; entangled legal concepts facilitate and constrain legal reasoning and legal judgments, in ways that distinguish legal adjudication from pure politics or the implementation of public policy. In the paper itself, I demonstrate more fully what it is for a legal concept to be an entangled one and how entanglement supplies guidance in adjudication. I also broach how entanglement in legal concepts and engineered entanglement have significance for legal pedagogy; appellate adjudication; the respective roles of the judiciary, the legislature, and administrative agencies; the erosion of the distinction between so-called public law and so-called private law; and our understanding of the fact/value distinction. -/- Understanding more specifically the nature of the entanglement at work in appellate adjudication requires much closer scrutiny of appellate opinions than we usually give. I examine carefully the background to MacPherson v. Buick and Justice Benjamin Cardozo’s particular re-engineering of ‘negligence’ and ‘duty,’ entangled concepts belonging to the same legal taxonomy. Via this scrutiny, I demonstrate the flaws in the engineering of some concepts in the buildup to MacPherson, and how these flaws led to those concepts’ collapse and ultimately to Cardozo’s re-engineering of ‘negligence’ and ‘duty.’ I also explain why careful understanding of the engineering of entangled legal concepts can make us appreciate that even the most successful of such concepts have within in them the grounds for their own obsolescence. -/- To show that conceptual engineering of entangled concepts occurs outside the context of state common law, I also examine how the U.S. Supreme Court has engineered ‘commerce’, itself an entangled concept. The recent decision regarding the individual mandate in the Affordable Care Act makes this example particularly timely. This secondary example also clarifies the nature of entanglement and engineering it. -/- This article concerns appellate adjudication in any area of law. I maintain that whether we are dealing with private law or public law, common law or statutory law or Constitutional law, the defining feature of appellate adjudication is its continuous engineering and reengineering of entangled legal concepts. The merger of fact and value in these concepts explains both the fertility of appellate adjudication and the constraints judges work with when they work with legal concepts that entangle fact and value. (shrink)

This report presents the results of a research project which examined how Polish administrative courts exercise discretionary powers when deciding cases related to business activity. When a business enterprise asks the court to review actions taken by administration, judges decide whether an administrative body has used its powers in accordance with the law. The law in this case includes both the relevant statutory regulations but also more general principles originating from other sources, such as the Constitution or European Union law. (...) It is generally accepted that in such cases courts have discretion, i.e. are able to select legal standards on which to base their judgments and to decide how to apply such standards to the case at hand. This does not mean, of course, that administrative court judges can do what they please. But, within some well-established boundaries, they can select from among various rules and principles those legal standards which apply to the case before them, interpret their meaning, and assess their importance. We aim to understand this process. (shrink)

In spite of his post-World War II works on international law, which seems more purely juridical, Hans Kelsen continues to put forward in his vast body of work an implicit – and sometimes even explicit – juridical objectivism and pacifism. Especially before and during the second World War he makes – by means of many moral-political writings – an effort for a more effective assurance of international peace. The fact that Kelsen regards the law as the pre-eminent means to achieve (...) the end of peace, is – in view of the tradition running from Hobbes to Kant – still not very innovating. But the primary and central role he assigns to the judiciary in order to guarantee international peace is on the other hand really original. To bring out Kelsen’s juridical objectivism and pacifism, I restrict myself in this article to his plea before and during the second World War for the judicial primacy in the international legal order. In that plea, which is spread over many writings and founded by several arguments, I distinguish however three main convincing arguments – namely an evolutionary, a technical and a moral-political argument – for the establishment of an international court with compulsory jurisdiction as the ‘guardian of international peace’. The fact that Kelsen’s original plea is still relevant to our times, is already evident from the post-World War II UN-system of peace-enforcement, which still functions little satisfactorily and of which the existing plans of reform go no further than strengthening the position of the Security Council, the current hardly effective ‘maintainer of world peace’. (shrink)

The consciousness of social security comes to a man when he feels that he is getting his basic rights. Human Rights are related to those rights which are related to man’s life, freedom, equality and self-esteem, are established by Indian constitution or universal declaration of human rights and implemented by Indian judiciary system. In other words, “Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or (...) any other status.”1 We are all equally entitled to our human rights without discrimination. But we when come the present conditions of Indian society, it is painful to say we find lots of discrimination and violations of human rights is a common problem. In this paper it is an attempt is made to describe that casteism cause social insecurity and is a form of violation of human rights. (shrink)

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at length in (...) “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

Among the many problems facing u.s. immigration law is a crisis of discretion and judicial deference. Through two recently passed laws, the United States Congress and the President have seriously limited judicial review o f discretionary immigration decisions o f the Board ofImmigration Appeals. This Article focuses on this preclusion of judicial review of discretionary agency decisions. The Article begins with an examination ofdiscretion from a theoretical perspective, and goes on to examine areas o f immigration law in which discretion (...) was traditionally most imponant. That examination is followed by a discussion of immigration-law scholarship and critique. The Article concludes that what is needed in U.S. immigration law is greater restraint, and calls on the Judiciary to provide more oversight regarding discretionary agency decisions. (shrink)

Spinoza's moral philosopher represents his most concerted attempt to come to terms with the great philosophical questions of the existence and identity of God, the nature and origin of the human mind concerning God, the origin and nature of emotions, the power of emotions as they restrict freedom of choice. His ethics is derived from his metaphysics and psychology. His belief that everything emanates from a perfect and infinite God made him conclude that evil does not exist. Further, he argues (...) that anything that happens could have happened otherwise since it emanated from the unchangeable laws of nature. The surest part of happiness according to Spinoza is the study of philosophy and meditation. Arising from the foregoing, this discourse views Spinoza's doctrine as running contrary to human nature. For maintaining that everything is fated and determined including human disposition implies that all human actions can, therefore, be said to be amoral. The corollary of the above is that institutions such as law court, police, prisons, and judiciary, Christianity and Islam are superfluous, irrational and serving no purpose. Consequently, his postulates smack of a moral lacuna. (shrink)

Religion and culture are interwoven and this can be seen among the Oron people in their use of the shrine as a socio-cultural and ethical institution. The shrine is an embodiment and the symbol of the very traditional religion of the people. As such, the shrine serves as a medium through which the norms, values, ethics, taboos, and morals are taught and enforced. There is also a great relationship between religion and justice as the shrine (Afi/Obio) as an ethical institution (...) serves as a tribunal of justice by the deities, divinities, and ancestors under the guidance and administration of the priest in tackling and resolving criminal activities, disputes as well as restoring social order and justice in Oron traditional society. The Oron Afi/Obio (Shrine) method of administering justice is beyond the Empirical application of the modern judiciary system that relies on physical facts and shreds of evidence, while the shrine, also, uses spiritual methods that involve Oath taking, incantation and necromancy. Globalization rather than modifying the lapses and loopholes of this system in the parlance of morality, ethics, and health has led to its abolition and break down. This work adopts the qualitative method. This work as primary research uses the conflict theory, phenomenological and Historical method. It identifies globalization as a threat to the traditional justice system and recommends that the shrine is a multi-faceted institution whose function can be adopted and applied to the Nigerian legal system where there is no or little evidence and oath swearing for politicians in our contemporary society. (shrink)

The separation of powers principle deeply heritaged in the US constitutionalism affected and continues to influence the law and public policy in the nation. The tripartite scheme of government was quarreled over the history how we have to perceive any best adequate interaction among the Congress, Executive and Judiciary. The Constitution itself merely quibbles on this point, and the Supreme Court justices, in some cases, would not be done as a clear cut for the scope of constitutional power conferred (...) on each branch. As the stare decisis is a rule in the common law countries, it is less prospective to anticipate that a quantum leap can be made for the new paradigm of constitutional government in the US. In this challenge, the paper deals with the sensitive area of three powers involving the issue of presidential privilege and immunity, justiceability and standing, as well as judicial control of public agencies. In the course of discussion, several landmark cases were illustrated to make a point for the angulated controversies, typically involving the pressing pubic issues and officers of absolute or qualified immunity. Given the diverse structure of government, the US model had been followed by many new born republics in 20th centuries. The author would wish that the paper provides a comparative lesson for the circle of those countries. (shrink)

In this paper an attempt is made to draw out an outline of present social evils generated from Caste-Discrimination and this system is the misinterpreted conception of Varynavyavastha where the four varnas are divided on the basis of division of labour and since history it converted to caste system. With these Human Rights issues are directly related and human rights are an important concept in civilized and democratic society. But from the part of Government and judiciary the above said (...) both are separated and cannot be treated equally and it can be see in the latest examples of inhuman acts with Dalits in Haryana. First this paper also highlights the schemes and policies of the government to eliminate this system and their failure in part of unavailability to socially deprived persons. These policies are only in the paper form and cannot become part of practical concerns. Secondly these problems related to caste- discrimination can be solved only by social awareness and social interaction among different communities but not only by policies and schemes. Since independence there is not a single case of social awareness programme conducted by political parties and government and this become the root cause of social inequality till now. The present examples of violation and injustice with poor and deprived persons show the failure of our judiciary system and so-called democratic & secular society. With this background some recommendations will be discussed in the last of the paper so that a humane society can be modeled according to our constitutional commitment of social equality, freedom and brotherhood. (shrink)

The United Kingdom's Parliamentary Bill 'Fraud Trials (Without a Jury) 2007', failed. Nevertheless, fraud trials without a jury do take place and there is much evidence to support this. Today the UK still does not support fraud trials without a jury, even though fraud in the UK today is the highest amount of fraud globally. The longer version of this paper is submitted here since it has become urgent that UK fraud trials be examined as a matter of urgency. On (...) page 87 of this complete paper (cut down for The Criminal Lawyer in 2008) a U.S study of 46 corporate fraud trials revealed that the defendants were CEOs, President, Chairman, Senior Vice Presidents, Chief Financial Officers, but only one entity reach trial stage. After the ce Arthur Anderson LLP v. United States, 544 U.S. 696 (2005), and the Lehman Brothers SEC case and the SEC v. Bank of America Corp., 653 F. Supp. 2d 507 (S.D.N.Y. 2009, and the Report by the U.S. Financial Crisis Inquiry on the 2008 financial crash, a global financial disaster was predicted and George Osborne, UK Chancellor pleaded for leniency for HSBC Bank frauds, threatening a global meltdown. The U.S. judiciary increased its volume of Deferred Prosecution Agreements and the UK followed suit. So, in year 2022, there is global financial meltdown and the UK has the highest rate of fraud in the world with few successful convictions. This paper is very relevant today as we must stop using deferred prosecution agreements and seek more convictions and harsh jail sentences for those financial fraudsters who have created this meltdown. -/- *When this paper was written, UK fraud was estimated at £40 million and some experts suspected twice that amount. Today UK fraud is in the billions of pounds annually. (shrink)

The modern form of government resort their legitimacy to democracy and Republican concept. In any viable way, the political power no longer entertains the dynasty or any divinity from the religion. Then who are responsible to make us fateful if we are any kind of citizen in a polity. Often it is true that the government has to be an amalgam of power elites, and divided for a limited government. The modern democratic constitutionalism considered this aspect any most in primacy (...) to defend or promote their privileges or vision. This root context of civil interaction around 17th and 18th centuries has underlain the modern form of democratic state. Within the concern of these two points, the paper has explored the main feature of limited government in the liberal constitutionalism, which deals with the separation of powers principle, distribution of governmental powers and some of controversies involving the social legislation and role of public officers. I hope that it could be a lesson for the public officer of both camps, one as realistically and the other in the context of analogical insights. Hopefully, I may expect that the following research may be bred in socialist tension of states about how the public officers are structured to act and could liberate themselves to progress. (shrink)

The Paris Convention on Climate Change is a convention under the United Nations Framework Convention on Climate Change that deals with greenhouse gas emission reduction, coordination and financing issues. The Convention shall enter into force from 2020. The Paris Climate Convention is an international environmental law with stronger social norms than other international law areas. Furthermore, the national characteristics of the norm have been doubled as a result of adopting the nationally determined contribution as the most important mechanism. In this (...) context, this paper examines the issues of the Paris Climate Convention at the international legal level. We examine the issue of enhancing normative efficiency through international trials of the Paris Convention and the International Court of Justice. Second, we examine possible conflicts between the Paris Climate Convention and the WTO law. This is to look at the bilateral issues between the WTO and the Parisian climate treaty, which represents the interests of developmentalists in the basic framework of the confrontation between developmentalists and environmentalists. Of course, when the two norms are in harmony, the normative effectiveness of the Paris Climate Convention is increased. Third, we briefly discuss the role of the domestic courts in raising the Paris Climate Convention, human rights issues, and normative effectiveness. In the end, the Paris Climate Convention enhances the normative effectiveness and suggests ways for lawyers and key actors to move forward. (shrink)