Download or read book The Judge as Political Theorist written by David Robertson and published by . This book was released on 2010 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: The nature and function of judicial review -- Germany: dignity and democracy -- Eastern Europe: (re) establishing the rule of law -- France: purely abstract review -- Canada: imposing rights on the common law -- South Africa: defining a new society -- Tests of unconstitutionality and discrimination -- Conclusions: constitutional jurists as political theorists.
Download or read book The Judge as Political Theorist written by David Robertson and published by Princeton University Press. This book was released on 2010-07-01 with total page 433 pages. Available in PDF, EPUB and Kindle. Book excerpt: The Judge as Political Theorist examines opinions by constitutional courts in liberal democracies to better understand the logic and nature of constitutional review. David Robertson argues that the constitutional judge's role is nothing like that of the legislator or chief executive, or even the ordinary judge. Rather, constitutional judges spell out to society the implications--on the ground--of the moral and practical commitments embodied in the nation's constitution. Constitutional review, in other words, is a form of applied political theory. Robertson takes an in-depth look at constitutional decision making in Germany, France, the Czech Republic, Poland, Hungary, Canada, and South Africa, with comparisons throughout to the United States, where constitutional review originated. He also tackles perhaps the most vexing problem in constitutional law today--how and when to limit the rights of citizens in order to govern. As traditional institutions of moral authority have lost power, constitutional judges have stepped into the breach, radically altering traditional understandings of what courts can and should do. Robertson demonstrates how constitutions are more than mere founding documents laying down the law of the land, but increasingly have become statements of the values and principles a society seeks to embody. Constitutional judges, in turn, see it as their mission to transform those values into political practice and push for state and society to live up to their ideals.
Download or read book The Judge in a Democracy written by Aharon Barak and published by Princeton University Press. This book was released on 2009-01-10 with total page 355 pages. Available in PDF, EPUB and Kindle. Book excerpt: Whether examining election outcomes, the legal status of terrorism suspects, or if (or how) people can be sentenced to death, a judge in a modern democracy assumes a role that raises some of the most contentious political issues of our day. But do judges even have a role beyond deciding the disputes before them under law? What are the criteria for judging the justices who write opinions for the United States Supreme Court or constitutional courts in other democracies? These are the questions that one of the world's foremost judges and legal theorists, Aharon Barak, poses in this book. In fluent prose, Barak sets forth a powerful vision of the role of the judge. He argues that this role comprises two central elements beyond dispute resolution: bridging the gap between the law and society, and protecting the constitution and democracy. The former involves balancing the need to adapt the law to social change against the need for stability; the latter, judges' ultimate accountability, not to public opinion or to politicians, but to the "internal morality" of democracy. Barak's vigorous support of "purposive interpretation" (interpreting legal texts--for example, statutes and constitutions--in light of their purpose) contrasts sharply with the influential "originalism" advocated by U.S. Supreme Court Justice Antonin Scalia. As he explores these questions, Barak also traces how supreme courts in major democracies have evolved since World War II, and he guides us through many of his own decisions to show how he has tried to put these principles into action, even under the burden of judging on terrorism.
Download or read book Judging Under Uncertainty written by Adrian Vermeule and published by Harvard University Press. This book was released on 2006 with total page 356 pages. Available in PDF, EPUB and Kindle. Book excerpt: In this book, Adrian Vermeule shows that any approach to legal interpretation rests on institutional and empirical premises about the capacities of judges and the systemic effects of their rulings. He argues that legal interpretation is above all an exercise in decisionmaking under severe empirical uncertainty.
Download or read book The Judge and the Spectator written by Joke Johannetta Hermsen and published by Peeters Publishers. This book was released on 1999 with total page 148 pages. Available in PDF, EPUB and Kindle. Book excerpt: Since early texts as "Thinking and Politics", Arendt had highlighted the contrast between philosophical and political thinking and compelled herself to find a satisfactory answer to the question: "how do philosophy and politics relate?". In her last work "Lectures on Kant's Political Philosophy" (1982), Arendt analyses the "political" dimensions of Kant's critical thinking. To think critically implies taking the viewpoints of others into account: one has to "enlarge" one's own mind by comparing our judgement with the possible judgements of others. While thinking remains a solitary activity, it does not cut itself off from all others.The essays in this book address the philosophical and moral questions raised by Arendt's attempt to draw out the political implications of "critical thinking" in Kant's sense. In one way or another, they all address the place of judgment in Arendt's thought. Arendt's turn to Kant and The Critique of Judgment was motivated by her desire to find a form of philosophizing that was not hostile to politics and the public realm. But did she really think that Kant's characterization of the judging spectator pointed the way out of the opposition between the universal and the particular, between looking at things sub specie aeternitatis and looking at things from a political point of view? To what extent did she think that Kant was successful in revealing a mode of thought oriented towards public persuasion, yet one which retained its critical independence?Each of the essays wrestles with the complexities of a complex thinker. They remind us that critical thinking or Selbstdenken is among the most difficult and rare arts, even though it is an art potentially accessible to everyone. They also remind us that Hannah Arendt was a virtuoso of this art, and of how her example points the way toward a renewal of judgment as the political faculty par excellence.
Download or read book The Judge as Political Theorist written by David Robertson and published by Princeton University Press. This book was released on 2010-07-21 with total page 432 pages. Available in PDF, EPUB and Kindle. Book excerpt: The Judge as Political Theorist examines opinions by constitutional courts in liberal democracies to better understand the logic and nature of constitutional review. David Robertson argues that the constitutional judge's role is nothing like that of the legislator or chief executive, or even the ordinary judge. Rather, constitutional judges spell out to society the implications--on the ground--of the moral and practical commitments embodied in the nation's constitution. Constitutional review, in other words, is a form of applied political theory. Robertson takes an in-depth look at constitutional decision making in Germany, France, the Czech Republic, Poland, Hungary, Canada, and South Africa, with comparisons throughout to the United States, where constitutional review originated. He also tackles perhaps the most vexing problem in constitutional law today--how and when to limit the rights of citizens in order to govern. As traditional institutions of moral authority have lost power, constitutional judges have stepped into the breach, radically altering traditional understandings of what courts can and should do. Robertson demonstrates how constitutions are more than mere founding documents laying down the law of the land, but increasingly have become statements of the values and principles a society seeks to embody. Constitutional judges, in turn, see it as their mission to transform those values into political practice and push for state and society to live up to their ideals.
Download or read book The Behavior of Federal Judges written by Lee Epstein and published by Harvard University Press. This book was released on 2013-01-07 with total page 491 pages. Available in PDF, EPUB and Kindle. Book excerpt: Judges play a central role in the American legal system, but their behavior as decision-makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made. The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In the authors' view, this model describes judicial behavior better than either the traditional “legalist” theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making. Federal judges are not just robots or politicians in robes.
Download or read book Judicial Reputation written by Nuno Garoupa and published by University of Chicago Press. This book was released on 2015-11-20 with total page 286 pages. Available in PDF, EPUB and Kindle. Book excerpt: In "Judicial Reputation: A Comparative Theory, "Tom Ginsburg and Nuno Garoupa mean to explain how judges respond to the reputational incentives provided by the different audiences they interact with--lawyers and law professors; politicians; the media; and the public itself--as well as how legal systems design their judicial institutions to calibrate the locally appropriate balance among audiences. Making use by turns of careful empirical work and penetrating conceptual insights, Ginsburg and Garoupa argue that any given judicial structure is best understood not through the lens of legal culture, origin, or tradition, but through the economics of information and reputation.
Download or read book Judge Thy Neighbor written by Patrick Bergemann and published by Columbia University Press. This book was released on 2019-03-26 with total page 145 pages. Available in PDF, EPUB and Kindle. Book excerpt: From the Spanish Inquisition to Nazi Germany to the United States today, ordinary people have often chosen to turn in their neighbors to the authorities. What motivates citizens to inform on the people next door? In Judge Thy Neighbor, Patrick Bergemann provides a theoretical framework for understanding the motives for denunciations in terms of institutional structures and incentives. In case studies of societies in which denunciations were widespread, Bergemann merges historical and quantitative analysis to explore individual reasons for participation. He sheds light on Jewish converts’ shifting motives during the Spanish Inquisition; when and why seventeenth-century Romanov subjects fulfilled their obligation to report insults to the tsar’s honor; and the widespread petty and false complaints filed by German citizens under the Third Reich, as well as present-day plea bargains, whistleblowing, and crime reporting. Bergemann finds that when authorities use coercion or positive incentives to elicit information, individuals denounce out of self-preservation or to gain rewards. However, in the absence of these incentives, denunciations are often motivated by personal resentments and grudges. In both cases, denunciations facilitate social control not because of citizen loyalty or moral outrage but through the local interests of ordinary participants. Offering an empirically and theoretically rich account of the dynamics of denunciation as well as vivid descriptions of the denounced, Judge Thy Neighbor is a timely and compelling analysis of the reasons people turn in their acquaintances, with relevance beyond conventionally repressive regimes.
Download or read book A Democratic Theory of Judgment written by Linda M.G. Zerilli and published by University of Chicago Press. This book was released on 2016-12-12 with total page 401 pages. Available in PDF, EPUB and Kindle. Book excerpt: In this sweeping look at political and philosophical history, Linda M. G. Zerilli unpacks the tightly woven core of Hannah Arendt’s unfinished work on a tenacious modern problem: how to judge critically in the wake of the collapse of inherited criteria of judgment. Engaging a remarkable breadth of thinkers, including Ludwig Wittgenstein, Leo Strauss, Immanuel Kant, Frederick Douglass, John Rawls, Jürgen Habermas, Martha Nussbaum, and many others, Zerilli clears a hopeful path between an untenable universalism and a cultural relativism that forever defers the possibility of judging at all. Zerilli deftly outlines the limitations of existing debates, both those that concern themselves with the impossibility of judging across cultures and those that try to find transcendental, rational values to anchor judgment. Looking at Kant through the lens of Arendt, Zerilli develops the notion of a public conception of truth, and from there she explores relativism, historicism, and universalism as they shape feminist approaches to judgment. Following Arendt even further, Zerilli arrives at a hopeful new pathway—seeing the collapse of philosophical criteria for judgment not as a problem but a way to practice judgment anew as a world-building activity of democratic citizens. The result is an astonishing theoretical argument that travels through—and goes beyond—some of the most important political thought of the modern period.
Download or read book All Judges Are Political Except When They Are Not written by Keith Bybee and published by Stanford Law Books. This book was released on 2010-08-24 with total page 194 pages. Available in PDF, EPUB and Kindle. Book excerpt: Comparing law to the American practice of common courtesy, this book explains how our courts not only survive under conditions of suspected hypocrisy, but actually depend on these conditions to function.
Download or read book How Judges Think written by Richard A. Posner and published by Harvard University Press. This book was released on 2010-05-01 with total page 399 pages. Available in PDF, EPUB and Kindle. Book excerpt: A distinguished and experienced appellate court judge, Richard A. Posner offers in this new book a unique and, to orthodox legal thinkers, a startling perspective on how judges and justices decide cases. When conventional legal materials enable judges to ascertain the true facts of a case and apply clear pre-existing legal rules to them, Posner argues, they do so straightforwardly; that is the domain of legalist reasoning. However, in non-routine cases, the conventional materials run out and judges are on their own, navigating uncharted seas with equipment consisting of experience, emotions, and often unconscious beliefs. In doing so, they take on a legislative role, though one that is confined by internal and external constraints, such as professional ethics, opinions of respected colleagues, and limitations imposed by other branches of government on freewheeling judicial discretion. Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term. In that open area, most American judges are legal pragmatists. Legal pragmatism is forward-looking and policy-based. It focuses on the consequences of a decision in both the short and the long term, rather than on its antecedent logic. Legal pragmatism so understood is really just a form of ordinary practical reasoning, rather than some special kind of legal reasoning. Supreme Court justices are uniquely free from the constraints on ordinary judges and uniquely tempted to engage in legislative forms of adjudication. More than any other court, the Supreme Court is best understood as a political court.
Download or read book Democracy and Distrust written by John Hart Ely and published by Harvard University Press. This book was released on 1981-08-15 with total page 281 pages. Available in PDF, EPUB and Kindle. Book excerpt: This powerfully argued appraisal of judicial review may change the face of American law. Written for layman and scholar alike, the book addresses one of the most important issues facing Americans today: within what guidelines shall the Supreme Court apply the strictures of the Constitution to the complexities of modern life? Until now legal experts have proposed two basic approaches to the Constitution. The first, “interpretivism,” maintains that we should stick as closely as possible to what is explicit in the document itself. The second, predominant in recent academic theorizing, argues that the courts should be guided by what they see as the fundamental values of American society. John Hart Ely demonstrates that both of these approaches are inherently incomplete and inadequate. Democracy and Distrust sets forth a new and persuasive basis for determining the role of the Supreme Court today. Ely’s proposal is centered on the view that the Court should devote itself to assuring majority governance while protecting minority rights. “The Constitution,” he writes, “has proceeded from the sensible assumption that an effective majority will not unreasonably threaten its own rights, and has sought to assure that such a majority not systematically treat others less well than it treats itself. It has done so by structuring decision processes at all levels in an attempt to ensure, first, that everyone’s interests will be represented when decisions are made, and second, that the application of those decisions will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory.” Thus, Ely’s emphasis is on the procedural side of due process, on the preservation of governmental structure rather than on the recognition of elusive social values. At the same time, his approach is free of interpretivism’s rigidity because it is fully responsive to the changing wishes of a popular majority. Consequently, his book will have a profound impact on legal opinion at all levels—from experts in constitutional law, to lawyers with general practices, to concerned citizens watching the bewildering changes in American law.
Download or read book Law Pragmatism and Democracy written by Richard A. Posner and published by Harvard University Press. This book was released on 2009-07-01 with total page 428 pages. Available in PDF, EPUB and Kindle. Book excerpt: A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests rather than by reason and the decisions of judges by discretion rather than by rules. He emphasizes the institutional and material, rather than moral and deliberative, factors in democratic decision making. Posner argues that democracy is best viewed as a competition for power by means of regular elections. Citizens should not be expected to play a significant role in making complex public policy regarding, say, taxes or missile defense. The great advantage of democracy is not that it is the rule of the wise or the good but that it enables stability and orderly succession in government and limits the tendency of rulers to enrich or empower themselves to the disadvantage of the public. Posner’s theory steers between political theorists’ concept of deliberative democracy on the left and economists’ public-choice theory on the right. It makes a significant contribution to the theory of democracy—and to the theory of law as well, by showing that the principles that inform Schumpeterian democratic theory also inform the theory and practice of adjudication. The book argues for law and democracy as twin halves of a pragmatic theory of American government.
Download or read book On the Judgment of History written by Joan Wallach Scott and published by Columbia University Press. This book was released on 2020-09-22 with total page 80 pages. Available in PDF, EPUB and Kindle. Book excerpt: In the face of conflict and despair, we often console ourselves by saying that history will be the judge. Today’s oppressors may escape being held responsible for their crimes, but the future will condemn them. Those who stand up for progressive values are on the right side of history. As ideas once condemned to the dustbin of history—white supremacy, hypernationalism, even fascism—return to the world, threatening democratic institutions and values, can we still hold out hope that history will render its verdict? Joan Wallach Scott critically examines the belief that history will redeem us, revealing the implicit politics of appeals to the judgment of history. She argues that the notion of a linear, ever-improving direction of history hides the persistence of power structures and hinders the pursuit of alternative futures. This vision of necessary progress perpetuates the assumption that the nation-state is the culmination of history and the ultimate source for rectifying injustice. Scott considers the Nuremberg Tribunal and South Africa’s Truth and Reconciliation Commission, which claimed to carry out history’s judgment on Nazism and apartheid, and contrasts them with the movement for reparations for slavery in the United States. Advocates for reparations call into question a national history that has long ignored enslavement and its racist legacies. Only by this kind of critical questioning of the place of the nation-state as the final source of history’s judgment, this book shows, can we open up room for radically different conceptions of justice.
Download or read book For Foucault written by Mark G. E. Kelly and published by State University of New York Press. This book was released on 2017-12-04 with total page 204 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book comprises a series of staged confrontations between the thought of Michel Foucault and a cast of other figures in European and Anglophone political philosophy, including Marx, Lenin, Althusser, Deleuze, Rorty, Honneth, and Geuss. Focusing on the status of normativity in their thought, Mark G. E. Kelly explains how Foucault's position in relation to political theory is different, and, over the course of the book, describes a distinctive Foucauldian stance in political thought that is maximally anti-normative, anti-theoretical, and anti-political. For Foucault aims to undermine attempts to discern the appropriate form of political action, instead putting forward a rigorously critical program for a political theory that lacks any moralizing or totalizing dimension, and serves only to side with resistance against power, and never with power itself. Looking at attempts to think radically about politics from Marx to the present day, Kelly traces a novel history of political thought as a trend of attempts to overcome the constraints of normativity, theoreticism, and subordination to public policy. He concludes by assessing and rejecting recent attempts to reclaim Foucault for a form of normative politics by associating him with neoliberalism.
Download or read book Common law Liberty written by James Reist Stoner and published by . This book was released on 2003 with total page 230 pages. Available in PDF, EPUB and Kindle. Book excerpt: In an ere as morally confused as ours, Stoner argues, we at least ought to know what we've abandoned or suppressed in the name of judicial activism and the modern rights-oriented Constitution. Having lost our way, perhaps the common law, in its original sense, provides a way back, a viable alternative to the debilitating relativism of our current age.
