Journal articles on the topic 'Judicial Doctrain'
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1
Piccon, Augusto. "Entorno a la dudosa clasificación de escrituras judiciales. / The doubtful classification of judicial deeds." Revista de Derecho Notarial y Registral │Universidad Blas Pascal 8, no. (2022) (June 3, 2022): 82–99. http://dx.doi.org/10.37767/2362-3845(2022)006.
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SUMARIO
Introducción. Desarrollo. A- ¿En base a qué clasificamos? B - ¿A partir de qué hablamos de escrituras judiciales? *Escrituras de recopilación de antecedentes judiciales. C- Origen de la clasificación: *Escrituras de Protocolización: Casos. El término Técnico. ¿Fin que persigue? ¿Es una Escritura? Designación del Escribano. Transcripción. Escrituras de Ejecución Forzada. D- Criterios de la relación del expediente. Modelos de la Doctrina según: Falbo Dalessio. Villalba Welsh, Heguy. Conclusión.ABSTRACT
Introduction. Developing. A- On what basis do we classify? B - From what do we speak of judicial deeds? *Writs of compilation of judicial antecedents. C- Origin ofthe classification: * Protocolization Deeds: Cases. The technical term. End pursued? Is it a Scripture? Appointment of the Notary. Transcription. Deeds of Forced Execution. D- Criteria of the relation of the file. Models of the Doctrine according to: Falbo Dalessio. Villalba Welsh, Heguy. Conclution.
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Piccon, Augusto. "Entorno a la dudosa clasificación de escrituras judiciales. / The doubtful classification of judicial deeds." Revista de Derecho Notarial y Registral │Universidad Blas Pascal 8, no. (2022) (June 3, 2022): 82–99. http://dx.doi.org/10.37767/2362-3845(2022)006.
Full textAbstract:
SUMARIO
Introducción. Desarrollo. A- ¿En base a qué clasificamos? B - ¿A partir de qué hablamos de escrituras judiciales? *Escrituras de recopilación de antecedentes judiciales. C- Origen de la clasificación: *Escrituras de Protocolización: Casos. El término Técnico. ¿Fin que persigue? ¿Es una Escritura? Designación del Escribano. Transcripción. Escrituras de Ejecución Forzada. D- Criterios de la relación del expediente. Modelos de la Doctrina según: Falbo Dalessio. Villalba Welsh, Heguy. Conclusión.ABSTRACT
Introduction. Developing. A- On what basis do we classify? B - From what do we speak of judicial deeds? *Writs of compilation of judicial antecedents. C- Origin ofthe classification: * Protocolization Deeds: Cases. The technical term. End pursued? Is it a Scripture? Appointment of the Notary. Transcription. Deeds of Forced Execution. D- Criteria of the relation of the file. Models of the Doctrine according to: Falbo Dalessio. Villalba Welsh, Heguy. Conclution.
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Shaheen, Fozia, and Mamoona Khalid. "Judicial Independence and Impartiality of Judiciary: A Comparative Study." International Journal of Social Sciences and Humanities Invention 5, no. 2 (February 1, 2018): 4383–86. http://dx.doi.org/10.18535/ijsshi/v5i2.01.
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Vesting judicial power in a separate branch under the doctrine of separation of power requires impartiality of the body exercising judicial powers, in order to develop public confidence on the judiciary. An independent judiciary has always been acted as a guardian of constitution and individual rights. Independence and impartiality of the judiciary is not only necessary for fair trial but also pre-requisites for the application of Rule of Law. If judiciary is biased then there will be chaos and tyranny. Right of fair trial before independent and impartial tribunal is an internationally recognized right under International Instruments. This Article is intended to explore the importance of doctrine of judicial impartiality for preserving Judicial Independence in Constitutional analysis perspective of Pakistan, UK and USA.
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SKRYPNIUK, Valentyna M., Maryna S. BULKAT, and Serhii A. DROBOTOV. "Actual Vectors of Research in the Doctrine of the Judiciary." Journal of Advanced Research in Law and Economics 10, no. 7 (December 31, 2019): 2097. http://dx.doi.org/10.14505/jarle.v10.7(45).22.
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The ways in which international entities and the judiciary function are of global importance. Each state has different strategies for resolving and developing the activities of national judicial systems, ways of executing decisions, investigating subjects, and ways of exercising judicial power. This article explores the ways and effectiveness of implementing the mediation institute and mediation judges using the Ukrainian space. The authors examined the models of mediation, the levels of responsibility of the subject-carrier of mediation powers, the functional potential of mediation. The article also gives examples of integration of national judicial systems into the international system. As a result of the study, the authors outline ways to introduce mediation and select appropriate models and outline key approaches of correlation of national judicial systems with intergovernmental bodies and coordination of national judicial systems with judicial authorities. This article may form the basis for further exploration of the doctrines of the judiciary.
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Amir, Farah, Aas Muhammad, and Junaid Jan. "JUDICIAL ACTIVISM AT THE COST OF SEPARATION OF POWER IN PAKISTAN: A COMPARISON OF JUSTICE IFTIKHAR CHAUDHRY AND JUSTICE SAQIB NISAR’S ERA." Pakistan Journal of Social Research 04, no. 03 (September 30, 2022): 589–98. http://dx.doi.org/10.52567/pjsr.v4i03.748.
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The study deals with the significant role of judicial activism in different eras in Pakistan. It examines the role of judicial institutions in damaging the democratic culture of the country. Since the independence of Pakistan, frequent military interventions were validated by the Superior Judiciary of Pakistan. The study discussed these landmark cases which dented the doctrine of Separation of Power in the county. The concept of judicial review has been originated and developed in Britain, and later reached the US in Marbury v. Madison. The history of Pakistan is marred by several instances of Judicial Activism, in which the jurisdiction of the judiciary encroached upon the domain of legislature and executive. In this study, the activism of populist Judges, Justice Iftikhar Chaurdhty and Justice Saqib Nisar has been compared. Their Judicial actions have been discussed in which the domain of the executive has been compromised. The populist actions of Judges dent the independence of the Judiciary and lead to judicial impartiality, as in several cases, different verdicts are observed in the same nature cases. The study concluded by establishing the link between Judicial activism and Separation of powers, as all organs of the states have constitutional limits to work within, The researchers also proposed some judicial reforms, that will maintain the sanctity of the Doctrine of Separation of Power while exercising Judicial Activism. Keywords: Judicial Activism, Separation of Power, Judicial Review in Pakistan, Judicial Reforms.
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Tang, Qian. "The Risks and Control of Judicial Application of Legal Doctrine." Studies in Law and Justice 1, no. 1 (November 2022): 21–27. http://dx.doi.org/10.56397/slj.2022.11.03.
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In judicial practice, the judicial application of legal doctrine is necessary and reasonable, but its application is still in an irregular and risky state, because the theoretical and practical communities have failed to conduct orderly and effective dialogue and communication in this process. Due to the characteristics of the stage of development of legal doctrine itself, the lack of positive interaction between the theoretical and practical circles, as well as the difficulty of integrating legal doctrine into the judiciary and other problems exist, which will lead to the abstraction of the argumentation of the reasoning of the judges, the decline of the credibility of judicial decisions, the reduction of the attributes of judicial authority and other risks. In order to effectively prevent these risks, legal doctrine in judicial practice should comply with the principles of strengthening judicial authority as the ultimate goal, strengthening the status of legal subjects as the fundamental starting point, and solving practical problems as the guide.
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N., Parchomenko. "The doctrinal approaches to figuring out the judiciary legal acts’ essence." Almanac of law: The role of legal doctrine in ensuring of human rights 11, no. 11 (August 2020): 27–33. http://dx.doi.org/10.33663/2524-017x-2020-11-5.
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It was found the legal nature, essence, concept and legal effect of the judiciary legal act’s at the current stage of development of the rule of law in Ukraine. At the moment, a legal science and legal practice has not the only approach to defining the application of the law by a court and judiciary legal acts. Their legal force is not clearly defined in the Ukrainian legislation, but they are binding. Therefore, the new Ukrainian legislation is investigated, namely the implementation of such legal ties as exemplary case of enshrining the binding nature of the Supreme Court’s judgements. It was found out that the judicial practice, judicial doctrine and judicial precedent have the common nature. They are the result of court’s activity, but in doing so, they have the different forms and legal force, thus, their status in the legal system, system of law and legal sources also differ. The judicial practice is primary to the judicial precedent and judicial doctrine, which result from the judicial practice and which are its manifestation. The judicial doctrine could have as a binding nature as a nature of recommendations. The judgements in exemplary case is regarded as judicial doctrine, as one of efficient manifestation of judicial practice. Therefore, the Supreme Court’s attitude were strengthened, since it has to ensure unity of judicial practice. Furthermore, the Supreme Court formulates the legal attitudes, that are binding. The court’s judgements, that are not based on the legal attitudes of the Supreme Court, the High Specialized Courts, the regulations of Supreme Court’s plenary, could be cancelled. So they are compulsory. They are the legal source at the formal legal level. Thus, judiciary’s law-enforcement acts have the normative content. Thereby, a clear distinction between legal and individual acts disappear. This is a judicial legislation. It results in the legal regulations, namely, judgements in an exemplary case or an order confirmed by the higher court. Accordingly, at the moment there is a need to legalize the legislation power of the court, what must be done on the constitutional level. That is, the reality must be formally enshrined. Keywords: doctrine, court, acts, legislation, precedent, exemplary case, practice, order, plenary, judgement.
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Singh, V. P. "Judicial Activism as an Essential Tool for the Protection and Expansion of Human Rights in India." Kutafin Law Review 10, no. 1 (April 4, 2023): 88–109. http://dx.doi.org/10.17803/2713-0533.2023.1.23.088-109.
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The Indian judiciary has been the sentinel of democracy and assiduously upholds the values of Indian constitutionalism. Thus, the Court is the interpreter, protector, and guardian of the Indian Constitution. The active and trustworthy role of the judiciary makes it the country’s only institution whose acceptability seems to be a national consensus. This paper discusses that judicial activism is a part of judicial review and does not violate the doctrine of separation of powers; instead, it protects and promotes constitutionalism. Further, this paper illustrates that judicial activism has played a vital role in protecting and promoting human rights in India.
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Pandit, Piyush. "Judicial Review and its Distinction with Appeal." International Journal For Multidisciplinary Research 04, no. 04 (2022): 76–85. http://dx.doi.org/10.36948/ijfmr.2022.v04i04.007.
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Judicial Review is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary. The supremacy of the Indian Constitution is maintained in large part by judicial review. Additionally, it aids in preserving the harmony between the state’s three organs so that no law can be passed without being subject to review. Perhaps the most significant advancement in public law in the latter half of this century has been the judicial review of administrative action, and this paper focuses precisely on that. Judiciary review thus seeks to safeguard citizens from the misuse or abuse of authority by any branch of the state. This paper tries to cover the nuances of judicial review, like the grounds of judicial review, the doctrine of ultra vires, writs, and finally, its distinction with an appeal.
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Yasin, Abida, Taimoor Raza Sultan, and Ali Haider Chattha. "DOCTRINE OF JUDICIAL REVIEW: CONSTITUTIONAL STUDY OF AMERICAN LEGAL SYSTEM." Pakistan Journal of Social Research 04, no. 01 (March 31, 2022): 657–63. http://dx.doi.org/10.52567/pjsr.v4i1.932.
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The paper comprehensively highlights the contours of Judicial Review, along with historical evolution of doctrine in United States of America. It also attempts to discuss transformative tendencies of judiciary from being a reticent institution to an interventionist one. Furthermore, it extensively dilates upon the conceptual anomalies of judicial review along with its ever-expanding scope in executive and legislative realm. Lastly, it holistically examines the practical limitations as well as philosophical constraints of the concept.
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Craig, Paul. "Ultra Vires and the Foundations of Judicial Review." Cambridge Law Journal 57, no. 1 (March 1998): 63–90. http://dx.doi.org/10.1017/s0008197300134397.
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There is a growing literature concerning the role of the ultra vires doctrine and its place within administrative law. For some the doctrine is the central principle of administrative law, without which judicial intervention would rest on uncertain foundations. For others, it constitutes at best a harmless fiction, which is incapable of explaining all instances of judicial intervention, and at worst a device which allows the judiciary to conceal the real justifications for developments in judicial review. Christopher Forsyth falls into the former camp. He has written a vigorous defence of the ultra vires principle, contending that “it remains vital to the developed law of judicial review”. The purpose of this article is to contribute to the debate on this issue by putting the opposing view. The article will be divided into four sections.
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Streck, Lenio Luiz. "Un ensayo sobre el problema de la discrecionalidad y la mala comprensión de los precedentes judiciales." Prolegómenos 18, no. 35 (January 15, 2015): 67. http://dx.doi.org/10.18359/dere.801.
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<p>El artículo consiste en un análisis de la discrecionalidad judicial entendida como característica del positivismo jurídico desde la manera como se comprenden los precedentes judiciales en Brasil. El objetivo principal del texto es demostrar que los precedentes judiciales se aplican de forma arbitraria por la jurisprudencia y la doctrina brasileña, revelando los abusos interpretativos por parte del poder judicial y el debilitamiento de la democracia. El método de abordaje es el hermenéutico-fenomenológico, esto es, reconstrucción crítica del fenómeno de la interpretación de los precedentes judiciales. Como resultados, el documento muestra la fragilidad de la democracia constitucional ante el arbitrio interpretativo de los tribunales judiciales desde el modo como se aplican los precedentes en Brasil.</p>
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Carrasco Durán, Manuel. "La definición constitucional del derecho a la tutela judicial efectiva." Revista de Derecho Político 1, no. 107 (April 5, 2020): 13. http://dx.doi.org/10.5944/rdp.107.2020.27182.
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El derecho a la tutela judicial efectiva ha sido escasamente estudiado por la doctrina del Derecho Constitucional. Sin embargo, este derecho está presente en la mayor parte de las demandas que llegan al Tribunal Constitucional a través del recurso de amparo, y por ende en la mayoría de las sentencias que aquél dicta. El contraste entre uno y otro dato se debe a la percepción que existe acerca de la naturaleza predominantemente procesal de este derecho. Esta percepción aboca en muchas ocasiones a una mala comprensión del citado derecho.La finalidad del presente trabajo es delimitar el derecho a la tutela judicial efectiva desde su naturaleza constitucional, sobre la base de la jurisprudencia del Tribunal Constitucional. Se afirmará que el derecho a la tutela judicial efectiva abarca todo el proceso y que, por tanto, no es posible delimitar este derecho a partir del tradicional esquema basado en la distinción entre un contenido de naturaleza constitucional y un contenido de legalidad «ordinaria». Por el contrario, lo que distingue al derecho a la tutela judicial efectiva es la perspectiva que obliga a adoptar a quien desee fundamentar en él su argumentación. El derecho a la tutela judicial efectiva no permite revisar el acierto de las resoluciones judiciales, sino la razonabilidad de la argumentación desarrollada por los órganos judiciales para fundamentar sus resoluciones.De esta manera, la argumentación basada en el derecho a la tutela judicial efectiva distingue varias vertientes en este derecho y aplica una serie de tests, que dan la medida de la razonabilidad exigida a las resoluciones judiciales en cada caso. El presente trabajo detalla, precisamente, estas vertientes y tests. Ello da lugar a que la doctrina sobre el derecho a la tutela judicial efectiva sea imprecisa, ya que emplea conceptos tales como la razonabilidad, la proporcionalidad, la eficacia o la finalidad de las actuaciones judiciales y el contexto de los casos, entre otros. Sin embargo, esta característica no puede sorprender, ya que es inherente, precisamente, a su no siempre bien comprendida naturaleza de derecho fundamental.
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MÁRQUEZ ROA, UBALDO. "BREVIARIO SOBRE LOS PROCESOS JUDICIALES MEXICANOS EN MATERIA FAMILIAR." YachaQ Revista de Derecho, no. 11 (July 31, 2020): 105–24. http://dx.doi.org/10.51343/yq.vi11.364.
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Hablar de derecho familiar, principalmente en temas vinculados con la forma de llevar una contienda judicial no resulta nada sencillo, el derecho familiar en México implica una situación muy compleja. Este artículo someramente plantea las visiones jurídicas desde un enfoque conjunto de la doctrina y la práctica legal. En el artículo se abordan los mecanismos alternativos de solución de controversias, lo que implica juzgar en materia familiar, como es la valoración de pruebas, los criterios judiciales relevantes de los últimos años, y algunos temas de interés como son los juicios de alimentos, su graduación dentro del nivel vida y el mínimo vital.
Talking about family law, principally the issues related to the way of conducting a judicial process are not easy to solve, Mexican family law involves many complex situations. This paper briefly propose the legal vision from a joint approach of legal doctrine and practice. In the paper the alternative dispute resolution mechanisms are broached, for judging in family matters such as the evaluation of evidence, the relevant case law, as well as some topics of interest such as maintenance trails, the graduation within the living standards and the vital minimum.
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Monita, Yulia, Nys Arfa, and Elizabeth Siregar. "AN OVERVIEW OF THE JUDICIAL MONITORING AND SUPERVISION URGENCY IN MAKING CLEAN JUDICIARY." Berumpun: International Journal of Social, Politics, and Humanities 4, no. 1 (March 31, 2021): 48–59. http://dx.doi.org/10.33019/berumpun.v4i1.42.
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A clean judiciary is the hope of all levels of Indonesian society. A clean judiciary is a court that carries out its duties and functions based on the provisions of the applicable laws and prioritizes legal certainty, justice, and benefit. This study aims to see how regulating and changing forms of judicial supervision and warning in realizing clean justice and to answer whether other legal rules are still needed to strengthen the role of the people who participate in and monitor the judicial path. This research is normative legal research, it is a study that examines matters of a theoretical nature, principles, conceptions, legal doctrine, and legal principles related to judicial supervision and supervision in the context of realizing a clean judiciary. Meanwhile, the legal materials used are primary, secondary, and tertiary legal materials and their sources. The results of this research are a) judicial monitoring and supervision should be done in order to conduct a clean judiciary, b) monitoring and supervising are done not to intervening the results of courts decisions but as a measuring tool to what extent the decisions are fair to the society, c) there are still several judges' decisions which, according to society, are controversial, illustrating the public's distrust of the judiciary.
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Coteño Muñoz, Alejandro. "Transparencia (judicial) = Judicial Transparency." EUNOMÍA. Revista en Cultura de la Legalidad, no. 16 (March 29, 2019): 198. http://dx.doi.org/10.20318/eunomia.2019.4700.
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Resumen: La transparencia judicial representa una de las más importantes demandas de la ciudadanía a la Justicia. Tanto desde las instituciones como desde la Jurisprudencia y la Doctrina se ha afirmado repetidas veces la importancia de esta transparencia, sin embargo, hasta el momento, no se ha realizado un estudio profundo y sistemático de la misma. Es por ello que este texto trata de ahondar en el concepto de “transparencia judicial” y fijar los términos para futuros estudios y reformas. Así, por una parte, se analiza la publicidad activa −la publicación de información− y, por otra parte, la publicidad pasiva −el derecho de acceso a la información−, todo ello diferenciando si se trata de información relativa al Consejo General del Poder Judicial (en adelante, CGPJ) o de información judicial en sentido estricto. Para concluir, se aportan unas conclusiones que defienden la necesidad de reformas que ensanchen la transparencia judicial a fin de no dejarla en simples palabras.Palabras clave: Publicidad activa, publicidad pasiva, derecho de acceso, interesado, rendición de cuentas.Abstract: Judicial transparency represents one of the most important demands from the citizenship to Justice. From the institutions, as well as from Jurisprudence and Doctrine, the importance of this transparency has been repeatedly declared, however, until now, a deep and systematic study of it has not been carried out. That is why this text tries to delve into the concept of “judicial transparency” and set the terms for future studies and reforms. Thus, on the one hand, active transparency is analyzed −the publishing of information− and, on the other hand, passive transparency −the right of access to information−, all this distinguishing between information related to the General Council of the Judiciary or judicial information strictly talking. To end up, conclusions, which defend the need of reforms that broaden judicial transparency, so as not to leave it in simple words, are provided.Keywords: Active transparency, passive transparency, right of access, interested, accountability.
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Grin'ko, Aleksey, and Kirill Zharinov. "The American common law and the will of the judiciary as a source of its binding force." Sravnitel noe konstitucionnoe obozrenie 29, no. 6 (2020): 51–78. http://dx.doi.org/10.21128/1812-7126-2020-6-51-78.
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The doctrine of precedent being recognized as an inherent part of the American legal system provokes a permanent discussion about the sources and nature of its binding force. The scholars continually examine the correlation between common and written law, especially, the U.S. Constitution as its paramount form. Some authors given the absence of stare decisis doctrine in the plain language of the Constitution tend to believe that common law is not included in the supreme law of the land and therefore, judges should follow it as a matter of their discretion. Others suppose that the doctrine of precedent was implied by the Founders in the structure and understandings of key terms that makes it binding on the judiciary. This Article attempts to suggest another approach to such problem. Considering the nature of binding force and the methods of its attribution to a legal doctrine (basing on the recent case-law) we conclude that the obligatory status of the stare decisis doctrine derives from the will of the judiciary rather than people or the legislature. It is the judicial community who decided to treat a precedent as binding on each of them. This fact makes third parties believe that such a precedent would be applied in case of potential proceedings and therefore, act in accordance with it. The declared conclusion is supported by the examination of such legal mechanisms as appellate review and judicial discipline process which enforce the doctrine regardless of one’s subjective attitude – that is essential for a rule to be binding. These findings suggest that further examination of written law as a source of common law seems to be impractical and it would be more reasonable to focus on the role of the judiciary and their willingness to enforce the stare decisis doctrine in future.
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TAY, Wilson Tze Vern. "Basic Structure Revisited: The Case of Semenyih Jaya and the Defence of Fundamental Constitutional Principles in Malaysia." Asian Journal of Comparative Law 14, no. 1 (March 20, 2019): 113–45. http://dx.doi.org/10.1017/asjcl.2018.12.
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AbstractIn Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat, the Federal Court of Malaysia asserted that the Federal Constitution continues to vest a distinct and independent judicial power in the judiciary notwithstanding earlier constitutional amendments, and also gave substantive effect to the ‘basic structure doctrine’ for the first time in Malaysia. This has contributed significantly to the long-standing discussion of whether, and to what extent, the ‘basic structure doctrine’ applies in Malaysia. Situating that landmark decision within the context of the evolving judicial practice in Malaysia and other jurisdictions on the ‘Westminster model’, this article evaluates the extent to which Semenyih Jaya has contributed towards strengthening constitutionalism and the rule of law in Malaysia. Considering that the apex court stopped short of directly invalidating the relevant constitutional amendments, this article argues that Semenyih Jaya represents a sophisticated modification of the ‘basic structure doctrine’ to fit the current context of Malaysian constitutionalism. This article also examines how Semenyih Jaya advances the ‘constitutional dialogue’ between the judiciary and its co-equal branches of government, and assesses the strengths and weaknesses of the approach taken by the Federal Court in that case.
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Sobandi, Sobandi. "THE JUDICIAL POWER LIMITATION OF COMMERCIAL COURTS COMPETENCY IN COMMERCIAL DISPUTES." International Journal of Law Reconstruction 5, no. 2 (October 10, 2021): 292. http://dx.doi.org/10.26532/ijlr.v5i2.17706.
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One of the important instruments in a state of law is the existence of an independent judiciary, whether it is based on the doctrine of separation of powers, the notion of a state based on law or democracy. An independent judicial power is not absolute in the sense that it is free to lead to arbitrariness so that there must be restrictions on that power and freedom. The approach method is used a normative juridical approach. The results of the study found that the limitations of judicial power were based on the constitutional basis, namely Article 1 paragraph 3 of the 1945 Constitution, Article 24 of the 1945 Constitution and Article 24 A of the 1945 Constitution. From the concept of separation or division of powers, compose an independent judicial power which is exercised by a Supreme Court and judicial bodies under it and a Constitutional Court. The commercial court as a sub-system within the judicial power is a special court under the general judiciary that has different competencies from other general courts. The implementation of the limitation of judicial power in the competence of the commercial court to realize an independent judicial power is normatively spread out in various laws.
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Munir, Muhammad. "Judging the Judges." Review of Human Rights 6, no. 1 (June 1, 2021): 119–38. http://dx.doi.org/10.35994/rhr.v6i1.167.
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This work attempts to analyze what precisely is meant by judicial immunity and why is it necessary to protect judges for judging? Secondly, how did the jurisprudence of judicial immunity evolve in Pakistan? Presenting a thorough analysis of the decisions in recent cases, this article argues that although the juridical position on the question of judicial immunity has gone back and forth, the Supreme Court has finally laid down a judicial doctrine that extends judicial immunity to administrative, executive, consultative, and legislative decisions of judges of the High Court. It has also made clear that High Court is not allowed to issue a writ against administrative, executive or consultative acts of its own or another High Court for the purpose of ensuring harmony in the working of judiciary.
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Glennon, Michael J. "Foreign Affairs and the Political Question Doctrine." American Journal of International Law 83, no. 4 (October 1989): 814–21. http://dx.doi.org/10.2307/2203370.
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The unevenness of congressional oversight, the proclivity of executive foreign affairs agencies for violating the law and the traditional responsibility of the courts as the last guardians of the Constitution—all point to the propriety of an active role for the judiciary in ensuring governmental compliance with the law. Specifically, courts should not decline to resolve foreign affairs disputes between Congress and the President because they present “political questions.” The recent case of Lowry v. Reagan illustrates the serious systemic damage wrought by judicial abstention in such disputes.
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Гландин, Сергей, and Sergey Glandin. "FUNCTUS OFFICIO — LIMITS OF JUDICIAL DISCRETION IN COMMON LAW SYSTEM ON REVIEWING JUDICIAL ACTS AFTER THEIR PASSING AND SERVING." Journal of Foreign Legislation and Comparative Law 1, no. 4 (October 29, 2015): 0. http://dx.doi.org/10.12737/14271.
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As opposed to Russia, wide scope of judicial discretion is characteristic to the common law states. Recently Great Britain has started to apply in practice forwarding of draft judicial acts to the parties to the lawsuit prior to their final issuance, as a result of which the parties have an opportunity to influence the judge, which may conflict with the principles of legal certainty and independence of judges. As opposed to Russia, where judicial discretion and judges’ rights to review final judgments are statute-restricted, in England the judges’ powers are not enacted into law and are being constantly concretized by case law. For the purpose of helping domestic lawyers to prepare for such surprises, this article investigates, on the basis of a number of recent cases, the modern doctrine of functus officio, types of judiciary acts, which are reviewed after their final passing and serving to the parties, as well as the scope of judicial discretion after issuing judiciary acts, and provides answers on case law in relation to the functus officio institute.
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Dotan, Yoav. "Impeachment by Judicial Review: Israel’s Odd System of Checks and Balances." Theoretical Inquiries in Law 19, no. 2 (August 14, 2018): 705–44. http://dx.doi.org/10.1515/til-2018-0033.
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Abstract This paper focuses on a doctrine that the Israeli Supreme Court has developed since the early 1990s under which the Court removes officeholders from their position by ordinary judicial review proceedings. Although this doctrine is not founded on any formal constitutional settings, nonetheless it has had a significant influence on the relationships between the judiciary and the political branches, as it was the basis for the removal of several major political figures — including ministers and top bureaucrats — from office. The substantial rise of judicial power in Israel since the early 1980s has been documented by the literature of comparative constitutionalism. Yet this rise took place despite the lack of any meaningful formal constitutional guarantees of judicial autonomy in Israeli constitutional law. I argue that this doctrine of removal can serve to explain this gap. This practice of ‘impeachment’ by judicial review is unique to Israel. Therefore, it has hardly been studied by the comparative literature. It is, however, extremely common and influential in Israeli constitutional and political life. It also enjoys massive support from legal elites and the general public alike. I argue that one cannot understand the relationships between the courts and politics in Israel without taking this component into account. In this Article, I describe the development of this practice by the Israeli Supreme Court and its influence on the relationships between the courts and politics in Israel. I also provide a critical evaluation of the doctrine.
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Dwivedi, Vibhantika. "Transparency and Accountability in The Indian Judicial System: A Renewed Debate on Collegium System." International Journal of Research and Review 10, no. 9 (September 22, 2023): 424–38. http://dx.doi.org/10.52403/ijrr.20230944.
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Accountability is the sine qua non of democracy. Transparency facilitates accountability. In a democratic state, every wing of state needs to be accountable and should have transparency in working to establish trust among people. Judiciary is the most important institution of the democratic state. Constitutional framers turned judiciary into the last bastion of hope. So judiciary should compulsorily have the features of transparency and accountability in its regime. The research paper progresses on the same premise. The judges of the higher courts in India, their salary and assets, their promotion, transfer all have been questioned in the recent times. A judicial construction of basic structure doctrine and collegium system for the higher judiciary finds no place in the actual text of the Constitution. There is serious clout over working of this judicially created phenomenon. For example in recent times, the promotion of few judges of the High Court to the Supreme Court was not confirmed by the Central Government despite reiteration by the Collegium. What makes the issue more serious is that the Collegium made other recommendations leaving those judges to retire. What was the rational applied? What was the opinion of the Collegium? This all is not known to anyone leaving to the serious doubt regarding the transparency of the institutions. The research paper investigates into the same issue, discusses the related case laws, and presents a solution and recommendation. Keywords: Indian Judiciary, Appointment, Transfer, Accountability, Transparency.
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Nuraini, Nuraini, and Mhd Ansori. "Politik Hukum Kekuasaan Kehakiman di Indonesia." Wajah Hukum 6, no. 2 (October 14, 2022): 426. http://dx.doi.org/10.33087/wjh.v6i2.1075.
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Judicial power is a branch of power in every country, whether in a democratic state, a state towards a democracy, or an undemocratic state. This happened on the influence of the doctrine of separation of powers which wanted the branches of power to be divided over the legislature, executive, and judiciary. Judicial power in Indonesia at the beginning of independence was intended as a separate branch of power from political institutions, the power of an independent judiciary must still be upheld both as a principle in the state based on law and to allow judicial power to ensure that government is not carried out arbitrarily. The development of judicial power is inseparable from the legal politics of judicial power itself. Because legal politics is subtantively about the friction between politics and law, to examine legal politics is to discuss policies related to the state system. The purpose of the writing is to find out and analyze the political dynamics of judicial power in Indonesia. This type of writing is normative juridical, meaning that this article focuses on the study of the implementation of all positive legal norms and rules. In this research, the approach is conceptual, legal and historical approach.
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Usman, Ahmad, Muhammad Hassan, and Abdul Quddoos Sial. "Independence of Judiciary Leading Justice System to Injudicious Outline." Journal of Law & Social Studies 4, no. 2 (June 30, 2022): 233–46. http://dx.doi.org/10.52279/ljss.04.02.233246.
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Independence of judiciary is a topic of protracted debate commonly involving essentials and merits of independence added by its constituents and due execution etc. First, the word independence has been adorned only with judicial organ although the meaning of this feature as a characteristic is essential ingredient of all institutions and their constituent sectors. Importance of the word independence has been applied in a distinguish sense to mean that judiciary as an organ maintained in self-contained composition, competence, and capabilities for administer of justice in the country. Being Independent of external interference or fairly performing judicial function is a privilege and a duty. Judiciary must obtain, secure, defend and continue with its independence by virtue of establishing rule of law in the country. Judiciary shall not only administer justice, but that also must ensure continuity of its organizational capacity at all costs. Meaning thereby its professional responsibilities must continue judiciously by overpowering any obstruction from any other person or organ. That is why Judiciary has been declared guardian of the constitution as well. This study must examine to what extent independence of judiciary has been exercised in Pakistan in the context of its actual meanings and requirements. Doctrine of independence of judiciary outstandingly elaborates that judiciary is to be equipped of self-sustaining condition and can never shift the burden of failure to external factors. When a judicial system under the constitution is given independence or it claims so, responsibility of its execution and maintenance is retained on its articulatio humeri. The study will conclude that in case of failure judiciary shall have to acknowledge responsibility all alone.
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Lehka, I. V. "Peculiarities of normative formation of the idea of the publicity of the judicial process in the territory of Ukraine as a constitutional principle." Analytical and Comparative Jurisprudence, no. 5 (December 30, 2022): 76–81. http://dx.doi.org/10.24144/2788-6018.2022.05.14.
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In the article, the author examines the peculiarities of the normative consolidation of the principle of glasnost in the legal monuments of various historical stages of the formation of the Ukrainian state, attention is drawn to the approaches to society's perception of norms regarding certain elements of glasnost judicial proceedings in different periods in the history of the development of Ukrainian law. It was established that the reflection of the idea of the publicity as a value and need of society dates back to ancient times and through certain aspects can be traced in legal sources from Kyivan Rus. Attention is drawn to the fact that the legal sources that extended their influence to Ukrainian lands established the requirements of "publicity", "publicness", "openness", orality of judicial proceedings, the implementation of which influenced the formation and further development of society's ideas about the court and the judiciary, contributed to the strengthening of the request society for a fair trial, and therefore the development of the idea of transparency of the judicial process.
At the level of constitutional and legal regulation, the publicity of the judicial process for a long time did not find its full and comprehensive recognition, legal consolidation precisely as one of the main principles of the judiciary, because the principle of "openness" of the consideration of cases was consistently proclaimed in the studied constitutional acts, which cannot be considered a complete reflection of all aspects of the principle of judicial transparency. Instead, the category of "glasnost" of the judicial process is studied at the level of legal doctrine, mostly actively researched in scientific works devoted to issues of procedural law, the judicial system and the judiciary. Although the constitutional norms did not contain a reference to the concept of "openness", in many scientific works, researchers defined the openness of judicial proceedings as a fundamental constitutional principle, relying on the constitutional norms on the openness of court hearings.
With the adoption of the Constitution of Independent Ukraine, the publicity of the judicial process as a broader constitutional and legal requirement for the administration of justice was enshrined in the system of the basic principles of the judiciary.
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Svirin, Yury Alexandrovich, Aleksey Vladimirovich Minbaleev, Eduard Eduardovich Artyukhov, Sergej Nikolaevich Shestov, and Aleksey Anatolyevich Davydov. "Influence of legal principles on justice." Cuestiones Políticas 39, no. 70 (October 10, 2021): 915–32. http://dx.doi.org/10.46398/cuestpol.3970.56.
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The objective of the article was to determine the essence and legal implementation in Russia of principles such as: independence of the judiciary, relative truth, contradictory nature, legal certainty of judicial acts and discretion. In the countries of the Roman-Germanic legal order, it is no coincidence that legal principles are of great scientific and applied importance. The presence of a certain system of procedural principles makes it possible to assess the existence of justice in the country, the stability of a judicial decision and the fairness of judicial acts. Thus, the principles of the law directly affect the level of legality in each state. Currently, some procedural principles give rise to a discussion in Russian doctrine about their essence and content. The topic is presented from the point of view of general scientific methods (systems analysis, structural and functional, historical), the method of theoretical analysis, specific scientific methods (comparative jurisprudence, technical and legal analysis, concretization, interpretation). The theoretical basis was cognitive theory. It is concluded that the principle of the independence of the judiciary is not fully operational in the Russian Federation.
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Малиновская, Виктория, and Viktoriya Malinovskaya. "ADMINISTRATIVE JUSTICE IN THE JUDICIARY OF ITALY." Advances in Law Studies 7, no. 1 (June 26, 2019): 51–55. http://dx.doi.org/10.29039/article_5d1290f33f62c8.52375561.
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The article discusses the features of the organization of the judiciary in Italy. The author gives the concept of administrative justice according to the foreign legal doctrine. The article describes the legal basis of the activity of administrative justice bodies in Italy, reveals the structure of administrative justice bodies and their main powers. The opinion defines the place of administrative justice in the Italian judicial system.
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Shapar, Artem, and Yuriy Yelaiev. "JUDICIAL DOCTRINE AS A SOURCE OF CRIMINAL PROCEDURE LAW OF UKRAINE: GENERAL GNOSEOLOGICAL (EPISTEMIOLOGICAL) RESEARCH (PART ONE)." Ukrainian polyceistics: theory, legislation, practice 1, no. 1 (April 2021): 26–35. http://dx.doi.org/10.32366/2709-9261-2021-1-1-26-35.
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In this scientific article the research of judicial doctrine as a source of criminal procedure law of Ukraine is carried out. This article analyzes the ideas and theories of different jurists of the past and present in the field of judicial doctrine. At the same time, in the analysis of general issues related to judicial doctrine as a source of law, scientific research is carried out on the aspect of judicial doctrine as a source of criminal procedure law of Ukraine in particular. Also, the article states the opinion that it is possible to carry out scientific research in the field of distinguishing between the judicial doctrine of criminal procedure, on the one hand, and the judicial doctrine of criminal procedure law, on the other hand; exploring the common features and distinctive features of each of the above types of judicial doctrine in criminal proceedings. In addition, the article notes the idea that knowledge of judicial doctrine of criminal procedure (in particular), which will be distinguished from judicial doctrine (in general), is a promising area of further research. The article identifies the ways of scientific and educational comprehension of judicial doctrine as a source of criminal procedure law of Ukraine. In particular, the article addresses the possibility of considering and resolving the issue of introducing the teaching of a special training course titled «Criminal Procedure Doctrine» for students (cadets) of law universities (faculties) which carry out training for judicial and law enforcement (administering) public authorities (government agencies) of Ukraine. The gnoseological feature of this part of the scientific work is that it considers and analyzes the theories (concepts) of the scientific approach to the recognition of judicial doctrine as a source of law (including criminal procedure law). Please note that this article is the first part of a more significant amount of scientific work under the above title. The work on epistemological study of the field of judicial doctrine as a source of criminal procedure law of Ukraine continues.
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Smychok, Ye. "JUDICIAL DOCTRINE OF TAX BENEFITS." Law and public administration, no. 3 (2020): 46–52. http://dx.doi.org/10.32840/pdu.2020.3.6.
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Doe, Norman. "The judicial doctrine of mandate." Liverpool Law Review 11, no. 1 (1989): 89–98. http://dx.doi.org/10.1007/bf01079639.
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Pérez Alonso, Jorge. "Mutaciones jurisprudenciales en torno a la organización y control judicial de las agencias administrativas en Estados Unidos." Revista de Administración Pública, no. 223 (April 24, 2024): 277–300. http://dx.doi.org/10.18042/cepc/rap.223.11.
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En los tres últimos años, el Tribunal Supremo de los Estados Unidos ha dictado varias resoluciones que han mutado sobremanera los dos pilares básicos sobre los que se asentaba el derecho administrativo estadounidense: la restricción de la facultad presidencial de cesar libremente a los miembros de las agencias y la doctrina Chevron de deferencia judicial hacia el Ejecutivo. El presente trabajo intenta ofrecer una breve aproximación a tales pronunciamientos judiciales.
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Berchenko, Hryhorii. "JUDICIAL INTERPRETATION AS INFORMAL CONSTITUTIONAL CHANGES: QUESTIONS OF LEGITIMACY IN THE ASPECT OF THE DOCTRINE OF CONSTITUENT POWER." Access to Justice in Eastern Europe 7, no. 2 (March 1, 2024): 1–24. http://dx.doi.org/10.33327/ajee-18-7.2-a000203.
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Background: Stability is considered a traditional legal value, particularly in relation to the stability of the constitution. This emphasis on stability stems from the need to protect the text of the constitution from frequent and unreasonable changes. However, stability must be combined with dynamism, a task primarily shouldered by the judicial branch of power through constitutional interpretation. Notably, ideas of judicial rule-making and the notion of a living/invisible constitution are only some manifestations of such a phenomenon as informal changes to the constitution. Yet, the potential risks posed by judicial intervention and the legitimacy concerns surrounding such informal changes warrant scrutiny. What is the correlation of informal constitutional changes through interpretation with the traditional doctrine of sovereign constituent power? What should be the limit of the interpretation of the constitution so that such an interpretation is not recognised as abusive? These and other issues are the focal point of research in the article. Methods: The following methods were used to research the main approaches to informal changes to the constitution. The system-structural method was used to characterise the concept of a living and invisible constitution and varieties of informal constitutional changes and to establish the relationship between these concepts. The logical-legal method made it possible to find out the content of the positions of scientists regarding the potential violation of the boundaries of interpretation of the constitution by the courts, as well as arguments for and against the legitimacy of judicial interpretation, an assessment of informal changes in the constitution from the standpoint of modern views on the doctrine of constituent power. Additionally, the comparative method was employed to study the experience of foreign countries in terms of the characterisation of binding interpretation. Results and Conclusions: The study analyses the current state of the concept of informal changes to the constitution through judicial interpretation, its connection with the doctrine of constituent power, as well as the question of the legitimacy of such an interpretation and its limits. The primary conclusion is that judicial activity guarantees the protection of the material constitution, principles and human rights. That is, the judiciary does not allow sovereign decisions made democratically (by the people) to infringe on human rights. Thus, the text of the constitution is interpreted in a conformal way to individual rights. Questions about the role of the judiciary, the possibility of informal changes to the constitution, and judicial lawmaking as such can be an indicator for distinguishing between authoritarian/totalitarian countries and democratic ones.
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Ottoh, Ferdinand Okonicha. "Political Question Doctrine and Judicial Attitude to Political Controversies in Nigeria: Implications for Constitutionalism." Lentera Hukum 9, no. 2 (July 31, 2022): 263. http://dx.doi.org/10.19184/ejlh.v9i2.30185.
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The political question doctrine has become one of the jurisprudential issues in a constitutional democracy, as the courts may not want to exercise judicial review to determine the constitutionality of the action of the other organs of government or a statute before it. As a legal instrument, judicial review has been used to expand or reduce the powers of the governments, but the courts decide to exercise this power discretionarily on the ground that it falls within the province of politics. This study aimed to analyze 'political question' and judicial attitude to political controversies in Nigeria by unraveling how the doctrine of political question has been applied in three main areas–impeachment proceedings, political parties' primary elections, and post-election matters. It also analyzed the judiciary's attitudes to political controversies and evaluated the implications of the political question doctrine to constitutionalism. The study argued that this attitude negates the principle of constitutionalism as it contends that the courts' deliberate avoidance of a political question is typical of the judiciary in Nigeria in most political controversies. Consequently, the courts abuse the issues of discretion and non-justiciable, so that it is imperative to unravel the intricacies of the political question doctrine by undertaking a comprehensive jurisprudential analysis by highlighting the most controversial aspects and how the court's attitude in political controversies undermines its commitment to constitutionalism. Furthermore, it contradicted checks and balances, fundamental human rights, and the rule of law. This study concluded that the doctrine of political question would be judiciously used by the court and not to avoid determining contentious political issues that may likely derail Nigeria's democratic process and stability.
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Lorca, Rocío, Maira Astudillo, Luis Felipe Manques, and Diego Rochow. "El hurto famélico en las decisiones de los tribunales penales chilenos." Revista Chilena de Derecho 50, no. 2 (October 23, 2023): 59–89. http://dx.doi.org/10.7764/r.502.3.
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La doctrina penal chilena ha elaborado distintas teorías para mitigar o eximirla responsabilidad penal de quienes hurtan bienes para superar situaciones de necesidad talescomo el hambre, el frío o la enfermedad. Las principales alternativas dogmáticas para resolverestos casos han sido el estado de necesidad justificante y la excusa de inexigibilidad, ambasreguladas en el artículo 10 de nuestro Código Penal. Los tribunales nacionales, sin embar-go, se han mostrado reticentes a dar aplicación a estas teorías y normas jurídicas. En efecto,mediante el análisis de una amplia muestra de fallos judiciales dictados entre los años 2004 y2019, este artículo identifica una doctrina judicial del hurto famélico que es muy reticente ala mitigación o exclusión de responsabilidad penal de personas que hurtan para superar unasituación de necesidad. Si bien este estudio no investiga las causas de esta tendencia judicial,en la conclusión se plantean tres hipótesis
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Zadorozhny, Yuriy, and Galina Zadorozhnya. "The principle of bona fides: from the doctrine of Roman law to national justice." Slovo of the National School of Judges of Ukraine, no. 1(42) (September 4, 2023): 22–29. http://dx.doi.org/10.37566/2707-6849-2023-1(42)-2.
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The article examines the essence of the principle of bona fides, formed by the doctrine of Roman law, reveals its essence and analyzes the expediency of applying bona fides in the process of national justice. It is clarified that the principle of bona fides was the flagship in Roman law, but in the national legal system it is only an auxiliary principle. It was determined that the practical essence of bona fides in the judicial proceedings of the Roman legal system was that the judge, deciding this or that dispute, had the right to depart from the normative prescription if it contradicted bona fides, and decide the court case not «according to the law», but according to conscience, i. e. fairly. It was concluded that the Supreme Court, as the highest court in the judicial system of Ukraine, should have the exclusive right to apply bona fides when deciding court cases in the above-mentioned legal disputes, which enables it to use bona fides as the main, not auxiliary, source of law when deciding legal disputes. which is consistent with its exclusive judicial mission, namely: to ensure stability and unity of judicial practice, which is extremely important for strengthening the authority of the Supreme Court in society and in the court system of the Ukrainian judiciary. It was established that the national legal system inevitably recognizes precedent at the legislative level as a source of law that is applied by the court. This will enable the stability and unity of judicial practice, the restoration of violated individual rights, and will also establish the supremacy of justice over the law. Key words: principle of bona fides, justice, principles of law, Romano-Germanic legal family, Roman law, sources of law, judicial precedent.
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LUPPI, BARBARA, and FRANCESCO PARISI. "Judicial creativity and judicial errors: an organizational perspective." Journal of Institutional Economics 6, no. 1 (January 25, 2010): 91–98. http://dx.doi.org/10.1017/s174413740999018x.
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Abstract:The different role played by case law and the historical and conceptual differences between the doctrines of precedent in common law and civil law traditions are important determinants of judicial creativity. In this article, we consider a hybrid version of stare decisis, called by the French name of jurisprudence constante, adopted by mixed jurisdictions. Unlike stare decisis, which allows a single precedent to establish case law, the doctrine of jurisprudence constante links the recognition of a judge-made rule to the existence of a consecutive line of decisions affirming the same legal principle. We develop a model to consider the effects of this doctrine on the social costs arising from judicial error and uncertainty in case law. We further consider the effects of these alternative doctrines of precedent on judicial creativity and ideological bias in judge-made law.
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Gattinara, Giacomo. "The Relevance of WTO Dispute Settlement Decisions in the US Legal Order." Legal Issues of Economic Integration 36, Issue 4 (November 1, 2009): 285–312. http://dx.doi.org/10.54648/leie2009021.
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This article addresses the issue of the relevance of World Trade Organization (WTO) adopted reports in the US legal order with specific attention paid to the role of the judiciary. Far from being limited to the issue of direct effect, the analysis here is an attempt to look at how the US judiciary takes into account these adopted reports, also considering other softer effects, such as their persuasive authority and interpretative significance, which are thoroughly examined in light of the Charming Betsy doctrine. The conclusion is that in US judicial venues, WTO adopted reports are not totally neglected and that, if due account is taken of the case law of North American Free Trade Agreement (NAFTA) Chapter 19 binational panels, they are granted an ever more solid indirect effect. This judicial trend is analysed also in light of the somehow similar evolution that took place in the recent case law of the European Community Courts.
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Forster, João Paulo K., Najwa Dagash, and Paula Franciele Da Silva. "O direito à saúde e a dispensação judicial de medicamentos no Brasil: a ferramenta e-natjus." Revista Derecho y Salud | Universidad Blas Pascal, no. 4 (May 30, 2020): 51–63. http://dx.doi.org/10.37767/2591-3476(2020)04.
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O artigo examina o direito à saúde a partir da dispensação judicial de medicamentos no Brasil e a possibilidade do uso da ferramenta e-NatJus como elemento de suporte técnico aos magistrados nessas decisões. O objetivo deste breve estudo é, a partir do direito à saúde, definir quais são os critérios adotados no Judiciário para o fornecimento de medicamentos no Brasil, examinados a partir da necessidade de tutela efetiva aos jurisdicionados. Justifica-se o estudo do tema, uma vez que os Poderes Legislativo e Executivo não têm conseguido desenvolver e implementar políticas públicas na mesma velocidade que os cidadãos delas necessitam. Assim, o Poder Judiciário, não tradicionalmente projetado para o desenvolvimento de políticas públicas, na prática o vem fazendo, com consequências de toda sorte. Para tanto, realizou-se pesquisa de cunho exploratório, em doutrina, legislação e jurisprudência, valendo-se do método dedutivo.
El artículo examina el derecho a la salud de la dispensación judicial de medicamentos en Brasil y la posibilidad de utilizar la herramienta e-NatJus como elemento de apoyo técnico para los jueces en estas decisiones. El propósito de este breve estudio es, basado en el derecho a la salud, definir cuáles son los criterios adoptados en el poder judicial para el suministro de medicamentos en Brasil, examinados a partir de la necesidad de una protección efectiva a los tribunales. El estudio del tema está justificado, ya que los Poderes Legislativo y Ejecutivo no han podido desarrollar e implementar políticas públicas a la misma velocidad que los ciudadanos los necesitan. Así, el poder judicial, no diseñado tradicionalmente para el desarrollo de políticas públicas, en la práctica lo ha estado haciendo, con consecuencias de todo tipo. Con este fin, se realizó una investigación exploratoria en doctrina, legislación y jurisprudencia, utilizando el método deductivo.
The article examines the right to health from the judicial dispensation of medication in Brazil and the possibility of using the e-NatJus tool as technical support for judges in these decisions. The purpose of this brief study is, based on the right to health, to define what are the criteria adopted in the Judiciary for supplying medication in Brazil, based on the need for effective protection by the jurisdiction. The study of the subject is justified, since the Legislative and Executive Powers have not been able to develop and implement public policies at the same rate as citizens need them. Thus, the Judiciary, not traditionally designed for the development of public policies, in practice has been doing so, with all sorts of consequences. To this end, an exploratory research was conducted in doctrine, legislation and jurisprudence, applying the deductive method.
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Adygezalova, Gyulnaz, Tatyana Faroi, Viktoria Kovalеva, Anna Yakovleva-Chernysheva, and Oksana Morozova. "Functions and forms of implementation of judicial power in the russian legal doctrine." Justicia 28, no. 43 (June 9, 2023): 33–42. http://dx.doi.org/10.17081/just.28.43.6166.
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There is no unified understanding of the functions of the judiciary, as a rule in the Russian legal doctrine, the concepts of functions and forms of its implementation have not been differentiated, which predetermined the purpose of this study - to clearly delineate these concepts, considering the principle of separation of powers. The study was carried out using primarily dialectical, logical, and comparative methods of scientific knowledge. Research results are following: 1) the functions of the judiciary should be understood as the main directions of its implementation, manifested in its participation in the mechanism of state-power relations, including as a deterrent and counterbalancing factor for strengthening power by the legislative or executive branch to restore social justice; 2) justice should be recognized as a legal phenomenon that belongs to the category of legal means, because the judiciary protects the interests of legal entities, ensures the achievement of socially useful goals through justice; 3) all other types of judicial activity should be grouped into blocks of forms of implementation, depending on the directions of its manifestation in society. The function expresses the internal content of the phenomenon, in contrast to the form, which represents the external expression of the content, the way of its existence and implementation, while the concepts “forms of the implementation of the judiciary”, “powers”, “competence”, and “activities of the judiciary” should be recognized as synonymous.
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SMYCHOK, Ye M. "THE PLACE OF JUDICIAL DOCTRINE IN TAX LAW DOCTRINE." Law and Society, no. 4 (2020): 214–20. http://dx.doi.org/10.32842/2078-3736/2020.4.31.
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Susło, Joanna. "Granice umocowania prokurenta samoistnego." Przegląd Prawa i Administracji 115 (February 26, 2019): 57–67. http://dx.doi.org/10.19195/0137-1134.115.4.
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DELIMITATION OF ACTIONS UNDERTAKEN BY AN INDEPENDENT PROXYThe article presents the scope of an independent proxy authorization and reviews the provisions where a controversy arises in academic interpretation. The paper primarily focuses on the exemplification of the acts performed by the proxy by regrouping those acts into judicial, non-judicial and commercial ones. Finally, the author draws attention to a catalogue of the activities that can be undertaken by an independent proxy provided that he receives the special power of attorney. The catalogue placed in the Civil Code is not clear for both: the judiciary and the doctrine, thus it should be changed by the legislator. This study provides the readers with de lege ferenda solutions on the legislative vacuum of the independent proxy regulation.
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Grabowski, Radosław, and Ivan Halász. "Ewolucja węgierskiego modelu zarządzania sądownictwem i samorządu sędziowskiego na Węgrzech w latach 1989–2019." Przegląd Prawa i Administracji 119 (January 20, 2020): 171–80. http://dx.doi.org/10.19195/0137-1134.119.17.
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THE EVOLUTION OF THE HUNGARIAN MODEL OF JUDICIAL MANAGEMENT AND JUDICIAL SELF-GOVERNMENT IN HUNGARY IN THE YEARS 1989–2019The Hungarian constitutional system after 1989 was initially subject to evolutionary changes. The previously binding constitution was only amended, although in most countries of the region the new constitutions created new system concepts. This also concerned the organisation of the judiciary, which in Hungary for a long time remained under the influence of the doctrine formed in the time of the socialist state. Significant corrections in this respect did not take place until 1997, but the solutions and institutions created at that time — including judicial self-government — survived for only slightly more than a decade. The political parties that came to power in 2010 adopted a new Basic Law and made far-reaching transformations in the field of symbolism, constitutional principles and the system of constitutional organs. Both the scope of the changes and the way they were carried out provoked resistance from various environments, including judges, whose influence on the organisation of the judiciary and its functioning was significantly reduced. The dispute that occurred was the subject of debate throughout Europe, and the institutions of the Council of Europe and the European Union were involved in resolving it.
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Dutta, Ritwick. "Climate change in the courts: An environmental lawyer’s viewpoint." Contributions to Indian Sociology 55, no. 3 (October 2021): 438–58. http://dx.doi.org/10.1177/00699667221075518.
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Climate change today is a reality facing every part of the world and India is no exception. Judicial institutions—courts and tribunals—have a crucial role in adjudicating on climate concerns as the society tries on the one hand to reduce emissions, build resilience against a rapidly warming world and erratic weather patterns, and adapt to the changing climate. Impacts of climate change include melting glaciers, rising sea levels, species decline and extinctions, as well as, at the individual level and social planes—increasing conflicts, violent behaviour and migration among other issues. Unfortunately, climate change is yet to figure prominently in judicial decisions. India’s environmental jurisprudence is still structured around principles such as ‘polluter pays’, ‘sustainable development’ and the ‘public trust doctrine’ which double up as ‘fictions’ and ‘myths’ and have limited applicability so far as climate change–related issues are concerned. Analysis of judicial decisions where there is discussion on climate change shows that there is lack of appreciation about the seriousness, enormity and the urgency to deal with the climate crisis by both members of the judiciary as well as lawyers. The failure to address climate change–related issues in a comprehensive manner represents a serious shortcoming in India’s judiciary which needs urgent attention.
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Roznai, Yaniv, and Tamar Hostovsky Brandes. "Democratic Erosion, Populist Constitutionalism, and the Unconstitutional Constitutional Amendments Doctrine." Law & Ethics of Human Rights 14, no. 1 (May 26, 2020): 19–48. http://dx.doi.org/10.1515/lehr-2020-2011.
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AbstractThe world is experiencing a crisis of constitutional democracies. Populist leaders are abusing constitutional mechanisms, such as formal procedures of constitutional change, in order to erode the democratic order. The changes are, very often, gradual, incremental, and subtle. Each constitutional change, on its own, may not necessarily amount to a serious violation of essential democratic values. Yet, when examined in the context of an ongoing process, such constitutional changes may prove to be part of the incremental, gradual process of democratic erosion in which the whole is greater than the sum of its parts. This Article explores how courts can respond to such constitutional changes. We argue the Unconstitutional Constitutional Amendment Doctrine should be adapted to respond to existing constitutional practices that utilize incremental and subtle amendments to dismantle the democratic order. We suggest that an aggregated judicial review should be developed. We must also rethink the automatic immunity – the result of two hundred years of revolutionary constitutional theory – provided to complete constitutional replacement from constitutional restrictions and scrutiny. Finally, as opposed to the instinct to require judicial self-restraint with respect to constitutional changes that concern the judiciary itself, we suggest that this is perhaps the type of changes that require strictest scrutiny.
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Forman, Lisa. "Ensuring Reasonable Health: Health Rights, the Judiciary, and South African HIV/AIDS Policy." Journal of Law, Medicine & Ethics 33, no. 4 (2005): 711–24. http://dx.doi.org/10.1111/j.1748-720x.2005.tb00538.x.
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Historically, judicial enforcement of constitutional rights to health care has played a fairly limited role in enabling access to health care, a trend particularly prevalent in North America, and reflected in many other regions. This trend is due in part to judicial resistance to recognizing socioeconomic rights like health as appropriately legal, or as appropriately enforceable in light of the doctrine of separation of powers. This resistance is evident in judicial deference to social and economic policy, a reluctance to view socioeconomic claims as invoking “fundamental values” that courts consider themselves authorized to protect: and a real reluctance to recognize and enforce “positive” obligations pertaining to social welfare. As a result, health has often fallen largely into the political rather than legal sphere, and domestic courts have been relatively reluctant to review health policies from a human rights perspective, given the belief that doing so would exceed the appropriate democratic function of the judiciary.
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Smirnov, Alexander Vital'evich. "On Independence, Impartiality and Justification of Judicial Power." Russian Journal of Legal Studies 6, no. 1 (December 15, 2019): 25–31. http://dx.doi.org/10.17816/rjls18461.
Full textAbstract:
The article considers the principle of independence of the judiciary as one of the guarantees of its objectivity and impartiality, and at the same time as the primary task of the judicial policy. A dangerous decline in the level of public confidence in the judiciary is signaled. The theoretical basis for the proposed solutions in the article is the doctrine of the adversarial proceedings and the idea of the judiciary as a mediating link between the state and civil society. The method of achieving this goal is: the formation of an effective content of the judiciary; ensuring due process of law; establishing effective civilian control over the judiciary. It is argued that the role of the trigger for this can be accomplished by four primary measures: the establishment of bodies whose collective name is “magistracy councils” for the formation of an independent judiciary, bringing together representatives of civil society and the state; a significant increase in the jurisdiction of the jury court so that every criminal case (perhaps, with the exception of cases of crimes of a small public danger) can be considered at will of the accused with their participation; democratization of the institute of justices of the peace, which are considered “miniature jury”; the introduction in the criminal process of the institute of investigative judges, whose main task, subsidiary to the activities of the parties, is the legalization (almost exclusively at the request of the parties) of judicial evidence and the decision on the possibility of committal the case to court. It is proposed to increase the motivation of citizens to participate in the consideration of criminal cases as jurors, namely, by establishing additional lists of candidates for jurors, formed through voluntary initiative inclusion of candidates in it (self-recording) through the use of electronic resources. Compared to other publications devoted to the issue of judicial independence, this article proposes a new approach to its solution, based not on strengthening bureaucratic control over the activities of judges, but on maximizing the democratization of judicial activities, in a certain sense “denationalizing” in favor of civil society.
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Nebratenko, Olga O. "The Judicial Doctrine of Labor Rights." Russian judge 9 (September 3, 2020): 3–8. http://dx.doi.org/10.18572/1812-3791-2020-9-3-8.
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Ratti Mendaña, Florencia S. "Dimensions of precedent: a methodology to understand the doctrine of precedent." Perspectivas 11, no. 1 (December 30, 2020): 75–107. http://dx.doi.org/10.19137/perspectivas-2021-v11n1a05.
Full textAbstract:
This article evidences multiple ways in which judicial precedent is used in different legal systems. It shows that: a) precedent is currently used, one way or another, in every legal system but its use differs in each legal system and frequently it is used differently even between courts of the same legal system; b) a comparative analysis under the methodology hereby proposed would provide useful tools in order to address how to “treat like cases alike”. The main aim of this research is to set the conceptual framework for an adequate understanding and study of the doctrine of precedent. To do this, some dimensions of the doctrine of precedent will be added to those enumerated by Michele Taruffo and analyzed not only theoretically, but also under concrete examples of how they work in different legal systems —both of common law and civil law.