Judges and Unjust Laws

2008-12-02
 |  Law
Judges and Unjust Laws

Author: Douglas E. Edlin

Publisher: University of Michigan Press

ISBN: 9780472116621

Category: Law

Page: 338

View: 161

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"A powerful historical, conceptual, and moral case for the proposition that judges on common law grounds should refuse to enforce unjust legislation. This is sure to be controversial in an age in which critics already excoriate judges for excessive activism when conducting constitutional judicial review. Edlin's challenge to conventional views is bold and compelling." ---Brian Z. Tamanaha, Chief Judge Benjamin N. Cardozo Professor of Law, St. John's University, and author of Law as a Means to an End: Threat to the Rule of Law In Judges and Unjust Laws, Douglas Edlin uses case law analysis, legal theory, constitutional history, and political philosophy to examine the power of judicial review in the common law tradition. He finds that common law tradition gives judges a dual mandate: to apply the law and to develop it. There is no conflict between their official duty and their moral responsibility. Consequently, judges have the authority---perhaps even the obligation---to refuse to enforce laws that they determine unjust. As Edlin demonstrates, exploring the problems posed by unjust laws helps to illuminate the institutional role and responsibilities of common law judges. Douglas E. Edlin is Associate Professor in the Department of Political Science at Dickinson College.

Common Law Judging

2016-07-29
 |  Political Science
Common Law Judging

Author: Douglas E Edlin

Publisher: University of Michigan Press

ISBN: 9780472130023

Category: Political Science

Page: 281

View: 415

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Moving beyond the subjectivity-objectivity debate, Edlin presents a case for intersubjectivity

Judges and Judging in the History of the Common Law and Civil Law

2015-07-09
 |  Law
Judges and Judging in the History of the Common Law and Civil Law

Author: Paul Brand

Publisher: Cambridge University Press

ISBN: 1107542545

Category: Law

Page: 0

View: 809

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In this collection of essays, leading legal historians address significant topics in the history of judges and judging, with comparisons not only between British, American and Commonwealth experience, but also with the judiciary in civil law countries. It is not the law itself, but the process of law-making in courts, that is the focus of inquiry. Contributors describe and analyse aspects of judicial activity, in the widest possible legal and social contexts, across two millennia. The essays cover English common law, continental customary law and ius commune, and aspects of the common law system in the British Empire. The volume is innovative in its approach to legal history. None of the essays offer straight doctrinal exegesis; none take refuge in old-fashioned judicial biography. The volume is a selection of the best papers from the 18th British Legal History Conference.

Judges and Judging in the History of the Common Law and Civil Law

2012
 |  Courts
Judges and Judging in the History of the Common Law and Civil Law

Author: Paul A. Brand

Publisher:

ISBN: 1139224948

Category: Courts

Page: 367

View: 467

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"More than two hundred legal historians, from every corner of the globe, met in Oxford at the Eighteenth British Legal History Conference in early July 2007 to hear and present papers on the history of "judges and judging". A selection of the papers presented at the conference has now been revised and edited to form the chapters of this volume. Perhaps the theme of the conference and of this publication needs some initial explanation. The Legal Realists of the 1920s and 1930s rightly questioned the pre-eminence given to the study of decision-making in the courts in American legal education, and similar ideas have entered British and Commonwealth legal education in the past generation; the utterances of judges are not taken as the sum of, or even the core of, the law. But this is hardly news for legal historians. They have long been effortless, even naively unselfconscious, Realists, always concerned to understand the making of the law within the context of its time, with due attention to the society in which law is embedded and the shifting mentalities of professionals and other players in the legal system"--

The Dynamics of Judicial Independence

2017-02-22
 |  Law
The Dynamics of Judicial Independence

Author: Lorne Neudorf

Publisher: Springer

ISBN: 9783319498843

Category: Law

Page: 251

View: 389

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This book examines the legal principle of judicial independence in comparative perspective with the goal of advancing a better understanding of the idea of an independent judiciary more generally. From an initial survey of judicial systems in different countries, it is clear that the understanding and practice of judicial independence take a variety of forms. Scholarly literature likewise provides a range of views on what judicial independence means, with scholars often advocating a preferred conception of a model court for achieving ‘true judicial independence’ as part of a rule of law system. This book seeks to reorient the prevailing approach to the study of judicial independence by better understanding how judicial independence operates within domestic legal systems in its institutional and legal dimensions. It asks how and why different conceptualisations of judicial independence emerge over time by comparing detailed case studies of courts in two legally pluralistic states, which share inheritances of British rule and the common law. By tracing the development of judicial independence in the legal systems of Malaysia and Pakistan from the time of independence to the present, the book offers an insightful comparison of how judicial independence took shape and developed in these countries over time. From this comparison, it suggests a number of contextual factors that can be seen to play a role in the evolution of judicial independence. The study draws upon the significant divergence observed in the case studies to propose a refined understanding of the idea of an independent judiciary, termed the ‘pragmatic and context-sensitive theory’, which may be seen in contradistinction to a universal approach. While judicial independence responds to the core need of judges to be perceived as an impartial third party by constructing formal and informal constraints on the judge and relationships between judges and others, its meaning in a legal system is inevitably shaped by the judicial role along with other features at the domestic level. The book concludes that the adaptive and pragmatic qualities of judicial independence supply it with relevance and legitimacy within a domestic legal system.

The Art and Craft of Judgment-Writing

2022-05-31
 |  Law
The Art and Craft of Judgment-Writing

Author: Max Barrett

Publisher:

ISBN: 1787428575

Category: Law

Page: 368

View: 277

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Judges are increasingly aware that the best way of enhancing public confidence in court systems is not only by providing a quality service but doing so compassionately and respectfully. The art and craft of judgment-writing is a critical element of this process. This book looks at the judgments of historically great judgment-writers from the US, UK and wider common law world (in particular Australia, Canada, India, Ireland, Israel and New Zealand). It is written not from the perspective of what the author can teach but with the aim of identifying essential elements of good judgment-writing in great judgments and insightful commentary.Written by Dr Max Barrett, a judge of the High Court of Ireland, individual chapters focus on subjects such as judgment purpose, length, style and structure, concurring and dissenting judgments, judgment-writing for children and vulnerable parties, as well as more general lessons in good writing offered by great authors from Orwell to Twain. Among the lessons to be taken from great common law judges are that: a good judgment possesses an ability to rise above immediate facts and to see a problem in its wider perspective;a sense of empathy/sympathy for those faring badly is always important; andthere is nothing wrong with language that is occasionally flowery and ornate; however, the best judgments are crisp and persuasive.A great author such as Mark Twain teaches, for example, that: every element of a judgment should be necessary to that judgment and any unnecessary element excised;any person or event included in a judgment should be included for a reason; anda judge should always use the right word for what she wants to state, 'not its second cousin'.This book is intended for novice superior court judges, their more seasoned colleagues and all with an interest in legal writing (including legal practitioners, law teachers and law students). Lower-court judges required to write judgments should find the book valuable; and judges at all levels should find the additional chapter on ex tempore judgments of use.

Judges Against Justice

2014-09-11
 |  Law
Judges Against Justice

Author: Hans Petter Graver

Publisher: Springer

ISBN: 9783662442937

Category: Law

Page: 301

View: 933

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This book explores concrete situations in which judges are faced with a legislature and an executive that consciously and systematically discard the ideals of the rule of law. It revolves around three basic questions: What happen when states become oppressive and the judiciary contributes to the oppression? How can we, from a legal point of view, evaluate the actions of judges who contribute to oppression? And, thirdly, how can we understand their participation from a moral point of view and support their inclination to resist?

The Role of Judges in Criminal Trials

2012
 |  Criminal justice, Administration of
The Role of Judges in Criminal Trials

Author: Quadri Kafayat Motilewa

Publisher:

ISBN: OCLC:957324338

Category: Criminal justice, Administration of

Page: 190

View: 370

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The court of law is the last hope of the common man and it is required that justice does not serve the purpose of the State alone but should be justice for the accused person; justice for the victim and finally justice for the society at large. In the adversarial system, the criminal procedure does not allow the judge to descend into the arena unlike in the case of inquisitorial system where the judge is expected to talk and also walk i.e. he must inquest into the evidence and physically investigate matters as presented before him. A well-rounded judge will better serve the interest of justice than a judge that is subjected to jurisdictional approach of adjudication rather an open approach inclusive of best practices. This study employed the use of doctrinal research methodology which will involve mostly a theoretical and pure legal point of view. This research discusses the concepts of law and justice according to the positivist and naturalist traditions and how it relates to the AdversariaYCommon Law System and the InquisitoriaYCivil Law System. The role of judges in criminal trials was compared looking at the Malaysian and the French Criminal Systems with the aim of proffering best practices. The study also looked into the history of the jury system and how well a Common Law judge can function without a jury. The study found that the following mechanisms if properly managed and utilized will be a good fusion of best practices in any given jurisdiction and these practices include; the application of judicial precedent; the re-enactment of the jury system or the use of 2 or more judges in the court of first instance; the merging of a civil and criminal matter that have the same parties disputing on the same matter in both instances; oral submissions for inquisitorial proceedings; the eradication of secret trials; upholding the tenets of natural justice; and a better attitude towards openness and integration for the betterment of justice.

Judge and Jurist

2013-06-20
 |  Law
Judge and Jurist

Author: Andrew Burrows

Publisher: Oxford University Press

ISBN: 9780199677344

Category: Law

Page: 748

View: 465

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Collecting together 47 essays from colleagues and friends of Lord Rodger of Earlsferry, this book commemorates his work and contribution to law and legal scholarship, including his role as a judge of the UK Supreme Court and his interests in Roman law, Scots law, and legal history.

Foreign Judges in the Pacific

2021-11-04
 |  Law
Foreign Judges in the Pacific

Author: Anna Dziedzic

Publisher: Bloomsbury Publishing

ISBN: 9781509942886

Category: Law

Page: 264

View: 718

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This book explores the use of foreign judges on courts of constitutional jurisdiction in 9 Pacific states: Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. We often assume that the judges sitting on domestic courts will be citizens. However across the island states of the Pacific, over three-quarters of all judges are foreign judges who regularly hear cases of constitutional, legal and social importance. This has implications for constitutional adjudication, judicial independence and the representative qualities of judges and judiciaries. Drawing together detailed empirical research, legal analysis and constitutional theory, it traces how foreign judges bring different dimensions of knowledge to bear on adjudication, face distinctive burdens on their independence, and hold only an attenuated connection to the state and its people. It shows how foreign judges have come to be understood as representatives of a transnational profession, with its own transferrable judicial skills and values. Foreign Judges in the Pacific sheds light on the widespread but often unarticulated assumptions about the significance of nationality to the functions and qualities of constitutional judges. It shows how the nationality of judges matters, not only for the legitimacy and effectiveness of the Pacific courts that use foreign judges, but for legal and theoretical scholarship on courts and judging.