The rule of law and the role of the courts: The perception of law from within
published: Jan. 22, 2008, recorded: December 2007, views: 8881
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A proper understanding of the role of the courts in safeguarding the rule of law as an independent branch of government is a prerequisite for any viable public appreciation of the law in general and the judicial system in particular. This is notably and quite obviously the case with the perception of the role of the courts from the viewpoint of the two “political” branches of government as well as the general public, which will presumably be the focus of other talks in the conference; but it is also partly dependent upon the self-positioning of the judiciary, which will be the main focus (or the originating point) of this talk. This task may be addressed in several ways. At a principled level, it is the challenge of reconciling the (internal) need for an independent – or autonomous – judiciary with the (external) drive for its accountability. At a more concrete level, it is translated into individual choices that fall somewhere between the lines of judicial restraint and judicial activism, epitomized by the now slightly démodé “political question” doctrine. While the doctrine itself has somewhat disappeared from the legal debate in the recent years, the questions it posed remain just as valid today. Should judges be making policy? Where is the line to be made between what is the proper realm of adjudication and what goes beyond into improper interference with the other branches of government? Can judicial activism ever be defended as proper and, if so, to what extent and under what circumstances? May a certain increased level of judicial activism be justified in transitional societies, if and inasmuch as it is used to further the cause of judicial independence? The talk will address these questions with reference to recent examples from across the globe of their actuality and practical volatility, ranging from the relatively harmless academic questioning of Justice Ginsburg’s dissent in the recent Ledbetter v. Goodyear Tire & Rubber case, calling upon Congress to “correct” the Supreme Court’s “parsimonious reading” of a certain legislation and trying to “propel legislative change”, to the critical case of the unfortunate illegitimate ousting of absurdly vast numbers of judges in Pakistan as an attempt of stifling judicial autonomy in anticipation of judicial decisions unfavorable to the government.
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