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Judicial populism or juridical populism is a phenomenon where the judgments and actions of the courts are driven by the perception of the masses or certain groups. [1] The term, which some refer to as popular constitutionalism, has been described as a reaction to the perceived elitist bias in the legal system.
Judicial populism can also refer to the actions of the courts that reflect public sentiment or those aimed at garnering public support for the judicial institution. [2]
Judicial populism is considered an aspect of populist politics, particularly the strand that claims to represent the interests of the people against a corrupt elite. [3] Due to accusations of excessive privileges, inefficiencies, and possible corruption, there is an increased hostility towards the judicial system and the creation of an atmosphere of distrust for the courts. [2] Activism among populist groups calls for judicial decisions that reflect the collective will of the people within a particular subculture.
In response, there are court judgments that are made as a form of self-representation to appease the public, obtain support or legitimacy by reflecting public sentiment. This can be demonstrated in the so-called dialectic court proceedings, which no longer focus on the evaluation of evidence but their legitimacy. [4] The position is that this type of populism can reduce the alienation or distance of the citizens to the judicial institution due to an expectation that decisions are more meaningful to their lives. [4]
There are also theorists who maintain that judicial decisions are anti-democratic in character and view these decisions as judicial intervention. [5] This position is prominent in the antagonism towards decisions involving social rights where the constitutional backgrounds of judges are considered inadequate due to issues of technical competence or a perceived judicial prejudice. [5] It is also argued that judges are not elected to their positions and, for this reason, must not be allowed to decide on the social or economic path of a country. [5]
In the United States, the call for judicial populism also emerges according to political ideologies. In the past, it came with the conservative assault to the so-called "judicial supremacy" as the courts outlawed segregation and protected reproductive freedom, among other issues. [6] In the modern period, the call is often made by liberal critics who assail what is perceived as "right-wing rulings". [6]
As a theory, judicial populism holds that the law emanates from some kind of collective general will. [7] It is founded on democratic and participatory theory wherein the people or at least their elected representatives get to decide policy, the state's developmental path, and the administration of justice. [5] Larry Kramer, for instance, argued that the people do not only share in construing the Constitution but also render the final judgment concerning its meaning. [6] The concept is also a basis of the Chinese legal tradition established during the Cultural Revolution-era and its modern revival. [8] It draws from the cultural belief of the non-finality of justice as well as the revolutionary values such as democratic justice and deliberative justice, which rely on the collective judgment of the people. [9]
Critics argue that instead of the courts serving as places that determine the liability for criminally relevant acts, the emergence of judicial populism crushes the criminal justice system as it transforms trials into methods of social control. [10] The opposing concept to judicial populism is judicial professionalism. This view maintains that knowledge, rationality, and ethics should be the focus in legal practice. [1] There is also a requirement for judges to be neutral and to avoid conflict of interest, a component that is present in judicial populism as the judge is involved in local affairs and forges a close relationship with the people. [9]
Judicial populism is distinguished from judicial activism, which is described as a phenomenon wherein judges allow their personal views to guide their decisions. [11] Like judicial populism, the latter - as described by Bradley Canon - draws from the constitutional dialogue/constitutional interdependence paradigm, which describes the judiciary as a participant to the constitutional interactions that involve other government branches. Here, instead of an omnipotent institution, the judiciary operates according to a framework based on interdependency and interaction while assuming the role of active protector of core social values. [12] However, judicial activism is about the forced reading of the law by judges with the goal different from the intention of the legislative branch. [13]
An example of judicial populism is Mark Tushnet's suggestion of a populist American constitutional law that advances the so-called "thin Constitution", which would codify constitutionally protected and enforceable positive economic and social rights. [14]
There is also the case of judicial elections, which has been identified as an instrument of popular constitutionalism. [15] This framework emphasizes the importance of state judicial elections in the United States, particularly how the elected state justices can "stimulate and structure constitutional deliberations" on the national level. [16]
Mass media has been cited for its role in dictating judicial agenda. [4] It serves as a platform where the judicial institution is evaluated, facilitating new types of accountability regarding how justice is administered. [17] For instance, it is claimed that media reporting has led to juristic activism that favor a populist expansion of fundamental rights and natural justice. [17]
Cases of judicial populism include its emergence in Brazil since the mass protests of 2013. The series of political and economic crises that ensued have influenced the shift towards judicial decisions that involve judicial self-presentation before the public. [18] It is also observed that judges at various points have made decisions sought by the masses or the middle class, promulgating decisions that have no legal arguments, no constitutional basis, and narrow constitutional protection in the name of justice. [19]
The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the convention or its optional protocols to which a member state is a party. The court is based in Strasbourg, France.
The European Court of Justice (ECJ), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Union, it is tasked with interpreting EU law and ensuring its uniform application across all EU member states under Article 263 of the Treaty of the Functioning of the European Union (TFEU).
The judiciary of Germany is the system of courts that interprets and applies the law in Germany.
Originalism is a method of constitutional and statutory interpretation. Originalists assert that legal text should be interpreted based on the original understanding at the time of adoption. Originalists object to the idea of the significant legal evolution being driven by judges in a common law framework and instead favor modifications of laws through the Legislature or through Constitutional amendment.
The Judicial Yuan is the judicial branch of the government of Taiwan. It runs a Constitutional Court and oversees all systems of courts of Taiwan, including ordinary courts like the supreme court, high courts, district courts as well as special courts like administrative courts and disciplinary courts. By Taiwanese law, the Judicial Yuan holds the following powers:
The Supreme Court of Pakistan is the apex court in the judicial hierarchy of the Islamic Republic of Pakistan.
The Lochner era was a period in American legal history from 1897 to 1937 in which the Supreme Court of the United States is said to have made it a common practice "to strike down economic regulations adopted by a State based on the Court's own notions of the most appropriate means for the State to implement its considered policies". The court did this by using its interpretation of substantive due process to strike down laws held to be infringing on economic liberty or private contract rights. The era takes its name from a 1905 case, Lochner v. New York. The beginning of the era is usually marked earlier, with the Court's decision in Allgeyer v. Louisiana (1897), and its end marked forty years later in the case of West Coast Hotel Co. v. Parrish (1937), which overturned an earlier Lochner-era decision.
Legislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken. Legislative history is used for discovering sources of information about a legislature's intent in enacting a law, although jurists disagree widely about the extent to which a statute's legislative history has bearing on the meaning of its text.
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually implies that judges make rulings based on their own views rather than on precedent. The definition of judicial activism and the specific decisions that are activist are controversial political issues. The question of judicial activism is closely related to judicial interpretation, statutory interpretation, and separation of powers.
The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended. The Constitution is said to develop alongside society's needs and provide a more malleable tool for governments. The idea is associated with views that contemporary society should be considered in the constitutional interpretation of phrases. The Constitution is referred to as the living law of the land as it is transformed according to necessities of the time and the situation. Some supporters of the living method of interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organists.
The Supreme Court of Nepal is the highest court in Nepal. It has appellate jurisdiction over decisions of the seven High Courts and extraordinary original jurisdiction. The court consists of twenty Judges and a Chief Justice.
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, and highcourt of appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.
The Constitutional Court of Turkey is the highest legal body for constitutional review in Turkey. It "examines the constitutionality, in respect of both form and substance, of laws, decrees having the force of law, and the Rules of Procedure of the Turkish Grand National Assembly". If necessary, it also functions as the Supreme Criminal Court to hear any cases raised about the President, Vice President, members of the Cabinet, or judges of the high courts. In addition to those functions, it examines individual applications on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities.
The Constitutional Court of the Republic of Indonesia is one of the apex courts in Indonesia along with the Indonesian Supreme Court. Its primary role is reviewing the constitutionality of Acts (undang-undang). It also has other functions, including resolving disputes over the powers of state institutions, settling disputes over the results of general elections, deciding on the dissolution of political parties, and supervising impeachment. The last two functions have never been exercised by the Court.
The rule of law is a political ideal that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. It is sometimes stated simply as "no one is above the law". The term rule of law is closely related to constitutionalism as well as Rechtsstaat. It refers to a political situation, not to any specific legal rule. The rule of law is defined in the Encyclopædia Britannica as "the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power."
Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review.
Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".
The Separation of powers in Singapore is governed by Constitution of the Republic of Singapore, which splits the power to govern the country between three branches of government – the parliament, which makes laws; the executive, which executes them; and the judiciary, which enforces them. Each branch, while wielding legitimate power and being protected from external influences, is subject to a system of checks and balances by the other branches to prevent abuse of power. This Westminster constitutional model was inherited from the British during Singapore's colonial years.
Richard Davies Parker is an American legal scholar who serves as the Paul W. Williams Professor of Criminal Justice at Harvard Law School, where he has taught constitutional law and criminal law since 1974. He also serves as chairman of the Citizens Flag Alliance, an American nonprofit organization dedicated to advancing a constitutional amendment that would protect the American flag against acts of physical desecration.
National Identity Clause is a legal principle enshrined in article 4(2) of the Treaty on European Union. Its original purpose can be linked to the protection of cultural identity, apparently threatened by the free movement of services and goods in the cultural domain. It was supposed to prevent EU competence creep in the areas belonging to complementary competencies. Today it is most typically associated with limits to European integration and protection of core competences of the nation states within the EU.