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CHAPTER THIRTEEN: CONSTITUTIONS AND THE LEGAL FRAMEWORK

13.1 The rule of law. Common and civil law codes. The judicialization of politics: post-authoritarian constitution-making, the influence of the EU, the growth of international law and increasing judicial assertiveness (p.259-60).

 

13.2 Constitutions: power-limiting and power-maps. How constitutional documents are arranged. Codified or uncodified, rigid (entrenched) or flexible? Procedures for amendment. Adaptation through the courts (pp. 260-3).

 

13.3 Making constitutions: fresh starts built on messy compromises. Most successful when limited in their ambition. Danger of fighting the last war and of giving too little power to new rulers (p. 262-3).

 

13.4 Judicial review (abstract and concrete) and constitutional courts. Courts as interpreters of the constitution. Using ordinary courts or special constitutional courts. Judicial decisions not self-implementing. The American ‘ Supreme’ Court vs. the German ‘ Constitutional’ Court. The European Court of Justice (pp. 263-8).

 

13.5 The rise of judicial activism in response to the declining weight of other institutions and ideologies. Contrast with judicial restraint. Cross-national variations in judicial activism. USA vs. Britain. Integrating judicial supremacy and parliamentary sovereignty (pp. 268-72).

 

13.6 Judicial independence and recruitment. Methods of selecting judges: balancing independence and responsiveness. The political dimension of recruitment to courts charged with judicial review. Judges as surprise packets. Need for internal independence: overcoming the vulnerability of junior judges to their seniors (pp. 272-3).

 

13.7 Administrative law: its expansion and its role in regulating exercise of bureaucratic authority. Separatist and integrationist systems. Courts vs. tribunals. (pp. 273-5).

 

13.8. Limits on the judiciary in authoritarian regimes. The communist critique of judicial independence; socialist law. But some growth of 'socialist legality' before the collapse of communism. Techniques for downgrading the judiciary, including Declarations of Emergency and military courts. China becoming more sympathetic to law, at least where the party remains unthreatened. Islamic law (pp. 275-7).

13.9 In illiberal democracies, the constitution is both a resource to be manipulated and a framework of rule. But law can proceed normally in routine areas. Weak rule of law in many unequal illiberal democracies (e.g. Latin America). The president is subject to vertical accountability (to the voters) rather than horizontal accountability (to other institutions) (pp. 277-8).

 

13.10 International law. The growth of international law and states' adherence to it. Incorporation into national law. Can apply directly to individuals. International tribunals. The International Criminal Court and American resistance (pp. 278-9).