The History and Growth of Judicial Review, Volume 2最新文献

The Federative Republic of Brazil 巴西联邦共和国

The History and Growth of Judicial Review, Volume 2 Pub Date : 2021-03-23 DOI: 10.1093/oso/9780190075736.003.0009

S. Calabresi

{"title":"The Federative Republic of Brazil","authors":"S. Calabresi","doi":"10.1093/oso/9780190075736.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780190075736.003.0009","url":null,"abstract":"This chapter looks at Brazilian judicial review. Judicial review in Brazil originated because it was borrowed from the U.S. Constitution. It emerged in amplified form in Brazil’s 1988 Constitution because, by 1988, the normative appeal of judicial review was widely appreciated all over the world. Moreover, the Hybrid Model of judicial review in Brazil, whereby the Supreme Federal Tribunal is both, at the apex of a diffuse system of judicial review, and is also a Constitutional Court, reflects widespread appreciation for the value of a system like the German Constitutional Court in a civil law jurisdiction. The power of such a court to issue rulings with erga omnes effect is especially important in civil law countries like Brazil, which lack systems of stare decisis. First, judicial review emerged in Brazil as the result of borrowing. Second, it emerged as a rights from wrongs reaction to abuses of power during Fascism and during the military dictatorship, which ruled Brazil for 1964 until 1984. Third, judicial review is necessary in Brazil for both federalism and separation of powers umpiring reasons. Fourth, judicial review in Brazil also emerged because the constitution-writing elite wanted to entrench its liberal and socialist values to forestall the emergence of yet another military government in the country. And, fifth, the Brazilian Constitution divides and allocates power among so many federal and state entities that the Supreme Federal Tribunal has the political space it needs to play a really big role in governing the country.","PeriodicalId":286371,"journal":{"name":"The History and Growth of Judicial Review, Volume 2","volume":"95 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124179340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 6

The European Union and the Council of Europe 欧洲联盟和欧洲理事会

The History and Growth of Judicial Review, Volume 2 Pub Date : 2021-03-23 DOI: 10.1093/oso/9780190075736.003.0012

S. Calabresi

{"title":"The European Union and the Council of Europe","authors":"S. Calabresi","doi":"10.1093/oso/9780190075736.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780190075736.003.0012","url":null,"abstract":"This chapter discusses two final supranational mixed civil law and common law jurisdictions, which are comparable in size, population, and GDP to the United States of America, to India, to the former British Empire, and to Brazil. These jurisdictions had two common law members prior to Brexit becoming a reality in 2020: the United Kingdom and Ireland. These two supranational jurisdictions are, of course, the European Union (EU) and the Council of Europe. The origins and growth of the power of judicial review in the EU is a very complicated tale of federalism umpiring giving rise to judicial power. The European Court of Justice (ECJ) successfully asserted its power between 1963 and 1989 to hear individual rights claims, as it enlisted the member courts of the EU over that period of time in the project of enforcing EU law as being supreme over the later-in-time law of the EU nation-states. The ECJ persuaded the national courts of the EU’s member states that (1) EU law had a direct effect in the member nations, and (2) that EU law was supreme over the post-1958 laws enacted by the EU member nations. The chapter then explains the origins and growth in power of the Council of Europe’s European Court of Human Rights (ECHR). This enterprise began for rights from wrongs reasons and has grown in power for supranational umpiring reasons.","PeriodicalId":286371,"journal":{"name":"The History and Growth of Judicial Review, Volume 2","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115879169","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

The Civil Law Legal Tradition 民法法律传统

The History and Growth of Judicial Review, Volume 2 Pub Date : 2021-03-23 DOI: 10.1093/oso/9780190075736.003.0002

S. Calabresi

{"title":"The Civil Law Legal Tradition","authors":"S. Calabresi","doi":"10.1093/oso/9780190075736.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780190075736.003.0002","url":null,"abstract":"This chapter traces the origins and development of the civil law legal tradition, which assigns to judges only a mechanical, highly constrained form of decision-making. The civil law legal tradition is characterized globally by a historical reliance on Roman law; a modern rationalist code and no body of judge-made case law under the code; textualism and formalism; and the absence of jury trial and an inquisitorial approach to civil and criminal procedure. The civil law tradition allows judicial review, which has been seen as being inherently political, to be exercised soley by a separate institution, called a Constitutional Court, which alone interprets and enforces the Constitution and which is de facto the most important court in the country, even though de jure there are coequal courts of cassation and councils of state. Traditionally, judges received little social deference and were low on the hierarchy of status in civil law countries, whereas scholars and codifiers came first. The civil law legal tradition conceives of the separation of powers in a very wooden, ahistorical way that precludes judges from ever making policy by deciding administrative law and constitutional law cases. It was therefore necessary to create powerful constitutional courts as a specially chosen fourth branch of government in order for judicial review to work in civil law countries. The chapter conclude by looking at the court systems in civil law countries, which typically have three supreme courts: 1) a constitutional court; 2) a court of cassation; and 3) a council of state.","PeriodicalId":286371,"journal":{"name":"The History and Growth of Judicial Review, Volume 2","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115367363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Concentrated and Hybrid Models of Judicial Review 司法审查的集中与混合模式

The History and Growth of Judicial Review, Volume 2 Pub Date : 2021-03-23 DOI: 10.1093/oso/9780190075736.003.0003

S. Calabresi

引用次数: 1

Introduction The Birth and Growth of Judicial Review in the Civil Law World 司法审查制度在大陆法学界的诞生与发展

The History and Growth of Judicial Review, Volume 2 Pub Date : 2021-03-23 DOI: 10.1093/oso/9780190075736.003.0001

S. Calabresi

引用次数: 0

Conclusion The German Model and Gouvernement des Juges 结论德国模式和 "傀儡政府

The History and Growth of Judicial Review, Volume 2 Pub Date : 2021-03-23 DOI: 10.1093/oso/9780190075736.003.0013

S. Calabresi

引用次数: 0

The Republic of France 法兰西共和国

The History and Growth of Judicial Review, Volume 2 Pub Date : 2021-03-23 DOI: 10.1093/oso/9780190075736.003.0007

S. Calabresi

引用次数: 0

The Republic of Italy 意大利共和国

The History and Growth of Judicial Review, Volume 2 Pub Date : 2021-03-23 DOI: 10.1093/oso/9780190075736.003.0006

S. Calabresi

引用次数: 0

The Republic of Korea 大韩民国

The History and Growth of Judicial Review, Volume 2 Pub Date : 2000-01-01 DOI: 10.18356/28efdd63-en

S. Calabresi

{"title":"The Republic of Korea","authors":"S. Calabresi","doi":"10.18356/28efdd63-en","DOIUrl":"https://doi.org/10.18356/28efdd63-en","url":null,"abstract":"This chapter studies judicial review in South Korea. There are several explanations for the origins and growth of South Korean judicial review. First, judicial review emerged in South Korea for rights from wrongs reasons because of human rights abuses due to three hyper-presidentialist dictatorships. Second, judicial review emerged in South Korean because the separation of power between the unicameral legislature and the president required a judicial umpire. Third, judicial review emerged in South Korea because, according to Professor Tom Ginsburg, two relatively coequal political parties wanted it for reasons of insurance and commitment that fundamental rights would be protected when they were out of power. And, fourth, by the 1980s, the World Bank, the International Monetary Fund (IMF), and global trading partners had all come to associate regimes with judicial review of legislation as being less corrupt and more prone to observe the rule of law than were regimes without this institution. There has thus been a lot of borrowing of judicial review by various countries in modern times. As such, borrowing is also part of the explanation for the origins of judicial review of the constitutionality of legislation in South Korea.","PeriodicalId":286371,"journal":{"name":"The History and Growth of Judicial Review, Volume 2","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134364452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Mexico 墨西哥

The History and Growth of Judicial Review, Volume 2 Pub Date : 1900-01-01 DOI: 10.1093/oso/9780190075736.003.0010

S. Calabresi

引用次数: 0