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"This is an important, concise, and well-written book that provides readers with bold insights into the converging patterns of jurisprudence in the field of election law in Canada and the United States." - Cynthia Ostberg, University of the Pacific
The High Court is taking an increasingly important role in shaping the contours of democracy in Australia. In deciding fundamental democratic questions, does the Court pursue a consistent and overarching democratic vision? Or are its decisions essentially constrained by institutional and practical limitations? Judging Democracy, first published in 2000, addresses this question by examining the Court's recent decisions on human rights, citizenship, native title and separation of powers. It represents the first major political and legal examination of the Court's new jurisprudence and the way it is influencing democracy and the institutions of governance in Australia. A foreword to the book has been written by the former Chief Justice of the High Court, Sir Anthony Mason.
In Judging Democracy, Christopher Manfredi and Mark Rush challenge assertions that the Canadian and American Supreme Courts have taken radically different approaches to constitutional interpretation regarding general and democratic rights. Three case studies compare Canadian and American law concerning prisoners' voting rights, the scope and definition of voting rights, and campaign spending. These examples demonstrate that the two Supreme Courts have engaged in essentially the same debates concerning the franchise, access to the ballot, and the concept of a "meaningful" vote. They reveal that the American Supreme Court has never been entirely individualistic in its interpretation and protection of constitutional rights and that there are important similarities in the two Supreme Courts' approaches to constitutional interpretation. Furthermore, the authors demonstrate that an astonishing convergence has occurred in the two courts' thinking concerning the integrity of the democratic process and the need for the judiciary to monitor legislative attempts to regulate the political process in order to promote or ensure political equality. Growing numbers of justices in both courts are now wary of legislative attempts to cloak laws designed to protect incumbents through electoral reform. Judging Democracy thus points to a new direction not only in judicial review and constitutional interpretation but also in democratic theory.
'focus[es] mainly on courts of legal systems that belong to the common law family, such as the United States, England, Canada, Australia, and a number of mixed jurisdictions, such as South Africa, Scotland, Cyorus and Israel ... [it] also applies substantially to other legal systems, such as the Roman-Germanic family, inlcuding France, Italy, Germany, Austria and the family of Scandinavian systems ... [it] is also alid for legal systems that have emerged from the family of socialist systems, such as Russia, Hungary, Poland and the Czech Republic.' --p. xvii.
Whether examining election outcomes, the legal status of terrorism suspects, or if (or how) people can be sentenced to death, a judge in a modern democracy assumes a role that raises some of the most contentious political issues of our day. But do judges even have a role beyond deciding the disputes before them under law? What are the criteria for judging the justices who write opinions for the United States Supreme Court or constitutional courts in other democracies? These are the questions that one of the world's foremost judges and legal theorists, Aharon Barak, poses in this book. In fluent prose, Barak sets forth a powerful vision of the role of the judge. He argues that this role comprises two central elements beyond dispute resolution: bridging the gap between the law and society, and protecting the constitution and democracy. The former involves balancing the need to adapt the law to social change against the need for stability; the latter, judges' ultimate accountability, not to public opinion or to politicians, but to the "internal morality" of democracy. Barak's vigorous support of "purposive interpretation" (interpreting legal texts--for example, statutes and constitutions--in light of their purpose) contrasts sharply with the influential "originalism" advocated by U.S. Supreme Court Justice Antonin Scalia. As he explores these questions, Barak also traces how supreme courts in major democracies have evolved since World War II, and he guides us through many of his own decisions to show how he has tried to put these principles into action, even under the burden of judging on terrorism.
This book critically examines the challenges, successes, and failures of the post-1994 South African state against the humane values enshrined in its constitution: nonracial democracy and respect for all generations of human rights—civil, political, social, economic, resources and the environment and gender and communication. The book sheds light on the difficulties faced by the State when trying to bring together a diverse society comprised of traditional South African, Western-based and "other" African (immigrant) cultures into a cohesive nation with a common South African identity. The views of the essays may not be entirely consistent and the issues they raise may be contentious. This merely affirms the truism that the State is a contested terrain. The aim of this book is to deepen the search for an understanding of the theory of the State as it applies to a transforming society such as ours and to trudge the dividing line between theory and practice so they can feed into each other in a progressive spiral towards the desired end-state.

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