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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.
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.
Courts, like other government institutions, shape public policy. But how are courts drawn into the policy process, and how are patterns of policy debate shaped by the institutional structure of the courts? Drawing on the experience of the Brazilian federal courts since the transition to democracy, Judging Policy examines the judiciary's role in public policy debates. During a period of energetic policy reform, the high salience of many policies, combined with the conducive institutional structure of the judiciary, ensured that Brazilian courts would become an important institution at the heart of the policy process. The Brazilian case thus challenges the notion that Latin America's courts have been uniformly pliant or ineffectual, with little impact on politics and policy outcomes. Judging Policy also inserts the judiciary into the scholarly debate regarding the extent of presidential control of the policy process in Latin America's largest nation. By analyzing the full Brazilian federal court system—including not only the high court, but also trial and appellate courts—the book develops a framework with cross-national implications for understanding how courts may influence policy actors' political strategies and the distribution of power within political systems.
What can we learn about democracy from the experience of post-Soviet Russia? What can we learn about the prospects for democracy in Russia from the experience of 'really existing democracies'? Must some 'pre-requisites', cultural or material, be fulfilled for democracy to become possible? This book examines the current state of Russia and the prospects for democracy, posing several challenges to our understanding of democracy. Thirteen contributors expand the debate over these questions, offering a variety of insights, interpretations, and conclusions vital to understanding the conditions of emergence and survival of successful democracies.

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