The paper discusses the problem of the politicisation of judges through the judicialisation of rights. It covers different approaches to constitutionalism and the ensuing questions arising in matters of interpretation with regard to the nature of the constitutions. Due to arising political and social changes the arising question is whether judges are indeed merely independent interpreters of the constitution and rights.
Table of Contents
1. Introduction to the Judicialization of Rights
2. Perspectives on Judicial Review: Hamilton, Hirschl, and Jefferson
3. The Rule of Law and Legal Interpretation
4. Approaches to Constitutional Interpretation
5. The Political Role of Judges
6. Conclusion
Objectives and Core Themes
This paper examines the politicization of judges through the process of the judicialization of rights, questioning whether judges exercise political power and how they should navigate constitutional interpretation to protect individual liberties without succumbing to political influence.
- The theoretical tension between judicial independence and the potential for political influence.
- Comparative analysis of judicial review perspectives from Alexander Hamilton, Ran Hirschl, and Thomas Jefferson.
- The morality of law, including internal and external frameworks as proposed by Fuller, Rawls, and Raz.
- Distinctions between "fixed view" and "living tree" approaches to constitutional interpretation.
Excerpt from the Book
Perspectives on Judicial Review: Hamilton, Hirschl, and Jefferson
Alexander Hamilton was one of those who supported the judicial review, for what his work in the Federalist No.78 was probably one of the most known writings about the judicial review. By examining the different departments of power, he says, the judiciary is the least dangerous to the political rights of the Constitution. In comparison to the executive and the legislative, the judiciary has no power to pursue, or influence rules: “It may be truly said to have neither force nor will, but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments” (p.g 201).
Another thing which Hamilton mentions is that only judges have sufficient training to able to explain the Constitution; they are not elected but appointed on the criteria of merit. They should be bound by strict rules and precedents in order to avoid their arbitrary discretion; an important fact is that there is a need of long study and training in order to be competent to seek the necessary knowledge for the understanding of the meanings of the constitution and the respecting of the given rules which they are bound to. There are only a few men in the society who can accomplish these criteria they will be given the position of the judicial court.
Because of the importance of their position they should be separated from the executive and the legislative, to avoid any impact from outside that would lead the judges in a wrong way, hence they have no real power they should be supported in their decision making, because their duty is to preserve the rights given by the Constitution. They have, therefore no real reason for seeking political power and the existence of the judicial review is in this regard one of the most important things which should be kept in order to preserve the rights of people.
Summary of Chapters
1. Introduction to the Judicialization of Rights: Discusses the fundamental role of judicial review in checking governmental power and the ensuing question of judicial politicization.
2. Perspectives on Judicial Review: Hamilton, Hirschl, and Jefferson: Analyzes contrasting views on the judiciary, ranging from Hamilton’s defense of judicial independence to Hirschl’s concerns regarding elite control and Jefferson’s suspicion of judicial power.
3. The Rule of Law and Legal Interpretation: Explores the internal and external morality of law, referencing Fuller, Rawls, and Raz to define the requirements for a legitimate legal system.
4. Approaches to Constitutional Interpretation: Examines the "fixed view" versus the "living tree" methodologies and how these shape judicial decision-making.
5. The Political Role of Judges: Critically evaluates whether judges in the US and Britain act as political actors and the potential for a political role that preserves rights without exercising undue power.
6. Conclusion: Synthesizes the arguments to suggest that a political role for judges, properly constrained, is essential for protecting individual liberties.
Keywords
Judicial Review, Judicialization of Rights, Separation of Powers, Constitutional Interpretation, Fixed View, Living Tree, Rule of Law, Alexander Hamilton, Ran Hirschl, Thomas Jefferson, Political Power, Legal Morality, Judiciary, Individual Liberties, Jurisprudence
Frequently Asked Questions
What is the primary focus of this paper?
The paper investigates the phenomenon of judicialization of rights and evaluates whether this process inherently politicizes judges, thereby affecting their neutrality and independence.
What are the core thematic areas?
The key themes include the institutional separation of powers, the morality of law, the debate over fixed versus evolving constitutional meanings, and the tension between judicial independence and political influence.
What is the author's central research question?
The research explores whether judges are politicized through the judicialization of rights, whether they accrue political power, and if they should allow political considerations to influence their constitutional interpretations.
Which theoretical frameworks are employed?
The work utilizes historical perspectives from Hamilton and Jefferson, socio-political insights from Hirschl, and legal-philosophical theories from Fuller, Rawls, and Dworkin.
What is covered in the main body of the work?
The main body compares different philosophical justifications for judicial review, discusses the internal and external morality of legal systems, and contrasts American and British approaches to law.
Which keywords best characterize this publication?
The core keywords include Judicial Review, Constitutional Interpretation, Rule of Law, Separation of Powers, and Judicial Independence.
How does Ran Hirschl’s view differ from Hamilton’s?
While Hamilton views the judiciary as the "least dangerous" branch, Hirschl suggests that judicial review can be a tool used by economic and political elites to preserve their own power.
What does Jefferson fear regarding the Supreme Court?
Jefferson suspected that granting the Supreme Court the final authority to interpret the Constitution could lead to despotism, as he believed the people, not judges, should be the ultimate arbiters.
How is the "living tree" approach described?
The "living tree" approach suggests that the Constitution is an evolving document that must adapt to changing societal circumstances and beliefs about justice.
- Quote paper
- Aida Hadzic (Author), 2010, Politicisation of Judges in the United States of America, Munich, GRIN Verlag, https://www.grin.com/document/311197
