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Book part
Publication date: 20 August 2012

Emily Zackin

One of the most dramatic controversies over judicial independence in the United States occurred at the state level, in antebellum Kentucky, when two entirely different…

Abstract

One of the most dramatic controversies over judicial independence in the United States occurred at the state level, in antebellum Kentucky, when two entirely different state high courts remained in operation, each claiming to be the only legitimate tribunal. This chapter describes Kentucky's two-court crisis, but focuses primarily on the constitutional convention of 1849, which followed it. Through the lens of modern scholarship about judicial independence, the lessons that antebellum Kentuckians drew from their own history seem quite counterintuitive. They did not view their project of judicial design as a matter of balancing judicial independence with accountability, a task that many modern scholars of American politics have posited as the central problem of judicial design. Instead, Kentucky's constitutional convention sought to structure an institution that would allow the state's courts to respond to popular sentiment without compromising their independence. Thus, these debates suggest frameworks for understanding judicial independence that do not pit independence against judicial accountability or popular politics, but attempt to discern which forms of politics threaten the independence of courts, and which forms may not.

Details

Special Issue: The Discourse of Judging
Type: Book
ISBN: 978-1-78052-871-7

Article
Publication date: 3 October 2016

William Fairbairn

The purpose of this paper is to consider and evaluate judicial independence in China, through reviewing the value in its presence, assessing its current state in China and…

Abstract

Purpose

The purpose of this paper is to consider and evaluate judicial independence in China, through reviewing the value in its presence, assessing its current state in China and evaluating what the future holds for it.

Design/methodology/approach

The paper reviews the benefits of judicial independence in its support of the rule of law. Following this, an evaluation of the current independence of the judiciary in China is presented. The reforms of the judiciary in the Fourth Plenary Session and the outlook for judicial independence in China are assessed.

Findings

The paper finds that judicial independence in China cannot be said to exist, being vulnerable to influence from a variety of sources. There is, however, progress observed, and this is expected to continue.

Originality/value

This paper’s consideration of judicial independence in China and its outlook are framed with discussions of the relationships between judicial independence and the rule of law, and the Chinese state and the rule of law. The paper should thus contribute to discussion of the development trajectory of China in this important facet.

Details

Journal of Financial Crime, vol. 23 no. 4
Type: Research Article
ISSN: 1359-0790

Keywords

Article
Publication date: 3 February 2012

Awal Hossain Mollah

The aim of this paper is to analyze the status of independence of the judiciary in Bangladesh. It is recognized worldwide that an independent judiciary is the sin qua non…

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Abstract

Purpose

The aim of this paper is to analyze the status of independence of the judiciary in Bangladesh. It is recognized worldwide that an independent judiciary is the sin qua non of democracy and good governance. However, without separation of the judiciary from other organs of the state absolute independence of judiciary is not possible. An attempt has been made in this paper to sketch the brief historical background of judicial system in Bangladesh through analyzing the meaning and basic principles of judicial independence and to what extent these principles exists in Bangladesh. How did the judiciary finally separate from the executive? After separation of the judiciary, what is the status of executive interference over judiciary in Bangladesh has also been evaluated in this paper.

Design/methodology/approach

The study is qualitative in nature and based on secondary sources of materials like books, journal articles, government rules, newspaper reports, etc. Relevant literature has also been collected through Internet browsing.

Findings

In this study, it has been found that from time immemorial the judicial system of Bangladesh was not completely independent from the interference of the executive branch of the government. It has also been found that from the beginning of the British colonial rule, the question of separation of the judiciary from the executive had been a continuing debate. Presently, even after separation of the judiciary, the interference of the executive over the judiciary is still continuing.

Practical implications

This paper opens a new window for the policy makers and concerned authorities to take necessary steps for overcoming the existing limitations of the status of judicial dependence in Bangladesh.

Originality/value

The paper will be of interest to legal practitioners, policy makers, members of civil society, and those in the field of judicial system in Bangladesh and some other British colonial common law countries.

Details

International Journal of Law and Management, vol. 54 no. 1
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 21 July 2022

Imen Khelil, Achraf Guidara and Hichem Khlif

This paper aims to investigate the impact of the strength of auditing and reporting standards (SARS, hereafter) on the quality of infrastructure in African countries and…

Abstract

Purpose

This paper aims to investigate the impact of the strength of auditing and reporting standards (SARS, hereafter) on the quality of infrastructure in African countries and tests whether the ethical behaviour of firms and judicial independence affect this relationship.

Design/methodology/approach

The sample consists of 108 country-year observations spanning from of 2014–2017. Data concerning the main variables in this study (the quality of infrastructure, SARS, ethical behaviour of firms and judicial independence) are gathered from the Global Competitiveness Reports for 2014, 2015, 2016 and 2017.

Findings

The findings of this study suggest that the SARS is positively related to the quality of infrastructure. Similarly, the ethical behaviour of firms has a positive and significant effect on the same variable. When testing for the moderating effects of ethical behaviour of firms and judicial independence, the association between SARS and the quality of infrastructure remains positive and significant for high ethical behaviour and high judicial independence sub-samples, while it is insignificant for settings characterised by low ethical behaviour of firms or low judicial independence.

Originality/value

The results of this study highlight the importance of the SARS in combination with business ethics and judicial independence in improving the quality of infrastructure in African countries. These results may have policy implications for African governments aiming to improve the quality of their infrastructures by strengthening auditing and reporting standards, enforcing laws obliging firms to act ethically and giving importance to the role played by judicial independence in imposing strict sanctions on all violations that can affect the quality of infrastructure in one country.

Details

Journal of Financial Management of Property and Construction , vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 1366-4387

Keywords

Book part
Publication date: 20 August 2012

Renee Ann Cramer

Undergraduate legal studies classrooms are ideal places in which to engage discourses on judging, and to invite students to analyze and understand contemporary cultural…

Abstract

Undergraduate legal studies classrooms are ideal places in which to engage discourses on judging, and to invite students to analyze and understand contemporary cultural and political representations of the proper roles of judges and judging in democracies. This chapter examines undergraduate understandings of judicial independence and judicial activism, via class discussions surrounding the judicial retention election in Iowa in 2010. The election was occasioned by the groundbreaking state supreme court case Varnum et al. v. Brien (2009), legalizing same-sex marriage in the state. Drawing on participant–observation research as a professor in these courses, and examining student dialogue, class discussion, and web-board postings on the topic, I find that legal studies students are able to articulate a complex range of views regarding the judiciary, judicial activism, and same-sex marriage. Their ability to engage in (mostly) civil discourse on the topic of judging is of particular societal importance, given the limitations of contemporary public discourses about judging. These findings point, as well, to the potential role for engaged academics in expanding and contextualizing public conversations about judicial independence, judicial activism, and rights. The chapter also highlights, however, limits in that educational experience, in particular students' lionization of legal processes, simultaneous to their cynicism about, and lack of engagement in, electoral/political processes. This points to the development of interdisciplinary legal studies curricula as a means toward effective education for democracy.

Details

Special Issue: The Discourse of Judging
Type: Book
ISBN: 978-1-78052-871-7

Article
Publication date: 1 April 2004

Georgios I. Zekos

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and…

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Abstract

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way of using the law in specific circumstances, and shows the variations therein. Sums up that arbitration is much the better way to gok as it avoids delays and expenses, plus the vexation/frustration of normal litigation. Concludes that the US and Greek constitutions and common law tradition in England appear to allow involved parties to choose their own judge, who can thus be an arbitrator. Discusses e‐commerce and speculates on this for the future.

Details

Managerial Law, vol. 46 no. 2/3
Type: Research Article
ISSN: 0309-0558

Keywords

Book part
Publication date: 10 October 2014

Zelia Gallo

In this chapter I discuss judicial contributions to Italian penality. I look at the penal incentives produced by interactions between judicial and political classes, and…

Abstract

Purpose

In this chapter I discuss judicial contributions to Italian penality. I look at the penal incentives produced by interactions between judicial and political classes, and ask whether judges and prosecutors have been forces for punitiveness or moderation. I discuss the relevance of the Italian case for broader analyses of Western penality.

Design/methodology/approach

My chapter offers a political-sociological account of judicial contributions to punishment. I analyse the penal incentives created by different national institutional set-ups, specifically addressing judicial contributions to penality using a framework developed by Joachim Savelsberg and Nicola Lacey. The framework examines judicial structure in the institutional context looking at the penal implications of bureaucratisation of the judiciary and the capacity for co-ordination between judges and politicians. I include judicial legitimacy as an additional dimension in this framework.

Findings

I conclude that the Italian judiciary have been forces for punitiveness and moderation. Their contributions can be systematised by looking at the waxing and waning of judicial legitimacy, and the consequent expansion and contraction of judicial powers. I claim that judicial legitimacy is also relevant to other (‘non-Italian’) analyses of judicial contributions to contemporary Western penality.

Originality/value

By adding legitimacy to investigations of judicial contributions to penality I provide an organising principle with which to analyse the penal role of Italian judicial actors. I thus allow Italy to be kept in conversation with existing comparative models, without assuming that it either conforms to the models entirely, or that the models should otherwise be eschewed. I use the Italian case to demonstrate the relevance of legitimacy when analysing judicial contributions to Western penality, arguing that changing legitimacy affects the terms and effect of interaction between judicial and political classes.

Details

Punishment and Incarceration: A Global Perspective
Type: Book
ISBN: 978-1-78350-907-2

Keywords

Abstract

Details

Transformation of Korean Politics and Administration: A 30 Year Retrospective
Type: Book
ISBN: 978-1-80382-116-0

Article
Publication date: 12 October 2020

Federica Viapiana

The purpose of this paper is to compare the different performance-based budgeting models used in the judiciaries of three European countries: Italy, Finland and the…

Abstract

Purpose

The purpose of this paper is to compare the different performance-based budgeting models used in the judiciaries of three European countries: Italy, Finland and the Netherlands. In particular, this paper focusses on the criteria adopted by these three countries to fund the courts, and it analyses the effects of these criteria on the distribution of resources and performance variability among first instance courts.

Design/methodology/approach

This exploratory research is based on a literature review and data analysis of three case studies. Equity in resource distribution and equality in courts' performance are assessed using the coefficient of variation.

Findings

The preliminary findings suggest the following: (1) funding models with a close link between performance and budget better guarantee equitable allocation of resources among courts and, therefore, more equal performance among courts within a country; (2) unbalanced allocation of resources is associated with disparities among courts in terms of judicial efficiency and effectiveness and consequently, unequal treatment of/outcomes for citizens coming before the law.

Research limitations/implications

This paper is part of a broader research project aimed at analysing the impact of performance budgeting on the efficiency, quality, organization and values of judiciaries. This study only considers quantitative aspects of performance, but it will be followed by further analysis that will explore performance and judicial budgeting from other perspectives.

Practical implications

This paper describes examples of three different models of performance-based judicial budgeting from other countries, which aim to reform the budgeting processes of the judiciaries in question. The paper emphasizes the importance of adopting rational and transparent funding criteria in order to ensure judicial independence and accountability and to balance courts' performance, guaranteeing the principle that every citizen must obtain the same treatment before the law.

Originality/value

This paper contributes to the existing performance-based budgeting literature by studying its application to the judiciary, which, due to its peculiarities, is an area that has been overlooked in previous studies and deserves further attention. This study contributes to the court administration literature by exploring the issue of budgeting, which, despite its importance, is still a neglected subject.

Details

Journal of Public Budgeting, Accounting & Financial Management, vol. 33 no. 2
Type: Research Article
ISSN: 1096-3367

Keywords

Expert briefing
Publication date: 29 June 2021

With an agenda increasingly influenced by Vice-President Cristina Fernandez de Kirchner (CFK), the objectives of judicial reform now appear limited to closing pending…

Details

DOI: 10.1108/OXAN-DB262413

ISSN: 2633-304X

Keywords

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