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In 2007 the International Association of Constitutional Law established an Interest Group on 'The Use of Foreign Precedents by Constitutional Judges' to conduct a survey of the use of foreign precedents by Supreme and Constitutional Courts in deciding constitutional cases. Its purpose was to determine - through empirical analysis employing both quantitative and qualitative indicators - the extent to which foreign case law is cited. The survey aimed to test the reliability of studies describing and reporting instances of transjudicial communication between Courts. The research also provides useful insights into the extent to which a progressive constitutional convergence may be taking place between common law and civil law traditions. The present work includes studies by scholars from African, American, Asian, European, Latin American and Oceania countries, representing jurisdictions belonging to both common law and civil law traditions, and countries employing both centralised and decentralised systems of judicial review. The results, published here for the first time, give us the best evidence yet of the existence and limits of a transnational constitutional communication between courts.
The Politics of Precedent on the U.S. Supreme Court offers an insightful and provocative analysis of the Supreme Court's most important task--shaping the law. Thomas Hansford and James Spriggs analyze a key aspect of legal change: the Court's interpretation or treatment of the precedents it has set in the past. Court decisions do not just resolve immediate disputes; they also set broader precedent. The meaning and scope of a precedent, however, can change significantly as the Court revisits it in future cases. The authors contend that these interpretations are driven by an interaction between policy goals and variations in the legal authoritativeness of precedent. From this premise, they build an explanation of the legal interpretation of precedent that yields novel predictions about the nature and timing of legal change. Hansford and Spriggs test their hypotheses by examining how the Court has interpreted the precedents it set between 1946 and 1999. This analysis provides compelling support for their argument, and demonstrates that the justices' ideological goals and the role of precedent are inextricably linked. The two prevailing, yet contradictory, views of precedent--that it acts either solely as a constraint, or as a "cloak" that never actually influences the Court--are incorrect. This book shows that while precedent can operate as a constraint on the justices' decisions, it also represents an opportunity to foster preferred societal outcomes.
Présentation de l'éditeur : "The proposed book is an attempt to understand the existence of multiple non-state legal traditions despite the presence of a uniform legal system in India. There is a significant gap that exists between the state-legal system and the practices and preferences of people belonging to different communities. In order to understand this structure, the book goes back to the history of legal system in India and tries to identify the reason behind the prevalence of thesealternative modes. It studies some prominent legal systems of pre-colonial India like the Mughals, and further explores the way Indian legality was transformed during the British rule. The study maps the evolution and growth of the common law system in India and takes into account the factors thatcontributed to the strengthening and acceptance of this system."
Now in paperback, an important account of ten Supreme Court cases that changed the fate of Native Americans, providing the contemporary historical/political context of each case, and explaining how the decisions have adversely affected the cultural survival of Native people to this day.
An incisive and comprehensive view of India’s legal process and its key issues India has the second-largest legal profession in the world, but the systemic delays and chronic impediments of its judicial system inspire little confidence in the common person. In India’s Legal System, renowned constitutional expert and senior Supreme Court lawyer Fali S. Nariman explores the possible reasons. While realistically appraising the criminal justice system and the performance of legal practitioners, he elaborates on the different aspects of contemporary practice, such as public interest litigation, judicial review and activism. In lucid, accessible language, Nariman discusses key social issues such as inequality and affirmative action, providing real cases as illustrations of the on-ground situation. This frank and thought-provoking book offers valuable insights into India’s judicial system and maps a possible road ahead to make justice available to all.
In the Common Law system, it is the doctrine of 'precedent' which courts depend upon, more than any other legal doctrine, while arriving at their decisions. The elements that constitute the doctrine of precedent are numerous and complex. Despite its considerable importance in the Pakistani legal system, the operation of this doctrine has so far drawn little academic attention. This work bridges that gap. It thoroughly examines the history, origin and context of this doctrine, as well as the rules which guide its operation in Pakistan in the Supreme Court, the High Courts, the Federal Shariat Court, and the various tribunals, with examples and analysis of case law. How is the ratio of a precedent case determined? What is the interpretation of Article 189 of the Constitution of Pakistan? Are decisions of the Supreme Court binding on the Supreme Court itself? Are the lower courts bound by the dictum of the Supreme Court? Are there decisions of the Supreme Court that are not binding on lower courts? What is the position of superior courts in India and Azad Jammu & Kashmir (AJK) on all these issues? What value should be attached to precedent in criminal cases? Can the Supreme Court, the High Courts, and the Federal Shariat Court overrule their own previous decisions? And is the practice of the higher courts in Pakistan - under Articles 189, 201 and 203 GG - in conformity with Islamic law? These are some of the questions, vital to understand the operation of precedent in Pakistani law, which are discussed in this work.
Courts in different national systems vary with respect to how interventionist they are in the arbitral process. In recent decades, as India has entered the ranks of the worldè^--s major trading nations, the role of its judiciary in the matter of arbitration has increasingly been the subject of debate, as a result of a number of controversial decisions given by the courts. Is the role that has been played by the judiciary justified? That is the central issue of this distinctive book, the first to investigate and analyse the efficacy of international commercial arbitration in the Indian legal context.