Courts and Political Institutions: A Comparative View by Tim Koopmans

By Tim Koopmans

The frontier among "law" and "politics" isn't really consistently straight forward. even supposing courts are allowed to operate widely, governments and parliaments may also make self sufficient judgements. Tim Koopmans compares the best way American, British, French and German legislations and politics deal with various concerns. for instance, hugely "political" topics in a single kingdom may perhaps represent criminal matters in one other. Koopmans considers case legislation in a number of concerns, together with human rights defense, federalism, separation of powers, and the impression of ecu and foreign legislation.

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A theory like the doctrine of parliamentary sovereignty could prosper because of its seemingly empirical and non-speculative character. And that was certainly the case when legal positivism in England found its philosophical foundation in the theories of the ‘analytical school’ at the beginning of the twentieth century. According to one of its leading philosophers, John Austin, the concept of ‘law’ is linked to the concept of ‘sovereignty’. In this line of thought, all positive law is deduced from a clearly identifiable law-giver.

Johnson [1898] 2 QB 91. See Peter Cane, An Introduction to Administrative Law, 3rd edn (Oxford, 1996), pp. 209–10. R v. Secretary of State for the Home Office ex p Fayed and another [1997] 1 All ER 228. 28 2. 33 The view of the British courts on subordinate legislation was to have important effects outside the territory of the United Kingdom. In the eyes of British judges, colonial legislation was considered as, or assimilated to, subordinate legislation. When ‘colonial charters’ had been enacted for the different colonies by Act of Parliament, regulations issued by the colonial authorities were held to be ultra vires if they were not compatible with the charter.

One of the first acts of the new Parliament was to adopt of a ‘Bill of Rights’ which reinforced the powers of Parliament. 7 They also hardened their attitude on the limits of royal powers. Taxes could only be levied, they decided, based on an Act of Parliament. , 1921), ch. iii. See Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law, 8th edn (London, 1998), ch. 4. 18 2. the sovereignty of parliament A third element strengthened the force of these two developments. It was the gradual democratization of Parliament which gave the doctrine of parliamentary sovereignty a measure of democratic legitimacy.

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