Article

The Judiciary: The Least Dangerous Branch?

Daniel Smilov

in The Oxford Handbook of Comparative Constitutional Law

Published in print May 2012 | ISBN: 9780199578610
Published online November 2012 | | DOI: http://dx.doi.org/10.1093/oxfordhb/9780199578610.013.0042

Series: Oxford Handbooks in Law

The Judiciary: The Least Dangerous Branch?

Preview

This article argues that the judiciary is normatively framed by four major grounds of legitimation: separation of powers, the rule of law, sovereignty, and impartiality of arbitration. All these four grounds entail more specific principles for the organization of the judiciary, and imply different modes of accountability. The four normative grounds may have different weight in different societies, depending on their objective circumstances and on the perceptions of people of these circumstances. The bottom line is that different societies must prioritize some of these grounds in given periods of their development. The result is a wide variety of institutional organizations of the judiciary, animated, however, by a limited number of common normative foundations.

Keywords: judiciary; legitimation; separation of powers; rule of law; sovereignty; arbitration

Article.  7917 words. 

Subjects: Law ; Comparative Law

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