Doctrine Of Separation Research Articles

Gender-based violence ignites the re-emergence of public opinion on the exercise of judicial authority

South Africa is highly celebrated for its commitment to the promotion of human rights. This has also fostered "rights consciousness" among the citizenry which has become of essence for the advancement of the rights of women who had long been in the "legal cold". However, the significance of the "rights concepts" is marred by the extreme levels of gender-based violence against women. The effect of crimes suffered by women raises questions about South Africa's post-apartheid system of governance and the promotion of the rule of law, which is founded on human rights. With South Africa's history, it is assumed that law has the potential to transform societies in ensuring the fulfilment of rights as envisaged in many national, regional and international instruments. Against this background, this paper focuses on the recent shocking wave of the extreme levels of gender-based violence against women experienced in South Africa with the resultant consequence of the agitation of the public on the independence of the judiciary. Whilst it acknowledges the limitations of the law and the challenges faced by women, it argues against public opinion that seem to wither the democratic character of the state relating to the functioning of the judiciary. It also argues that public opinion waters down the assumption about the capacity of the law in generating social change. In addition, the confidence in the judiciary cannot be replaced by invidious philosophies that appear to compromise the independence of the judiciary as envisaged in the doctrine of separation of powers. The argument advanced herein is limited to the rationality of the calls by further raising a question whether safeguarding independence and impartiality of the judiciary should be outweighed by public outrage on gender-based violence. It also does not profess to provide an expert analysis of the interrelationship between law and social change because of the complexities that exists between these areas. Overall, the paper acknowledges and shares the concerns by the public on the elimination of gender-based violence; however, it refuses the indirect consequence of public opinion on the trampling of judicial authority.

Judicial Review of the Legislative Process in Hong Kong: A Comparative Perspective

Abstract This article examines the deferential approach to judicial review of the legislative process as adopted by the Court of Final Appeal in Leung Kwok Hung v. The President of Hong Kong Legislative Council. Through a comparative analysis, it explains that the underlying basis on which the doctrines of separation of powers and the parliamentary privilege of exclusive cognizance, and the corresponding principle of non-intervention, are significantly different in Hong Kong. Given Hong Kong’s semi-democratic system under the ‘one country, two systems’ rubric, it argues for a less traditional allocation of power between the different institutions of government and a more assertive judiciary vis-à-vis the legislature. Moreover, it suggests the necessity of developing a human-rights-based approach to the adjudication concerning the non-intervention principle in order to maintain its common law system with liberal principles under the ‘one country, two systems’ rubric.

Doctrine of Judicially Discoverable and Manageable Standards: Who Draws the Line in India?

The present paper discusses the doctrine of separation of power vis-a-vis concept of judicial review. Further, it discusses the inception of American doctrine of judicially manageable standards (JDMSs). In the next part, the paper will present how the Indian Supreme Court has accepted this American doctrine in various prevailing scenarios. The concept of political question has been used by our judiciary to refrain themselves in exercising jurisdiction over issues that are exclusively meant for the other two branches of the Government. An argument will be advanced through case studies, concerning the selective indulgence of Court in adjudicating upon issues where it lacked the necessary JDMSs.

Separation of Powers Under the 1999 Nigerian Constitution: The Core Legal Dilemmas

At the core of Nigeria's constitutional practice lies the doctrine of separation of powers. The application of the principle is such that power under Nigeria's presidential cum federal system is delineated both horizontally and vertically. Even though the doctrine has a major feature of every constitution in the world, its implementation does not seem satisfactory given the insults that have been carried out by successive governments. This paper examines the doctrine of separation of powers and its complicatedness as regards to its practice in Nigeria's constitutional democracy. Reflecting on the history of Nigeria, this paper will discuss the eroded implementation of the principle of separation. As a result, it seems to be that the concept of "separation" is not going well and tends to fuse the function of executive and legislative institutions. In this situation, the principle is in a dilemma. This paper further offers a flicker of hope by pointing to the fact that all hopes do not appear lost, as the Judiciary still maintains some level of ‘separateness,' except that only time will tell as to how much this lasts.

An Anatomy of the Grounds of Lifting the Corporate Veil: Steps to Codification

A universal benefit of incorporation is the separate entity doctrine which shields the shareholders, directors and other operators from liability for corporate omissions. By the doctrine, the company’s debts are limited to the amount shareholders have paid or have agreed to pay to the company for its shares, in case of insolvency. Consequently, their other assets, homes, pension funds, cars, yachts, private jets will remain untouched. In response to the doctrine, the law has devised various safety nets to protect creditors through company laws, insolvency laws, general anti-corruption enactments, public policy initiatives and judicial interventions. Inevitably, there has been a vast ocean of controversies as to when and why a court will pierce the veil of incorporation to hold the shareholders and directors liable beyond their unpaid equity obligations. The reasons for the controversies are myriad as values of the society change, and as new business risks emerge in retail businesses, telecommunications, oil and gas, real estate, banking, tax regimes and finance. This paper attempts to stream line the underlining principles adopted by common law, case law and statutes to pierce the veil of incorporation like where the company is a façade, a sham, an alter ego, a puppet for crime as well as issues of public policy, environmental responsibilities and national security. Statutory provisions on lifting the corporate veil have also been provided. Thus, a bold attempt has been made to provide a clear and general compass for all jurisdictions as to when courts will pierce the corporate veil to guide judges, legislatures, corporate managers, law students etc.

Structural Interdicts for Socio-economic Rights: What the Kenyan Jurisprudence Has Missed

The enforcement of socio-economic rights is unique as it necessitates positive action in policy-making and bears budgetary implications. Consequently, to prevent such enforcement from exceeding the scope established by the doctrine of ‘separation of powers’, because policy-making and budgetary allocation are under the executive and legislature respectively, the Kenyan Court of Appeal was hesitant to apply structural interdicts in the case of Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others. This decision has outlawed structural interdicts from the Kenyan jurisprudential landscape and has failed to give a viable alternative judicial approach that should guide subsequent courts in enforcing socio-economic rights. This study looks into the origin and models of structural interdicts so as to analyse and critique this Court of Appeal’s decision by showing how the Court could have applied structural interdicts in the enforcement of socio-economic rights without impinging on the doctrine of separation of powers. This will be achieved through the use of literature review.

Current Tendencies of Judicial Review as Reflected in the New Hungarian Code of Administrative Court Procedure

The continuing expansion of judicial review of administrative actions, as seen throughout Europe, led to the engulfment of the administrative judiciary towards the end of the last century. Review within a reasonable timeframe is hard to grant for this reason: the tensions between lawfulness and efficiency are amplified. The answers given to alleviate this tension raise questions that lie at the heart of the principle of separation of powers. This article aims to present some of respective tendencies, which lead to new equilibriums in the system of checks and balances between public administration and the judiciary. To concretise these tendencies, the article analyses some relevant solutions given by the very new code on administrative court procedures, the Hungarian Act No. I of 2017. The most important elements of the regulation of procedures for judicial review of administrative action are provided in a dogmatic and a comparative perspective showing the changes of rules and/or their interpretation through the judiciary. Thus, also important challenges regarding the present understanding of the doctrine of separation of powers are emphasised. The most important elements of the new Hungarian regulation are presented in a coherent system, which also gives insight on the codificational considerations. Moreover, the legislation and jurisprudence must deal with the highlighted aspects in any national and EU legal systems alike.

The Legislature at War: Bandits, Runaways and the Emergence of a Virginia Doctrine of Separation of Powers

The politics of war severely divided the Virginia Southside during the American Revolution. Laborers, ship pilots and other landless men and women bitterly resented the efforts of the patriot gentry to stop trade with Great Britain and to establish a military force. Planters feared that the presence of the British Navy would encourage slaves to flee or attack their masters. What role did law play in the patriot response to these conditions? This essay uses the case of Josiah Philips, who led a banditti residing in the Great Dismal Swamp, to show how law intersected with class and race in patriot thinking. The gentry's view of the landless as dependent and lacking in self-control and its view of black slaves as posing a constant threat of violence supported the application of special legal regimes suited to these dangers. In particular, Philips was “attainted” by the General Assembly, a summary legislative legal proceeding traditionally employed against offenders who threatened government itself. While the attainder was uncontroversial when it passed, the significance of the Assembly's intervention changed over time. By the late 1780s, some among the state's legal elite regarded the Assembly as having unnecessarily interfered in the ordinary course of justice, which they were then seeking to reform. This opened the way to recharacterize the Assembly's extraordinary legal jurisdiction as an arbitrary exercise of lawmaking power.

Caught by the Cat's Paw

Federal employment discrimination law is enamored with court-created doctrines with catchy names. A fairly recent addition to the canon is the concept of the “cat’s paw,” formally recognized by the Supreme Court in Staub v. Proctor Hospital. With its name coined by Judge Richard Posner and drawn from a fable, the concept of cat’s paw has taken ground quickly, discussed in hundreds of cases. This Article argues that the cat’s paw doctrine is a mistake, and the courts should abolish it. Before the Supreme Court recognized it as a separate doctrine, the Supreme Court decided numerous cases with facts that could now be called “cat’s paw” cases. The Supreme Court did not need or even mention the need for a new doctrine to adjudicate those cases. Strangely, the Supreme Court does not cite to any of these cases in Staub. Indeed, these Supreme Court cases are going to cause a judicial headache as lower courts try to reconcile pre-Staub jurisprudence with the court-created cat’s paw doctrine. The current cat’s paw doctrine muddles rather than elucidates complex concepts of intent, causation, and agency liability. Before cat’s paw doctrine becomes further entrenched, this Article provides a new and more complete history of the doctrine. This new history shows that courts did not need the cat’s paw doctrine prior to its creation. Even the Seventh Circuit decision that coined the phrase “cat’s paw” did not rely on cat’s paw to resolve the case. Importantly, there is only one way to reconcile Staub with several other canonical Supreme Court cases — to read it as simply recognizing one set of facts under which a plaintiff could prevail under federal discrimination law. Some lower courts are interpreting Staub to place significant limits on the scope of discrimination law. However, using cat’s paw to limit the scope is inconsistent with numerous Supreme Court cases, as well as the text and purposes of the discrimination statutes. Cat’s paw doctrine should be abolished while it is in its infancy because it is not needed and will likely lead to decades of confusion in employment discrimination jurisprudence.

Participation in Crime

This paper focuses – from a comparative and theoretical perspective – on the principles that govern the ascription of criminal responsibility to different parties involved in the commission of a crime. It has the twofold objective of introducing readers to the main doctrinal frameworks for the regulation of participation in crime in two well-known jurisdictions (England and Germany), as well as the theoretical foundations proposed for them, and of making the case for a reworked differentiated system based on separate doctrines of criminal participation formulated for three different participatory paradigms: acting through another, acting with another, and acting alongside another. It argues that the main flaws in existing doctrines of participation arise from a failure to recognise that it is inappropriate to apply them across the entire range of multi-party scenarios to which they are currently applied. However, the counsel of some defenders of unitary perpetrator systems – that we should give up on the very project of distinguishing between different modes of liability-ascription for parties to crime on account of the practical difficulties to which they all give rise – is a counsel of despair. Once the areas of application for the different participatory paradigms are appropriately demarcated, distinct sets of rules and principles for each of these paradigms enable the resolution of various disputed issues and seemingly intractable difficulties that beset this area of law.

The Embodied Soul in Plato's Later Thought by Chad Jorgensen

Reviewed by: The Embodied Soul in Plato's Later Thought by Chad Jorgensen Chiara T. Ricciardone Chad Jorgensen. The Embodied Soul in Plato's Later Thought. Cambridge: Cambridge University Press, 2018. Pp. x + 217. Cloth, £75.00 Binaries are bad: false, distorting, hierarchical—or worse. This postmodern axiom has been widely accepted in scholarship and culture, and Plato is frequently blamed for promulgating some of the most enduring binaries of thought: being and becoming, truth and illusion, and, not least, body and soul. In this book, Chad Jorgensen argues for a more integrated picture of body and soul in Plato's later dialogues than Neoplatonism has left us, especially via the doctrine of separation as seen in Phaedo. Focusing especially on the first books of Republic, on Timaeus, and on Philebus, he emphasizes the "equilibrium" or "harmonious mixture" of the parts of soul in its interrelationship with the body. The first half of the book advances Jorgensen's argument step by step, treating the parts of the tripartite soul individually. Jorgensen begins with thymos. He defines it as a drive to excel, and argues that it is best understood as an ally and intermediary of the rational part. Whether a soul seeks to overtake others physically, financially, or in its own self-mastery, he argues, the thymos is always directed by a concept of goodness determined by the rational part. For him, this means that the thymos "represents an extension of reason into the bodily realm," and therefore indicates a more positive and connected relationship to the physical than seen in Phaedo. In the next chapter, "Appetitive Soul," Jorgensen pursues a dual strategy. Firstly, he argues that the appetitive soul is fundamentally sub-rational, associated with the pleasures and pains of the body, and affected by images rather than reason. Secondly, he emphasizes the dialogues (chiefly Philebus, Timaeus, and Protagoras) and ways in which pleasures are coopted into Plato's account of the good. Jorgensen's point is never to dispute the sovereignty of the rational soul, to which he turns in chapter 3. Rather, he wants to remind us that the human good involves a synergy of the separate parts, and thus an acceptance of the bodily. The fourth chapter, "Measuring Pleasure," is the hinge of this account of the interrelationship of body and parts of soul. Jorgensen casts Plato's calculus of pleasure and [End Page 340] pain as replacing the paradigm of purification in Phaedo with an "equilibrium" approach. On this view, the problem is not that bodily pleasures sometimes overmaster and pollute the rational soul, but that we are not always able to calculate the proper good/bad proportion. Jorgensen rightly points out that medicine is one of the primary modes by which Plato mediates between the rational soul and the body. In the last three chapters ("Eudaimonia," "The Political Sphere," and "Eschatology"), the reader can evaluate the consequences of Jorgensen's argument for broader questions about Plato scholarship and human flourishing. Of special interest may be the chapter on politics. What does the interrelationship of body and soul have to do with Plato's contentious politics? There is a case to be made that politics entails the intersection of bodily needs (for food, security etc.) with the needs of soul (for competition, beauty, and truth), but Jorgensen falls in line with Plato's preference for defining politics in terms of the care for the soul, and the body seems to drop out of this chapter. Does this absence help Jorgensen when he defends the philosopher's disengagement from politics? Contra Plato, Jorgensen wishes to offer an apologia for democracy because it allows the already-philosophically-virtuous to flourish, but his defense crumbles when one considers Plato's statements about the corrupting effects of rhetoric in democracy. Overall, Jorgensen's main argument depends on the accuracy of the developmental view of Plato. Though a common strategy, the greatest risk of this framework is the missed opportunity to break new ground. For example, in the final chapter on Plato's eschatological myths, Jorgensen hardly mentions the way Plato discusses the disembodied soul in deliberately bodily terms. I wonder: what if Jorgensen had not depended on a received...

UBS AG v. IRC, DB Group Services (UK) Ltd v. IRC: Fiscal Nullity and the Supreme Court*

Abstract In this article, the application of the UK doctrine of fiscal nullity by the Supreme Court is considered in light of the twin decisions in the cases of UBS AG v. IRC1 and DB Group Services (UK) Ltd v. IRC.2 This article argues that fiscal nullity is not a separate doctrine of taxation but can be explained in the way the facts are proven in a tax case, in the way that legal transactions are characterized and how the legislation is interpreted and applied. Using this as the conceptual framework of the paper, prior fiscal nullity cases have been analysed and decisions explained with a focus on different stages of the framework. UBS and DB Group Services findings relate to all three stages of the conceptual framework. Stage 1 requires that the court view the background ‘matrix of fact’ in a very objective manner. Stage 2 is the construction of the legal relations and the application of the statute particularly around the concept of ‘restricted security.’ Stage 3 concerns the purposive interpretation of ‘restricted security’ within the meaning of the legislation (section 425(2) ITEPA (UK)). Consequently, the decision in these two cases is not a departure from prior decisions.

The Quest for Information Privacy in Africa

The Quest for Information Privacy in Africa

Judicial Independence and Impartiality of Judiciary: A Comparative Study

Vesting judicial power in a separate branch under the doctrine of separation of power requires impartiality of the body exercising judicial powers, in order to develop public confidence on the judiciary. An independent judiciary has always been acted as a guardian of constitution and individual rights. Independence and impartiality of the judiciary is not only necessary for fair trial but also pre-requisites for the application of Rule of Law. If judiciary is biased then there will be chaos and tyranny. Right of fair trial before independent and impartial tribunal is an internationally recognized right under International Instruments. This Article is intended to explore the importance of doctrine of judicial impartiality for preserving Judicial Independence in Constitutional analysis perspective of Pakistan, UK and USA.

The mysteriously appearing and disappearing doctrine of separation of powers: toward a distinctly South Africa doctrine for a more radically transformative Constitution

The doctrine of the separation of powers remains an enigma in South African law. Despite promising that ‘a distinctively South Africa model of separation of powers’ will be developed over time, the Constitutional Court has made little effort to do so explicitly. This article argues that all separation of powers doctrines are a practical matter of constitutional design underpinned by political theory and a theory of state. Given the track record of liberalism as racist, sexist and tolerant of poverty and inequality, and because the South African Constitution itself embodies a radically different doctrine of separation of powers, simply recanting the journey of the doctrine through the minds of Montesquieu, Locke and Madison is of little value. This article suggests that the basic foundations of a distinctively South African doctrine can be developed through an analysis of the Constitution, a determination of the purposes of the doctrine and a reinterpretation of Constitutional Court judgments. Five basic foundations of this distinctively South African doctrine emerge: chapter 9 Institutions as a fourth branch of government; the evolving and dynamic relationship between different branches of government; constitutional dialogue and participatory democracy; the absence of a political question doctrine; and the separation of powers harm principle. The development of a clearer doctrine of separation of powers will reduce reasonable speculation and public perception that the doctrine is merely appealed to at a court’s convenience. It will also encourage constitutional dialogue between branches and spheres of government, constitutional institutions and civil society about the nature of South African constitutional democracy.

Brief of Professor Dmitry Karshedt as Amicus Curiae Supporting Petitioner in Oil States Energy, LLC v. Greene's Energy Group, LLC

Petitioner Oil States Energy Services sued respondent Greene’s Energy Group in a district court on several counts, including patent infringement. Greene’s then petitioned the U.S. Patent and Trademark Office (PTO) to challenge the validity of the patent claims asserted in the litigation. The PTO cancelled the claims, and the Court of Appeals for the Federal Circuit summarily affirmed that determination. Had this Court not granted certiorari, the petitioner’s patent infringement cause of action would have been extinguished by the PTO’s decision. The error made by the Federal Circuit in the opinions that bound the court in the instant case, and repeated by respondents in certiorari briefing, lies in the attempt to classify patents as either public or private rights in a categorical manner – that is, in isolation from any particular cause of action. This framing is improper because, under this Court’s precedents, the question whether a case involves a private right that must be adjudicated by an Article III tribunal relates to a particular legal action or claim, not the underlying privilege or property interest. Under the correct approach, which takes into account the context in which the PTO makes its invalidity decisions, the Inter Partes Review (IPR) statute at issue in this case should be held unconstitutional because it empowers an agency to resolve a claim of private right: an action for patent infringement. The cause of action for patent infringement is a private right because it has long been recognized as a species of trespass claim by which the plaintiff typically seeks, among other remedies, monetary relief for past harm from another private party. Because of its historic characterization as a trespass, infringement has a close kinship to common-law claims that this Court has recognized as private rights that cannot be adjudicated outside Article III courts. Invalidity is one of several, enumerated affirmative defenses that a defendant in a patent case may plead in response to an allegation of patent infringement. The IPR statute effectively removes this affirmative defense to infringement from Article III courts, and empowers the Patent Trial and Appeal Board (PTAB), an arm of the PTO, to decide it. In many cases, including one involving these very litigants, a determination of invalidity by the PTAB has extinguished parallel district court actions for patent infringement. This delegation of judicial power over such causes of action to a body that is not a part of the judiciary, and not an adjunct to an Article III court, is constitutionally forbidden by this Court’s precedents. The IPR statute offends the doctrine of separation of powers for another, closely related reason: It effectively grants to the PTAB the power to direct that pending cases be dismissed. Although Congress can constitutionally abate extant claims by amending applicable law while the litigation is pending, Congress in this case delegated to an agency the power to extinguish a claim by adjudicating an affirmative defense in favor of a defendant. Because the PTAB here fully resolved a claim concurrently pending in a district court, it violated the rule that coordinate branches cannot direct Article III courts to dispose of specific cases in a particular way. The doctrine of separation of powers exists in part to prevent abuses that might eventuate if claims of private rights are adjudicated outside Article III courts. By empowering the Executive Branch to resolve such disputes in the patent infringement context, the IPR statute weakens Article III safeguards of impartial adjudication, and therefore contravenes separation of powers principles.

How Zivotofksy II and the Conservative Divide Over the Foreign Affairs Power Could Impact the Trump Administration

In 2015, the United States Supreme Court held in Zivotofsky v. Kerry (Zivotofksy II) that the President of the United States possesses the exclusive power under the Constitution to recognize foreign sovereigns. The holding allegedly marked the first time in the nation’s history when the Supreme Court “accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.” Although the case was (in theory) limited solely to the recognition power, Ziovtofsky II had (and still has) significant implications for the doctrine of separation of powers and executive power generally. For example, the case marked a rare instance where the Court upheld presidential action in a Justice Jackson tier three scenario. In that light, the case serves as an additional stamp of approval on an ever-increasing power grab by executives, particularly in the field of foreign affairs. Whether it be sending troops abroad (without a congressional declaration of war or authorization of the use of force), negotiating and concluding sole executive agreements (instead of treaties), or choosing to recognize a foreign sovereign (against the will of Congress), the scope of the foreign affairs power is incredibly significant to the United States and the international legal order. Two recent events warrant revisiting Zivotofsky II. First, in November 2016, the United States elected Donald J. Trump as president. Without commenting on the legitimacy of Trump’s policy stances on issues of foreign affairs, the reality is that many — on both the left and right — believe that one of the greatest dangers to the United States and the world as a whole is those positions. Thus, while the scope of the foreign affairs power is critical regardless of who is President, Zivotofksy II’s claim of an exclusive presidential power, and especially one in the field of foreign affairs, becomes even more critical in light of a Trump presidency. This Article discusses some of the direct impacts that Zivotofksy II could have for the Trump administration. Additionally, Justice Gorsuch has replaced Justice Scalia. What makes Justice Scalia’s death so critical for the foreign affairs power is that the position he took in his dissent in Zivotofksy II, which was joined by Chief Justice Roberts and Justice Alito, may not be shared by Justice Gorsuch, and it is certainly not shared by Justice Thomas. Thus, conservatives could be divided over the scope of the foreign affairs power on some key issues, including immigration and terminating treaties, for the Trump administration.

Teaching Collegiate Ethics in a Nation with Laws that Permit Mutilation of the Unborn

<p><em>The devaluing of life through abortion has a detrimental effect on the ethical decision-making processes of a nation of people. Encouraging college students to make ethical decisions in a nation with legalized abortion is challenging. Laws that permit women to have a voluntary abortion are in direct conflict with ethical decision-making. The consequences of decades of abortion in the United States are staggering. Approximately one abortion is performed for every five live births. Over 58,000,000 babies have been aborted in the United States since 1973, when the Supreme Court found that women have the “constitutional right” to have an abortion before “fetal” viability. The authors compared the current abortion law to other “black eyes” in the United States’ history including: slavery, the Separate But Equal doctrine, the treatment of Native Americans, and oppressive child labor. This paper then introduces a four-step ethical decision making model and a “toolbox” of questions that students may use when analyzing ethical issues. </em></p>

Luther against the Jews

Luther against the Jews

EXPLORING SHARIAH MEASURES FOR CURBING JUDICIAL CORRUPTION IN NORTHERN NIGERIA

Corruption is imbedded in every facet of the Nigeria polity. The judiciary is not exempted from this phenomenon. Corruption is so well established in the country that all efforts towards fighting corruption seem unworkable. The Nigerian government is constitutionally organized as three branches: the Legislature, Executive and the Judiciary, all under the doctrine of separation of powers. These three arms of government are expected to work under a symbiotic relationship in addressing corruption. However, the third body, which is saddled with the responsibility of interpreting the laws and determining dispute, is also affected by the menace of corruption. Thus, this study attempts to explore the Islamic perspectives on judicial corruption and its relevance to the Nigerian situation. We found that corruption within the judicial system undermined development and fighting against it under the conventional laws is unworkable. Thus, attempts should be made to employ Islamic principles to remedy this issue, especially when the Constitution recognizes Islamic Law as an applicable and alternative legal system in Nigeria.