Why the Pakistan army is here to stay: prospects for civilian governance

This article explores the prospects for civilian governance over Pakistan's military in the policy‐relevant future. After reviewing the Pakistan army's past interference in the country's judicial and political affairs, it turns to the ongoing political maneuvering of the current Chief of Army Staff, General Ashfaq Parvez Kayani, despite Pakistan's ostensible democratic dispensation. The article dilates on the impact of US engagement on the robustness of the Pakistan army's dominance and questions the newfound US commitment to promoting democratization and civilian control. The article argues that while conventional wisdom places the onus disproportionately upon the military's penchant for interventionism, the army has intervened only with the active assistance of civilian institutions, which are subsequently further eroded with every military takeover. It concludes with a consideration of whether or not genuine civilian control would result in a significant change in Pakistan's foreign and domestic policies, particularly Pakistan's well‐known utilization of Islamist militants in India and Afghanistan.     

Judicial Changes in Qing Beijing during the Shunzhi Period (1644–61)

The judicial system in Qing Beijing integrated both Ming and Manchu institutions. In the Ming judicial system, the first level of courts in Beijing included the Ministry of Justice and the Censorate, and on the second level was the Court of Judicial Review. During the Ming, however, this system became heavily disrupted by the intelligence security apparatuses, like the Eastern Depot. In the Manchu system, on the first level of courts was the banner company captains and on the second level was the Ministry of Justice. After 1644, the Ming’s institutional legacies and lessons remained so important to Manchu rulers that they eventually created an integrated legal system that primarily drew from the Ming system. This integration reflected the Qing dynasty’s endeavor to adopt Ming institutions. Prince Regent Dorgon insisted upon judicial separation on the first level of the courts—Censors of the Five Wards could not settle cases involving banner people, nor could the banner system handle cases involving civilians—while the Shunzhi emperor and his successors wanted judicial unity in Beijing and ordinary banner people and civilians to be adjudicated by the same courts.     

Logique, Probabilité et Rhétorique dans l’Argumentation Juridique

Judicial reasoning has often been seen as mere rhetoric. Yet, as I argue here, this reasoning actually stems from the exigencies of truth. This in turn requires questioning the relationship between logic and rhetoric in the legal field. The logic referred to is probability, which is most appropriate to pragmatic rationality. Hence, to shed light on judicial reasoning, this essay puts the relationship between judicial logic and probabilistic logic in historical perspective whilst taking into account the existing literature on the topic.     

The development of party rule in the judiciary: personnel changes and political transformation of the Nanjing government’s judicial center, 1927–1937

After the establishment of the Nanjing Nationalist government in 1927, the Guomindang (GMD) gradually founded a national regime and started to implement the principle of “governing the nation by the party.” But the party-rule was not implemented immediately and effectively. In the early years of the Nationalist government, its judicial branch mostly hired former Beiyang judicial officials, who generally pursued the ideals of judicial independence and politics transcending party lines, ideals established in the Beiyang period. In 1932, when Ju Zheng became the president of the Judicial Yuan, founding members of the GMD began to replace the Beiyang officials in the judicial center. This personnel change was completed around 1935. Meanwhile, due to national crisis and the GMD’s concern that the judicial status quo did not meet its political needs, the GMD began to emphasize the political nature of the judiciary and to advocate the party-ization of the judiciary. Consequently, eight years after the founding of the Nanjing Nationalist government, GMD party members began to obtain de facto control of the judicial center, symbolizing the completion of the shift from Beiyang judicial practices to GMD party-rule in the judiciary. Nevertheless, during the following years, the GMD failed to penetrate, dominate, and integrate the middle and lower levels of the judicial system, where the judicial ideals and personnel structures still strongly retained their Beiyang legacy.     

William Howard Taft and the Importance of Unanimity

This Term, the Historical Society has put on a wonderful series about the man who is widely—and rightly—regarded as this Court's greatest Chief Justice. Through his recognition of the right of judicial review, John Marshall secured for this Court a role in shaping the nation's most important principles: racial equality, individual liberty, the meaning of democracy, and so many others.     

The Judicial Bookshelf

Standard nomenclature in Supreme Court literature contrasts the "old Court" and the "new Court" (or, sometimes, the "modern Court"). By most accounts, the dividing line between the two falls during the years 1937–1940, when the nation witnessed a judicial and constitutional revolution. The proverbial "irresistible force" (in the form of President Franklin Roosevelt's New Deal program to cope with the Great Depression) met the "immovable object" (in the guise of the Supreme Court under the leadership of Chief Justice Charles Evans Hughes that, for a short time, stymied many of the President's initiatives). The result was Roosevelt's audacious assault on the Court through the Court-packing plan and the hasty change of mind by Hughes and Justice Owen J. Roberts that gave Roosevelt the five sure votes he needed so that his agenda could receive the constitutional stamp of approval. This flip-flop was promptly followed by the Court's adoption of a new agenda for itself, one that elevated civil liberties into a preferred position in the hierarchy of constitutional values and demoted property interests, which heretofore had been accorded heightened judicial protection.     

Before Marbury: Hylton v. United States and the Origins of Judicial Review

Marbury v. Madison, decided in 1803, is famous for being the first case in which the Supreme Court asserted its power of judicial review. The typical American history textbook includes at least a few lines about how the Court, under the "Great Chief Justice," John Marshall, struck down part of the Judiciary Act of 1789 and claimed its authority to stand as the ultimate guardian of the Constitution.     

Unlikely Abolitionist: William Cushing and the Struggle Against Slavery

One of the striking differences between the federal Union established under the Constitution and the Confederation of States established under the Articles of Confederation is the creation under Article III of a judicial power of the United States and of a Supreme Court to exercise that power. Acting pursuant to its power to determine the structure of that Court, Congress determined that the Court should consist of one Chief Justice and five Associate Justices. The six lawyers President Washington named to the Court ¹ were leading members of the bar, yet none achieved lasting distinction by reason of his service on the Court. Chief Justice Jay, for example, is best remembered for the treaty with England which bears his name; and when he resigned in 1795 following his election as Governor of New York, local papers referred to his new office as "a promotion." ²     

完善我国电子政务的路径选择

发展电子政务很有必要。电子政务有利于减少政务成本、改变粗放的行政管理模式,有利于转变政府职能、促进廉政建设。针对当前我国电子政务中存在的问题,应加强信息基础建设、提高社会化信息程度,建设一只高素质的公务员队伍,统一电子政务的标准,完善电子政务的安全系统。     

The Exception That Defines the Rule: Marshall's Marbury Strategy and the Development of Supreme Court Doctrine

Analyzing the development of the European Court of Justice (ECJ), Laurence Helfer and Anne-Marie Slaughter argue that in the early years of the court, ECJ justices "borrowed a leaf from Chief Justice John Marshall's book, edging principles forward while deciding for those most likely to oppose them in practice."¹ The most famous example of this paradox in Marshall's jurisprudence can be found, of course, in his seminal opinion in Marbury v. Madison. While asserting the right of the judicial branch to nullify legislation it deemed unconstitutional, Marshall used an implausible construction of the jurisdictional powers given to the Supreme Court in Article III of the Constitution² to deny the petitioner the remedy to which Marshall claimed he was otherwise entitled. While Marbury is generally portrayed as the fountainhead of judicial review in the United States (and therefore in liberal democracies in general), as Mark Graber points out, the decision was in fact a "strategic judicial retreat…in the face of threats by executive…power."³ In order to assert the power of judicial review, in other words, Marshall had to refrain from applying it in the case in question.     

THE IMPACT OF JUDICIAL IMPACT STATMENTS*

Judicial impact statements, if used indiscriminately, can do little either to protect federal and state judiciaries or assist legislatures. This conclusion emerges clearly from well documented case material available with respect to federal executive experience, the California experience with impact statements, as well as independent interview data which is summarized here. As a result, the broader issue of the reasons and the possible meaning of the currency of such a strategy emerges. Two such issues are addressed here: the behavioral assumptions and power relations that underlie judicial reform.     

The Judicial Bookshelf

A persistent reality of constitutional government in the United States from practically the beginning of the Republic has been the close link between the Constitution itself and the Supreme Court. Oddly, this link derives more from the Constitution's impact on the American political system than from what the Constitution itself actually says or contains. True, Article III included cases “arising under this Constitution” in describing the proper reach of the federal judicial power, and Article VI specified that “[t]his Constitution and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme Law of the Land … ” ¹ But the document not only provided scant means for enforcing that supremacy, but also failed even to specify how this “supreme Law” should be interpreted. It soon became clear, however that the task of interpretation would fall upon the Supreme Court, as illustrated by Chisholm v. Georgia. ² In the face of assurances made by Alexander Hamilton, James Madison, John Marshall, and others during the ratification debates in 1787–1788 that a state could not, without its consent, be made a defendant in the federal courts by a citizen of another state, ³ the Justices in 1793 construed the language in Article III conferring the federal judicial power in suits “Between a State and Citizens of another State” to encompass a suit brought by a South Carolinian against the State of Georgia. The uproar that ensued prompted swift ratification of the Eleventh Amendment, which reversed the Court's first excursion into the realm of constitutional interpretation. Despite this rebuke, it was only a short time before Chief Justice Marshall insisted that the judicial power encompassed the authority “to say what the law is.” ⁴ Thus, from the assumed role of expounding of the Constitution evolved the companion duty of guarding it as well.     

Jeremy Bentham on Utility and Truth

SUMMARY

Jeremy Bentham has two very strong commitments in his thought: one is to the principle of utility, or the greatest happiness principle, as the fundamental principle of morality; the other is to truth, as indicated, for instance, in his opposition to falsehood and fiction in the law. How, then, did Bentham view the relationship between utility and truth? Did he think that utility and truth simply coincided, and hence that falsehood necessarily led to a diminution in happiness, and conversely truth led to an increase in happiness? This article addresses this issue through two bodies of material: the first consists of Bentham's writings on religion under the heading of ‘Juggernaut’ and dating from 1811 to 1821; the second consists of the writings on judicial evidence dating from 1803 to 1812 and which appeared in Rationale of Judicial Evidence.     

Oversimplifying the Supreme Court

I cannot tell you what a pleasure it is to be at the Supreme Court Historical Society. Of course, the Supreme Court is fortunate to have a Chief Justice who is also Chief Historian. I have read each of Chief Justice Rehnquist's books on the Court, and they are engagingly written narratives filled with a love and knowledge of this institution. The Chief Justice is steeped in the folklore of this remarkable Court as few have ever been. This is just one reason those of us throughout the federal judiciary admire and love the Chief. He has shown kindness to me ever since I was a young law clerk for Justice Lewis Powell. I don't know if it's appropriate or not to dedicate a speech, but I am going to do so anyway. This speech is for him.     

To Swear or Not to Swear?: Britain,Southeast Asia and the Attempt to Reform the Judicial Committee of the Privy Council, 1964–1971

ABSTRACT

This article seeks to explore the British government’s perception of the role of the Judicial Committee of the Privy Council as a method of strengthening cohesion amongst the Commonwealth community, and in particular delves into the constitutional and diplomatic challenges that the British government faced in its attempt to utilise the Judicial Committee in order to maintain close ties with its former Southeast Asian colonies in the 1960s. Suggestions were made by the Foreign and Commonwealth Office and the Privy Council Office from the mid-1960s that newly-independent republics such as Singapore and Malaysia should be allowed to send its citizens to London as members of the Judicial Committee in order to dilute the prejudice against the Committee as a remnant of colonial rule. However, the proposals were rejected by the Lord Chancellor’s Office on the grounds that Asian judges were of insufficient calibre to sit as members of the Judicial Committee, and that citizens of republics were unable to swear an oath of loyalty to the British monarch as was required for all Privy Counsellors. The Privy Council Office were of the opinion that a new system could be introduced whereby the Judicial Committee member would not have to be a fully-fledged Privy Counsellor and therefore would not have to swear the oath, while the Commonwealth Secretariat put forward its argument that Asian judges were good enough to ensure standards of the Judicial Committee would not be lowered. However, the Lord Chancellor’s Office argued that such non-Privy Counsellors would only be ‘second-class’ constituents of the Judicial Committee whose rulings would be unacceptable to countries such as Australia and instead proposed the creation of a Commonwealth Court of Appeal which the Foreign Office deemed unrealistic. In the end, no judges from the Asian republics were allowed sit on the Judicial Committee, resulting in Malaysia and Singapore abolishing their appeals to the Judicial Committee in 1984 and 1994 respectively.     

Alchemy of Evidence: Mau Mau,the British Empire,and the High Court of Justice

Restorative justice in various forms is a phenomenon that has swept across the globe over the last three decades. Most recently, it is unfolding in the High Court of Justice in London where five Kenyans have filed a claim against the British government, alleging that they suffered acts of mistreatment and torture at the hands of British colonial and military personnel. Three revisionist Mau Mau historians have served as advisors and expert witnesses for the claimants. Judicial procedure and the positivist stance of the court have framed their production of evidence and its reading. This article will examine the production of the historians’ witness statements, and the impact that the recent Hanslope Disclosure has had upon their work. The discussion is framed within the broader context of Mau Mau revisionism and the critiques that ensued after the publication of Imperial Reckoning and Histories of the Hanged.     

Readings on Thai Justice: A Review Essay

Abstract

How far can judges hope to address Thailand’s political problems? This article reviews six Thai-language books dealing with various aspects of the judiciary, exploring the historical and intellectual origins of the institution. Thirayudh Boonmee’s 2006 call for a judicialisation of politics – his own elaboration of two important royal speeches – builds on judges’ longstanding belief that they are acting “in the name of the King”. But their narrow, formalistic training ill-equips them to exercise broad powers. The article contrasts judges’ idealised self-understandings (as seen in a popular book on how to become a judge by Natthapakon Phitchayapanyatham, and in the 2010 Judicial Code of Ethics) with revisionist perspectives on the judiciary developed by critical scholars Nidhi Eoseewong, Piyabutr Saengkanokkul, and Somchai Preechasilapakul. Whereas judges may imagine themselves to be acting directly on behalf of the monarchy, revisionist scholars insist that since 1932 judges have formed part of a modern democratic order, in which they need to be more transparent and accountable. A close reading of these books reveals that there is no shared agreement in Thai society about the nature or basis of judicial authority.     

The Judicial Bookshelf

Two decades ago, in the summer of 1987, celebrations of the bicentennial of the United States Constitution were in high gear under the watchful eye of then recently retired Chief Justice Warren E. Burger, who chaired the Commission on the Bicentennial of the United States Constitution between 1985 and 1991. ¹ Numerous lectures, seminars, and conferences across the land made clear not only the role and value of what Chief Justice William Howard Taft once called “the ark of our covenant” ² in the life of the nation but also the central place the judiciary had long occupied in the political system, as state and national courts confronted vital questions of public policy perplexing and dividing the people. As that astute French aristocrat Alexis de Tocqueville first noted in 1835, the “American judge is dragged in spite of himself onto the political field . … There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” ³ With the “right to declare laws unconstitutional,” he explained, the judge “cannot compel the people to make laws, but at least he can constrain them to be faithful to their own laws and to remain in harmony with themselves.” ⁴     

ALTERNATIVE MODELS FOR ORGANIZATION OF STATE COURT SYSTEMS*

The dominant theme in court reorganization has been to state judiciaries by consolidating trial courts and centralizing their administration in a state level office. This article suggests that the debate over the relative merits of a centralized vs. a decentralized (or fragmented) court system ignores the rich variety of organizational structures used in other fields. The potential judicial implications of three models-franchise, corporate, and federal-are examined in detail. Their underlying assumptions are compared with those of the centralization approach. The argument is made that none of the models is appropriate for all circumstances. Each approach to court organization emphasizes a particular set of objectives at the expense of another set. An effort is made to identify what each approach has to offer.     

Climate,History, and Culture: The Power of Change

Global climate change and its consequences for humankind opens up a research field for exploring the diverse dimensions and forces of change through time. Chief among the objects of inquiry is how climatic shifts impact on ecological and social structures and developments and what human agencies are able to unfold under given conditions. Conclusions from such reciprocities can help to deliver a differentiated approach to the inroads of anthropogenic climate change. Central to this enterprise are such analytic perspectives as the discipline of anthropology can bring to researching the impact of climate change on human societies.