'The Body Evidencing the Crime': Rape on Trial in Colonial India, 1860–1947

The history of rape on trial in colonial India sheds new light on the colonial civilising mission and the claims made by white men about saving brown women from brown men. Through an analysis of almost a century of case law, this article concludes that the modernisation of law and the development of a new medico-legal understanding of rape introduced evidentiary standards that placed a heavy burden on Indian women seeking judicial remedy in colonial courts. The fear imported from Britain of false charges combined with colonial views about Indian culture to make native female complainants doubly dubious. The colonial jurisprudence has survived to devastating effect in postcolonial India and Pakistan in ways that are explored and explained by the author.     

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.     

Interviewing Australia's Senior Judiciary

Interview research is ubiquitous in social science, but few political scientists interview senior judges about courts and judicial decision making. Misconceptions abound about the feasibility and pitfalls of interviewing judges. Drawing on interviews with more than 80 senior Australian judges, I assess the study of judicial elites through interview research.     

Judicial Review of Agency Interpretation of Statutes: Deference Doctrines in Comparative Perspective

Examined in this article are the deference doctrines developed by courts in the United States, Canada, Britain, Australia and South Africa. Deference doctrines determine when and if courts are to defer to an agency's reasonable interpretation of the ambiguous terms of the statute that the agency administers. The study of deference doctrines in comparative perspective reveals much about the need for agency autonomy in the modern administrative state and the capacity of courts to maintain the delicate balance and remedy abuses of discretion. It also provides an opportunity to determine how well the leading theories of judicial decision making explain the variety of judicial responses to the common problem of deference to agency interpretation of statues.     

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.     

Protecting Human Rights Through Constitutional Adjudication ‐ Jordan as a Case Study

This article aims at defining the role of constitutional courts in protecting the fundamental human rights of individuals, by relating the importance of constitutional judicial review and the established international standards related to the way it is performed. The study also provides an in‐depth analysis of the structure and working mechanism of the new constitutional court in Jordan with regard to its main functions described in the constitution of providing oversight of the constitutionality of laws and regulations in power, and interpreting provisions of the constitution. The study concludes that current statutory provisions with respect to the court proceedings and the method of undertaking its judicial work serve as safeguards that strengthen the role of the court in promoting individuals’ human rights. The study defines a vision of what is anticipated from the new constitutional court of Jordan and other courts in the field of defending human rights from the contemporary threats the world is facing, which only serve to increase fears among individuals that their basic rights are subject to serious attacks and violations.     

Land,Law and Courts in India: Tracing Land Rights Debates through Processes of Judicial Decision Making

The pace of industrial and allied infrastructure development in India is encumbered by scarcity in the supply of land. As a result, the state in India has frequently resorted to expropriation of land through conversion of land away from its traditional uses and through displacement of communities. Consequently, land acquisition in the country is mired in disputes over human rights and environmental rights violations. In the face of continued political support for infrastructure‐led development in India, those who stand to lose their land have often resorted to judicial recourse for pressing their rights. This article draws on empirical evidence from court cases related to two urban development projects in the states of Karnataka and Kerala to examine how courts have responded to the question of violation of land rights and appeals against land acquisition for the two projects. The author argues that the courts, while responding to the claims against the two projects, have refrained from holding the implementing agencies or the state governments accountable even in cases where there were recognizable incidents of malfeasance. The article illustrates that the inability of the courts to confront the state lends a tacit assent to the development agenda of the state.     

Banishment,Urban Community and Judicial Practice: Thieves in mid-17th-century Turku

The practice of banishing thieves, and the changes that took place in that practice in mid-17th-century Turku, illuminates the issues of building a good urban community as well as the changes that were happening in law and judicial practice in early modern Sweden. Variations and changes in punishing thieves in the 1640s and 1650s in Turku show that the position of the thief in the urban community, and the amount that was stolen, affected the courts’ considerations throughout the two decades. Nevertheless, an ongoing tendency towards moderation in sentencing is visible in courts, and the influence of a new penal ordinance of 1653 is noticeable. The banishment of thieves, even if it removed unwanted people from town, was no more strongly connected to the goal of creating a good community than other punishments were. Both banishment and other punishments, however, were connected to the conceptions of an ordered and harmonious community. The court cases, nevertheless, show that the makeup of the Turku urban community was more open than the strict moral or legal guidelines of the time would suggest.     

On the Crisis of American Civilization,Post-September 11

ABSTARCT

This symposium on the Fourteenth Amendment engages a series of vital questions about its meaning and importance. Often called “a second American founding,” the Fourteenth Amendment remains highly relevant to contemporary constitutional debates, especially because its enforcement mechanism has largely been transferred from the Congress to the courts. In this sense, the debate over the Fourteenth Amendment is not simply a conversation about its meaning. It is a conversation about judicial authority more generally.     

Der Scharlatan auf dem Rechtsweg — und was vielleicht zu seiner Umlenkung getan werden könnte

A number of recent allegations of scientific misconduct in Germany have led to judicial proceedings. Two examples are analyzed in depth, showing evidence for mutual incompatibilities between the legal system and the scientific system. In particular, it seems doubtful whether basic rules of good scientific practice are adequately and consistently taken into account by the courts when assessing the burden of proof. Strengths and weaknesses of some alternatives to judicial proceedings in such cases are discussed.     

The Charms of Women and Priests: Sex,Magic, Gender and Public Order in Late Medieval Italy

How did judicial authorities in late medieval Italy understand the relationship between gender, sexuality, social status, magic and public order, especially when magic was used to facilitate the crime of adultery? What might this reveal about the intersection of gender, magic and public order in a place and time so fraught with political and social tensions? This study qualitatively compares four love‐magic trials from fourteenth‐century Lucca and suggests that the anxieties underpinning these trials were both particular to late medieval Italian communes and projected onto two populations, women and priests, whose unchecked sexuality posed the greatest threat to civic order. Historians examining gender in medieval European magic trials have often treated judicial officials’ anxieties as portents of the ‘witch craze’ of early modern Europe. Historians of medieval Lucca have tended to treat the political and gender histories of the city as largely separate. This article suggests that the courts’ increasing regulation of gender and sexuality in late medieval Lucca reflected larger ecclesiastical and communal concerns about the dissolution of civic order. In a world of civic power that increasingly belonged to secular men, the unchecked sexuality of women and clergy represented a dual threat to the stability of the family and, by extension, the city. This article argues that secular and ecclesiastical judicial officials feared not magic itself, but the ability of magic to invert power relations between men and women and between clergy and laity, destroying public order.     

Sovereignty and inconvenience: The significance of Bentham's exasperation

This article explores the meaning of ‘inconvenience’ and ‘convenience’ in legal and philosophical reasoning. The argument is that such considerations were crucial in the practice of Australian courts in marking out the boundaries of judicial propriety in relation to parliamentary proceedings. This argument is made with recourse to usages of the terms in constitutional debates of the seventeenth century. The older meanings of these terns have now been lost to Australian constitutional law. Hence, I argue, the problem of the boundaries of judicial propriety must be the subject of broader or more theoretical considerations such that the political preferences of judges will be less capable of insulation from their judgments.     

审判与调解:新中国成立初期的清理积案与制度选择

新中国成立初期,面对大量民事案件,司法机关一度认为造成积案的原因是暂时的,这些问题可以在短期内通过应急突击得到解决,司法机关对调解的态度一度也较为审慎。基于处理民事案件和清理积案的现实需要,司法机关围绕审判与调解主辅关系的制度安排进行了探索和选择。至20世纪50年代后期,“调解为主”的方针得以确立并趋于稳固。关于民事案件的这种制度选择对新中国司法探索和制度形成产生了深远的影响。     

刑事审判监督程序存在问题的分析及改革策略

刑事审判监督程序是为了纠正错误的生效裁判而进行的特殊救济审判程序。我国法律对其规定虽有特色,但在许多方面尚不完善,其暴露出来的问题逐渐成为阻碍我国法制改革深化的因素之一。本文从提起再审的主体不当、再审的主体不当、再审的审理方式不当等几方面阐述在我国刑事审判监督程序中存在的主要问题,并针对这些问题提出当事人应该被列为可以提起再审程序之主体;再审应由原审法院的上级法院进行审理;法院应开庭审理,检察院派员监督等改革策略。     

Judicial Intervention and Local Spending

This study develops a methodology for examining the impact of court orders on local budgets and applies it to one of the most important areas of judicial involvement-local jails. During the 1980s an increasing number of local jails came under court order due to overcrowded facilities. In many counties this has been matched by equally rapid growth in jail capacity and expenditures. Based on simple comparisons of these trends and case studies of individual counties, previous research on court intervention has concluded that the courts have forced reluctant local governments to increase expenditures on corrections. However, past research on judicial intervention may be misleading because of inadequate controls for other factors that may affect both jail capacity and spending. We examine the determinants of jail spending for a national sample of jails in the mid-1980s. Our results indicate that court orders influence capacity expansion (their impact on current expenditures is less clear); however, other jail and demand factors may have a stronger effect. Contrary to conventional wisdom, our findings suggest that many jurisdictions, given adequate fiscal resources, budget for jail expansion when they need its not when forced by the courts to act.     

The 'Haves' and the 'Have Nots': An Empirical Study of the Rational Actor and Party Capability Hypotheses in the High Court 1948–99

The High Court has always played an important political and social role. However, recent debate over implied rights in the Constitution has brought judicial power into focus, making it an important topic for assessment. One framework that has been used to test judicial power in Canadian, English and United States appeal courts is the notion of party capability theory. This paper analyses reported and unreported decisions of the High Court since 1948 in light of party capability theory. It attempts to identify what impact (if any) both the experience and resources of the litigants has had on which parties win and lose on appeal over an extended period. The main conclusion is that there is little evidence to support the thesis that stronger parties persistently come out ahead.     

Legal Challenges to Presidential Policies on the Use of Military Force

A review of legal challenges to the use of military force, from the Vietnam War era to the Gulf War, demonstrates a judicial unwillingness to constrain presidential policymaking. In most of these cases, the judiciary has ruled the legal challenge nonjusticiable. In the first post-Cold War challenge , Dellums v. Bush, the United States District Court for the District of Columbia issued the equivalent of a declaratory judgment. Arguably, this is the only practical judicial response to the presidential use of force, but it does little more than redirect the policy conflict from the courts to Congress. The rule of law remains a weak reed in efforts to constrain presidential policymaking on the use of military force.     

Punishing the mad bomber: questions of moral responsibility in the trials of French anarchist terrorists, 1886-1897

In late nineteenth-century France, several criminologists maintainedthat the perpetrators of the contemporary wave of anarchistterrorism were victims of mental disorders who deserved judicialleniency. French courts did not accept this theory, but insteaddeclared the principal terrorists sane and fully responsiblefor their crimes and, based on this view, handed down severesentences. Many criminologists accused the jurists of deliberatelyignoring the mental illness of the anarchists because of governmentand public pressures to impose the death penalty, but evidencefrom the anarchist trials fails to support this charge. Thecontroversy highlights the conflicts between the judicial establishmentand the emerging discipline of criminology, whose pathologicalexplanations of anarchist terrorism reflected a positivist attackon the traditional concepts of free will and moral responsibility,concepts the jurists viewed as fundamental to the legal system.     

Floods,communal conflict and the role of local state institutions in Sub-Saharan Africa

Does the occurrence of flood disaster increase the risk of communal conflict and if so, does trust in state political institutions mitigate the adverse effect? This study addresses these questions by studying the intervening effect of trust in local governmental institutions at a sub-national level. The effect of flood disasters on the risk of communal violence is expected to be contingent on peoples’ trust that local political structures are able to address potential disputes between groups. Violent conflicts, in that sense, are neither inevitable nor directly determined by the occurrence of disasters. They largely depend on the context of a given society and political response to these external shocks. To test this expectation, the study uses survey data on trust in local state institutions in Sub-Saharan Africa from the Afrobarometer (2005–2018), combined with geo-referenced communal conflict and flood data. In line with theoretical expectations, results suggest that flood disasters are associated with communal violence only for administrative districts that are governed by distrusted local state institutions. Conversely, flood disasters tend to be negatively associated with the risk of communal clashes in the presence of highly trusted local government councils and (especially) trusted judicial courts. Changing model specifications and estimation techniques produces similar results. An out-of-sample cross-validation also shows that accounting for political variables, in addition to flood disasters, improves the predictive performance of the model.     

The Preemptive Power of State Supreme Courts: Adoption of Abortion and Death Penalty Legislation

We offer a theory about public policy adoption that depicts a game between state supreme courts and state policymakers. We hypothesize that court ideological hostility or friendliness operates to discourage or encourage policy enactment, with the likelihood of subsequent court intervention magnifying the relationship. To test the argument we examine the influence of court ideology on the enactment of state abortion and death penalty laws since the 1970s. Empirical analyses provide strong support for our theory, indicating that court ideological hostility or friendliness significantly influenced state abortion and death penalty policy enactments. In addition, the likelihood of court intervention conditioned this relationship, with the most pronounced effect occurring where subsequent court review was mandatory. The findings reveal courts exert important preemptive influence on law without hearing a case. This facet of judicial influence expands the traditional view of actors involved in the policymaking process.