Power without Law: The Supreme Court of Canada, the Marshall Decisions, and the Failure of Judicial Activism (review)

2010 ◽  
Vol 36 (1) ◽  
pp. 130-131
Author(s):  
Andrew Nurse
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
The Supreme Court

scholarly journals JUDICIALIZAÇÃO E ATIVISMO JUDICIAL EM PERSPECTIVA: UMA ANÁLISE A PARTIR DAS EXPERIÊNCIAS DAS SUPREMAS CORTES DO BRASIL E DO CANADÁ

2020 ◽  
Vol 1 (54) ◽  
pp. 425
Author(s):  
Edith Maria Barbosa RAMOS ◽  
Pedro Trovão do ROSÁRIO ◽  
Sara Barros Pereira de MIRANDA
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Scientific Basis ◽  
Fundamental Rights ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
Scientific Journals ◽  
Supreme Courts ◽  
The Supreme Court ◽  
Theoretical Construction

RESUMOA presente pesquisa por escopo analisar os fenômenos da judicialização e do ativismo judicial a partir das experiências da Suprema Corte do Canadá e do Supremo Tribunal Federal brasileiro. Observou-se que, em ambos os países, tem havido, nas últimas décadas, uma contínua expansão da autoridade do Poder Judiciário e da sua atuação em temáticas de natureza política até então abordadas apenas pelos Poderes Legislativo e Executivo, o que pode ser evidenciado a partir da análise das decisões proferidas pelas Cortes Supremas dos dois países. Apesar das diferenças na arquitetura constitucional, ambas as Cortes atuam como condutoras do processo de expansão alcance do poder de suas estruturas judiciárias. O presente artigo foi desenvolvido a partir de levantamento bibliográfico em artigos obtidos em diferentes bancos de dados e indexadores, publicados na integra em português e inglês, acessados de forma gratuita. Foram selecionadas revistas científicas na área do Direito Constitucional Comparado com extratos elevados, qualis A e B. Utilizou-se, ainda, dados constantes em documentos oficiais e na legislação pertinente com recorte epistemológico e científico fundado na construção teórica contemporânea dos Direitos Fundamentais. PALAVRAS-CHAVE: Judicialização; Ativismo Judicial; Suprema Corte do Canadá; Supremo Tribunal Federal brasileiro. ABSTRACTThis research by scope analyzes the phenomena of judicialization and judicial activism from the experiences of the Supreme Court of Canada and the Brazilian Supreme Court. It has been observed that, in both countries, there has been, in the last decades, a continuous expansion of the authority of the Judiciary Power and its action in themes of a political nature hitherto addressed only by the Legislative and Executive Powers, which can be evidenced by from the analysis of the decisions of the Supreme Courts of both countries. Despite differences in constitutional architecture, both courts act as drivers of the process of expanding the power of their judicial structures. This article was developed from a bibliographic survey in articles obtained in different databases and indexers, published in full in Portuguese and English, accessed for free. Scientific journals were selected in the area of Constitutional Law Compared with high extracts, qualis A and B. It was also used data in official documents and relevant legislation with epistemological and scientific basis based on the contemporary theoretical construction of Fundamental Rights. KEYWORDS: Judicialization; Judicial activism; Supreme Court of Canada; Brazilian Supreme Court.

scholarly journals The Truth About Canadian Judicial Activism

2011 ◽  
Vol 15 (1, 2 & 3) ◽  
pp. 2006
Author(s):  
Sanjeev Anand
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
State Action ◽  
The People ◽  
The Supreme Court ◽  
Recent Conference ◽  
Elected Representatives ◽  
Societal Preferences

The topic of judicial activism in Canada generates considerable disagreement. At a recent conference, retired Supreme Court of Canada Justice John Major stated that “there is no such thing as judicial activism in Canada.”1 In 2001, speaking in his capacity as the Canadian Alliance’s Justice critic, the current federal Minister of Justice and Attorney General, Vic Toews, told Parliament that the Supreme Court has “engaged in a frenzy of constitutional experimentation that resulted in the judiciary substituting its legal and societal preferences for those made by the elected representatives of the people . . . [producing] legal and constitutional anarchy.”2 One prominent constitutional scholar fears that the debate on judicial activism in Canada has begun to produce excessive judicial deference that allows legislatures and officials to act without scrutiny by the judiciary concerning the effects of state action on vulnerable minorities.

scholarly journals Unique Public Duties of Care: Judicial Activism in the Supreme Court of Canada

2016 ◽  
Author(s):  
Bruce Feldthusen
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
The Supreme Court ◽  
Open Discussion ◽  
The Government

Typically, government liability in tort depends on whether the government in question, through legislation, has consented to be held liable for its otherwise tortious acts. However, the Supreme Court of Canada has behaved in an activist manner by ignoring or eviscerating this legislation, altering and expanding what governments can be held liable for. This article explains how this process has occurred, providing five specific examples where unique public duties of care were created. An open discussion is needed about whether the Supreme Court ought to continue doing this and, if so, on what basis. This article starts that discussion.

scholarly journals Judicial Nullification of Statutes under the Charter of Rights and Freedoms, 1982-1988

1969 ◽  
pp. 396 ◽  
Author(s):  
F. L. Morton ◽  
G. Solomon ◽  
I. McNish ◽  
D. W. Poulton
Keyword(s):  
Statistical Analysis ◽  
Supreme Court ◽  
Policy Making ◽  
Minority Rights ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
Judicial Interpretation ◽  
The Supreme Court ◽  
Legislative Policy ◽  
Court Of Appeal

This study assesses the effect of the Charter of Rights on legislative policy-making. Unlike earlier studies limited to the Charter decisions of the Supreme Court of Canada, this study identifies and analyzes all reported federal and provincial Court of appeal decisions from 1982 through 1988 in which a statute was declared invalid, in whole or in part. The authors discuss which Charter rights result in the most ' 'nullifications "of statutes, and judicial activism under the Charter, using a statistical analysis to support their assertions. The study also finds that the Charter has had a greater substantive effect on provincial jurisdiction, than on federal creating a tension between provincial rights and minority rights which can be moderated or exacerbated by different modes of judicial interpretation.

Toward a Progressive Realisation of Socio-economic Rights in Ghana: A Socio-legal Analysis

2017 ◽  
Vol 25 (1) ◽  
pp. 91-113
Author(s):  
Nana Tawiah Okyir
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Social Movements ◽  
Supreme Court ◽  
State Policy ◽  
National Development ◽  
Building Blocks ◽  
Judicial Activism ◽  
Economic Rights ◽  
The Supreme Court

This article argues for the strengthening and entrenchment of socio-economic rights provisions in Ghana's jurisprudence. The purpose of this entrenchment is to engender judicial activism in promoting more creative pathways for enforcing socio-economic rights in Ghana. The article traces the development of socio-economic rights in Ghana's jurisprudence, especially the influence of the requirements of the international rights movement, particularly of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The article delves into the constitutional history of Ghana and its impact on the evolution of rights in the country. Of particular historical emphasis is the emergence of socio-economic rights under the Directive Principles of State Policy in the 1979 Constitution. However, the significance of the socio-economic rights only became profound with the return to democratic rule under the 1992 Constitution, again under a distinct chapter on Directive Principles of State Policy. However, unlike its counterpart, the chapter on the Fundamental Human Rights and Freedoms, which is directly enforceable, the Directive Principles of State Policy were not. It took the Supreme Court of Ghana a series of landmark decisions until finally, in 2008, it arrived at a presumption of justiciability in respect of all of the provisions in the 1992 Constitution. It is evident that prior to this, the Supreme Court was not willing to apply the same standards of adjudication and enforcement as it ordinarily applies in respect of rights under the chapter on Fundamental Human Rights and Freedoms. Having surmounted the non-justiciability hurdle, what is left is for the courts to begin to vigorously pursue an agenda that puts socio-economic rights at the centre of Ghana's rights adjudication framework. The article draws on comparative experiences from India and South Africa to showcase the extent of judicial creativity in rights adjudication. In India, the courts have been able to work around provisions restricting the enforcement of Directive Principles by often connecting them to Fundamental Freedoms. In South Africa, there is no hierarchy between civil and political rights on the one hand and socio-economic rights on the other; for that reason, the courts give equal ventilation to both sets of rights. The article further analyses these examples in the light of ongoing constitutional reforms in Ghana. It argues that these reforms fall short of the activism required to propel socio-economic rights adjudication to the forefront in Ghana's jurisprudence. In this regard, the article proposes social movements as a viable tool for socio-economic rights advocacy by recounting its success in previous controversial issues in Ghana. The article also connects this to other important building blocks like building socio-economic rights into a national development blueprint. Overall, the article calls for an imaginative socio-economic rights enforcement approach that is predicated on legislation, judicial activism, social movements and a national development blueprint aimed at delivering a qualitative life for the Ghanaian.

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