Judicial Independence: Keeping Law at a Distance from Politics
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In recent years, much has been written about judicial activism. However, very little has been written about how the judicial system has transformed itself, and the increasingly greater role judges play in creating law. In this well-researched study, University of Montreal law professor Martine Valois offers a rare perspective on our legal system, examining how the judicial function has evolved as part of a larger historical and sociological process.
Originally written in French, and winner of the 2012 Walter Owen Book Prize (awarded by the Foundation for Legal Research), this text analyzes the changes to the judicial function over time, in light of historical alterations in the organization of political powers and the making of law. Readers will find, as former Supreme Court of Canada justice Michel Bastarache has stated, "This book informs, as no other, those who would question the legitimacy of judges in their new role as law-creators."
- Teaches the reader about judicial independence, how it originated, and how it has evolved over the years
- Discusses the issue of judicial activism as being the consequence of social differentiation, and not the result of appropriation of power by the judicial system
- Explains why social differentiation is the precondition to equality under the law; it is also what makes the judicial system unaccountable to political power
- Explains why judges enjoy independence as long as they follow nothing other than what is required by law
- Gives a complete analysis of the evolution of the Canadian legal system and of the judicial function
- Provides a historical analysis into the changes in the role of the judiciary, linked with ideas from renowned sociologists such as: Herbert Spencer, Max Weber, Émile Durkheim, Talcott Parsons, and others
- Puts forward a theoretical framework which helps readers understand and analyze changes to the judicial system
- Judges - Helps members of the judiciary better understand and appreciate their role in the making of law
- Legal practitioners -Enables lawyers to draft and articulate their arguments in relation to the role and functionality of the judiciary
- Law professors and legal researchers - Helps members of the academia understand the evolution of the relationship between the judiciary, and society and government
Table of contents
Title I: Theoretical Perspectives
- Chapter 1: Sociological Analysis
- Chapter 2: Functional Differentiation
- Chapter 3: Social Systems
Title II: Law in Society
- Chapter 4: The Law's System
- Chapter 5: Law's Legitimacy
Title I: Law's Transformations
- Chapter 6: Law's Differentiation
- Chapter 7: The Development of the Modes of Lawmaking
- Chapter 8: The Evolution of the Legal System
Title II: Forms of Law Over Time
- Chapter 9: The Segmented Normative Order
- Chapter 10: Roman Law
- Chapter 11: The Beginning of Law's Territoriality
- Chapter 12: The Learned Laws
- Chapter 13: The Hierarchical Differentiation of Law
- Chapter 14: The Self-Referentiality of the Law
Title I: The Administration of Justice in The Western Legal Tradition
- Chapter 15: The Judicial Function of Law in Pre-Modernity
- Chapter 16: The Judicial Function in the Medieval State
- Chapter 17: The Differentiation of the Administration of Justice in Modernity
Title II: The Judicial Function Between Law And Government
- Chapter 18: Law, Politics and Separation of Powers
- Chapter 19: The Bureaucratization of the Judiciary
- Chapter 20: The Place of the Judicial System
- Chapter 21: The Judicial Procedures of the Differentiated Law
- Chapter 22: Formal Justice under Tension
- Chapter 23: Judicial independence
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