Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
  1. Home
  2. Search

Refine search

Refine search

Access:
Content type:
Publication date:
Apply   From and To filters
Subject: Show more
Journals Show more
Publishers: Show more
Societies Show more
Series: Show more
Collections: Show more

Actions for selected content:

Select all | Deselect all
  • View selected items
  • Export citations
  • Download PDF (zip)
  • Save to Kindle
  • Save to Dropbox
  • Save to Google Drive

Save Search

You can save your searches here and later view and run them again in "My saved searches".

Please provide a title, maximum of 40 characters.
Cancel
×

53 results

Page 1 of 3

  • Reinterpreting ‘the Mason Court Revolution’: An Historical Institutionalist Account of Judge-Driven Constitutional Transformation in Australia

  • Theunis Roux
  • Journal:
    Federal Law Review / Volume 43 / Issue 1 / March 2015
    Published online by Cambridge University Press:
    01 January 2025, pp. 1-25

  • There have been two major periods of judge-driven constitutional transformation in Australia. The first spanned the High Court's successful transformation over the course of the last century of the strongly federalist 1901 Constitution into a weakly federalist one. The second took the form of what is generally thought to have been the less than fully realized ‘Mason Court revolution’ – the Court's attempt, from 1987-1995, to turn the Constitution into a device for expressing core Australian political values. What explains these different outcomes – why was the first transformation so successful and the second only partially achieved? This article proposes an answer to this question based on a generalisable account of the role of constitutional courts in processes of constitutional transformation. In short, the argument is that the seminal Engineers decision triggered a self-reinforcing trajectory of institutional development that led to a stable politico-legal equilibrium by the middle of the last century. The judges responsible for the second attempted transformation sought to break free of this equilibrium in order to respond to what they thought were pressing social needs. In the absence of a significant exogenous shock to the system, however, the equilibrium structured and constrained what they were able to do.

  • Chapter 3 - Constitutional Populism in South Africa

  • from I - Populisms
  • Edited by Martin Krygier, University of New South Wales, Sydney, Adam Czarnota, University of New South Wales, Sydney, Wojciech Sadurski, University of Sydney
  • Book:
    Anti-Constitutional Populism
    Published online:
    24 March 2022
    Print publication:
    31 March 2022, pp 99-137

  • Summary

    On 13 December 2019, South Africa’s Parliament published a notice inviting public comment on a proposed amendment to that country’s celebrated 1996 Constitution.1 In seven tersely worded pages, the explanatory memorandum sets out the need for a change to section 25 – the property clause. If adopted,2 the amendment would add a provision stipulating that a court, ‘where land and any improvements thereon are expropriated for the purposes of land reform’, may determine that the compensation payable is ‘nil’. In addition, Parliament, rather than the judiciary, would be given the authority to specify the circumstances in which this kind of determination could be made.

  • 11 - The Constitutional Court

  • from Part III - Specialised Courts as Judicial Reform Strategy
  • Edited by Melissa Crouch, University of New South Wales, Sydney
  • Book:
    The Politics of Court Reform
    Published online:
    30 August 2019
    Print publication:
    19 September 2019, pp 245-264

  • Summary

    This chapter draws on Daniel S. Lev’s work on Indonesian law and legal culture to assess the Constitutional Court’s role in the reformasi. One of the central themes running though Lev’s work, the chapter notes, was the idea that law’s claim to authority as an autonomous body of norms is invariably a function of politics – of the middle class’s need to promote this quintessentially liberal idea of law to further its own interests. On the other hand, Lev also recognised that societies generally prosper where there is public confidence in precisely this conception of law. This tension in Lev’s work may be resolved, the chapter argues, if law’s autonomy from politics is seen as being, not an empirically provable fact, but a constitutional-cultural ideology that may take hold under certain conditions. The third section uses this modified Levian conceptual framework to examine the Indonesian Constitutional Court’s role in promoting the rule of law after the constitutional reforms of 1999–2002. While the Court has made admirable strides, the chapter argues, its vacillation between a legalist and an instrumentalist conception of law has inhibited the consolidation of a stable societal understanding of its legitimate role in tempering the exercise of political power. The chapter conclusions on this score, despite differences of conceptualisation, demonstrate how vitally important Lev’s work still is to the fate of the Indonesian ‘law-state’.

Page 1 of 3