Understanding the Rule of Law

Description

The ‘rule of law’ is increasingly regarded as integral to liberal democracy, and its significance is frequently discussed by lawyers, academics, politicians and the media. But the meaning of the phrase is not always clear. What does ‘the rule of law’ mean exactly? And why is it so important to the democratic state and, above all, its citizens? In Understanding the Rule of Law, former President of the Dutch Supreme Court Geert Corstens paints a lively and accessible portrait of the rule of law in practice. The focus is on the role of the courts, where the tensions in a democratic state governed by the rule of law are often discussed and resolved. Using landmark judgments, Geert Corstens explains what judges do and why their work is valuable. What do minimum sentences and prisoners’ voting rights have to do with each other? Why is there no easy answer to the question of whether a paedophile organisation should be banned? Why is it no joke when the Italian politician Silvio Berlusconi calls the judiciary ‘the cancer of democracy’? Understanding the Rule of Law provides the answers to these and many other questions, and is essential reading for anyone interested in the state of democracy today. Foreword Acknowledgements Contents Introduction 1 A Democratic State Governed by the Rule of Law: What Does This Mean? I. From Little Rock to Hungary II. The Vulnerability of the Rule of Law III. Democracy from Pericles to Hitler's Germany IV. The Rule of Law and the Maltreatment of Penguins V. The Separation of Powers: Montesquieu and Berlusconi VI. Protecting Human Rights VII. Balance between the Powers with Freedom of the Citizen as its Fundament 2 What is the Role of the Judiciary in a Democratic State Governed by the Rule of Law? I. Taking Justice into One's Own Hands, Trial by Jury and an Independent Judiciary II. Settling Disputes and Imposing Penalties III. Organisation of the National and European Courts IV. Keeping the Debate on the European Court of Human Rights Transparent V. Access to the Courts: from Magna Carta to Apple v Samsung 3 The Relationship between the Judiciary and the Legislature I. Not Just There to Apply the Law II. The Democracy Principle and Judges' Personal Opinions III. Interpreting the Law? Napoleon's Distress IV. No Refusal to Adjudicate: Euthanasia and Legislators who drag their Feet V. Technological Advances, Virtual Theft and Flock Fibres VI. Social Developments: French Kissing, Repudiation and Wrongful Life VII. Interpreting New Legislation: Stalking and Peepshows VIII. And Then the Curious Case Concerning Peep Shows IX. No One Has the Last Word 4 The Judiciary's Relationship with the Constitution and International Law I. Ban on Constitutional Review: the Netherlands as Odd Man Out II. Effect of International Law: Lilian Janse, SGP Local Council Member III. Precedence of International Law: the Case of Charles F IV. Judicial Restraint: Legislator and Judge, each in their own Domain V. Conflict between Fundamental Rights: Thieves and Paedophiles VI. Undemocratic Political Parties: Tolerating the Intolerant? 5 The Relationship between the Judiciary and the Executive I. Review by the Courts: Florists and Voles II. Tort by the State: a Butter Merchant and Ayaan Hirsi Ali III. Protection under Administrative Law: Business Succession and a Berth on the Apeldoorn Canal IV. Review by the Criminal Courts: a Cannabis Farm V. Review by the Criminal Courts: the Pikmeer Lake VI. Shift towards the Executive: a Slippery Slope? VII. Judges Must be Brave 6 The Relationship between the Judiciary and Society I. The Courts are there for Citizens: Model Mandy and Turbo Investments II. The Judge as Craftsman: Strikes and Leaf Lettuce III. The Judiciary has no Political Programme: Kennedy and Obama IV. Judges Listen and Decide: Let both Sides be Heard V. The Judiciary and the Media: Twitter and Tweeting VI. Once Again: Judges Must be Brave VII. Judges Must Retain a Certain Distance: Court Fees and Attitude VIII. Image and Reality: West Wing and 'Soft' Judges IX. Criticism of the Judiciary: the Virtue of Moderation 7 Guaranteeing the Quality of Justice I. Lucia de Berk, the Drunken Judge and the Pugnacious Judge II. Selection, Training and Facilitating Good Work III. Open Courts: Kafka and 'Janet and John speak' IV. Is it Necessary to have more Transparency? V. Ordinary Legal Remedies: the Fire at Schiphol Airport VI. Retrial VII. Recusal: Biased Judges VIII. How Do We Get Rid of Bad Judges? IX. Complaining about Judges 8 Cherish the Rule of Law! Index