The thesis examines the constitutional position of the Court of Session's supervisory jurisdiction. It begins by emphasising the methodological and substantive importance of the historicality and traditionality of law. It then provides a detailed historical account of the emergence of the Court's supervisory jurisdiction, from its inheritance of supervisory functions from emanations of the King's Council to the present-day law of judicial review. Throughout, emphasis is placed on the Court's strong sense of self-orientation in the wider legal and constitutional order, and the extent to which it defined its own supervisory jurisdiction. The court was a powerful constitutional actor and played a strong role in the increasing centralisation and systematisation of the legal order, expanding its supervisory purview through a powerful triumvirate of remedies (advocation, suspension and reduction) and a comprehensive approach to the supervision of a wide range of bodies. The thesis then frames tensions between Parliament and the Court in the context of judicial review of ouster clauses, chosen as a point of heightened inter-institutional tension. This is demonstrated to be an area in which divergent visions of the constitution are evident – Parliament regarding itself as entitled to oust the jurisdiction of the Court to judicially review, and the Court regarding itself as entitled to examine and pronounce on the extent of ouster, including its limitation or exclusion. In attempting to conciliate these divergent constitutional worldviews, the thesis rejects a “last word” approach which prevails in the English judicial review literature. It considers (and rejects), as alternatives, dialogue theories and functional departmentalism. The thesis then advances constitutional narratology as its preferred analytical framework for the accommodation of those inter-institutional tensions, and conciliation of their divergent worldviews. The Court's performance of a constitutional-narratological function facilitates the integration, conciliation and synthesis of legal norms with an existing law and legal system; weaves and coagulates multifarious legal norms into a unified and univocal body of norms; and executes a chronicling, expository and explanatory storytelling function which sets a legally-authoritative narrative to the law. In doing so, the Court performs a distinctive and indispensable constitutional function incapable of fulfilment by Parliament. It is argued that traditionality and functional necessity provide the legal-systemic legitimation for the Court's performance of the constitutional-narratological function. Finally, the thesis considers the institutional specificity of the function, concluding that it is the function, rather than the institution, that is indispensable. However, neither the advent of the Upper Tribunal nor the U.K. Supreme Court suggest at this stage that the Court's performance of that function is waning.

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Thèse--Paris. / Published also as Brazil. Departamento Administrativo do Serviço Publico. Serviço de Documentação. Publicação avulsa. n.488. Bibliography: p. [245]-249.

Thesis (Ph. D.)--University of Washington, 2002. / Vita. Includes bibliographical references (leaves 280-292).

No description available.

Thesis (LL. M.)--Judge Advocate General's School, 1956. / "May, 1956." Typescript. Includes bibliographical references (leaf 74). Also issued in microfiche.

Thèse--Paris. / Bibliography: p. [245]-249.

This thesis investigates the question of whether judicial review of legislation is a hindrance to democracy. My main claim is that the existing literature on this topic fails to pay adequate regard to the symbolic significance of political institutions, that is, the role that legislatures and courts play in the popular imagination. I argue that we should not view constitutional systems merely as decision-making mechanisms, since a society’s institutional structure will colour its sense of political agency and shape the way in which citizens view their relationships with political officials and with one another. Different constitutional structures accordingly project different visions of constitutionalism and democracy. In particular, I argue, representative government should be viewed not merely as a compromise between equality of input and quality of output, but as a distinctively valuable form of government in its own right. The representative assembly serves as the focal point for public political debate and symbolises a commitment to government through an inclusive process of deliberation. Legislative supremacy – the practice of accepting the enactments of a representative assembly as the decisions of the people as a whole – can therefore allow the law to be seen as the output of the political power of a self-governing people. Judicial review, on the other hand, will tend to signify a set of boundaries around the democratic political process, thus truncating the people’s shared sense of self-government.

The European Public Prosecutor’s Office (the EPPO), established under enhanced cooperation by a Council Regulation (the Regulation), will be the first supranational criminal law enforcement body in the European Union (the EU) with direct powers visà-vis individuals. It will be responsible for investigating, prosecuting and bringing to judgments the perpetrators of offences against the Union’s financial interests. Measures taken by the EPPO may therefore seriously interfere with fundamental rights of individuals. As the EU is based on the rule of law, an effective judicial review of the acts produced by the EPPO is essential in order to allow individuals to protect their rights and legitimate interests against unlawful and arbitrary decision-making. In accordance with the Treaty framework of judicial review, the main rule in EU law on the division of jurisdiction between national courts of the Member States and the Court of Justice of the European Union (the CJEU) is that acts adopted by Union institutions and bodies are to be reviewed by Union courts, while acts adopted by national institutions and bodies are to be reviewed by the national courts. Although the EPPO is an indivisible Union body, the judicial review of the procedural acts of the EPPO will first and foremost be a task for the national courts according to Article 42 of the Regulation. Since it follows from the hierarchy of norms that secondary law must comply with primary law, this thesis examines whether the system of judicial review of procedural acts of the EPPO, as prescribed in Article 42 of the Regulation, complies with the Treaty framework of judicial review and the right to effective judicial protection enshrined in Article 47 of the Charter of Fundamental rights of the European Union (the Charter). The main finding of the thesis is that the system of judicial review of procedural acts of the EPPO, as prescribed in the Article 42 of the Regulation, does not comply with the Treaty framework of judicial review or the right to effective judicial protection enshrined in Article 47 of the Charter.

No description available.