James Fowkes

The law of lawmaking: positive political theory in comparative public law

Our topic is the law of lawmaking—both in the legislature and in the executive. We compare the United States with South Africa, Germany, and the European Union to show how fundamental differences in institutional design shape the nature of “due process of lawmaking”. Presidential and parliamentary forms of government frame the lawmaking process, and fundamental constitutional structures and values influence constitutional court review. We use positive political theory to explain some of the observed differences and evaluate the outcomes through the lens of democratic accountability.

The relationship between IHL and IHRL in peacekeeping operations : articulating the emerging AU position

Modern peacekeeping is increasingly expansive, and much of it occurs in Africa. The African Unions attitude to the challenges of regulating this modern peacekeeping is therefore an important source for the associated legal debates, but one that is often neglected (in part because the sources are limited and often in draft form). This article seeks to articulate and then critique the AUs emerging view on the application of international humanitarian law and international human rights law to peacekeeping activity and the relationship between the two bodies of law in this context. It argues that the AUs emerging position treats international humanitarian law as a narrowed lex specialis, only displacing international human rights law in relation to peacekeepers while they are actively engaged in armed conflict. Even this position, however, underestimates the extent to which the pervasive rights-based concerns in AU sources imply a still more pervasive application of international human rights law to its peacekeeping activities.

How to Open the Doors of the Court: Lessons on Access to Justice from Indian PIL

Abstract Indian Public Interest Litigation (PIL) is a creative and widely-noted model for broadening access to justice and facilitating the proper hearing of important issues even if they are not backed by resources. The model holds obvious appeal for South Africa, where these are pressing concerns. PIL has, however, enjoyed distinctly mixed success in India. This article draws on the model and the Indian experience of it to propose a PIL model for South Africa, more modest than India’s, but designed to be resistant to the problems India has experienced and to be a practical proposal that both the government and the judiciary could support. The paper seeks to show how such a model can expand the number and diversity of people who can access the courts, improve the ability of the courts to remedy constitutional violations, and potentially bolster judicial status and independence.

Courts as the Nation’s Conscience: Empirically Testing the Intuitions Behind Ethicalization

A prevalent intuition holds that law without values is sterile and formalist. On this view, including ethical terms in law allows a judge to engage directly with the “real” moral issues of the situations before her, instead of being preoccupied with abstractions. In grander versions, the ethicalization of law empowers judges to act as the state’s conscience, as the final defender of great national and human values. This idea is appealing. But its persuasiveness rests on a causal claim that judges, armed with ethical terms, can and will actually do this work. We seek to test that causal claim: does the evidence confirm that including ethical terms in law or interpretative rules will produce more moral outcomes and safeguard national values from political threats? The intuition is a broad, general idea, and we engage with it at the same general level. We examine two areas of work richly relevant to the practical effect of the ethicalization of law and conclude that the evidence casts doubt on the causal claim in the longer term: it exaggerates judge’s potential in relation to politics and neglects the risks inherent in the flexibility of ethical terms.