Situations of emergency and crisis pose significant challenges to all branches of government, none more so than the courts. Courts in democratic states face unique tribulations, though there is increasing recognition that even in authoritarian contexts courts can continue to play an important part in challenging and channelling a state’s recourse to crisis powers.
As judges face growing criticism for 'disproportionate' sentencing of those convicted of inciting riots, Sir Mark Potter, former President of the Family Division of the High Court of England and Wales, assesses to what degree the media influence the judiciary.
In the policy brief, he finds that judges generally remain impervious to outside influence, but that sentencing policy is sometimes influenced by public opinion.
Quite where the boundaries of justifiable judicial social policymaking lie will depend on one’s own understanding of the nature and value of democracy. Most will agree that there is value to policy outcomes possessing democratic legitimacy, but that this should not mean that the rights and interests of minorities are routinely ignored.
With the reluctance by many in the Anglo-American world to countenance an incorporation of socio-economic rights into justiciable Bills of Rights, this policy brief explores the potential of the social contract as a complementary approach to the positivist arguments of international human rights law.
Social contract theory has evolved in the twenty-first century into a progressive theory that encompasses socio-economic rights.