Law and Democracy in the Empire of Force


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In the "model constitution" the people, acting through the elected Diet, were supreme.

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MacArthur decided to preserve the position of emperor, but merely as "the symbol of the State and of the unity of the people. The Japanese government leaders were shocked by the radical changes proposed in the "model constitution. After disagreeing among themselves, the Japanese cabinet went to the emperor. On February 22, Hirohito ended the deadlock by commanding that the "model" become the basis for the new constitution of Japan. On March 6, the Japanese cabinet accepted the new constitution.

This was followed by statements of approval by Emperor Hirohito and Gen. MacArthur who later called the document "the most liberal constitution in history. The constitution was widely publicized and enthusiastically discussed by the Japanese people, especially during the days leading up to the April general election. When the Dietmet during the summer of , the newly elected legislators debated and then voted final approval.

Japan's new democratic constitution went into effect on May 3, Has Japan's democratic constitution been a success? MacArthur himself called it "probably the single most important accomplishment of the occupation. In , the American occupation of Japan ended. The Japanese were again an independent people free to run their country as they wished.

Since then, the Japanese have changed or done away with a number of the reforms instituted by MacArthur. One reform remains firmly in place: the "MacArthur Constitution. In the words of Japanese scholar Sodei Rinjiro: "Clearly the constitution has sunk its roots among the people. This activity is designed to be done in class before they read the article in this section.

The questions listed below had to be answered by the United States after the surrender of Japan on August 14, Meeting in small groups, students should discuss and write down at least one reason for their own answers to both the following questions. Once Japan is occupied, should the Japanese government be totally abolished and replaced by the direct rule of American military authorities? In Germany the Nazi government had disintegrated as Allied troops closed in on Berlin.

Following Germany's defeat, the Allies set up their own military governments to rule in their respective zones of occupation. In Japan, however, the emperor, national legislature called the Diet , ruling cabinet and the entire government bureaucracy all remained in place at the time of the surrender. Should the U. Japan had a written constitution, a "gift" of the Emperor Meiji in In many respects its wording made it similar to our own Constitution.

However, the Japanese Constitution made the emperor, not the people, the sole source of political authority. Thus, the Meiji Constitution was a blend of western political thought and Japanese traditions that had developed over the centuries. The two questions listed below had to be answered by the United States after the surrender of Japan on August 14, Meeting in small groups, students should discuss, answer, and record at least one reason for their answers.

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Kingsley Dr. CRF web sites. World History. Price Professor of Law Emeritus, UCLA "An extraordinary collection of provocative, insightful and inspiring essays on the future of law and democracy in the twenty-first century. All rights reserved. From Expectation to Experience.

Judges and Unjust Laws. Sacred Violence. American Public Opinion on the Iraq War. After Independence. DOI: Keywords empire of force, self-government, democracy, torture, presidential inaugural, Steel Seizure Case, privacy, fourth amendment anti-social behavior orders, prophetic, rule of law, Argentina, relativism, scientific thought, nature of law.

Tenth, the monarch needs to pay no tax, unless statute states it expressly. Thirteenth, it may make coins. Fourteenth, it can print or license the authorised version of the Bible, Book of Common Prayer and state papers. And fifteenth, subject to modern family law , it may take guardianship of infants. For this reason it has often been argued that executive authority should be reduced, written into statute, and never used to deprive people of rights without Parliament.

All uses of the prerogative, however, are subject to judicial review: in the GCHQ case the House of Lords held that no person could be deprived of legitimate expectations by use of the royal prerogative. The " cabinet " is a still smaller group of 22 or 23 people, though only twenty ministers may be paid. Every minister is expected to follow collective responsibility, [] and the Ministerial Code This includes rules that Ministers are "expected to behave in a way that upholds the highest standards of propriety", "give accurate and truthful information to Parliament", resign if they "knowingly mislead Parliament", to be "as open as possible", have no possible conflicts of interest and give a full list of interests to a permanent secretary, and only "remain in office for so long as they retain the confidence of the Prime Minister".

Assisting ministers is a modern civil service and network of government bodies, who are employed at the pleasure of the Crown. The constitution of UK regional governments is an uncodified patchwork of authorities, mayors, councils and devolved government. In England , there are 55 unitary authorities in the larger towns e. Bristol, Brighton, Milton Keynes and 36 metropolitan boroughs surrounding Liverpool, Manchester, Leeds, Birmingham, Sheffield, and Newcastle which function as unitary local authorities. But in other parts of England, local government is split between two tiers of authority: 32 larger County Councils, and within those District Councils, each sharing different functions.

Since , England has had eight regions for administrative purposes at Whitehall, yet these have no regional government or democratic assembly like in London, Scotland, Wales or Northern Ireland after a referendum on North East Assembly failed. Three main issues in local government are the authorities' financing, their powers, and the reform of governance structures.

First, councils raise revenue from council tax charged on local residents according to property values in [] and business rates charged on businesses with operations in the locality. These powers are, compared to other countries, extreme in limiting local government autonomy, and taxes can be subjected to a local referendum if the Secretary of State determines they are excessive.

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However the real duties of local council are found in hundreds of scattered Acts and statutory instruments. These include duties to administer planning consent , [] to carry out compulsory purchasing according to law, [] to administer school education, [] libraries, [] care for children, [] roads or highway maintenance and local buses, [] provide care for the elderly and disabled, [] prevent pollution and ensure clean air, [] ensure collection, recycling and disposal of waste, [] regulate building standards, [] provide social and affordable housing, [] and shelters for the homeless.


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  • The functions of an elected mayor are not substantial, but can include those of Police and Crime Commissioners. In Scotland, Wales, Northern Ireland and London there are also regional assemblies and Parliaments, similar to state or provincial governments in other countries. The extent of devolution differs in each place. The Scotland Act created a unicameral Scottish Parliament with elected members each four years: 73 from single member constituencies with simple majority vote, and 56 from additional member systems of proportional representation.

    Under section 28, the Scottish Parliament can make any laws except for on 'reserved matters' listed in Schedule 5. These powers, reserved for the UK Parliament, include foreign affairs, defence, finance, economic planning, home affairs, trade and industry, social security, employment, broadcasting, and equal opportunities. By convention , members of the UK Parliament from Scottish constituencies do not vote on issues that the Scottish Parliament has exercised power over. The Northern Ireland Act lists which matters are transferred, but the Northern Ireland Assembly has been suspended since because of basic disagreements among its members, stemming from long-standing violence and civil conflict, before a delicate peace deal was brokered in the Good Friday Agreement.

    The fields include agriculture, fisheries, forestry and rural development, economic development, school education, environmental policy, highways and transport, housing, planning, and some aspects of social welfare. Codification of human rights is recent, but before the Human Rights Act and the European Convention on Human Rights , UK law had one of the world's longest human rights traditions. The Magna Carta bound the King to require Parliament's consent before any tax, respect the right to a trial "by lawful judgment of his Peers, or by the Law of the Land", stated that "We will sell to no man, we will not deny or defer to any man either Justice or Right", guaranteed free movement for people, and preserved common land for everyone.

    Although some labelled natural rights as "nonsense upon stilts", [] more legal rights were slowly developed by Parliament and the courts. In , Mary Wollstonecraft began the British movement for women's rights and equality, [] while movements behind the Tolpuddle martyrs and the Chartists drove reform for labour and democratic freedom. Upon the catastrophe of World War Two and the Holocaust , the new international law order put the Universal Declaration of Human Rights at its centre, enshrining civil, political, economic, social and cultural rights.

    The Convention contains the rights to life, rights against torture, against forced labour, to marry, to an effective remedy, and the right to suffer no discrimination in those rights. Administrative law, through judicial review , is essential to hold executive power and public bodies accountable under the law. In practice, constitutional principles emerge through cases of judicial review, because every public body, whose decisions affect people's lives, is created and bound by law.

    A person can apply to the High Court to challenge a public body's decision if they have a "sufficient interest", [] within three months of the grounds of the cause of action becoming known. The only public body whose decisions cannot be reviewed is Parliament, when it passes an Act. Otherwise, a claimant can argue that a public body's decision was unlawful in five main types of case: [] 1 it exceeded the lawful power of the body, used its power for an improper purpose, or acted unreasonably, [] 2 it violated a legitimate expectation, [] 3 failed to exercise relevant and independent judgement, [] 4 exhibited bias or a conflict of interest , or failed to give a fair hearing, [] and 5 violated a human right.

    A court may also declare the parties' rights and duties, give an injunction , or compensation could also be payable in tort or contract. The history of the UK constitution, though officially beginning in , [] traces back to a time long before the four nations of England, Scotland, Wales and Ireland were fully formed. Just 12 per cent of people were free, while the feudal system made others serfs, slaves or bordars and cottars. Taxes levied by Richard I, [] and his successor King John to pay for the wars led to intense discontent, and the aristocracy forcing the King to sign the Magna Carta In , the Black Death struck England, and killed around a third of the population.

    As peasants lost their lords, and there was a shortage of workers, wages rose. The King and Parliament responded with the Statute of Labourers to freeze wage rises. As sheep farming became more profitable than agricultural work, enclosures of common land dispossessed more people, who turned into paupers and were punished. The Law in Wales Act united Wales and England in one administrative system, while the King became ever more despotic, executing the Lord Chancellor , Sir Thomas More in , and dissolving the monasteries and murdering those who resisted. Half a century of prosperity followed as Elizabeth I avoided wars, but founded corporations including the East India Company to monopolise trade routes.

    Many religious dissidents left England to settle the new world. While Elizabeth I maintained a protestant Church, under her successor James , who unified the Scottish and English Crowns, religious and political tensions grew as he asserted a divine right of Kings. When Charles I succeeded to the throne in , and more fervently asserted a divine right, including the ability to levy tax without Parliament, [] Coke and others presented the Petition of Right Charles I responded by shutting down or proroguing Parliament and taxing trade or " ship money " without authority.

    After his death, [] the monarchy was restored with Charles II in , but his successor James II again attempted to assert divine right to rule. With Parliamentary sovereignty as the cornerstone of the new constitution, Parliament proceeded to set up a system of finance in the Bank of England Act and the Act of Settlement created an independent system of justice: judges were salaried and could not be removed except by both Houses of Parliament, no member of the House of Commons could be paid by the Crown, and the Crown had to be Anglican.

    Taisho Democracy in Japan: 1912-1926

    In , Ashby v White established that the right to vote was a constitutional right. The South Sea Company , duly incorporated to monopolise trade routes, became the object of mass financial speculation, provoked by government ministers interested in its rising share price. When it transpired, contrary to promoters' stories, that no trade was done because the Spanish had revoked their promise the stock market crashed , driving economic chaos.

    The result of the crash was that the Chancellor of the Exchequer was imprisoned in the Tower of London for his corruption, the Postmaster General committed suicide, and the disgraced Lord Chancellor was replaced with Lord King LC who promptly ruled that people in a position of trust must avoid any possibility of a conflict of interest. However, the transatlantic slave trade had accelerated to North American colonies. In , when Lord Mansfield ruled in Somerset v Stewart that slavery was unlawful at common law, [] this set off a wave of outrage in southern, enslavement colonies of America.

    Together with northern colonies grievances over taxation without representation, this led to the American Revolution and declaration of independence in Instead, it began settling Australia from The British aristocracy reacted with repression on free speech and association to forestall any similar movement. During this time, with the invention of the steam engine the industrial revolution had begun.

    Poverty had also accelerated through the Speenhamland system of poor laws by subsidising employers and landowners with parish rates. The Corn Laws from further impoverished people by fixing prices to maintain landowner profits. Although the Slavery Abolition Act abolished the slave trade within the British Empire, it only compensated slave owners and made ex-slaves in colonies pay off debts for their freedom for decades after.

    With the Poor Law Amendment Act , further punishment for poverty was inflicted as people were put into work houses if found to be unemployed. In R v Lovelass a group of agricultural workers who formed a trade union were prosecuted and sentenced to be transported to Australia under the Unlawful Oaths Act , [] triggering mass protests. A movement called Chartism grew demanding the right to vote for everyone in free and fair elections. As the great famine hit Ireland and millions migrated to the United States , Chartists staged a mass march from Kennington Common to Parliament in as revolutions broke out across Europe, and the Communist Manifesto was drafted by German revolutionary Karl Marx and Manchester factory owner Friedrich Engels.

    While the Crimean War distracted from social reform and Viscount Palmerston opposed anything, [] the American civil war of to ended slavery in the US, and the UK gradually enabled greater political freedom. In the Second Reform Act more middle class property owners were enfranchised, the Elementary Education Act provided free primary school, and the Trade Union Act enabled free association without criminal penalty.

    Still, outside the UK liberty and the right to vote were violently repressed across the vast British Empire , in Africa, India, Asia and the Caribbean. From the start of the 20th century, the UK underwent vast social and constitutional change, beginning with an attempt by the House of Lords to suppress trade union freedom. This included a legal guarantee of the right of unions to collectively bargain and strike for fair wages, [] an old age pension, [] a system of minimum wages, [] a People's Budget with higher taxes on the wealthy to fund spending.

    After a further election brought by the House of Lords blocking reform, Parliament pass a National Insurance system for welfare, [] and the Parliament Act prevented the House of Lords blocking legislation for more than two years, and removed the right to delay any money bills. At the end of the War, with millions dead, Parliament passed the Representation of the People Act which enabled every adult male the vote, although it was only after the mass protest of the Suffragettes that the Representation of the People Equal Franchise Act enabled all women to vote, and that the UK became democratic.

    The War also triggered uprising in Ireland, and an Irish War of Independence leading to the partition of the island between the Republic of Ireland in the south and Northern Ireland in the Government of Ireland Act The Versailles Treaty at the end of the War demanded German reparations, beggaring the country through the s and upon the Great Depression leading to a fascist collapse under Hitler.

    However the British Empire began to crumble as India , Israel and nations across Africa fought for democracy, human rights, and independence. To prevent any recurrence of the Holocaust and war , the Council of Europe was established to draft the European Convention on Human Rights in Further it was seen that the only way to prevent conflict was through economic integration. Under Margaret Thatcher , significant cuts were made to public services, labour rights, and the powers of local government, including abolishing the Greater London Council.

    After many years of armed conflict in Northern Ireland, the Good Friday Agreement of brought peace. The Human Rights Act empowered courts to apply Convention rights without the need for claimants to take cases to the Strasbourg court. The House of Lords Act reduced but did not fully eliminate hereditary peers. Since a financial crisis of — brought about by bankers' speculation, [] a Conservative and Liberal Democrat coalition launched a programme of " austerity " cuts, and cemented their term in the Fixed-term Parliaments Act After , however, early elections were held anyway in , following a referendum on EU membership that resulted in Since then, the UK has been unable to decide what to do.

    The legal scholar Eric Barendt argues that the uncodified nature of the United Kingdom constitution does not mean it should not be characterised as a "constitution", but also claims that the lack of an effective separation of powers , and the fact that parliamentary sovereignty allows Parliament to overrule fundamental rights, makes it to some extent a "facade" constitution. Dicey identified that ultimately "the electorate are politically sovereign," and Parliament is legally sovereign.

    To date, the Parliament of the UK has no limit on its power other than the possibility of extra-parliamentary action by the people and of other sovereign states pursuant to treaties made by Parliament and otherwise. Proponents of a codified constitution argue it would strengthen the legal protection of democracy and freedom.

    There is also a belief that any unwarranted encroachment on the spirit of constitutional authority would be stiffly resisted by the British people, a perception expounded by the 19th century American judge Justice Bradley in the course of delivering his opinion in a case heard in Louisiana in "England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any material respect would produce a revolution in an hour. The Labour government under prime minister Tony Blair instituted constitutional reforms in the late s and early-to-mid s.

    The courts can advise Parliament of primary legislation that conflicts with the Act by means of " Declarations of Incompatibility " — however Parliament is not bound to amend the law nor can the judiciary void any statute — and it can refuse to enforce, or "strike down", any incompatible secondary legislation.

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    Any actions of government authorities that violate Convention rights are illegal except if mandated by an Act of Parliament. Changes also include the Constitutional Reform Act which alters the structure of the House of Lords to separate its judicial and legislative functions. For example, the legislative, judicial and executive functions of the Lord Chancellor are now shared between the Lord Chancellor executive , Lord Chief Justice judicial and the newly created post of Lord Speaker legislative.

    This was an ongoing process of constitutional reform with the Ministry of Justice as lead ministry. The Constitutional Reform and Governance Act is a piece of constitutional legislation. It enshrines in statute the impartiality and integrity of the UK Civil Service and the principle of open and fair recruitment.

    It enshrines in law the Ponsonby Rule which requires that treaties are laid before Parliament before they can be ratified. The Coalition Government formed in May proposed a series of further constitutional reforms in their coalition agreement.

    Democracy - A short introduction

    The Acts were intended to reduce the number of MPs in the House of Commons from to , change the way the UK is divided into parliamentary constituencies, introduce a referendum on changing the system used to elect MPs and take the power to dissolve Parliament away from the monarch.

    The Coalition also promised to introduce law on the reform of the House of Lords. From Wikipedia, the free encyclopedia. For the card game, see British Constitution solitaire. United Kingdom. The Crown. British Monarchy. HM Government. Privy Council. Parliament 57th Parliament.

    House of Lords. House of Commons. Supreme Court. Joint Ministerial Committee Legislative consent motions Scotland. Northern Ireland. Administrative geography. European Parliament Elections. Crown Dependencies. Overseas Territories. Foreign relations. Other countries Atlas. Main articles: Parliamentary sovereignty , International law , and European Union law. Sovereign Parliament sources. Magna Carta cl Bill of Rights arts Parliament Act ss and Parliament Act s 1. United Nations Act s 1. European Communities Act s 2. Human Rights Act ss Local Government Act Scotland Act Government of Wales Act Northern Ireland Act Greater London Authority Act Main article: Rule of law.

    Constitutional Reform Act s 1. M v Home Office [] 1 AC Main article: Democracy. Universal Declaration of Human Rights arts 21 and 29 2. Int Covenant on Civil and Political Rights art Ashby v White 2 Ld Raym Morgan v Simpson [] QB Magna Carta , ch Case of Impositions 2 St Tr Bill of Rights art 4. Pillans v Van Mierop 3 Burr Somerset v Stewart 98 ER Versailles Treaty United Nations Act European Convention on Human Rights European Communities Act Human Rights Act International Criminal Court Act Constitutional Reform and Governance Act ss Parliament composition sources.

    Fixed-term Parliaments Act s 1 3. Representation of the People Act ss Communications Act ss House of Commons Disqualification Act Life Peerages Act s 1. House of Lords Act ss Constitutional Reform Act s Main article: Parliament of the United Kingdom. Main article: UK judiciary. Judiciary composition sources. Act of Settlement Supreme Court of Judicature Act s 25 Charter of the United Nations arts European Convention on Human Rights art 6. Treaty on the Functioning of the European Union arts Courts and Legal Services Act Constitutional Reform Act ss 27A, Inquiries Act Senior Courts Act ss 11 and Courts Act s Executive composition sources.

    Five Knights' case 3 How St Tr 1. Petition of Right Habeas Corpus Act Crown Estate Act Sovereign Grant Act Crown Proceedings Act ss and Ministerial and other Salaries Act

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