This chapter analyses the indirect judicial application of the Convention on the Rights of the Child (the Convention) in Australia, which is a federal state of dualist tradition. The chapter demonstrates the vulnerability of the Convention in a system of parliamentary supremacy where the Convention is not legislatively incorporated and where the Parliament can make laws contrary to it. In this context, the traditional methods of engaging with the Convention have yielded limited results where there was tension with the domestic law, but were more impactful when there was convergence between the two sets of norms, as seen in the family law context. The Convention is also weakened by the absence of a federal human rights statute. The case study of the application of the Convention by the Supreme Court of Victoria shows that human rights statutes that contain child-specific provisions facilitate the judicial application of the Convention. The chapter also illustrates the creativity of the courts, which occasionally engaged with the Convention in sui generis ways, not explicitly acknowledged as formal methods of engagement.

We conclude our book by summarizing our findings and discussing their implications. We circle back to where we began: violence against women remains a significant and serious impediment to achieving equal status for women in all dimensions of their lives. We offer suggested reforms for improving domestic violence laws and policy implementation at the federal and state levels while recognizing the limits of the federal government in dealing with what is essentially a very localized problem. The reality is that federalism creates unequal conditions for the human security of women across state lines. We end this chapter with proposed avenues of future research that explore more holistically the ways that communities deal with domestic violence. In expanding attention to domestic violence as a source of suppressed citizen participation by women in the United States, we hope to encourage the discipline of political science as well as policymakers and practitioners to address it more consistently and effectively.

The sentencing guidelines for the sliding scale of sentence discounts in both England and Wales and Hong Kong have provided for judicial discretion to depart from the recommended sentence reductions. This chapter investigates the consistency of applying the sentencing guidelines in the two jurisdictions. It is found that in general, both English and Hong Kong courts adhere to the recommended guidelines. Multivariate analyses, however, using the sentence discount as the outcome reveal gender and confession to be significant factors for departing from guidelines, with female defendants and defendants who have confessed given a higher sentence discount. Moreover, when reviewing the sentencing process, inconsistencies occur when judges apply aggravating and mitigating factors, as well as the sentence discount for guilty pleas, which may lead to inconsistencies in sentence outcomes.

In this chapter we describe the methods judges use to fill what is often called “the silences of the law,” that is, gaps in legislation, in the domain of family law in three countries: Morocco, Egypt, and Indonesia. More specifically, we explore the role and place of uncodified fiqh in contemporary legislation and adjudication in the field of personal status law. We proceed in four steps. First, we address the institutional and legal transformations affecting law, especially family law, in Morocco, Egypt, and Indonesia, focusing on what may be termed a legal revolution that made it possible to speak of law in terms of codes and to classify fiqh as a subsidiary source when legislation is silent. Second, we turn to the specific domain of family law, briefly discussing statute law, case law, and legal practice in each of the three countries. Third, on the basis of marriage authentication cases (ithbât al-zawâj, ithbât al-nikâh), we examine how, practically speaking, judges seek a solution in the body of fiqh. Finally, we develop an argument about the nature of judicial work in the management of “references to Islam” within the framework of positive, codified, and standardized law.

We want to describe how judges play by, and with, legal rules. It appears that, on the one hand, even in cases in which the legal basis is thin or absent, judges seek rules on which to base their decisions. In that sense, judges are positivist legal practitioners who need legal rules to perform their professional duties. On the other hand, however, moral considerations seem to deeply influence the same judges’ legal cognition. We aim to show how this unfolds in the concrete settings of four countries – Indonesia, Lebanon, Egypt, and Senegal – in cases relating to male homosexuality. First, we outline the legal and judicial frameworks of the four countries being studied. Second, we concentrate on cases in these countries related to homosexuality. On the basis of these court cases, third, we analyze the reference to rules as the core of the life of law, although in a qualified manner. Finally, we draw together the main lines of the debate regarding rules, their indeterminacy and their interpretation, stressing the usefulness of a praxeological treatment centered on reasoning, justification, and decision-making practices to better understand the ways in which law lives through rules.

This chapter starts with a salute to the classic administrative law and to the English judges who in a series of bold and scintillating judgments in the 1960s cast the mantle of the rule of law over the exercise of discretionary power. This was achieved using the organising principle of jurisdiction; all depends on whether the decision-maker acts within the power granted by Parliament. This classic administrative law forms the basis of the dialogue between English law and other common law jurisdictions as they indigenised their administrative law in accordance with their own constitutional context. But the foundations of English Administrative law are under threat. While a frontal attack on the sovereignty of Parliament is not anticipated judges sometimes pay lip service to supremacy but in fact do not heed the clear purpose of the legislature. The majority judges in Evans v Attorney-General did not heed the clear intent of the legislature. Here one sees imaginative and sophisticated approaches to interpretation being deployed to deny Parliament’s will. Classic administrative law is also under threat from the tendency in the Supreme Court not to lay down clear rules that can be followed in the future by lower courts and individuals seeking a guide to their conduct. Instead the outcome of legal disputes is made dependent upon the exercise of judicial discretion to the detriment of legal certainty. A spectacular example of this is Cart v. The Upper Tribunal where the question whether a decision is within jurisdiction becomes a matter of judicial discretion. In effect law is replaced with judicial discretion and classic administrative law disappears. The decline in legal certainty occasioned by the enactment of the Human Rights Act 1998 exacerbates this tendency. As English law moves towards a pragmatic mode of reasoning in which the wise exercise of judicial discretion becomes the paramount consideration, it will become less relevant in jurisdictions that remain loyal to the classic law.