{"title":"Making Sense of the Political Question Doctrine: The Case of Kosovo","authors":"Violeta Beširević","doi":"10.1163/15730352-BJA10041","DOIUrl":null,"url":null,"abstract":"\nEver since it was announced in Madison v. Marbury, and articulated in Baker v. Carr, the political question doctrine that tends to exclude ‘mega politics’ from judicial check has been a controversial tool of judicial abstention. Not only that it is not universally applied, but it seems also to be losing significance even in countries of its usual influence due to extensive judicialization of ‘mega politics,’ which implies that there is no claim which the courts will not hear. Based on the judicialization of the Kosovo conflict, this paper shows why the doctrine deserves to be revived and even transplanted in jurisdictions outside its usual reach, particularly in disputes regarding real-life unilateral secession.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":"1 1","pages":"91-130"},"PeriodicalIF":0.5000,"publicationDate":"2021-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"1","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Review of Central and East European Law","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.1163/15730352-BJA10041","RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q3","JCRName":"LAW","Score":null,"Total":0}
引用次数: 1
Abstract
Ever since it was announced in Madison v. Marbury, and articulated in Baker v. Carr, the political question doctrine that tends to exclude ‘mega politics’ from judicial check has been a controversial tool of judicial abstention. Not only that it is not universally applied, but it seems also to be losing significance even in countries of its usual influence due to extensive judicialization of ‘mega politics,’ which implies that there is no claim which the courts will not hear. Based on the judicialization of the Kosovo conflict, this paper shows why the doctrine deserves to be revived and even transplanted in jurisdictions outside its usual reach, particularly in disputes regarding real-life unilateral secession.
自从在麦迪逊诉马布里案(Madison v. Marbury)中宣布并在贝克诉卡尔案(Baker v. Carr)中阐明这一原则以来，倾向于将“大政治”排除在司法检查之外的政治问题原则一直是一种有争议的司法弃权工具。它不仅没有被普遍适用，而且由于“大政治”的广泛司法化，它似乎也在失去其通常影响力的国家的重要性，这意味着没有法院不会审理的索赔。本文以科索沃冲突的司法化为基础，说明了为什么该原则值得在其通常范围之外的司法管辖区恢复甚至移植，特别是在现实生活中有关单方面分离的争端中。
期刊介绍：
Review of Central and East European Law critically examines issues of legal doctrine and practice in the CIS and CEE regions. An important aspect of this is, for example, the harmonization of legal principles and rules; another facet is the legal impact of the intertwining of domestic economies, on the one hand, with regional economies and the processes of international trade and investment on the other. The Review offers a forum for discussion of topical questions of public and private law. The Review encourages comparative research; it is hoped that, in this way, additional insights in legal developments can be communicated to those interested in questions, not only of law, but also of politics, economics, and of society of the CIS and CEE countries.
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