A Common Law Theory of Judicial Review: The Living Tree - download pdf or read online

By W. J. Waluchow

ISBN-10: 052112266X

ISBN-13: 9780521122665

During this learn, W. J. Waluchow argues that debates among defenders and critics of constitutional accounts of rights presuppose that constitutions are roughly inflexible entities. inside this kind of notion, constitutions aspire to set up sturdy, mounted issues of contract and pre-commitment, which defenders deliberate to be attainable and fascinating, whereas critics deem very unlikely and bad. Drawing on reflections concerning the nature of legislations, constitutions, the typical legislations, and what it really is to be a democratic consultant, Waluchow urges a unique thought of accounts of rights that's versatile and adaptable. Adopting the sort of conception allows one not just to respond to to critics' such a lot critical demanding situations, but in addition to understand the position invoice of rights, interpreted and enforced by means of unelected judges, can sensibly play in a constitutional democracy.

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Additional resources for A Common Law Theory of Judicial Review: The Living Tree (Cambridge Studies in Philosophy and Law)

Example text

And does this fact have any bearing on judicial review wherein, some have argued, judges have too eagerly embraced powers that really ought to reside in the legislative branches of government? In constitutional democracies legislators and members of the executive are not usually thought to be in the business of deciding legal cases. Indeed, they are sometimes chastised for trying to influence the outcome of legal disputes, as when a cabinet minister intervenes in a constituent’s legal case by contacting the presiding judge.

The democratic element in this equation will be our focus in the next chapter, and later when we explore the democratic critique, particularly as it is expressed by its most powerful and persuasive proponent, Jeremy Waldron. In this chapter, our focus will be on the constitutional element. What exactly is a constitution? What are some of its characteristic features? And how does the fact that Charters are part of constitutional law affect their justification – or lack thereof? 1:27 P1: FCW 0521864763c02 CUNY449B/Waluchow 0 521 86476 3 Printer:cupusbw B.

For this we need secondary, power-conferring rules that made such acts possible. One of the characteristic functions of a constitution is to specify some such secondary rules. In large part this is what we mean when we say that a constitution consists of one or more rules or norms constituting, and defining the limits (if any) of, government authority. Given this definition, all states have constitutions and all states are constitutional regimes. : Yale University Press, 1919). A. Hart, The Concept of Law, 2nd edition (Oxford: Clarendon Press, 1994), 26–49.

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A Common Law Theory of Judicial Review: The Living Tree (Cambridge Studies in Philosophy and Law) by W. J. Waluchow


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