Download e-book for kindle: A Common Law Theory of Judicial Review: The Living Tree by W. J. Waluchow

By W. J. Waluchow

ISBN-10: 052112266X

ISBN-13: 9780521122665

During this research, W. J. Waluchow argues that debates among defenders and critics of constitutional accounts of rights presuppose that constitutions are kind of inflexible entities. inside of this sort of belief, constitutions aspire to set up strong, mounted issues of contract and pre-commitment, which defenders deliberate to be attainable and fascinating, whereas critics deem most unlikely and bad. Drawing on reflections concerning the nature of legislation, constitutions, the typical legislations, and what it's to be a democratic consultant, Waluchow urges a distinct thought of money owed of rights that's versatile and adaptable. Adopting this type of conception permits one not just to respond to to critics' so much severe demanding situations, but in addition to understand the position invoice of rights, interpreted and enforced by way of unelected judges, can sensibly play in a constitutional democracy.

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

Example text

If this is right, then there seems nothing incoherent in supposing that Regina might honour limits to her constitutional powers that she alone can enforce. In the preceding paragraph, we assumed a situation in which I later held myself accountable for impulsively ignoring the conditions of my self-imposed rule. Once the impulse has run its course, I return to my resolve never to succumb to such forces and to hold myself accountable should I again fail to do so. Holding myself accountable for failure to observe a self-imposed rule is not restricted to this particular kind of case, however.

She might, that is, exceed the limits of the normative powers granted her by the constitution. But who, it might be asked, is to judge whether, in some particular case, this has occurred? If Regina alone occupies the judicial role in her society, then presumably it is she who must answer any such constitutional question. But now an important question arises, one that has also arisen in disputes about the role of the courts in conducting judicial review. Can Regina be meaningfully said to be constitutionally limited, if she alone is the one who ultimately determines whether she has lived up to the prescribed limits on her powers?

In particular, it might be subject to such restraints whenever it undertakes the important task of applying a Charter in evaluating the actions of other government bodies. F. Montesquieu and the Separation of Powers So what have we gleaned thus far? That constitutional democracies come in a wide variety of forms, most of which include institutional mechanisms that in some way distance the people from law-determining decisions. , members of appointed administrative bodies) who are neither elected by nor directly accountable to the people.

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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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