Download A Common Law Theory of Judicial Review: The Living Tree by W. J. Waluchow PDF

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 money owed of rights presuppose that constitutions are kind of inflexible entities. inside of this sort of belief, constitutions aspire to set up reliable, 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 in regards to the nature of legislation, constitutions, the typical legislations, and what it really is to be a democratic consultant, Waluchow urges a unique concept of debts of rights that's versatile and adaptable. Adopting one of these conception allows one not just to reply to to critics' so much severe demanding situations, but additionally to understand the function invoice of rights, interpreted and enforced through unelected judges, can sensibly play in a constitutional democracy.

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

Sample text

Most states do not embrace constitutionally unlimited government powers. The closest example is perhaps to be found in the Westminster model of government, according to which (on one traditional theory, at any rate) “the Queen in Parliament” is empowered to rule in whatever way she/it sees fit, unburdened by any substantive legal limits. This was the view of the famous English jurist Sir William Blackstone, who once declared that what Parliament does “no authority upon Earth can undo,” implying that Parliament is constitutionally entitled to enact whatever legislation it wishes to enact.

If she believed she had, then presumably Regina (qua judge) will not later rule, at T2, that she had failed to do so. If, on the other hand, Regina believed, at T1, that she had not lived up to the required limits, then what possible reason could there be to think that she will later, at T2, accuse herself of violating the constitution? Does this not show that the very 25 For further details of Hart’s influential theory, see The Concept of Law, especially Chapters V and VI. Again, this aspect of Hart’s theory of law will be further explored in Chapter 5, where it will be put to use in defending the common law conception of Charters.

As a result, Charters characteristically exhibit a number 1:27 P1: FCW 0521864763c02 CUNY449B/Waluchow 18 0 521 86476 3 Printer:cupusbw October 10, 2006 constitutionalism of crucial features. ” To say that a Charter is constitutionally entrenched is to say, roughly speaking, that it is very, very difficult to abrogate or modify it. Changing an entrenched Charter might require, for example, a two-thirds national vote in favour of such a proposal, as opposed to the usual 50 percent plus one that serves as the rule for making law-determining decisions in most legislatures.

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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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