Bills of Rights in the Common Law by Robert Leckey

By Robert Leckey

Students have addressed at size the 'what' of judicial evaluate below a invoice of rights - scrutinizing laws and outstanding it down - yet ignored the 'how'. Adopting an inner felony viewpoint, Robert Leckey addresses that hole by means of reporting at the approaches and actions of judges of the top courts of Canada, South Africa and the uk as they observe their quite new debts of rights. Rejecting the tendency to view rights adjudication as novel and specified, he connects it to the culture of judging and judicial assessment within the Commonwealth and identifies respects during which judges' actions in rights instances certainly are novel - and troublesome. Highlighting inventiveness in rights adjudication, together with inventive treatments and information to legislative drafters, he demanding situations classifications of evaluation as powerful or susceptible. Disputing claims that it truly is modest and dialogic, he additionally argues that remedial discretion denies justice to members and undermines constitutional supremacy.

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Although both actions may be 54 Compare, on forms of ‘overturning’ established doctrines, Melvin Aron Eisenberg, The Nature of the Common Law (Cambridge, MA: Harvard University Press, 1988), 132–40. continuity and judicial agency 21 political, an apex court that conserves the procedural doctrines it inherited operates differently, in an analytically significant way, from one that modifies them. 55 That something qualifies as an exercise of judicial agency does not entail its illegitimacy, although such exercises risk raising legitimacy questions.

Studying these questions will illuminate judges’ exercise of power as they apply a bill of rights. That is, enhanced knowledge of those lawyerly questions of procedure and technique will deepen the understanding of what adopting a bill of rights entails and enlarge the broader research agenda. Achieving these ends requires a perspective different from the external one just identified. An internal, legal approach In response to the external view of philosophers and political scientists, this book defines and foregrounds an internal, legal approach.

Holland (New York: St. Martin’s Press, 1988), 79–80. Klare, ‘Legal Culture and Transformative Constitutionalism’, 168. Aruna Sathanapally, Beyond Disagreement: Open Remedies in Human Rights Adjudication (Oxford: Oxford University Press, 2012), 45. Laurence H. Tribe, The Invisible Constitution (Oxford: Oxford University Press, 2008), 13. For a study based on interviews with judges, see Elaine Mak, Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts (Oxford: Hart, 2013).

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