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

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

Language: English

Pages: 296

ISBN: 052112266X

Format: PDF / Kindle (mobi) / ePub


In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics' most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy.

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suppression disguised in a cloak of false 56 Law and Disagreement, at 15. The sting of this insult was experienced by the many Americans who were utterly dismayed by the Supreme Court’s decision in George W. Bush, et al., Petitioners v. Albert Gore Jr. et al. [2000] U.S. Supreme Court (00–949). 57 Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada, 460. 2:16 P1: FCW 0521864763c04 CUNY449B/Waluchow 164 0 521 86476 3 Printer:cupusbw October 10, 2006 the

a position to construct their constitution on this basis.76 We seem, then, to be in a bind. It looks as though it is disagreement all the way down, so far as constitutional choice is concerned. . . . [W]e cannot use a results-driven test, because we disagree about which results would count in favour of and which against a given decision-procedure. . . . [W]e cannot appeal to any procedural criterion either, since procedural questions are at the very nub of the disagreements we are talking

suppose that one framer believes that the general good sometimes permits overall utility to trump considerations of justice, say when it comes to the state funding of Catholic schools in situations where equivalent funding is denied to all other religious groups. The defenders of such differential treatment sometimes acknowledge that it creates injustice for some but counter with the claim that the injustice of the arrangement is outweighed by its contribution to the greater good of the greater

shoes and determine, in light of their intended goals and values, and possibly by way of analogy with their intended applications, what they would have wanted to see done in the particular circumstances in question. In other words, we are supposed to try to discern what new applications they would have intended had they been made aware of the information we now have at our disposal. The hypothetical-intent theory also faces a number of difficulties, some of which it shares with its

can begin with the observation that our elected representative will often have to grapple with the same basic dilemmas as those faced by our patient advocate. In particular, she will sometimes be faced with the dilemma of choosing between expressed wishes and best interests, or between expressed wishes that she considers genuine and those that she judges to be inauthentic. And these moral dilemmas will in turn give rise to a number of analogous questions. On what basis should a representative

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