Download Bills of Rights in the Common Law by Robert Leckey PDF

By Robert Leckey

Students have addressed at size the 'what' of judicial evaluation below a invoice of rights - scrutinizing laws and notable it down - yet missed the 'how'. Adopting an inner felony viewpoint, Robert Leckey addresses that hole via reporting at the strategies and actions of judges of the top courts of Canada, South Africa and the uk as they observe their really new accounts of rights. Rejecting the tendency to view rights adjudication as novel and detailed, he connects it to the culture of judging and judicial assessment within the Commonwealth and identifies respects within which judges' actions in rights circumstances surely are novel - and complicated. Highlighting inventiveness in rights adjudication, together with inventive treatments and advice to legislative drafters, he demanding situations classifications of evaluation as robust or susceptible. Disputing claims that it really is modest and dialogic, he additionally argues that remedial discretion denies justice to contributors and undermines constitutional supremacy.

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It follows that it is analytically vacuous to characterize judicial activity dichotomously as political or apolitical. Acknowledging that all law and all judging have political dimensions should not efface, however, distinctions that are germane to those concerned with how judges exercise power. 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.

In private law, the remedy is usually the amount that the court orders the defendant to pay a successful plaintiff. It may also be a command to do something or to refrain from doing something, such as publishing a book or demolishing a building. In the context of the present study of bills of rights, the remedy is what the court orders on finding that a challenged law is inconsistent with rights. Scrutinizing judicial orders, which do far more than announce a win or loss, is necessary for understanding the exercise of judicial power.

Caldeira (Oxford: Oxford University Press, 2008), 774; on the imperative of connecting ‘a politics of courts, their roles, and power’ to ‘a broader politics of the legal complex’, see Terence C. Halliday, ‘Why the Legal Complex Is Integral to Theories of Consequential Courts’, in Consequential Courts: Judicial Roles in Global Perspective, ed. Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan (Cambridge: Cambridge University Press, 2013), 346; on the ‘public nature of much of what goes on in so-called “private law”’, see Steve Hedley, ‘Courts as Public Authorities, Private Law as Instrument of Government’, in Private Law: Key Encounters with Public Law, ed.

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