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To speak of human rights in the twenty-first century is to speak of
proportionality. Proportionality has been received into the
constitutional doctrine of courts in continental Europe, the United
Kingdom, Canada, New Zealand, Israel, South Africa, and the United
States, as well as the jurisprudence of treaty-based legal systems
such as the European Convention on Human Rights. Proportionality
provides a common analytical framework for resolving the great
moral and political questions confronting political communities.
But behind the singular appeal to proportionality lurks a range of
different understandings. This volume brings together many of the
world's leading constitutional theorists - proponents and critics
of proportionality - to debate the merits of proportionality, the
nature of rights, the practice of judicial review, and moral and
legal reasoning. Their essays provide important new perspectives on
this leading doctrine in human rights law.
Michael Taggart was the Alexander Turner Professor of Law in the
University of Auckland, New Zealand until his retirement in 2008.
He has worked extensively on public law, in particular
administrative law, privatisation and the public/private law divide
as well as on legal history. He has visited and taught at the
Universities of Melbourne, New South Wales, Toronto, Cambridge,
Paris II, Victoria at Wellington, Saskatchewan, Western Ontario,
Queen's University at Kingston and Osgoode Hall Law School. This
book of essays, dedicated to him by a group of his friends
including academic colleagues, practitioners and judges, marks his
enormous contribution to the common law.
What does it mean to interpret the constitution? Does
constitutional interpretation involve moral reasoning, or is legal
reasoning something different? What does it mean to say that a
limit on a right is justified? How does judicial review fit into a
democratic constitutional order? Are attempts to limit its scope
incoherent? How should a jurist with misgivings about the
legitimacy of judicial review approach the task of judicial review?
Is there a principled basis for judicial deference? Do
constitutional rights depend on the protection of a written
constitution, or is there a common law constitution that is
enforceable by the courts? How are constitutional rights and
unwritten constitutional principles to be reconciled? In this book,
these and other questions are debated by some of the world's
leading constitutional theorists and legal philosophers. Their
essays are essential reading for anyone concerned with
constitutional rights and legal theory.
How are rights and freedoms best protected? The American model of
constitutional protection and judicial review has been adopted in a
number of countries,most recently in the United Kingdom.
Increasingly, rights are the province of the judiciary. But how
much judicial review do we need? How do we resolve conflicts
between liberty, equality, and democracy? What are group rights,
and how strong is their claim to protection? What guidance can the
decisions of the UN Human Rights Committee provide? These are some
of the questions discussed in this collection of essays, which
explores a range of contemporary issues in jurisdictions including
the United States, Canada, New Zealand, and the United Kingdom.
Contributors include Justice Antonin Scalia of the United States
Supreme Court, Justice Ian Binnie of the Supreme Court of Canada,
Justice Eddie Durie of the High Court of New Zealand; James Allan,
Andrew Butler, Hilary Charlesworth, Scott Davidson, Elizabeth
Evatt, Murray Hunt, Andrew Sharpe, and Jeremy Waldron.
To speak of human rights in the twenty-first century is to speak of
proportionality. Proportionality has been received into the
constitutional doctrine of courts in continental Europe, the United
Kingdom, Canada, New Zealand, Israel, South Africa, and the United
States, as well as the jurisprudence of treaty-based legal systems
such as the European Convention on Human Rights. Proportionality
provides a common analytical framework for resolving the great
moral and political questions confronting political communities.
But behind the singular appeal to proportionality lurks a range of
different understandings. This volume brings together many of the
world's leading constitutional theorists - proponents and critics
of proportionality - to debate the merits of proportionality, the
nature of rights, the practice of judicial review, and moral and
legal reasoning. Their essays provide important new perspectives on
this leading doctrine in human rights law.
Originalism is a force to be reckoned with in constitutional
interpretation. At one time a monolithic theory of constitutional
interpretation, contemporary originalism has developed into a
sophisticated family of theories about how to interpret and reason
with a constitution. Contemporary originalists harness the
resources of linguistic, moral, and political philosophy to propose
methodologies for the interpretation of constitutional texts and
provide reasons for fidelity to those texts. The essays in this
volume, which includes contributions from the flag bearers of
several competing schools of constitutional interpretation,
provides an introduction to the development of originalist thought,
showcases the great range of contemporary originalist
constitutional scholarship, and situates competing schools of
thought in dialogue with each other. They also make new
contributions to the methodological and normative disputes between
originalists and non-originalists, and among originalists
themselves.
Originalism is a force to be reckoned with in constitutional
interpretation. At one time a monolithic theory of constitutional
interpretation, contemporary originalism has developed into a
sophisticated family of theories about how to interpret and reason
with a constitution. Contemporary originalists harness the
resources of linguistic, moral, and political philosophy to propose
methodologies for the interpretation of constitutional texts and
provide reasons for fidelity to those texts. The essays in this
volume, which includes contributions from the flag bearers of
several competing schools of constitutional interpretation,
provides an introduction to the development of originalist thought,
showcases the great range of contemporary originalist
constitutional scholarship, and situates competing schools of
thought in dialogue with each other. They also make new
contributions to the methodological and normative disputes between
originalists and non-originalists, and among originalists
themselves.
What does it mean to interpret the constitution? Does
constitutional interpretation involve moral reasoning, or is legal
reasoning something different? What does it mean to say that a
limit on a right is justified? How does judicial review fit into a
democratic constitutional order? Are attempts to limit its scope
incoherent? How should a jurist with misgivings about the
legitimacy of judicial review approach the task of judicial review?
Is there a principled basis for judicial deference? Do
constitutional rights depend on the protection of a written
constitution, or is there a common law constitution that is
enforceable by the courts? How are constitutional rights and
unwritten constitutional principles to be reconciled? In this book,
these and other questions are debated by some of the world's
leading constitutional theorists and legal philosophers. Their
essays are essential reading for anyone concerned with
constitutional rights and legal theory.
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