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In Lord Sumption and the Limits of the Law, leading public law
scholars reflect on the nature and limits of the judicial role and
its implications for human rights protection and democracy. The
starting point for this reflection is Lord Sumption's lecture, 'The
Limits of the Law', which grounds a wide-ranging discussion of
questions including the scope and legitimacy of judicial
law-making, the interpretation of the European Convention on Human
Rights, and the continuing significance and legitimacy, or
otherwise, of the European Court of Human Rights. Lord Sumption
ends the volume with a substantial commentary on the responses to
his lecture.
In many countries today there is a growing and genuinely-held
concern that the institutional arrangements for the protection of
human rights suffer from a 'democratic deficit'. Yet at the same
time there appears to be a new consensus that human rights require
legal protection and that all branches of the state have a shared
responsibility for upholding and realising those legally protected
rights. This volume of essays tries to understand this paradox by
considering how parliaments have sought to discharge their
responsibility to protect human rights. Contributors seek to take
stock of the extent to which national and sub-national parliaments
have developed legislative review for human rights compatibility,
and the effect of international initiatives to increase the role of
parliaments in relation to human rights. They also consider the
relationship between legislative review and judicial review for
human rights compatibility, and whether courts could do more to
incentivise better democratic deliberation about human rights.
Enhancing the role of parliaments in the protection and realisation
of human rights emerges as an idea whose time has come, but the
volume makes clear that there is a great deal more to do in all
parliaments to develop the institutional structures, processes and
mechanisms necessary to put human rights at the centre of their
function of making law and holding the government to account. The
sense of democratic deficit is unlikely to dissipate unless
parliaments empower themselves by exercising the considerable
powers and responsibilities they already have to interpret and
apply human rights law, and courts in turn pay closer attention to
that reasoned consideration. 'I believe that this book will be of
enormous value to all of those interested in human rights, in
modern legislatures, and the relationship between the two. As this
is absolutely fundamental to the characterand credibility of
democracy, academic insight of this sort is especially welcome.
This is an area where I expect there to be an ever expanding
community of interest.' From the Foreword by the Rt Hon John Bercow
MP, Speaker of the House of Commons
The decisions courts make in constitutional rights cases pervade
our political life and touch on our most basic interests and
values. The spread of judicial review of legislation around the
world means that courts are increasingly called on to settle
matters of moral and political controversy, including assisted
suicide, data privacy, anti-terrorism measures, marriage, and
abortion. But doubts regarding the institutional capacities of
courts for deciding such questions are growing. Judges now
regularly review social science research to assess whether a law
will effectively achieve its aim, and at what cost to other
interests. They cite studies and statistical information from
psychology, sociology, medicine, and other disciplines in which
they are rarely trained. This empirical reasoning proceeds
alongside open-ended moral reasoning, with judges employing terms
such as equality, liberty, and autonomy, then determining what
these require in concrete circumstances. This book shows that
courts were not designed for this kind of moral and empirical
reasoning. It argues that in comparison to legislatures, the
institutional capacities of courts are deficient. Legislatures are
better equipped than courts for deliberating and decision-making in
regard to the kinds of factual and moral issues that arise in
constitutional rights cases. The book concludes by considering the
implications of comparative institutional capacity for
constitutional design. Is a system of judicial review of
legislation something that constitutional framers should choose to
adopt? If so, in what form? For countries with systems of judicial
review, practical proposals are made to remedy deficiencies in the
institutional capacities of courts.
The decisions courts make in constitutional rights cases pervade
our political life and touch on our most basic interests and
values. The spread of judicial review of legislation around the
world means that courts are increasingly called on to settle
matters of moral and political controversy, including assisted
suicide, data privacy, anti-terrorism measures, marriage, and
abortion. But doubts regarding the institutional capacities of
courts for deciding such questions are growing. Judges now
regularly review social science research to assess whether a law
will effectively achieve its aim, and at what cost to other
interests. They cite studies and statistical information from
psychology, sociology, medicine, and other disciplines in which
they are rarely trained. This empirical reasoning proceeds
alongside open-ended moral reasoning, with judges employing terms
such as equality, liberty, and autonomy, then determining what
these require in concrete circumstances. This book shows that
courts were not designed for this kind of moral and empirical
reasoning. It argues that in comparison to legislatures, the
institutional capacities of courts are deficient. Legislatures are
better equipped than courts for deliberating and decision-making in
regard to the kinds of factual and moral issues that arise in
constitutional rights cases. The book concludes by considering the
implications of comparative institutional capacity for
constitutional design. Is a system of judicial review of
legislation something that constitutional framers should choose to
adopt? If so, in what form? For countries with systems of judicial
review, practical proposals are made to remedy deficiencies in the
institutional capacities of courts.
The important aspects of human wellbeing outlined in human rights
instruments and constitutional bills of rights can only be
adequately secured as and when they are rendered the object of
specific rights and corresponding duties. It is often assumed that
the main responsibility for specifying the content of such genuine
rights lies with courts. Legislated Rights: Securing Human Rights
through Legislation argues against this assumption, by showing how
legislatures can and should be at the centre of the practice of
human rights. This jointly authored book explores how and why
legislatures, being strategically placed within a system of
positive law, can help realise human rights through modes of
protection that courts cannot provide by way of judicial review.
In Lord Sumption and the Limits of the Law, leading public law
scholars reflect on the nature and limits of the judicial role and
its implications for human rights protection and democracy. The
starting point for this reflection is Lord Sumption's lecture, 'The
Limits of the Law', which grounds a wide-ranging discussion of
questions including the scope and legitimacy of judicial
law-making, the interpretation of the European Convention on Human
Rights, and the continuing significance and legitimacy, or
otherwise, of the European Court of Human Rights. Lord Sumption
ends the volume with a substantial commentary on the responses to
his lecture.
In many countries today there is a growing and genuinely-held
concern that the institutional arrangements for the protection of
human rights suffer from a 'democratic deficit'. Yet at the same
time there appears to be a new consensus that human rights require
legal protection and that all branches of the state have a shared
responsibility for upholding and realising those legally protected
rights. This volume of essays tries to understand this paradox by
considering how parliaments have sought to discharge their
responsibility to protect human rights. Contributors seek to take
stock of the extent to which national and sub-national parliaments
have developed legislative review for human rights compatibility,
and the effect of international initiatives to increase the role of
parliaments in relation to human rights. They also consider the
relationship between legislative review and judicial review for
human rights compatibility, and whether courts could do more to
incentivise better democratic deliberation about human rights.
Enhancing the role of parliaments in the protection and realisation
of human rights emerges as an idea whose time has come, but the
volume makes clear that there is a great deal more to do in all
parliaments to develop the institutional structures, processes and
mechanisms necessary to put human rights at the centre of their
function of making law and holding the government to account. The
sense of democratic deficit is unlikely to dissipate unless
parliaments empower themselves by exercising the considerable
powers and responsibilities they already have to interpret and
apply human rights law, and courts in turn pay closer attention to
that reasoned consideration. 'I believe that this book will be of
enormous value to all of those interested in human rights, in
modern legislatures, and the relationship between the two. As this
is absolutely fundamental to the characterand credibility of
democracy, academic insight of this sort is especially welcome.
This is an area where I expect there to be an ever expanding
community of interest.' From the Foreword by the Rt Hon John Bercow
MP, Speaker of the House of Commons
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