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Author: J. Harvie Wilkinson
Publisher: OUP USA
ISBN: 0199846014
Category : Law
Languages : en
Pages : 174
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Book Description
What underlies this development? In this concise and highly engaging work, Federal Appeals Court Judge and noted author (From Brown to Bakke) J. Harvie Wilkinson argues that America's most brilliant legal minds have launched a set of cosmic constitutional theories that, for all their value, are undermining self-governance.
Author: J. Harvie Wilkinson
Publisher: OUP USA
ISBN: 0199846014
Category : Law
Languages : en
Pages : 174
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Book Description
What underlies this development? In this concise and highly engaging work, Federal Appeals Court Judge and noted author (From Brown to Bakke) J. Harvie Wilkinson argues that America's most brilliant legal minds have launched a set of cosmic constitutional theories that, for all their value, are undermining self-governance.
Author: Gary Jacobsohn
Publisher: Edward Elgar Publishing
ISBN: 1784719137
Category : Law
Languages : en
Pages : 549
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Book Description
The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
Author: Dimitrios Kyritsis
Publisher: Bloomsbury Publishing
ISBN: 1509933840
Category : Law
Languages : en
Pages : 447
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Book Description
"The collection of chapters in this volume arises out of a workshop held at the University of Reading in April 2017, funded by a Modern Law Review Seminar Funding Scheme"--ECIP acknowledgments.
Author: Randy J. Kozel
Publisher: Cambridge University Press
ISBN: 110712753X
Category : Law
Languages : en
Pages : 191
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Book Description
This book analyzes the theoretical nuances and practical implications of how judges use precedent.
Author: Dimitrios Kyritsis
Publisher: Bloomsbury Publishing
ISBN: 1509933867
Category : Law
Languages : en
Pages : 464
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Book Description
What sort of methods are best suited to understanding constitutional doctrines and practices? Should we look to lawyers and legal methods alone, or should we draw upon other disciplines such as history, sociology, political theory, and moral philosophy? Should we study constitutions in isolation or in a comparative context? To what extent must constitutional methods be sensitive to empirical data about the functioning of legal practice? Can ideal theory aid our understanding of real constitutions? This volume brings together constitutional experts from around the world to address these types of questions through topical events and challenges such as Brexit, administrative law reforms, and the increasing polarisations in law, politics, and constitutional scholarship. Importantly, it investigates the ways in which we can ensure that constitutional scholars do not talk past each other despite their persistent - and often fierce - disagreements. In so doing, it aims systematically to re-examine the methodology of constitutional theory.
Author: Dimitrios Kyritsis
Publisher: Oxford University Press
ISBN: 0199672253
Category : Law
Languages : en
Pages : 241
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Book Description
In this book Dimitrios Kyritsis advances an original account of constitutional review of primary legislation for its compatibility with human rights. Key to it is the value of separation of powers. When the relationship between courts and the legislature realizes this value, it makes a stronger claim to moral legitimacy. Kyritsis steers a path between the two extremes of the sceptics and the enthusiasts. Against sceptics who claim that constitutional review is an affront to democracy he argues that it is a morally legitimate institutional option for democratic societies because it can provide an effective check on the legislature. Although the latter represents the people and should thus be given the initiative in designing government policy, it carries serious risks, which institutional design must seek to avert. Against enthusiasts he maintains that fundamental rights protection is not the exclusive province of courts but the responsibility of both the judiciary and the legislature. Although courts may sometimes be given the power to scrutinize legislation and even strike it down, if it violates human rights, they must also respect the legislature's important contribution to their joint project. Occasionally, they may even have a duty to defer to morally sub-optimal decisions, as far as rights protection is concerned. This is as it should be. Legitimacy demands less than the ideal. In turn, citizens ought to accept discounts on perfect justice for the sake of achieving a reasonably just and effective political order overall.
Author: Benjamin A. Schupmann
Publisher: Oxford University Press
ISBN: 0198791615
Category : History
Languages : en
Pages : 257
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Book Description
Can a constitutional democracy commit suicide? Can an illiberal antidemocratic party legitimately obtain power through democratic elections and amend liberalism and democracy out of the constitution entirely? In Weimar Germany, these theoretical questions were both practically and existentially relevant. By 1932, the Nazi and Communist parties combined held a majority of seats in parliament. Neither accepted the legitimacy of liberal democracy. Their only reason for participating democratically was to amend the constitution out of existence. This book analyses Carl Schmitt's state and constitutional theory and shows how it was conceived in response to the Weimar crisis. Right-wing and left-wing political extremists recognized that a path to legal revolution lay in the Weimar constitution's combination of democratic procedures, total neutrality toward political goals, and positive law. Schmitt's writings sought to address the unique problems posed by mass democracy. Schmitt's thought anticipated 'constrained' or 'militant' democracy, a type of constitution that guards against subversive expressions of popular sovereignty and whose mechanisms include the entrenchment of basic constitutional commitments and party bans. Schmitt's state and constitutional theory remains important: the problems he identified continue to exist within liberal democratic states. Schmitt offers democrats today a novel way to understand the legitimacy of liberal democracy and the limits of constitutional change.
Author: Jeremy Waldron
Publisher: Harvard University Press
ISBN: 0674970365
Category : Political Science
Languages : en
Pages : 369
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Book Description
Political theorists focus on the nature of justice, liberty, and equality while ignoring the institutions through which these ideals are achieved. Political scientists keep institutions in view but deploy a meager set of value-conceptions in analyzing them. A more political political theory is needed to address this gap, Jeremy Waldron argues.
Author: Anne van Aaken
Publisher: Taylor & Francis
ISBN: 1351945505
Category : Law
Languages : en
Pages : 295
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Book Description
Deliberation and Decision explores ways of bridging the gap between two rival approaches to theorizing about democratic institutions: constitutional economics on the one hand and deliberative democracy on the other. The two approaches offer very different accounts of the functioning and legitimacy of democratic institutions. Although both highlight the importance of democratic consent, their accounts of such consent could hardly be more different. Constitutional economics models individuals as self-interested rational utility maximizers and uses economic efficiency criteria such as incentive compatibility for evaluating institutions. Deliberative democracy models individuals as communicating subjects capable of engaging in democratic discourse. The two approaches are disjointed not only in terms of their assumptions and methodology but also in terms of the communication - or lack thereof - between their respective communities of researchers. This book provides a comprehensive overview of the recent debate between the two approaches and makes new and original contributions to that debate.
Author: Richard H. Fallon
Publisher: Harvard University Press
ISBN: 0674975812
Category : Law
Languages : en
Pages : 237
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Book Description
Legitimacy and judicial authority -- Constitutional meaning : original public meaning -- Constitutional meaning : varieties of history that matter -- Law in the Supreme Court : jurisprudential foundations -- Constitutional constraints -- Constitutional theory and its relation to constitutional practice -- Sociological, legal, and moral legitimacy : today and tomorrow
