Interdisciplinary Approaches To Constitutional Reasoning
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Author | : Luís Pereira Coutinho |
Publisher | : Springer |
Total Pages | : 212 |
Release | : 2015-05-26 |
Genre | : Law |
ISBN | : 3319185497 |
This volume offers different perspectives on judicial practice in the European and American contexts, both arguably characterized in the last decades by the emergence of novel normative and even policy arguments by judges. The central question deserving the attention of the contributors concerns the degree in which judicial exercises in practical reasoning may amount to forms of judicial usurpation of the legislative function by courts. Since different views as to the nature and scope of legal reasoning lead to different degrees of tolerance regarding what should be admissible to courts, that same nature and scope is thoroughly debated. The main disciplinary approach is that of general jurisprudence, but the contributions take stock of other disciplines in which judicial activism has been addressed, namely positive theories of judicial behavior. Accordingly, the book also explores the development of interdisciplinary dialogue about the theme.
Author | : András Jakab |
Publisher | : Cambridge University Press |
Total Pages | : 867 |
Release | : 2017-04-27 |
Genre | : Law |
ISBN | : 1107085586 |
A large-scale comparative work of leading cases examines judicial constitutional reasoning in eighteen different legal systems globally.
Author | : Goodwin Liu |
Publisher | : Oxford University Press |
Total Pages | : 274 |
Release | : 2010-08-05 |
Genre | : Law |
ISBN | : 0199752834 |
Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it. In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances. The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.
Author | : András Jakab |
Publisher | : Cambridge University Press |
Total Pages | : 867 |
Release | : 2017-04-27 |
Genre | : Law |
ISBN | : 1108138616 |
To what extent is the language of judicial opinions responsive to the political and social context in which constitutional courts operate? Courts are reason-giving institutions, with argumentation playing a central role in constitutional adjudication. However, a cursory look at just a handful of constitutional systems suggests important differences in the practices of constitutional judges, whether in matters of form, style, or language. Focusing on independently-verified leading cases globally, a combination of qualitative and quantitative analysis offers the most comprehensive and systematic account of constitutional reasoning to date. This analysis is supported by the examination of eighteen legal systems around the world including the European Court of Human Rights and the European Court of Justice. Universally common aspects of constitutional reasoning are identified in this book, and contributors also examine whether common law countries differ to civil law countries in this respect.
Author | : Miguel Nogueira de Brito |
Publisher | : Springer Nature |
Total Pages | : 185 |
Release | : 2020-03-21 |
Genre | : Law |
ISBN | : 3030384594 |
This book discusses in what sense constitutional law has a political dimension, raising the question whether constitutional law is fundamentally political as to its validity, terms of its origin, conceptual structure and/or corresponding practice. It also poses the question whether that dimension is a political-theological dimension. A positive answer to these questions challenges the prevailing view that constitutional law is to be conceived strictly as law, moreover as written law, approved at a certain point in history by a particular power and interpreted as any other law by the judiciary. The essays included in this book, written by leading scholars in constitutional theory – including Martin Loughlin, Paul Kahn, Manon Altwegg-Boussac and Massimo La Torre – address these questions in a timely and original way.
Author | : Alejandro Linares Cantillo |
Publisher | : |
Total Pages | : 497 |
Release | : 2021-03 |
Genre | : |
ISBN | : 019289675X |
This compilation of twenty essays gathers some of the most prominent authors in constitutionalism and legal theory to critically examine classical debates, such as the role of judicial review in a democracy, the enforcement of socio-economic rights, the doctrine of unconstitutional amendments, and the theory of transitional justice.
Author | : H. Jefferson Powell |
Publisher | : University of Chicago Press |
Total Pages | : 161 |
Release | : 2008-09-15 |
Genre | : Law |
ISBN | : 0226677303 |
While many recent observers have accused American judges—especially Supreme Court justices—of being too driven by politics and ideology, others have argued that judges are justified in using their positions to advance personal views. Advocating a different approach—one that eschews ideology but still values personal perspective—H. Jefferson Powell makes a compelling case for the centrality of individual conscience in constitutional decision making. Powell argues that almost every controversial decision has more than one constitutionally defensible resolution. In such cases, he goes on to contend, the language and ideals of the Constitution require judges to decide in good faith, exercising what Powell calls the constitutional virtues: candor, intellectual honesty, humility about the limits of constitutional adjudication, and willingness to admit that they do not have all the answers. Constitutional Conscience concludes that the need for these qualities in judges—as well as lawyers and citizens—is implicit in our constitutional practices, and that without them judicial review would forfeit both its own integrity and the credibility of the courts themselves.
Author | : Russell Sandberg |
Publisher | : Edward Elgar Publishing |
Total Pages | : 467 |
Release | : 2019 |
Genre | : Law |
ISBN | : 1784714852 |
Following 9/11, increased attention has been given to the place of religion in the public sphere. Across the world, Law and Religion has developed as a sub-discipline and scholars have grappled with the meaning and effect of legal texts upon religion. The questions they ask, however, cannot be answered by reference to Law alone therefore their work has increasingly drawn upon work from other disciplines. This Research Handbook assists by providing introductory but provocative essays from experts on a range of concepts, perspectives and theories from other disciplines, which can be used to further Law and Religion scholarship.
Author | : Erin F. Delaney |
Publisher | : Edward Elgar Publishing |
Total Pages | : 463 |
Release | : 2018 |
Genre | : Law |
ISBN | : 1788110609 |
Constitutional courts around the world play an increasingly central role in day-to-day democratic governance. Yet scholars have only recently begun to develop the interdisciplinary analysis needed to understand this shift in the relationship of constitutional law to politics. This edited volume brings together the leading scholars of constitutional law and politics to provide a comprehensive overview of judicial review, covering theories of its creation, mechanisms of its constraint, and its comparative applications, including theories of interpretation and doctrinal developments. This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.
Author | : Katalin Sulyok |
Publisher | : Cambridge University Press |
Total Pages | : 431 |
Release | : 2020-10-29 |
Genre | : Business & Economics |
ISBN | : 1108489664 |
This pioneering study on environmental case-law examines how courts engage with science and reviews legitimate styles of judicial reasoning.