Judicial Deference In International Adjudication
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Author | : Lukasz Gruszczynski |
Publisher | : Oxford University Press, USA |
Total Pages | : 465 |
Release | : 2014 |
Genre | : Law |
ISBN | : 019871694X |
International courts use two key methodologies to determine the degree of deference granted to states in their implementation of international obligations: the standard of review and margin of appreciation. This book investigates how these doctrines are applied in international courts, analysing where their approaches converge and diverge.
Author | : Grant Huscroft |
Publisher | : Cambridge University Press |
Total Pages | : 332 |
Release | : 2008-04-21 |
Genre | : Law |
ISBN | : 9780521887410 |
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.
Author | : Johannes Hendrik Fahner |
Publisher | : Bloomsbury Publishing |
Total Pages | : 307 |
Release | : 2020-08-06 |
Genre | : Law |
ISBN | : 1509932305 |
International courts and tribunals are increasingly asked to pass judgment on matters that are traditionally considered to fall within the domestic jurisdiction of States. Especially in the fields of human rights, investment, and trade law, international adjudicators commonly evaluate decisions of national authorities that have been made in the course of democratic procedures and public deliberation. A controversial question is whether international adjudicators should review such decisions de novo or show deference to domestic authorities. This book investigates how various international courts and tribunals have responded to this question. In addition to a comparative analysis, the book provides a normative argument, discussing whether different forms of deference are justified in international adjudication. It proposes a distinction between epistemic deference, which is based on the superior capacity of domestic authorities to make factual and technical assessments, and constitutional deference, which is based on the democratic legitimacy of domestic decision-making. The book concludes that epistemic deference is a prudent acknowledgement of the limited expertise of international adjudicators, whereas the case for constitutional deference depends on the relative power of the reviewing court vis-à-vis the domestic legal order.
Author | : Chester Brown |
Publisher | : Oxford University Press on Demand |
Total Pages | : 303 |
Release | : 2007 |
Genre | : Law |
ISBN | : 9780199206506 |
Brown offers an examination of the jurisprudence of a range of international courts and tribunals relating to issues of procedure and remedies, and assessment whether there are emerging commonalities regarding these issues which could make up a unified law of international adjudication.
Author | : David Rudenstine |
Publisher | : Oxford University Press |
Total Pages | : 345 |
Release | : 2016 |
Genre | : Law |
ISBN | : 0199381488 |
The Age of Deference traces the Court's role in the rise of judicial deference to executive power since the end of World War II.
Author | : Yuval Shany |
Publisher | : Cambridge University Press |
Total Pages | : 185 |
Release | : 2016 |
Genre | : Law |
ISBN | : 1107038790 |
Offers a new understanding of traditional rules on jurisdiction and admissibility of cases before international courts and tribunals.
Author | : Guobin Zhu |
Publisher | : Springer Nature |
Total Pages | : 445 |
Release | : 2019-11-23 |
Genre | : Law |
ISBN | : 3030315398 |
This book investigates judicial deference to the administration in judicial review, a concept and legal practice that can be found to a greater or lesser degree in every constitutional system. In each system, deference functions differently, because the positioning of the judiciary with regard to the separation of powers, the role of the courts as a mechanism of checks and balances, and the scope of judicial review differ. In addition, the way deference works within the constitutional system itself is complex, multi-faceted and often covert. Although judicial deference to the administration is a topical theme in comparative administrative law, a general examination of national systems is still lacking. As such, a theoretical and empirical review is called for. Accordingly, this book presents national reports from 15 jurisdictions, ranging from Argentina, Canada and the US, to the EU. Constituting the outcome of the 20th General Congress of the International Academy of Comparative Law, held in Fukuoka, Japan in July 2018, it offers a valuable and unique resource for the study of comparative administrative law.
Author | : Andrew Legg |
Publisher | : OUP Oxford |
Total Pages | : 272 |
Release | : 2012-07-05 |
Genre | : Law |
ISBN | : 0191632155 |
The margin of appreciation is a judicial doctrine whereby international courts allow states to have a measure of diversity in their interpretation of human rights treaty obligations. The doctrine is at the heart of some of the most important international human rights decisions. Does it undermine the universality of human rights? How should judges decide whether to give this margin of appreciation to states? How can lawyers make best use of arguments for or against the margin of appreciation? This book answers these questions, and broadens the discussion on the margin of appreciation by including material beyond the ECHR system. It provides a comprehensive justification of the doctrine, and ALLFSCA14I the key cases affecting the doctrine in practice. Part One provides a systematic defence of the margin of appreciation doctrine in international human rights law. Drawing on the philosophy of practical reasoning the book argues that the margin of appreciation is a doctrine of judicial deference and is a common and appropriate feature of adjudication. The book argues that the margin of appreciation doctrine prevents courts from imposing unhelpful uniformity, whilst allowing decisions to be consistent with the universality of human rights. Part Two considers the key case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, documenting the margin of appreciation in practice. The analysis uniquely takes a broad look at the factors affecting the margin of appreciation. Part Three explores how the margin of appreciation operates in the judicial decision-making process, reconceptualising the proportionality assessment and explaining how the nature of the right and the type of case affect the courts' reasoning.
Author | : Stephen B Burbank |
Publisher | : SAGE |
Total Pages | : 308 |
Release | : 2002-04-02 |
Genre | : Law |
ISBN | : 9780761926573 |
This volume is a collection of essays on the contentious issues of judicial independence and federal judicial selection, written by leading scholars from the disciplines of law, political science, history, economics, and sociology.
Author | : Duncan Kennedy |
Publisher | : Harvard University Press |
Total Pages | : 436 |
Release | : 2009-06-01 |
Genre | : Law |
ISBN | : 9780674039520 |
A major statement from one of the foremost legal theorists of our day, this book offers a penetrating look into the political nature of legal, and especially judicial, decision making. It is also the first sustained attempt to integrate the American approach to law, an uneasy balance of deep commitment and intense skepticism, with the Continental tradition in social theory, philosophy, and psychology. At the center of this work is the question of how politics affects judicial activity-and how, in turn, lawmaking by judges affects American politics. Duncan Kennedy considers opposing views about whether law is political in character and, if so, how. He puts forward an original, distinctive, and remarkably lucid theory of adjudication that includes accounts of both judicial rhetoric and the experience of judging. With an eye to the current state of theory, legal or otherwise, he also includes a provocative discussion of postmodernism. Ultimately concerned with the practical consequences of ideas about the law, A Critique of Adjudication explores the aspects and implications of adjudication as few books have in this century. As a comprehensive and powerfully argued statement of a critical position in modern American legal thought, it will be essential to any balanced picture of the legal, political, and cultural life of our nation.