Constitutional Rights and Constitutional Design

Constitutional Rights and Constitutional Design

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.

Author: Paul Yowell

Publisher: Hart Publishing

ISBN: 1509940308

Category: Law

Page: 186

View: 673

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.
Categories: Law

Constitutional Rights and Constitutional Design

Constitutional Rights and Constitutional Design

Moral and Empirical Reasoning in Judicial Review Paul Yowell. CONSTITUTIONAL. RIGHTS. AND. CONSTITUTIONAL. DESIGN. The decisions courts make in constitutional rights cases pervade our political life and touch on our most basic interests ...

Author: Paul Yowell

Publisher: Bloomsbury Publishing

ISBN: 9781509913619

Category: Law

Page: 192

View: 580

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.
Categories: Law

Legislated Rights

Legislated Rights

Judicial reasoning proceeds according to the artificial reason of the law: an analytical structure that formally and ... Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review (Oxford, ...

Author: Grégoire Webber

Publisher:

ISBN: 9781108426572

Category: Law

Page: 223

View: 874

Argues that legislatures are necessary for securing human rights, and opposes theories that locate that responsibility primarily with courts.
Categories: Law

The Methodology of Constitutional Theory

The Methodology of Constitutional Theory

64 See P Yowell, Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review (Oxford, Hart Publishing 2018) 1–3; 148–51. 65 P Yowell 'The negative legislator: On Kelsen's idea of a constitutional ...

Author: Dimitrios Kyritsis

Publisher: Bloomsbury Publishing

ISBN: 9781509933860

Category: Law

Page: 464

View: 332

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.
Categories: Law

What s Wrong with Rights

What s Wrong with Rights

Paul Yowell , Constitutional Rights and Constitutional Design : Moral and Empirical Reasoning in Judicial Review ( London : Hart , 2018 ) , p . 87 . The two - stage process exemplified in the jurisprudence of the European Court of Human ...

Author: Nigel Biggar

Publisher: Oxford University Press

ISBN: 9780192606549

Category: Philosophy

Page: 384

View: 801

Are natural rights 'nonsense on stilts', as Jeremy Bentham memorably put it? Must the very notion of a right be individualistic, subverting the common good? Should the right against torture be absolute, even though the heavens fall? Are human rights universal or merely expressions of Western neo-imperial arrogance? Are rights ethically fundamental, proudly impervious to changing circumstances? Should judges strive to extend the reach of rights from civil Hamburg to anarchical Basra? Should judicial oligarchies, rather than legislatures, decide controversial ethical issues by inventing novel rights? Ought human rights advocates learn greater sympathy for the dilemmas facing those burdened with government? These are the questions that What's Wrong with Rights? addresses. In doing so, it draws upon resources in intellectual history, legal philosophy, moral philosophy, moral theology, human rights literature, and the judgments of courts. It ranges from debates about property in medieval Christendom, through Confucian rights-scepticism, to contemporary discussions about the remedy for global hunger and the justification of killing. And it straddles assisted dying in Canada, the military occupation of Iraq, and genocide in Rwanda. What's Wrong with Rights? concludes that much contemporary rights-talk obscures the importance of fostering civic virtue, corrodes military effectiveness, subverts the democratic legitimacy of law, proliferates publicly onerous rights, and undermines their authority and credibility. The solution to these problems lies in the abandonment of rights-fundamentalism and the recovery of a richer public discourse about ethics, one that includes talk about the duty and virtue of rights-holders.
Categories: Philosophy

The Hollow Core of Constitutional Theory

The Hollow Core of Constitutional Theory

Whittington, Keith E. Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present. ... Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review. Oxford: Hart Publishing ...

Author: Donald L. Drakeman

Publisher: Cambridge University Press

ISBN: 9781108618038

Category: Law

Page:

View: 209

The Hollow Core of Constitutional Theory is the first major defense of the central role of the Framers' intentions in constitutional interpretation to appear in years. This book starts with a reminder that, for virtually all of Western legal history, when judges interpreted legal texts, their goal was to identify the lawmaker's will. However, for the past fifty years, constitutional theory has increasingly shifted its focus away from the Framers. Contemporary constitutional theorists, who often disagree with each other about virtually everything else, have come to share the view that the Framers' understandings are unknowable and irrelevant. This book shows why constitutional interpretation needs to return to its historical core inquiry, which is a search for the Framers' intentions. Doing so is practically feasible, theoretically defensible, and equally important not only for discovering the original meaning, but also for deciding how to apply the Constitution today.
Categories: Law

Courts Politics and Constitutional Law

Courts  Politics and Constitutional Law

Paul Yowell is Associate Professor, University of Oxford, in the Faculty of Law, and a Fellow of Oriel College. He is the author of Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review (2018) ...

Author: Martin Belov

Publisher: Routledge

ISBN: 9781000707977

Category: Law

Page: 264

View: 122

This book examines how the judicialization of politics, and the politicization of courts, affect representative democracy, rule of law, and separation of powers. This volume critically assesses the phenomena of judicialization of politics and politicization of the judiciary. It explores the rising impact of courts on key constitutional principles, such as democracy and separation of powers, which is paralleled by increasing criticism of this influence from both liberal and illiberal perspectives. The book also addresses the challenges to rule of law as a principle, preconditioned on independent and powerful courts, which are triggered by both democratic backsliding and the mushrooming of populist constitutionalism and illiberal constitutional regimes. Presenting a wide range of case studies, the book will be a valuable resource for students and academics in constitutional law and political science seeking to understand the increasingly complex relationships between the judiciary, executive and legislature.
Categories: Law

Judicial Deference in International Adjudication

Judicial Deference in International Adjudication

... in the Dynamics of European Human Rights Jurisprudence (Nijhoff 1996) Yowell P, Constitutional Rights and Constitutional Design Moral and Empirical Reasoning in Judicial Review (Hart Publishing 2018) Zang M, 'Shall We Talk?

Author: Johannes Hendrik Fahner

Publisher: Bloomsbury Publishing

ISBN: 9781509932306

Category: Law

Page: 312

View: 113

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.
Categories: Law

The Cambridge Handbook of Natural Law and Human Rights

The Cambridge Handbook of Natural Law and Human Rights

He is the author of Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review (Hart, 2018) and co-author of Legislated Rights: Securing Human Rights through Legislation (Cambridge University Press ...

Author: Tom Angier

Publisher: Cambridge University Press

ISBN: 9781108943680

Category: Law

Page: 893

View: 546

This Handbook provides an intellectually rigorous and accessible overview of the relationship between natural law and human rights. It fills a crucial gap in the literature with leading scholarship on the importance of natural law as a philosophical foundation for human rights and its significance for contemporary debates. The themes covered include: the role of natural law thought in the history of human rights; human rights scepticism; the different notions of 'subjective right'; the various foundations for human rights within natural law ethics; the relationship between natural law and human rights in religious traditions; the idea of human dignity; the relation between human rights, political community and law; human rights interpretation; and tensions between human rights law and natural law ethics. This Handbook is an ideal introduction to natural law perspectives on human rights, while also offering a concise summary of scholarly developments in the field.
Categories: Law

The Brexit Challenge for Ireland and the United Kingdom

The Brexit Challenge for Ireland and the United Kingdom

Fundamental Rights and Freedoms coincided with 'the most significant issue in Canada's constitutional debates of the last two ... Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review (London: ...

Author: Oran Doyle

Publisher: Cambridge University Press

ISBN: 9781108967228

Category: Law

Page:

View: 446

Since the 1950s, European integration has included ever more countries with ever-softening borders between them. In its apparent reversal of integration and its recreation of borders, Brexit intensifies deep-seated tensions, both institutional and territorial, within and between the constitutional orders of the United Kingdom and Ireland. In this book, leading scholars from the UK and Ireland assess the pressures exerted by Brexit, from legal, historical, and political perspectives. This book explores the territorial pressures within the UK constitution, connecting them to the status of Northern Ireland before exploring how analogous territorial pressures might be addressed in a united Ireland. The book also critically analyses the Brexit process within the UK, drawing on Irish comparative examples, to assess unresolved tensions between popular mandate, legislative democracy, and executive responsibility. Through practical application, this book explores how constitutions function under the most intense political pressures.
Categories: Law