Author: Jeffrey Denys GoldsworthyPublish On: 2006-02-09
This book describes the constitutions of six major federations and how they have been interpreted by their highest courts, compares the interpretive methods and underlying principles that have guided the courts, and explores the reasons for ...
Author: Jeffrey Denys Goldsworthy
Publisher: Oxford University Press
This book describes the constitutions of six major federations and how they have been interpreted by their highest courts, compares the interpretive methods and underlying principles that have guided the courts, and explores the reasons for major differences between these methods and principles. Among the interpretive methods discussed are textualism, purposivism, structuralism and originalism. Each of the six federations is the subject of a separate chapter written by a leading authority in the field: Jeffrey Goldsworthy (Australia), Peter Hogg (Canada), Donald Kommers (Germany), S.P. Sathe (India), Heinz Klug (South Africa), and Mark Tushnet (United States). Each chapter describes not only the interpretive methodology currently used by the courts, but the evolution of that methodology since the constitution was first enacted. The book also includes a concluding chapter which compares these methodologies, and attempts to explain variations by reference to different social, historical, institutional and political circumstances.
21 Akhil Reed Amar, 'Intratextualism' (1999) 112 Harvard Law Review 747. 22
Mark Tushnet, 'The United States: Eclecticism in the Service of Pragmatism' in
Jeffrey Goldsworthy (ed) Interpreting Constitutions: A Comparative Study (Oxford
Author: Sujit Choudhry
Publisher: Oxford University Press
The Indian Constitution is one of the world's longest and most important political texts. Its birth, over six decades ago, signalled the arrival of the first major post-colonial constitution and the world's largest and arguably most daring democratic experiment. Apart from greater domestic focus on the Constitution and the institutional role of the Supreme Court within India's democratic framework, recent years have also witnessed enormous comparative interest in India's constitutional experiment. The Oxford Handbook of the Indian Constitution is a wide-ranging, analytical reflection on the major themes and debates that surround India's Constitution. The Handbook provides a comprehensive account of the developments and doctrinal features of India's Constitution, as well as articulating frameworks and methodological approaches through which studies of Indian constitutionalism, and constitutionalism more generally, might proceed. Its contributions range from rigorous, legal studies of provisions within the text to reflections upon historical trends and social practices. As such the Handbook is an essential reference point not merely for Indian and comparative constitutional scholars, but for students of Indian democracy more generally.
Interpreting Constitutions: A Comparative Study (Oxford: Oxford University Press,
2006) Henkin, Louis and Albert Rosenthal (eds), Constitutionalism and Rights:
The Influence of the United States Constitution Abroad (New York: Columbia ...
Author: Donald P. Kommers
Publisher: Rowman & Littlefield Publishers
American Constitutional Law: Essays, Cases, and Comparative Notes is a unique casebook that encourages citizens and students of the Constitution to think critically about the fundamental principles and policies of the American constitutional order. In addition to its distinguished authorship, the book has two prominent features that set it apart from other books in the field: an emphasis on the social, political, and moral theory that provides meaning to constitutional law and interpretation, and a comparative perspective that situates the American experience within a world context that serves as an invaluable prism through which to illuminate the special features of our own constitutional order. While the focus of the book is entirely on American constitutional law, the book asks students to consider what, if anything, is unique in American constitutional life and what we share with other constitutional democracies. Each chapter is preceded by an introductory essay that highlights these major themes and also situates the cases in their proper historical and political contexts. This new edition offers updated and expanded treatment of a number of important and timely topics, including gerrymandering and campaign finance, the death penalty, privacy, affirmative action, and school segregation. The new edition offers: _ Updated and expanded treatment of key cases on gerrymandering and campaign finance _ Expanded discussion of the Court's work federalism and the commerce clause _ Discussions of the Court's new cases on the death penalty, including a discussion of the controversy within the Court about the propriety of citing foreign case law _ An expanded discussion of the Court's recent work in the area of privacy, including the Court's decisions with regard to partial birth abortions and same sex marriages _ An expanded section on the Court's continuing efforts to develop a coherent takings clause jurisprudence _ Full coverage of new developments and cases concerning affirmative action and school desegregation
Interpreting Constitutions: A Comparative Study (Oxford University Press, 2006);
T. R. S, Allan, 'Constitutional Justice and the Concept of Law', in Grant Huscroft (
ed.), Expounding the Constitution: Essays in Constitutional Theory (Cambridge ...
Author: Aharon Barak
Publisher: Cambridge University Press
Category: Political Science
Human dignity is now a central feature of many modern constitutions and international documents. As a constitutional value, human dignity involves a person's free will, autonomy, and ability to write a life story within the framework of society. As a constitutional right, it gives full expression to the value of human dignity, subject to the specific demands of constitutional architecture. This analytical study of human dignity as both a constitutional value and a constitutional right adopts a legal-interpretive perspective. It explores the sources of human dignity as a legal concept, its role in constitutional documents, its content, and its scope. The analysis is augmented by examples from comparative legal experience, including chapters devoted to the role of human dignity in American, Canadian, German, South African, and Israeli constitutional law.
Similarly, the state courts deal not only with questions arising under the state Constitution and laws, they also deal with ... laws made by the Parliament; (ii)
arising under the Constitution, or involving its interpretation; and (iii) of Admiralty
Author: Vishnoo Bhagwan
Publisher: Sterling Publishers Pvt. Ltd
This ninth revised edition of World Constitutions, a monumental work by seasoned authors, portrays the conceptual and legal framework of parliamentary democracies like the UK, Japan, Canada and Australia as well as of a presidential democracy like the USA. Tony Blair’s exit and making way for Gordon Brown as Prime Minister of UK, the spectacular triumph of Barack Obama as President of US and his sincere efforts to usher in an era of all-round peace and tranquility in hitherto strife-torn world, confronted with recession and morass of economic instability and insecurity have been covered while revising the book. The victory of Nicolas Sarcozy at the hustings in France has further given a flip to the concept of peace which has been on the last leg during the preceding regimes in some of the top democratic countries of the world. The Communist China which was vying with erstwhile Soviet Union sometime back has been given a prominent place in the book, portraying its considerably liberalised and substantially modernised socialistic infrastructure. The Swiss Constitution, the only direct democracy in the world, which is a judicious combination of presidential and parliamentary forms of democracy has been analytically presented. An incisive and comparative study of these constitutions will enable the reader to obtain an unbiased and dispassionate view of their working. Where necessary, eminent authorities on the subject have been quoted copiously. The book has been updated by incorporating the latest amendments to the constitutions. The Constitution of the Russian Federation has also been included while giving a synoptic reference to former Soviet Union, which was once a super power to reckon with.
He does not consider judicial review in the context of divided societies. 12 J
Goldsworthy, 'Introduction' in J Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (New York, Oxford University Press, 2007). Mathieu-Mohin
Author: Colin Harvey
Publisher: Bloomsbury Publishing
This collection examines the role and value of rights in divided and post-conflict societies, approaching the subject from a comparative and theoretical perspective. Societies emerging from violent conflict often opt for a bill of rights as part of a wider package of constitutional reform. Where conflict is fuelled by longstanding ethno-national divisions, these divisions are often addressed through group-differentiated rights. Recent constitutional settlements have highlighted the difficulties in drafting a bill of rights in divided/post-conflict societies, where the aim of promoting unity is frequently in tension with the need to accommodate difference. In such cases, a bill of rights might be a rallying point around which both minorities and the majority can articulate a common vision for a shared society. Conversely, a bill of rights might provide merely another venue in which to play out familiar conflicts, further dividing an already divided society. The central questions that animate the collection are: (1) Can constitutional rights provide a basis for unity and a common 'human rights culture' in divided societies? If so, how? (2) To what extent should divided societies opt for a universalistic package of rights protections, or should the rights be tailored to the specific circumstances of a divided society, providing for special group-sensitive protections for minorities? (3) Is a divided society more or less likely to adopt a bill of rights? (4) How does the judiciary figure in the management or resolution of ethno-national conflict? (5) What are the general theoretical and philosophical issues at stake in a rights-based approach to the management or resolution of ethno-national divisions or other conflicts?
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: Erin F. Delaney
Publisher: Edward Elgar Publishing
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.
This volume provides a nuanced theoretical discussion of the idea of 'invisibility' in a constitutional context, and its relationship to more traditional understandings of written versus unwritten constitutionalism.
Author: Rosalind Dixon
Publisher: Cambridge University Press
Constitutions worldwide inevitably have 'invisible' features: they have silences and lacunae, unwritten or conventional underpinnings, and social and political dimensions not apparent to certain observers. The Invisible Constitution in Comparative Perspective helps us understand these dimensions to contemporary constitutions, and their role in the interpretation, legitimacy and stability of different constitutional systems. This volume provides a nuanced theoretical discussion of the idea of 'invisibility' in a constitutional context, and its relationship to more traditional understandings of written versus unwritten constitutionalism. Containing a rich array of case studies, including discussions of constitutional practice in Australia, Canada, China, Germany, Hong Kong, Israel, Italy, Indonesia, Ireland and Malaysia, this book will look at how this aspect of 'invisible constitutions' is manifested across different jurisdictions.
In this 2007 book, leading figures in the study of comparative constitutionalism and comparative constitutional politics from North America, Europe and Australia discuss the dynamic processes whereby constitutional systems influence each ...
Author: Sujit Choudhry
Publisher: Cambridge University Press
The migration of constitutional ideas across jurisdictions is one of the central features of contemporary constitutional practice. The increasing use of comparative jurisprudence in interpreting constitutions is one example of this. In this 2007 book, leading figures in the study of comparative constitutionalism and comparative constitutional politics from North America, Europe and Australia discuss the dynamic processes whereby constitutional systems influence each other. They explore basic methodological questions which have thus far received little attention, and examine the complex relationship between national and supranational constitutionalism - an issue of considerable contemporary interest in Europe. The migration of constitutional ideas is discussed from a variety of methodological perspectives - comparative law, comparative politics, and cultural studies of law - and contributors draw on case-studies from a wide variety of jurisdictions: Australia, Hungary, India, South Africa, the United Kingdom, the United States, and Canada.
In the context of the American system , it has been said that ' [ c ] onstitutional
interpretation has been the only method ... in the Service of Pragmatism ' in
Jeffrey Goldsworthy ( ed ) , Interpreting Constitutions : A Comparative Study (
2006 ) 7 ...
Author: Rachael Gray
Category: Constitutional history
This book reviews the movements that have occurred in the High Court's approach to constitutional issues during the Dixon, Mason and Gleeson eras using the legal theory perspectives of legalism, realism and pragmatism. To date, the relevance of theoretical reasoning to Australian constitutional jurisprudence has received relatively little attention. Analysis of constitutional decisions has tended to focus on outcomes rather than method. The book provides a contemporary, comparative and analytical perspective on the manner in which theoretical perspectives can be used to understand and explain the movement of the High Court's constitutional jurisprudence. The discussion is timely in view of the retirement of Chief Justice Gleeson in August 2008 which is likely to focus attention on the Gleeson Court's approach to constitutional issues and the Court's contribution to Australian law.
In addition, the study and comparison of the domestic constitution and
constitutional law with those of other states and polities may ... engineering', for
instance when constitutional amendment is considered, or for constitutional interpretation.
Author: J. M. Smits
Publisher: Edward Elgar Publishing
This is a very important and immense book. . . Single-handedly, Smits has reviewed and checked this immense work to bring it to its final high standard in quality and accuracy and selection of laws. The Criminal Lawyer This is a very important and immense book. . . The Elgar Encyclopedia of Comparative Law is a treasure-trove of honed knowledge of the laws of many countries. It is a reference book for dipping into, time and time again. It is worth every penny and there is not another as comprehensive in its coverage as Elgar s. I highly recommend the Elgar Encyclopedia of Comparative Law to all English chambers. This is a very important book that should be sitting in every university law school library. Sally Ramage, The Criminal Lawyer The entries are written in a lucid and accessible style, with appropriate references being given for further research. All in all, a substantial work which will delight enthusiasts of comparative law. The Commonwealth Lawyer The breadth of topics plus the bibliographies allows a reader to use the Elgar Encyclopedia as an initial entry into a field of law, a specific topic, or a legal system. . . Any law library, business library, large public library, or academic library supporting the study of international law or international business will want to have [it] in its collection. . . This work is highly recommended. Ladyjane Hickey, American Reference Books Annual Comparative law is the comparison of law and legal systems from around the world. At one time it was a field of limited interest and academic participation. However, increasing globalization, whether of commerce or culture, makes it imperative that citizens learn more about the law of other countries. That is the premise of this comprehensive new research tool designed for general readers. Some 70 articles address topics as diverse as accident compensation, legal culture, the European Civil Code, and the law and legal systems of a selected set of nations. . . This single-volume work provides an excellent comprehensive overview of the current state of affairs in comparative law. Highly recommended. Lower-level undergraduates and above; general readers. J.E. Stephens, Choice The timely publication of this encyclopedia reflects what is happening [in international law] and, in a field where works (even student textbooks) are often expensive, it comes at an attractive price. Stuart Hannabuss, Reference Reviews The Elgar Encyclopedia of Comparative Law looks set to become an indispensable source for the ever increasing body of lawyers needing accurate information on the structure and working of foreign systems as well as on points of a substantive law. Edited by Professor Jan Smits of Maastricht University the Encyclopedia is the work of an extremely strong international team of noted specialists. Comprising articles on the nature, methodology and focus of comparative law, on the legal systems of particular jurisdictions and on matters of substantive law, the work should be a very significant contribution to the literature. It seems likely that the contributions on the comparative state of affairs in particular fields of substantive law will be an especially valuable aspect of the work. There will be 37 such articles from accident compensation to unjustified enrichment with mistake , personality rights , product liability and transfer of moveable property only a sample of what the work will offer. Casting over this list one is again struck by the wealth of established expertise brought together in the Encyclopedia. I have little doubt that I can speak for the worldwide community of comparative lawyers in saying that the Elgar Encyclopedia of Comparative Law is eagerly awaited. David L. Carey Miller, University of Aberdeen, UK Comparative law is moving swiftly from a long infancy to teenage maturity, and Jan Smits provides the essential tonic. In this outstanding work he has gathered together leading scholars, each his/her o
Should there be different methods of interpretation for precedents , statutes , and constitutions ? ... MacCormick and Summers followed that collection with another
one , Interpreting Precedents : A Comparative Study ( 1997 ) , which also ...
Author: Mary Ann Glendon
Publisher: West Academic
This new edition includes some significant revisions since the last edition was published in 1994. The new edition includes: A greater emphasis on Public Law in the Continental and Common law traditions; More coverage of the impact of the regional European law (EC/EU and ECHR) on the legal traditions; Some updated "Problems" (including one concerning Mixed Jurisdictions); and Numerous updates to the Common Law Tradition materials in light of the many significant reforms in England over the last ten years.
... asshe stated extra judiciallythat'comparative analysis emphaticallyisrelevant to
the task of interpreting constitutions and enforcing human rights'.30 However,as
Roger Alford has explained, comparativelaw concerns the central development ...
Author: Phil C.W. Chan
The Stonewall Riot in New York in 1969 marked the birth of the sexual minority rights movement worldwide. In the subsequent four decades, equality and related rights on grounds of sexual orientation and gender identity have been enshrined in many African, Asian, Australasian, European and North American countries, thanks to better informed discourses of the natures of sexual orientation, gender identity, equality and rights that systematic scientific and socio-legal research has generated. Discrimination, harassment and persecution on grounds of a person’s sexual orientation or gender identity, however, continue to pervade the laws and social norms in all developed and developing countries. In tribute to the courage of those who participated in the Stonewall Riot, this book examines the progress and stalemate in various countries on five continents, as well as in the development of international law, concerning the rights of persons belonging to sexual minorities. This book covers issues including homophobic bullying and gay–straight alliances in schools; the merits and problems that legislation prohibiting hate speech on grounds of sexual orientation presents; criminal justice systems in relation to male rape victims and to criminalisation of HIV exposure and transmission; the development of sexual minority rights, from historical and socio-legal perspectives, in Hong Kong, Japan, Singapore, and Zimbabwe; the lives of transgender persons in Asian countries; the evolution, operation and impact of international and domestic refugee laws on sexual orientation and gender identity as grounds for refugee status and asylum; and the conflicts between law, religion and sexual minority equality rights that inhere in the same-sex marriage debate in Ireland. This book was previously published as a special double issue of The International Journal of Human Rights.
This text is directed at legal practitioners in the fields of property and constitutional law as well as at students dealing with these subjects.
Author: A. J. Van der Walt
Category: Constitutional law
This text is directed at legal practitioners in the fields of property and constitutional law as well as at students dealing with these subjects. Through comparative analysis it considers some of the main issues raised by the interpretation and application of Section 25 of the 1996 Constitution.
MULTI - VALENCED INTERPRETIVE METHODS IN COMPARATIVE
PERSPECTIVES Although much of the literature on U ... see also Jeffrey
Goldsworthy , Introduction to INTERPRETING CONSTITUTIONS : A COMPARATIVE STUDY , supra ...
A Contextual Analysis Mark Tushnet Andrew Harding, Benjamin L Berger, Heinz
Klug, Peter Leyland, Rosalind Dixon ... Interpreting Constitutions: A Comparative Study (Cambridge, Cambridge University Press, 2006). understood when they ...
Author: Mark Tushnet
Publisher: Hart Publishing
This book provides a critical introduction to the history and current meaning of the United States' Constitution. It is organised around two themes: Firstly, the US Constitution is old, short, and difficult to amend. These characteristics have made constitutional 'interpretation', especially by the US Supreme Court, the primary mechanism for adapting the Constitution to ever-changing reality. Secondly, the Constitution creates a structure of political opportunities that allows political actors, including political parties, to pursue the preferred policy goals even to the point of altering the very structure of politics. Politics, that is, often gives meaning to the Constitution. Deploying these themes to examine the structure of the national government, federalism, judicial review, and individual rights, the book provides basic information about, and deeper insights into, the way the US constitutional system has developed and what it means today.
The book will be of interest to private and public lawyers engaged in international trade and business practices, As well as to scholars of comparative (constitutional) law.
Author: A. J. Van der Walt
Publisher: Kluwer Law Intl
The constitutional entrenchment and protection of property rights has always been a difficult and controversial issue. This new and unique work is more than a collection of cases on constitutional property law, it is an in-depth comparison of constitutional property clauses in jurisdictions around the world. The book consists of three parts: The first chapter contains a general discussion of comparative, theoretical, and analytical issues. The second part consists of eighteen chapters on jurisdictions where the property clause has generated substantial case law and jurisprudence, meriting extensive analysis and discussion. Among the countries discussed are Australia, Japan, Canada, Germany, Switzerland and South Africa. For easy reference the structure of these country-by-country chapters is identical. These chapters not only contain practical, useful legal information but also a normative interpretation of constitutional property clauses in their national and international context. The third and final part of the book contains a collection of 86 property clauses from jurisdictions not included in the country reports. The focus of the book is on comparison, and cross-references assist the reader in finding related cases and issues in other jurisdictions. The book will be of interest to private and public lawyers engaged in international trade and business practices, As well as to scholars of comparative (constitutional) law.