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Legislated Rights
Argues that legislatures are necessary for securing human rights, and opposes theories that locate that responsibility primarily with courts.
The Negotiable Constitution
In matters of rights, constitutions tend to avoid settling controversies. With few exceptions, rights are formulated in open-ended language, seeking consensus on an abstraction without purporting to resolve the many moral-political questions implicated by rights. The resulting view has been that rights extend everywhere but are everywhere infringed by legislation seeking to resolve the very moral-political questions the constitution seeks to avoid. The Negotiable Constitution challenges this view. Arguing that underspecified rights call for greater specification, Grégoire C. N. Webber draws on limitation clauses common to most bills of rights to develop a new understanding of the relationship between rights and legislation. The legislature is situated as a key constitutional actor tasked with completing the specification of constitutional rights. In turn, because the constitutional project is incomplete with regards to rights, it is open to being re-negotiated by legislation struggling with the very moral-political questions left underdetermined at the constitutional level.
Proportionality and the Rule of Law
Leading constitutional theorists debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning.
Constitutional Dialogue
The metaphor of 'dialogue' has been put to different descriptive and evaluative uses by constitutional and political theorists studying interactions between institutions concerning rights. It has also featured prominently in the opinions of courts and the rhetoric and deliberations of legislators. This volume brings together many of the world's leading constitutional and political theorists to debate the nature and merits of constitutional dialogues between the judicial, legislative, and executive branches. Constitutional Dialogue explores dialogue's democratic significance, examines its relevance to the functioning and design of constitutional institutions, and covers constitutional dialogues from an international and transnational perspective.
A Critique of Proportionality and Balancing
This book offers a comprehensive critique of the principle of proportionality and balancing as applied to human and constitutional rights.
Judicializing Everything?
Nearly every common law jurisdiction in the world has adopted a charter or bill of rights. Yet adopting a new rights document creates, rather than resolves, many fundamental constitutional questions. Should constitutional rights be relevant in private disputes? Does every political question need a constitutional or judicial answer? Should courts and legislatures equally participate in addressing the scope of which issues are to be considered constitutional? Judicializing Everything? illustrates how debates surrounding these persistent judicial questions are best understood as part of an ongoing clash between distinct forms of constitutionalism on and off the bench. Mark S. Harding canvasses ...
Regenerative Politics
Critics of liberal democracy from both the left and right view rights not as protectors of freedom but as impediments to self-determination and call for radically regenerative political alternatives. Liberals respond to these challenges by reasserting that universal rights are self-evident, intentionally foreclosing the possibility of remaking the political order. Regenerative Politics makes a bold intervention into this fraught landscape, arguing that the survival of rights depends on abandoning their claims to self-evidence. Emma Planinc argues that liberal democracies must open themselves up to a regenerative politics that accepts all claims against political convention as self-determinat...
What's Wrong with Rights?
iWhat's Wrong with Rights?/i argues that contemporary rights-talk obscures the importance civic virtue, military effectiveness and the democratic law legitimacy. It draws upon legal and moral philosophy, moral theology, and court judgments. It spans discussions from medieval Christendom to contemporary debates about justified killing.
Proportionality and Judicial Activism
This book uses empirical analysis to show that courts refrain from using the proportionality test as a means of judicial activism.
The Judge and the Proportionate Use of Discretion
This book examines different legal systems and analyses how the judge in each of them performs a meaningful review of the proportional use of discretionary powers by public bodies. Although the proportionality test is not equally deep-rooted in the literature and case-law of France, Germany, the Netherlands and the United Kingdom, this principle has assumed an increasing importance partly due to the influence of the European Court of Justice and European Court of Human Rights. In the United States, different standards of judicial review are applied to review ‘arbitrary and capricious’ agency discretion. However, do US judges achieve a similar result to the proportionality or reasonablene...
