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Constitutional Referendums
The use of referendums around the world has grown remarkably in the past thirty years and, in particular, referendums are today deployed more than ever in the settlement of constitutional questions, even in countries with little or no tradition of direct democracy. This is the first book by a constitutional theorist to address the implications of this development for constitutional democracy in a globalizing age, when many of the older certainties surrounding sovereignty and constitutional authority are coming under scrutiny. The book identifies four substantive constitutional processes where the referendum is regularly used today: the founding of new states; the creation or amendment of con...
Time in Music and Culture
For centuries, the dispute over time has concerned mainly its objective and relative character. For the author, besides philosophy and science, the principal point of reference is man, the way he exists in time and space, and the way he observes, senses and organises those domains, as documented in the products of musical activity.
The Use of Foreign Precedents by Constitutional Judges
In 2007 the International Association of Constitutional Law established an Interest Group on 'The Use of Foreign Precedents by Constitutional Judges' to conduct a survey of the use of foreign precedents by Supreme and Constitutional Courts in deciding constitutional cases. Its purpose was to determine - through empirical analysis employing both quantitative and qualitative indicators - the extent to which foreign case law is cited. The survey aimed to test the reliability of studies describing and reporting instances of transjudicial communication between Courts. The research also provides useful insights into the extent to which a progressive constitutional convergence may be taking place b...
Governing with the Charter
In Governing with the Charter, James Kelly clearly demonstrates that our current democratic deficit is not the result of the Supreme Court’s judicial activism. On the contrary, an activist framers’ intent surrounds the Charter, and the Supreme Court has simply, and appropriately, responded to this new constitutional environment. While the Supreme Court is admittedly a political actor, it is not the sole interpreter of the Charter, as the court, the cabinet, and bureaucracy all respond to the document, which has ensured the proper functioning of constitutional supremacy in Canada. Kelly analyzes the parliamentary hearings on the Charter and also draws from interviews with public servants, senators, and members of parliament actively involved in appraising legislation to ensure that it is consistent with the Charter. He concludes that the principal institutional outcome of the Charter has been a marginalization of Parliament and that this is due to the Prime Minister’s decision on how to govern with the Charter.
Bills of Rights in the Common Law
This book argues that judges sacrifice individual rights by using less than their full powers in order to appear democratically legitimate.
Constitutional Remedies in Asia
Many jurisdictions in Asia have vested their courts with the power of constitutional review. Traditionally, these courts would invalidate an impugned law to the extent of its inconsistency with the constitution. In common law systems, such an invalidation operates immediately and retrospectively; and courts in both common law and civil law systems would leave it to the legislature to introduce corrective legislation. In practice, however, both common law and civil law courts in Asia have devised novel constitutional remedies, often in the absence of explicit constitutional or statutory authorisation. Examining cases from Hong Kong, Bangladesh, Indonesia, India, and the Philippines, this collection of essays examines four novel constitutional remedies which have been judicially adopted - Prospective Invalidation, Suspension Order, Remedial Interpretation, and Judicial Directive - that blurs the distinction between adjudication and legislation.
The Challenge of Originalism
Originalism is a force to be reckoned with in constitutional interpretation. At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists harness the resources of linguistic, moral, and political philosophy to propose methodologies for the interpretation of constitutional texts and provide reasons for fidelity to those texts. The essays in this volume, which includes contributions from the flag bearers of several competing schools of constitutional interpretation, provides an introduction to the development of originalist thought, showcases the great range of contemporary originalist constitutional scholarship, and situates competing schools of thought in dialogue with each other. They also make new contributions to the methodological and normative disputes between originalists and non-originalists, and among originalists themselves.
Making Equality Rights Real
Making Equality Rights Real critically assesses the state of equality jurisprudence from many angles. These 13 essays attempt to advance substantive equality as section 15 of the Charter moves into its second generation. Each of the papers in this collection aims to deepen our understandings of the dynamics of inequality and oppression.
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.
