Get A Common Law Theory of Judicial Review: The Living Tree PDF

By W. J. Waluchow

ISBN-10: 052112266X

ISBN-13: 9780521122665

During this examine, W. J. Waluchow argues that debates among defenders and critics of constitutional debts of rights presuppose that constitutions are kind of inflexible entities. inside of this kind of belief, constitutions aspire to set up reliable, fastened issues of contract and pre-commitment, which defenders deliberate to be attainable and fascinating, whereas critics deem very unlikely and bad. Drawing on reflections concerning the nature of legislation, constitutions, the typical legislation, and what it truly is to be a democratic consultant, Waluchow urges a distinct concept of accounts of rights that's versatile and adaptable. Adopting the sort of idea allows one not just to reply to to critics' such a lot critical demanding situations, but additionally to understand the function invoice of rights, interpreted and enforced by way of unelected judges, can sensibly play in a constitutional democracy.

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Additional info for A Common Law Theory of Judicial Review: The Living Tree (Cambridge Studies in Philosophy and Law)

Example text

It further follows that Blackstone’s assessment of Parliament’s unbridled power, even if once true, is clearly no longer so. In any event, whether or not the United Kingdom does or ever did embrace constitutionally unlimited government, the fact of the matter is that most states not only grant government powers, but they also limit them in a variety of ways. In other words, most states embrace constitutionally limited government. In such states, secondary, power-conferring rules not only create legislative, executive, and judicial powers, but they also impose different kinds of limits on the powers granted.

It requires a sovereign who is at one and the same time both the superior and the inferior in the relationship of sovereignty and who issues self-directed and self-binding commands – that is, who commands him/her/itself to observe prescribed limits under threat of sanction. But no one can sensibly “command” himself, except in some figurative sense of the term. Equally puzzling is the idea that one could somehow threaten oneself with sanction should one not abide by one’s own wishes. So the very notion of limited sovereignty is, for Austin, as incoherent as the idea of a square circle.

Peter Laslett (Cambridge: Cambridge University Press, 1967), II, Chap. XIII, par. 149. , II, Chap. II, par. 137. 15 Leviathan Part 1, Ch. 13. Although Hobbes’s political sovereign was to be constitutionally unlimited, Hobbes insisted that individuals must retain the right to self-preservation. It would be incoherent, Hobbes thought, for individuals to give up that right the protection of which is the very reason people have for creating a sovereign power in the first place. To give up this right would be to violate the very law of nature by whose authority the commonwealth is created.

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A Common Law Theory of Judicial Review: The Living Tree (Cambridge Studies in Philosophy and Law) by W. J. Waluchow


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