This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular ...systems of constitutional law. The Essay criticizes judicial review on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument less so. However, the case against judicial review is not absolute or unconditional. In this Essay, it is premised on a number of conditions, including that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even if they may disagree about what rights they have). The Essay ends by considering what follows from the failure of these conditions.
Professor Kent Greenawalt was a kind and exceedingly thoughtful man. To sketch out the life he led is to reflect on the nature of those virtues, for the traits I have mentioned were connected with ...one another. His thoughtfulness was conveyed in the gentlemanly quality of his personal and collegial interactions. He always cared how his colleagues were faring and he showed quiet concern when someone was ill, for example, or when things were not going well for them. Kent’s personal kindness carried over, too, into the way he participated in debates about law and legal theory. He always listened carefully to what was being said; he didn’t treat another’s presentation as just an opportunity to shoot up a hand and ask a knockout question. Sometimes Kent just wanted to improve the theory that was being set out. He was invariably considerate of all the views being expressed, even — perhaps especially — those opposed to his own.
Stare decisis remains a controversial feature of the legal systems that recognize it. Some jurists argue that the doctrine is at odds with the rule of law; others argue that there are good ...rule-of-law arguments in favor of stare decisis. This Article considers one possible good rule-of-law argument. It suggests that we should approach stare decisis in a layered way, looking at what the rule of law requires of the various judges involved in the development of a precedent. One rule-of-law principle, the principle of constancy, counsels against lightly overturning such precedents as there are. But that is not in itself an argument for stare decisis since it presupposes that precedents have already been created. However, there is another principle, the principle of generality, which requires all judges to base their decisions on general norms and not just leave them as freestanding particulars. A third principle, the principle of institutional responsibility, requires subsequent judges not to give the lie to the use by precedent judges of certain general norms to determine their decisions. And finally, the fundamental principle of fidelity to law requires the precedent judge to approach her decision as far as she can by trying to figure out the implicit bearing of such existing law as there is on the case in front of her. Together, these principles make up a layered case—not an absolute case, but a strong and productive case—for stare decisis.
The applicability of the ideal we call 'the Rule of Law' (ROL) in international law (IL) is complicated by (1) the fact that there is no overarching world government from whom we need protection (of ...the sort that the ROL traditionally offers) and it is also complicated by (2) the fact that IL affects states, in the first instance, rather than individuals (for whose sake we usually insist on ROL requirements). The article uses both these ideas as points of entry into a consideration of the applicability of the ROL in IL. It suggests that the 'true' subjects of IL are really human individuals (billions of them) and it queries whether the protections that they need are really best secured by giving national sovereigns the benefit of ROL requirements in IL. For example, a national sovereign's insistence that IL norms should not be enforced unless they are clear and determinate may mean that individuals have fewer protections against human rights violations. More radically, it may be appropriate to think of national sovereigns more as 'officials' or 'agencies' of the IL system than as its subjects. On this account, we should consider the analogous situation of officials and agencies in a municipal legal system: are officials and agencies in need of, or entitled to, the same ROL protections as private individuals? If not, then maybe it is inappropriate to think that sovereign states are entitled to the same ROL protections at the international level as individuals are entitled to at the municipal level.
HOW LAW PROTECTS DIGNITY Waldron, Jeremy
Cambridge law journal,
03/2012, Letnik:
71, Številka:
1
Journal Article
Recenzirano
One way in which law protects dignity is by enforcing human rights provisions that explicitly prohibit degradation. But, as Lon Fuller and others have observed, law's connection with dignity is also ...deeper and more pervasive than this. In the way that its requirements are presented, in its procedures, in its sponsorship of argumentation, in treating people as equals, even in the distinctive way in which it makes use of coercion, law treats humans as dignified agents, capable of self-control, with a good sense of their own interests, and an ability to respond intelligently to its demands.
When property rights and environmental legislation clash, what side should the Rule of Law weigh in on? It is from this point that Jeremy Waldron explores the Rule of Law both from an historical ...perspective - considering the property theory of John Locke - and from the perspective of modern legal controversies. This critical and direct account of the relation between the Rule of Law and the protection of private property criticizes the view - associated with the 'World Bank model' of investor expectations - that a society which fails to protect property rights against legislative restriction is failing to support the Rule of Law. In this book, developed from the 2011 Hamlyn Lectures, Waldron rejects the idea that the Rule of Law privileges property rights over other forms of law and argues instead that the Rule of Law should endorse and applaud the use of legislation to achieve valid social objectives.
Appropriateness of American courts to cite or defer to foreign law - dispute among Justices of the US Supreme Court in Roper v Simmons, a juvenile death penalty case - developing an argument that the ...citation of foreign laws can rest on the idea of the law of nations - defining the law of nations and distinguishing it from natural law - how the law of nations approach might bear on the juvenile death penalty - American jurisprudence is capable of recognising the law of nations for the purposes of a case like Roper.
Celotno besedilo
Dostopno za:
BFBNIB, DOBA, IZUM, KILJ, NMLJ, NUK, PILJ, PNG, PRFLJ, SAZU, UILJ, UKNU, UL, UM, UPUK
An enduring theme of Western philosophy is that we are all one another’s equals. Yet the principle of basic equality is woefully under-explored in modern moral and political philosophy. What does it ...mean to say we are all one another’s equals? Jeremy Waldron confronts this question fully and unflinchingly in a major new multifaceted account.
Este artículo analiza la relación entre el control judicial de constitucionalidad y la legitimidad política entendida como la capacidad de un sistema político y jurídico de generar respaldo para la ...implementación de las leyes y políticas, incluso por parte de aquellos que se opusieron a estas por razones sustanciales. El artículo señala que a pesar de que existen diferentes modalidades de control judicial, así como diversas y respetables clases de legitimidad que se derivan de la función judicial, el control de constitucionalidad no está diseñado para producir legitimidad política. En tal sentido, y ante la imposibilidad de solventar esta dificultad democrática, se propone una serie de mecanismos para mitigarla como es el caso de la exigencia de supermayorías para decidir, la necesidad de contar con una presunción fuerte de constitucionalidad y la obligación de ofrecer razones que aborden explícitamente las preocupaciones democráticas. Finalmente, el artículo hace un llamado a la civilidad en el litigio constitucional, con el fin de evitar la demonización del oponente y abrir espacios de legitimidad política en el control de constitucionalidad.
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