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A Common Law Theory of Judicial Review: The Living Tree - download pdf or read online

By W. J. Waluchow

ISBN-10: 052112266X

ISBN-13: 9780521122665

During this research, W. J. Waluchow argues that debates among defenders and critics of constitutional debts of rights presuppose that constitutions are roughly inflexible entities. inside one of these perception, constitutions aspire to set up solid, 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's to be a democratic consultant, Waluchow urges a distinct conception of money owed of rights that's versatile and adaptable. Adopting this kind of thought allows one not just to respond to to critics' such a lot severe demanding situations, but in addition to understand the function invoice of rights, interpreted and enforced through 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

Judges are often inventing new law when they decide Charter cases, thereby wandering into the domain properly reserved for the legislature. Judicial review has, in this view, corrupted the business of judging – it has blurred the separation of judicial and legislative powers that is thought essential to a well-ordered, fully 1:27 P1: FCW 0521864763c02 CUNY449B/Waluchow 0 521 86476 3 Printer:cupusbw F. Montesquieu and the Separation of Powers October 10, 2006 31 functioning constitutional democracy.

Hobbes, for example, was happy to acknowledge that the sovereign is bound by simple prudence not to abuse his powers (lest he risk overthrow by his subjects) and by the wider law of nature (of which the dictates of prudence are a subset). Hobbes also insisted, of course, that the sovereign is answerable to God alone for his political transgressions. It is God’s commands that oblige the Hobbesian sovereign to abide by the laws of nature in exercising his government powers, not the commands of the people who have surrendered their sovereignty to him/it, or any “commands” the sovereign might incoherently attempt to impose on him/itself.

In this respect, Charters are quite unlike ordinary statutes and common law rules, which are usually more easily altered or overridden by law-determining decisions of the people’s representatives. But not so with entrenched constitutions, leading to the inevitable question: Why should the wishes of “the people-now” be in this way thwarted by decisions taken by other people, “the people-then,” whose views might have been radically different and who may no longer be living? Take the American Bill of Rights as an obvious example: The bulk of its provisions were adopted well over 200 years ago, largely through the efforts of an elite group of white, male slaveowners.

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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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