A Common Law Theory of Judicial Review: The Living Tree by W. J. Waluchow

By W. J. Waluchow

During this learn, W. J. Waluchow argues that debates among defenders and critics of constitutional money owed of rights presuppose that constitutions are kind of inflexible entities. inside of the sort of belief, constitutions aspire to set up sturdy, mounted issues of contract and pre-commitment, which defenders deliberate to be attainable and fascinating, whereas critics deem most unlikely and bad. Drawing on reflections in regards to the nature of legislation, constitutions, the typical legislations, and what it really is to be a democratic consultant, Waluchow urges a unique concept of debts of rights that's versatile and adaptable. Adopting this sort of idea permits one not just to respond to to critics' so much severe demanding situations, but additionally to understand the position invoice of rights, interpreted and enforced by way of unelected judges, can sensibly play in a constitutional democracy.

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

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But there is still nothing to prevent me from escaping the effect of my “self-imposed, friendly-assistance rule” in at least two ways. I could either ignore the rule, or change it in such a way that it no longer requires me to do something I would really rather not do. Suppose I have a friend, Bob, who needs a ride to the barber shop. Assume further that I’m interested in going to the pub to watch the hockey game, and that the game just happens to be on at the same time that Bob needs his ride.

Or is it restricted to people who live now? After all, it is these latter individuals who are now expected to comply with its demands. Or are “the people” some sort of temporally extended entity that persists through time across a number of generations? Perhaps it can include those who now live as well as those who are long dead? Here is another question: Does it include those current members who do not wish to be governed by its demands? Take, for example, the many separatists in Quebec who wish to live in a new, independent state governed by something other than the Canadian constitution.

But is this common feature of constitutional democracies in any sense necessary? If so, why is this the case? And does this fact have any bearing on judicial review wherein, some have argued, judges have too eagerly embraced powers that really ought to reside in the legislative branches of government? In constitutional democracies legislators and members of the executive are not usually thought to be in the business of deciding legal cases. Indeed, they are sometimes chastised for trying to influence the outcome of legal disputes, as when a cabinet minister intervenes in a constituent’s legal case by contacting the presiding judge.

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