By Robert Leckey
Students have addressed at size the 'what' of judicial overview less than a invoice of rights - scrutinizing laws and amazing it down - yet missed the 'how'. Adopting an inner criminal standpoint, Robert Leckey addresses that hole by way of reporting at the techniques and actions of judges of the top courts of Canada, South Africa and the uk as they observe their particularly new accounts of rights. Rejecting the tendency to view rights adjudication as novel and specific, he connects it to the culture of judging and judicial evaluate within the Commonwealth and identifies respects during which judges' actions in rights situations certainly are novel - and frustrating. Highlighting inventiveness in rights adjudication, together with artistic treatments and information to legislative drafters, he demanding situations classifications of evaluation as robust or vulnerable. Disputing claims that it truly is modest and dialogic, he additionally argues that remedial discretion denies justice to participants and undermines constitutional supremacy.
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Extra resources for Bills of Rights in the Common Law
Arguably, including section 35 would increase the extent to which an ideal of transformation would appear in the Canadian constitutional order. 30 against bill-of-rights exceptionalism reviewed and invalidated executive action, many authors regard review of executive action under the bill of rights as a much less novel phenomenon than review of legislation (although Chapter 3 denies that the latter is novel). 96 While these reasons justify the focus on challenges to legislation, the line between them and challenges to executive action does not divide cases raising legitimacy and democratic accountability concerns from those that do not.
Klug, ‘Constitutional Authority and Judicial Pragmatism’, 112. T. R. S. Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford: Oxford University Press, 2013), 317. 101 The third, rooted in the importance of judges’ reasons, is the factors relevant to decision making on remedies. Such factors help to reveal how judges view their role under a bill of rights. Indeed, judges’ discussion of how they exercise their remedial discretion may point to understandings of the bill of rights that differ significantly from what its text might suggest.
The universalist practice of the ‘homogenisation of constitutions’ – which minimizes constitutional 69 70 71 72 73 74 75 Jacco Bomhoff, Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse (Cambridge: Cambridge University Press, 2013), 21. Ran Hirschl, ‘From Comparative Constitutional Law to Comparative Constitutional Studies’, International Journal of Constitutional Law 11, no. 1 (2013): 2; see also Andrew Harding and Peter Leyland, ‘Comparative Law in Constitutional Contexts’, in Comparative Law: ¨ uc¨u and David Nelken (Oxford: Hart, 2007), 333–34; Patrick A Handbook, ed.
Bills of Rights in the Common Law by Robert Leckey