Coercing Virtue

Author: Robert H. Bork
Publisher: Vintage Canada
ISBN: 030736853X
Size: 77.85 MB
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Judge Robert H. Bork will deliver the Barbara Frum Historical Lecture at the University of Toronto in March 2002. This annual lecture “on a subject of contemporary history in historical perspective” was established in memory of Barbara Frum and will be broadcast on the CBC Radio program Ideas. In Coercing Virtue, former US solicitor general Robert H. Bork examines judicial activism and the practice of many courts as they consider and decide matters that are not committed to their authority. In his opinion, this practice infringes on the legitimate domains of the executive and legislative branches of government and constitutes a judicialization of politics and morals. Should courts be used as a vehicle of social change even if the majority view weighs against the court’s ruling? And if we allow courts to make law, especially in a country like Canada where our Supreme Court judges aren’t even elected, then what does this mean for democratic government? “The nations of the West have long been afraid of catching the “American disease” — the seizure by judges of authority properly belonging to the people and their elected representatives. Those nations are learning, perhaps too late, that this imperialism is not an American disease; it is a judicial disease, one that knows no boundaries.” — Robert H. Bork, from Coercing Virtue From the Trade Paperback edition.

Rule Of Law Human Rights And Judicial Control Of Power

Author: Rainer Arnold
Publisher: Springer
ISBN: 3319551868
Size: 24.94 MB
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Judicial control of public power ensures a guarantee of the rule of law. This book addresses the scope and limits of judicial control at the national level, i.e. the control of public authorities, and at the supranational level, i.e. the control of States. It explores the risk of judicial review leading to judicial activism that can threaten the principle of the separation of powers or the legitimate exercise of state powers. It analyzes how national and supranational legal systems have embodied certain mechanisms, such as the principles of reasonableness, proportionality, deference and margin of appreciation, as well as the horizontal effects of human rights that help to determine how far a judge can go. Taking a theoretical and comparative view, the book first examines the conceptual bases of the various control systems and then studies the models, structural elements, and functions of the control instruments in selected countries and regions. It uses country and regional reports as the basis for the comparison of the convergences and divergences of the implementation of control in certain countries of Europe, Latin America, and Africa. The book’s theoretical reflections and comparative investigations provide answers to important questions, such as whether or not there are nascent universal principles concerning the control of public power, how strong the impact of particular legal traditions is, and to what extent international law concepts have had harmonizing and strengthening effects on internal public-power control.

Public Law After The Human Rights Act

Author: Tom Hickman
Publisher: Bloomsbury Publishing
ISBN: 1847317510
Size: 22.34 MB
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It is remarkable that 10 years after the Human Rights Act came into effect, and with further reform possible, there are still no clear answers to basic questions about the relationship between the Human Rights Act, human rights principles and the common law. Such basic questions include: what is the Human Rights Act? What is the relationship between human rights principles and common law doctrines in public law? Do traditional public law principles need to be replaced? How has the Human Rights Act altered the constitutional relationship between the courts, government and Parliament in the UK? Public Law After the Human Rights Act proposes answers to these questions. Unlike other books on the Human Rights Act, the book looks beyond the Human Rights Act itself to its effect on public law as a whole. The book articulates in novel ways the relationship between the Act and administrative and constitutional law. It suggests that the Human Rights Act has built on the common law constitution. The discussion focuses on core topics in modern public law, including, the constitutional status of the Human Rights Act; the relationship between human rights and the common law; the Human Rights Act's effect on central doctrines of public law such as reasonableness, proportionality and process review; the structure of public law in the human rights era; derogation and emergencies; and the right of access to a court.

Judicial Review In An Age Of Moral Pluralism

Author: Ronald C. Den Otter
Publisher: Cambridge University Press
ISBN: 0521762049
Size: 27.41 MB
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This book considers how judicial review can be improved to strike the appropriate balance between legislative and judicial power.

In Whose Name

Author: Armin von Bogdandy
Publisher: OUP Oxford
ISBN: 0191026956
Size: 52.50 MB
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The vast majority of all international judicial decisions have been issued since 1990. This increasing activity of international courts over the past two decades is one of the most significant developments within the international law. It has repercussions on all levels of governance and has challenged received understandings of the nature and legitimacy of international courts. It was previously held that international courts are simply instruments of dispute settlement, whose activities are justified by the consent of the states that created them, and in whose name they decide. However, this understanding ignores other important judicial functions, underrates problems of legitimacy, and prevents a full assessment of how international adjudication functions, and the impact that it has demonstrably had. This book proposes a public law theory of international adjudication, which argues that international courts are multifunctional actors who exercise public authority and therefore require democratic legitimacy. It establishes this theory on the basis of three main building blocks: multifunctionality, the notion of an international public authority, and democracy. The book aims to answer the core question of the legitimacy of international adjudication: in whose name do international courts decide? It lays out the specific problem of the legitimacy of international adjudication, and reconstructs the common critiques of international courts. It develops a concept of democracy for international courts that makes it possible to constructively show how their legitimacy is derived. It argues that ultimately international courts make their decisions, even if they do not know it, in the name of the peoples and the citizens of the international community.

Towards Juristocracy

Author: Ran Hirschl
Publisher: Harvard University Press
ISBN: 9780674038677
Size: 30.62 MB
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In countries and supranational entities around the globe, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The constitutionalization of rights and the establishment of judicial review are widely believed to have benevolent and progressive origins, and significant redistributive, power-diffusing consequences. Ran Hirschl challenges this conventional wisdom. Drawing upon a comprehensive comparative inquiry into the political origins and legal consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, Hirschl shows that the trend toward constitutionalization is hardly driven by politicians' genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. This self-interested coalition of legal innovators determines the timing, extent, and nature of constitutional reforms. Hirschl demonstrates that whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse. The global trend toward juristocracy, Hirschl argues, is part of a broader process whereby political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policymaking from the vicissitudes of democratic politics.

Reclaiming Conservatism

Author: Mickey Edwards
Publisher: Oxford University Press
ISBN: 0199887357
Size: 51.96 MB
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A leading figure in the American conservative movement for over 40 years, Mickey Edwards was a prominent Republican congressman, a former national chairman of the American Conservative Union, and a founding trustee of the Heritage Foundation. When he speaks, conservatives listen. Now, in this highly provocative and frank volume, Edwards argues loud and clear that conservatives today have abandoned their principles and have become champions of that which they once most feared. The conservative movement--which once nominated Barry Goldwater for President, and later elected Ronald Reagan--was based on a distinctly American kind of conservatism which drew its inspiration directly from the United States Constitution--in particular, an overriding belief in individual liberty and limited government. But today, Edwards argues, the mantle of conservatism has been taken over by people whose beliefs and policies threaten the entire constitutional system of government. By abetting an imperial presidency, he contends, so-called "conservatives" have gutted the system of checks and balances, abandoned due process, and trampled upon our cherished civil liberties. Today's conservatives endorse unprecedented assertions of government power--from the creation of secret prisons to illegal wiretapping. Once, they fought to protect citizens from government intrusion; today, they seem to recognize few limits on what government can do. The movement that was once the Constitution's--and freedom's--strongest defender is now at risk of becoming its most dangerous enemy. Edwards ends with a blueprint for reclaiming the essence of conservatism in America. Touching upon many current issues, this passionately argued book concludes that many of today's conservatives seem to have it all backwards. They have turned conservatism upside down--and this book calls them on it.

The Anatomy Of Torture

Author: William J. Aceves
Publisher: BRILL
ISBN: 1571053522
Size: 66.32 MB
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This is the story of one of the most significant examples of human rights litigation in the U.S., presented as a documentary history. The pleadings and documents appear with minimal editing and are supplemented through commentary.

A Time To Speak

Author: Robert H. Bork
Publisher: Intercollegiate Studies Institute
ISBN:
Size: 70.46 MB
Format: PDF
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Since at least 1971, when he published a seminal article on constitutional interpretation in the Indiana Law Journal, Robert Bork has been the legal and moral conscience of America, reminding us of our founding principles and their cultural foundation. The scourge of liberal ideologues both before and after Ronald Reagan nominated him for the Supreme Court in 1987, Bork has for fifty years unwaveringly exposed—and explained—the hypocrisy and dereliction of duty endemic among our nation’s elites, the politicization and adversary activism of our courts, and the consequent degradation of American society. Now, for the first time, Judge Bork has gathered together his most important and prophetic writings in A Time to Speak, including a foreword and commentary by the author. The volume includes more than sixty vintage Bork contributions on topics ranging from President Nixon to St. Thomas More, from abortion to antitrust policy, and from civil liberties to natural law. It also includes several of his judicial opinions and transcribed oral arguments. A Time to Speak is an indispensable book for all who have harkened to the truths spoken so forthrightly, in season and out, by this great American original.

Holy Writ

Author: Dr Arie-Jan Kwak
Publisher: Ashgate Publishing, Ltd.
ISBN: 1409496848
Size: 71.89 MB
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It has often been remarked that law and religion have much in common. One of the most conspicuous elements is that both law and religion frequently refer to a text that has authority over the members of a community. In the case of religion this text is deemed to be 'holy', in the case of law, some, such as the American constitution, are widely held as 'sacred'. In both examples, priests and judges exert a duty to tell the community what the founding document has to say about contemporary problems. This therefore involves an element of interpretation of the relevant authoritative texts and this book focuses on such methods of interpretation in the fields of law and religion. As its starting point, scholars from different disciplines discuss the textualist approach presented here by American Supreme Court Judge and academic scholar, Justice Antonin Scalia, not only from the perspective of law but also from that of theology. The result is a lively discussion which presents a range of diverse perspectives and arguments with regard to interpretation in law and religion.