By Robert Leckey
Students have addressed at size the 'what' of judicial assessment lower than a invoice of rights - scrutinizing laws and impressive it down - yet missed the 'how'. Adopting an inner criminal point of view, 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 practice their quite new money owed of rights. Rejecting the tendency to view rights adjudication as novel and special, he connects it to the culture of judging and judicial evaluation within the Commonwealth and identifies respects within which judges' actions in rights situations really are novel - and problematical. Highlighting inventiveness in rights adjudication, together with artistic treatments and information to legislative drafters, he demanding situations classifications of evaluate as powerful or vulnerable. Disputing claims that it's modest and dialogic, he additionally argues that remedial discretion denies justice to contributors and undermines constitutional supremacy.
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Students have addressed at size the 'what' of judicial evaluation less than a invoice of rights - scrutinizing laws and outstanding it down - yet missed the 'how'. Adopting an inner felony standpoint, Robert Leckey addresses that hole by means of reporting at the strategies and actions of judges of the top courts of Canada, South Africa and the uk as they follow their rather new money owed of rights.
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Jackson, Constitutional Engagement in a Transnational Era (Oxford: Oxford University Press, 2010); Kai M¨oller, The Global Model of Constitutional Rights (Oxford: Oxford University Press, 2012). Sujit Choudhry, ‘Migration as a New Metaphor in Comparative Constitutional Law’, in Choudhry, Migration of Constitutional Ideas, 15. 66 Such an avowed philosophical orientation helps to explain – if not to justify – why some universalist work pays so little attention to the methodological matters more salient in comparative law or political science, such as case selection.
Fielding, ‘Judges and Their Work’, 99. Robert Leckey, ‘Complexifying Roncarelli’s Rule of Law’, McGill Law Journal 55, no. 3 (2010): 732. Hugh Heclo, ‘Thinking Institutionally’, in The Oxford Handbook of Political Institutions, ed. R. A. W. Rhodes, Sarah A. Binder, and Bert A. Rockman (Oxford: Oxford University Press, 2006), 737. 58 This institutional perspective might foster scepticism regarding judges’ power to predict the impact of their activities. Their inherited role developed over a long time, and they may have limited capacity to predict the effects of changes they make to their role.
Klare, ‘Legal Culture and Transformative Constitutionalism’, South African Journal on Human Rights 14, no. 1 (1998): 168; see also Catherine Albertyn and Dennis Davis, ‘Legal Realism, Transformation and the Legacy of Dugard’, South African Journal on Human Rights 26, no. 2 (2010): 201–3. Murray Hunt, ‘The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession’, Journal of Law and Society 26, no. 1 (1999): 92–96. 41 In this sense, legal culture may exert a ‘drag’,42 impeding transformation under a bill of rights.
Bills of Rights in the Common Law by Robert Leckey