Bills of Rights in the Common Law by Robert Leckey

By Robert Leckey

Students have addressed at size the 'what' of judicial overview lower than a invoice of rights - scrutinizing laws and notable it down - yet missed the 'how'. Adopting an inner felony viewpoint, Robert Leckey addresses that hole by way of reporting at the approaches and actions of judges of the top courts of Canada, South Africa and the uk as they follow their fairly new debts of rights. Rejecting the tendency to view rights adjudication as novel and specified, he connects it to the culture of judging and judicial evaluation within the Commonwealth and identifies respects within which judges' actions in rights instances surely are novel - and troublesome. Highlighting inventiveness in rights adjudication, together with inventive treatments and suggestions to legislative drafters, he demanding situations classifications of overview as robust or susceptible. 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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Scholars also evaluate the judiciary’s substantive interpretation of rights. Because judicial review under a rights instrument in many jurisdictions is a recent phenomenon, scholars often assess what the judges have done against the baseline of the scholars’ own ideal conception. They do not always identify, however, their standard and its 41 42 43 44 45 Carl Baar, ‘The Courts in Canada’, in The Political Role of Law Courts in Modern Democracies, ed. Jerold L. Waltman and Kenneth M. Holland (New York: St.

2 (2001): 467; Michael A. Bailey and Forrest Maltzman, ‘Does Legal Doctrine Matter? S. Supreme Court’, American Political Science Review 102, no. 3 (2008). 32 against bill-of-rights exceptionalism powers do not give access to judges’ ‘true’ reasons for action. 103 They offer evidence of what judges thought appropriate to say. Pressing this point further, the multiple factors that influence how judges give life to a bill of rights in a particular context highlight how hard it is to demonstrate causality.

This book aims to sidestep the conundrum of the controversial ideal baseline. Rejecting atemporal depictions of a power struggle between branches of government, it situates rights adjudication in the long-term trajectory of the common law and the tradition of judging within the Commonwealth. In doing so, it emphasizes elements of adjudication in ordinary public-law cases that a bill of rights need not change. In other words, this book resists the assumption that a new bill of rights injects novelty across the board, requiring and legitimating widespread changes to adjudicative practice.

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