Author : Alan D. P. Brady
Publisher : Cambridge University Press
Page : 311 pages
File Size : 17,9 MB
Release : 2012-05-03
Category : Law
ISBN : 1107013003
A rigorous analysis of the relationship between proportionality and deference under the Human Rights Act.
Author : Grant Huscroft
Publisher : Cambridge University Press
Page : 332 pages
File Size : 12,1 MB
Release : 2008-04-21
Category : Law
ISBN : 9780521887410
What does it mean to interpret the constitution? Does constitutional interpretation involve moral reasoning, or is legal reasoning something different? What does it mean to say that a limit on a right is justified? How does judicial review fit into a democratic constitutional order? Are attempts to limit its scope incoherent? How should a jurist with misgivings about the legitimacy of judicial review approach the task of judicial review? Is there a principled basis for judicial deference? Do constitutional rights depend on the protection of a written constitution, or is there a common law constitution that is enforceable by the courts? How are constitutional rights and unwritten constitutional principles to be reconciled? In this book, these and other questions are debated by some of the world's leading constitutional theorists and legal philosophers. Their essays are essential reading for anyone concerned with constitutional rights and legal theory.
Author : Esmé Shirlow
Publisher :
Page : pages
File Size : 24,50 MB
Release : 2020-12
Category :
ISBN : 9781108867108
"Introduction Deference and the International Adjudication of Private Property Disputes While working as a government lawyer in 2011, a letter came into our office advising that the Philip Morris tobacco company had decided to sue Australia under a bilateral investment treaty. The company contended that Australia's tobacco plain packaging requirements breached its intellectual property rights, entitling it to billions of dollars in compensation under international law. This news was not particularly shocking to the small team of which I was part, which had been assembled within the government's Office of International Law to respond to these types of claims. The news was shocking, though, to the wider Australian community. Over the ensuing months, the community's disbelief became better-articulated in the press: How can an international tribunal sit in judgment over a measure which the Australian Parliament had decided was in the public interest after extensive scientific enquiry and public consultation? Could an international tribunal really reverse the finding of Australia's highest court that the legislation was lawful?"--
Author : Cora Chan
Publisher : Oxford University Press
Page : 225 pages
File Size : 44,48 MB
Release : 2024-07-25
Category : Law
ISBN : 0198921667
In human rights adjudication, courts sometimes face issues that they lack the expertise or constitutional legitimacy to resolve. One way of dealing with such issues is to 'defer', or accord a margin of appreciation, to the judgments of public authorities. This raises two important questions: what devices courts should use to exercise deference, and how deference can be made more workable for judges and predictable for litigants. Combining in-depth conceptual analysis with practice in a broad range of jurisdictions, Deference in Human Rights Adjudication answers these questions. It introduces six devices for deference (namely, the burden of proof, standard of proof, standard of review, giving of weight, choice of interpretation, and choice of remedy), analyzes how courts should choose amongst them, and proposes techniques for rendering deference practicable. The book has two distinctive features. First, it engages with the jurisprudence of six common law jurisdictions that apply a structured proportionality test in rights adjudication, namely, Canada, Hong Kong, Ireland, Israel, New Zealand, and the United Kingdom. Second, it offers guidelines for judges who wish to apply its theoretical arguments. As such, Deference in Human Rights Adjudication will enable human rights adjudication to be more principled and in line with the rule of law and separation of powers. Insightful and pioneering, this book will be an important reference for researchers, teachers, and students of constitutional theory, comparative constitutional law, and human rights law around the world. It will also assist practitioners, judges, and policymakers who have to grapple with issues of deference in adjudication.
Author : Martin Belov
Publisher : Routledge
Page : 189 pages
File Size : 32,49 MB
Release : 2019-10-16
Category : Law
ISBN : 1000707970
This book examines how the judicialization of politics, and the politicization of courts, affect representative democracy, rule of law, and separation of powers. This volume critically assesses the phenomena of judicialization of politics and politicization of the judiciary. It explores the rising impact of courts on key constitutional principles, such as democracy and separation of powers, which is paralleled by increasing criticism of this influence from both liberal and illiberal perspectives. The book also addresses the challenges to rule of law as a principle, preconditioned on independent and powerful courts, which are triggered by both democratic backsliding and the mushrooming of populist constitutionalism and illiberal constitutional regimes. Presenting a wide range of case studies, the book will be a valuable resource for students and academics in constitutional law and political science seeking to understand the increasingly complex relationships between the judiciary, executive and legislature.
Author : Hans-W. Micklitz
Publisher : Oxford University Press, USA
Page : 289 pages
File Size : 31,46 MB
Release : 2014
Category : Law
ISBN : 0198712103
One of the most topical questions in the legal systems is whether and to what extent fundamental rights impact our rights and obligations in our contractual relations. The European Union has integrated the Charter of Fundamental Rights into the Treaties of Rome and Lisbon. This book highlights whether and to what extent fundamental rights affect the position of citizens generally and in various fields of law, such as private (contractual) law, labour law,financial services, intellectual property rights, and the judicial protection in courts.
Author : Andrew Legg
Publisher : OUP Oxford
Page : 272 pages
File Size : 29,60 MB
Release : 2012-07-05
Category : Law
ISBN : 0191632155
The margin of appreciation is a judicial doctrine whereby international courts allow states to have a measure of diversity in their interpretation of human rights treaty obligations. The doctrine is at the heart of some of the most important international human rights decisions. Does it undermine the universality of human rights? How should judges decide whether to give this margin of appreciation to states? How can lawyers make best use of arguments for or against the margin of appreciation? This book answers these questions, and broadens the discussion on the margin of appreciation by including material beyond the ECHR system. It provides a comprehensive justification of the doctrine, and ALLFSCA14I the key cases affecting the doctrine in practice. Part One provides a systematic defence of the margin of appreciation doctrine in international human rights law. Drawing on the philosophy of practical reasoning the book argues that the margin of appreciation is a doctrine of judicial deference and is a common and appropriate feature of adjudication. The book argues that the margin of appreciation doctrine prevents courts from imposing unhelpful uniformity, whilst allowing decisions to be consistent with the universality of human rights. Part Two considers the key case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, documenting the margin of appreciation in practice. The analysis uniquely takes a broad look at the factors affecting the margin of appreciation. Part Three explores how the margin of appreciation operates in the judicial decision-making process, reconceptualising the proportionality assessment and explaining how the nature of the right and the type of case affect the courts' reasoning.
Author : Johannes Hendrik Fahner
Publisher : Bloomsbury Publishing
Page : 318 pages
File Size : 24,56 MB
Release : 2020-08-06
Category : Law
ISBN : 1509932291
International courts and tribunals are increasingly asked to pass judgment on matters that are traditionally considered to fall within the domestic jurisdiction of States. Especially in the fields of human rights, investment, and trade law, international adjudicators commonly evaluate decisions of national authorities that have been made in the course of democratic procedures and public deliberation. A controversial question is whether international adjudicators should review such decisions de novo or show deference to domestic authorities. This book investigates how various international courts and tribunals have responded to this question. In addition to a comparative analysis, the book provides a normative argument, discussing whether different forms of deference are justified in international adjudication. It proposes a distinction between epistemic deference, which is based on the superior capacity of domestic authorities to make factual and technical assessments, and constitutional deference, which is based on the democratic legitimacy of domestic decision-making. The book concludes that epistemic deference is a prudent acknowledgement of the limited expertise of international adjudicators, whereas the case for constitutional deference depends on the relative power of the reviewing court vis-à-vis the domestic legal order.
Author : Eva R. Rieter
Publisher :
Page : 1282 pages
File Size : 12,17 MB
Release : 2010
Category : Law
ISBN :
International human rights adjudicators, while facing urgent cases, have used provisional measures in order to prevent irreparable harm, e.g. to order States to halt an expulsion, the execution of a death sentence, destruction of the natural habitat, or to ensure access to health care in detention or protection against death threats. In the practice of the various adjudicators the traditional concept of provisional measures has undergone a process of humanisation. This book addresses the question how such provisional measures can be made as persuasive as possible. Apart from the Inter-American Court, none of the human rights adjudicators motivate or publish their provisional measures. Yet this book analyses their (best) practices and obstacles, determines the underlying rationale for their use of provisional measures and establishes the core of the concept of provisional measures that all adjudicators have in common. It argues that clarity on what belongs to the core of the concept, and on what does not belong to the concept at all, enhances the persuasive force of provisional measures. The practices of the international adjudicators made accessible in this book may prove useful in the ongoing cross-fertilization occurring among these adjudicators. Moreover, the analysis provided allows individual victims, their counsel, NGOs as well as international institutions to address more effectively urgent human rights cases. About this book: 'Rieter's book is a very worthwhile and sorely needed reference. Overall, the book provides a comprehensive and organized explanation of provisional measures and the bodies that may issue them. Its most important contribution is found in the middle chapters addressing the various situations and kinds of harm previously addressed by human rights tribunals when granting provisional measures, although the practical suggestions to human rights tribunals are also surely welcome. Researchers, human rights defenders and the tribunals themselves will find much in Rieter's volume to strengthen and enrich their work. Ideally, the information it contains will contribute not only to better understanding of provisional measures, but also to coherence in, and progressive development of, this area of the law.' X on internationalhumanrightslaw.org (2010))
Author : American Bar Association. House of Delegates
Publisher : American Bar Association
Page : 216 pages
File Size : 32,32 MB
Release : 2007
Category : Law
ISBN : 9781590318737
The Model Rules of Professional Conduct provides an up-to-date resource for information on legal ethics. Federal, state and local courts in all jurisdictions look to the Rules for guidance in solving lawyer malpractice cases, disciplinary actions, disqualification issues, sanctions questions and much more. In this volume, black-letter Rules of Professional Conduct are followed by numbered Comments that explain each Rule's purpose and provide suggestions for its practical application. The Rules will help you identify proper conduct in a variety of given situations, review those instances where discretionary action is possible, and define the nature of the relationship between you and your clients, colleagues and the courts.
