Principled Reasoning in Human Rights Adjudication

Erscheinungsjahr 2019
ISBN: 978-1-5099-3132-3
Verlag: HART PUB

Buch, Englisch, 256 Seiten, Paperback, Format (B × H): 156 mm x 234 mm, Gewicht: 363 g

Reihe: Hart Studies in Comparative Pu

Implied constitutional principles form part of the landscape of the development of fundamental rights in common law jurisdictions, affecting issues ranging from the remuneration of judges to the appropriation of property by the state. Principled Reasoning in Human Rights Adjudication offers thematic analysis of the use of the implied constitutional principles of the rule of law and separation of powers in human rights cases. The book examines the functions played by those principles in rights adjudication in Australia, Canada, the Commonwealth Caribbean, and the United Kingdom. It argues that a complete understanding of implied constitutional principles requires thoroughgoing analysis of the sources and methods of implication and of the specific roles played by such principles in the adjudicative process. By disaggregating particular functions and placing those functions within their respective institutional contexts, this book develops an understanding of the features of cases in which implied constitutional principles are invoked and the work done by those principles.

Autoren/Hrsg.

Wheatle, Se-Shauna

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationale Menschen- und Minderheitenrechte, Kinderrechte
• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)
• Sozialwissenschaften Politikwissenschaft Politische Kultur Menschenrechte, Bürgerrechte

Inhaltsverzeichnis

1. Introduction: The Doctrinal and Institutional Context

I. Map of the Book

II. Recurring Themes

Part I: The Conceptual Context and the Meanings of the Implied Constitutional Principles
2. Implied Principles and Constitutionalism

I. Introduction

II. On Implied Principles

III. Separation of Powers and the Rule of Law in Constitutionalism

IV. Conclusion

3. Judicial Conceptions of the Rule of Law

I. Introduction

II. Conceptions of the Rule of Law

III. Development of Heads of Judicial Review

IV. Explicit References to the Rule of Law in Applying a Constitution or Bill of Rights

V. Conflicts Within the Rule of Law: Equality as an Application of the Rule of Law

VI. Conclusion

4. Applications of the Separation of Powers
I. Introduction

II. Varying Separations of Powers

III. Practical Application of the Separation of Powers Principle in Courts in the Westminster-style System

IV. Effect of the Separation of Powers on Human Rights

V. The Separation of Powers in UK Courts post-HRA

VI. Conclusion

Part II: Functions Played by the Implied Constitutional Principles of the Rule of Law and Separation of Powers
5. Implied Principles as Interpretative Aids

I. Introduction

II. Distancing Devices in Hard Cases

III. Common Ground

IV. Institutional Respect

V. Conclusion

6. Implied Principles as Grounds for Invalidating Legislation

I. Introduction

II. The Practice of Invoking Implied Principles as Grounds for Invalidating Legislation

III. Trends and Fault Lines

IV. Conclusion

7. Implied Principles as Gateways to Comparative Law

I. Introduction

II. Comparativism in Constitutional Law and Human Rights

III. Inheritance from Former Colonial Power

IV. Principled Borrowing and a Colonial Legacy

V. Developing Common Approaches to Common Problems

VI. Cyclical Borrowing

VII. Conclusion

8. The Legitimacy of Reliance on Implied Constitutional Principles in Fundamental Rights Adjudication
I. Introduction

II. Process of Implication of the Implied Constitutional Principle

III. The Type of Use Involved

IV. Determinacy

V. The Road to Defeat of Constitutional Amendments?

VI. Conclusion

9. Conclusion

I. Decisional Flexibility

II. Distancing Devices and Institutional Defence

III. Invitations

IV. Continuity and Transition

V. Autochthony

VI. Concluding Thoughts

Über Autor(innen)

Wheatle, Se-Shauna
Se-shauna Wheatle is an Associate Professor in Law at Durham Law School, University of Durham. She was previously Lecturer in Law at Exeter College, University of Oxford, where she taught Constitutional Law and Administrative Law. She achieved her Bachelor of Laws (LLB) at the University of the West Indies before attending the University of Oxford as a Rhodes Scholar to read for the Bachelor of Civil Law (BCL). She subsequently completed a Master of Philosophy in Law on the constitutionality of the criminalization of same-sex relations in Jamaica and a Doctor of Philosophy in Law at the University of Oxford on 'The Impact of Implied Constitutional Principles on Fundamental Rights Adjudication in Common Law Jurisdictions'. Se-shauna pursues research in the fields of comparative human rights, common law constitutionalism, implied constitutional principles, sexual orientation and the law, and comparative constitutionalism.

Se-shauna Wheatle is an Assistant Professor in Law in the Durham Law School, University of Durham.