Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review

Erscheinungsjahr 2020
ISBN: 978-1-5099-4030-1
Verlag: HART PUB

Buch, Englisch, 186 Seiten, Paperback, Format (B × H): 156 mm x 234 mm, Gewicht: 272 g

The decisions courts make in constitutional rights cases pervade our political life and touch on our most basic interests and values. The spread of judicial review of legislation around the world means that courts are increasingly called on to settle matters of moral and political controversy, including assisted suicide, data privacy, anti-terrorism measures, marriage, and abortion. But doubts regarding the institutional capacities of courts for deciding such questions are growing. Judges now regularly review social science research to assess whether a law will effectively achieve its aim, and at what cost to other interests. They cite studies and statistical information from psychology, sociology, medicine, and other disciplines in which they are rarely trained. This empirical reasoning proceeds alongside open-ended moral reasoning, with judges employing terms such as equality, liberty, and autonomy, then determining what these require in concrete circumstances. This book shows that courts were not designed for this kind of moral and empirical reasoning. It argues that in comparison to legislatures, the institutional capacities of courts are deficient. Legislatures are better equipped than courts for deliberating and decision-making in regard to the kinds of factual and moral issues that arise in constitutional rights cases. The book concludes by considering the implications of comparative institutional capacity for constitutional design. Is a system of judicial review of legislation something that constitutional framers should choose to adopt? If so, in what form? For countries with systems of judicial review, practical proposals are made to remedy deficiencies in the institutional capacities of courts.

Autoren/Hrsg.

Yowell, Paul

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)

Inhaltsverzeichnis

1. Introduction

I. Removing the Blindfold

II. Scope of the Argument

III. Recovering Montesquieu

2. The Adjudication of Constitutional Rights

I. Constitutional Rights and Ordinary Legal Rights

II. Proportionality in Practice

III. Proportionality in the US?

IV. Absolute and Prima Facie Rights

V. Rights, Proportionality and Utilitarianism

VI. Rights as Interests

VII. Moral and Empirical Reasoning

VIII. Other Adjudicative Methods

IX. Conclusion

3. Are Rights Trumps?

I. The Shielded-Interest Theory

II. The Filtered-Preference Theory

III. Constitutional Rights and Statistics

IV. Revision of the Filtered-Preference Theory

4. Judicial Capacity and Empirical Research

I. Empirical Research and the Origins of Proportionality

II. Empirical Evidence in the US Supreme Court
III. Adjudicative Facts and Legislative Facts

IV. Finding Legislative Facts

V. The Courts and Social Science

VI. Case Studies

VII. Conclusion

5. Comparative Analysis of Institutional Capacities

I. The Basic Structure of Judicial Reasoning

II. The Basic Structure of Legislative Reasoning

III. Capacity for Empirical Reasoning

IV. Capacity for Moral Reasoning

V. The Tyranny of the Majority?

VI. Capacity to Protect Minorities

VII. An Historical Perspective

VIII. Conclusion

6. The Problem of Entrenchment

I. Legal Change and the Rule of Law

II. Rawls and the Perpetual Constitution

III. The Rarity of Constitutional Amendment

IV. The Legislative-Judicial Method of Reversing Nullification
Decisions

V. Conclusion

7. Judicial Review and Constitutional Design

I. The American and Kelsenian Models

II. Designing a Constitutional Court

III. Council of Revision

IV. Does the Legislature Need a Check?

V. Deference

VI. Conclusion

Über Autor(innen)

Yowell, Paul
Paul Yowell is Associate Professor of Law at the University of Oxford, and the Benn Fellow and Tutor in Law at Oriel College, Oxford.

Photo courtesy of Faculty of Law, University of Oxford.

Paul Yowell is Associate Professor of Law at the University of Oxford, and Fellow and Tutor in Law at Oriel College, Oxford.