The Judge as Political Theorist: Contemporary Constitutional by David Robertson

By David Robertson

The pass judgement on as Political Theorist examines critiques through constitutional courts in liberal democracies to raised comprehend the good judgment and nature of constitutional evaluation. David Robertson argues that the constitutional judge's function is not anything like that of the legislator or leader government, or perhaps the normal pass judgement on. relatively, constitutional judges spell out to society the implications—on the ground—of the ethical and functional commitments embodied within the nation's structure. Constitutional evaluation, in different phrases, is a sort of utilized political theory.

Robertson takes an in-depth examine constitutional choice making in Germany, France, the Czech Republic, Poland, Hungary, Canada, and South Africa, with comparisons all through to the U.S., the place constitutional evaluation originated. He additionally tackles probably the main vexing challenge in constitutional legislations today—how and whilst to restrict the rights of electorate to be able to govern. As conventional associations of ethical authority have misplaced energy, constitutional judges have stepped into the breach, considerably changing conventional understandings of what courts can and will do. Robertson demonstrates how constitutions are greater than mere founding files laying down the legislation of the land, yet more and more became statements of the values and rules a society seeks to include. Constitutional judges, in flip, see it as their undertaking to remodel these values into political perform and push for nation and society to reside as much as their beliefs.

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The example serves to show both the vital role these tests play, and the intrinsic difficulty of the quasi-empirical policy analysis that tests require. ) All in all, being a constitutional review judge is a really difficult job, and honest men and women disagree over the implications of policy and rights. The different tests do matter, but they are the product of judicial craftsmanship whether or not they are apparently spelled out in constitutional texts. The judicial realist challenge is an old one, and one that cannot fully be resolved.

Indeed the most usual phrase for this is that politically nature and function of judicial review 23 influential courts are “counter-majoritarian” institutions. ” The same sense of puzzlement is transferred to other countries. Or the assumption is that courts will always try to act in this way, and the research question becomes how and when they can get away with it.  An alternative interpretation is that if even authoritarian rulers have to tolerate courts a little, democratic leaders may have no option about tolerating them.

Of course the real difference between interpreting an ordinary law and a constitution is irreversibility—a parliament can re-pass an ordinary statute if it does not like the way courts have interpreted it. But it takes a constitutional amendment to  Osman v UK, 5 BHRC 293 (1998). Minister of Home Affairs v Fisher, AC 319 [1980] (Privy Council) The case arose under the constitution of Bermuda, which at that date used the Privy Council as its final appeal court.  18 c ha p t e r o n e undo a constitutional court’s interpretation based on that constitution, and such changes are hard to achieve politically.

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