The Ultimate Rule of Law
Oxford University Press, 2004 - 193 páginas
The Ultimate Rule of Law addresses the age-old tension between law and politics by examining whether the personal beliefs of judges come into play in adjudicating on issues of religious freedom, sex discrimination, and social and economic rights. Decisions by the Supreme Courts of India, Japan, Canada, the United States, Ireland, Israel, the Constitutional Courts of Germany, Hungary, South Africa, and the European Court of Human Rights on such controversial issues as government funding of religious schools, abortion, same sex marriages, women in the military, and rights to basic shelter and life saving medical treatment are evaluated and compared.
Beatty develops a radical alternative to the conventional view that in deciding these cases judges engage in an essentially interpretative, and thus subjective act, relying ultimately on their personal beliefs and political opinions. His analysis shows that it is possible to apply an impartial and objective method of judicial review, based on the principle of proportionality, which acts as an ultimate rule of law and is fully compatible with the ideals of democracy and popular sovereignty.
Controversially, Beatty concludes that although this method of judicial review originated in the United States, American judges generally appear to be far less inclined to this conception of constitutional adjudication than their counterparts in Europe, Africa, and Asia.
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The Forms and Limits of Constitutional Interpretation
2 Contract Theory
3 Process Theory
4 Moral Theory
5 Judicial Practice
2 Rethinking Old Ideas in a New Millennium
3 Legal Enforcement of Social and Economic Rights
32 The Right to the Necessities of Life
4 The Justice of Fair Shares
5 The Law of Fair Shares
2 The Neutrality of Proportionality
3 Religious Liberty and Popular Sovereignty
4 Religious Liberty on the Sabbath
5 Religious Liberty and State Morality
2 Equal Opportunities for Women
3 Equal Opportunities for Lesbians and Gays
4 Liberty Equality and Proportionality
1Cambridge 1New York Amendment American constitutional Antonin Scalia argument basic basis Bill of Rights Bork branches of government Cass Sunstein claim communities consti Constitutional Court constitutional law Court of Human decisions Democracy democratic discriminatory Dworkin economic rights EHRR elected branches enforcement equality European Court evaluate fact fair shares Fourteenth Amendment Freedom's Law gays and lesbians German Groothoom guarantee Harvard University Harvard University Press Human Rights Ibid idea interpretation interpretivism issues judges judgment judicial review judiciary jurisprudence justice legitimacy legitimate lesbians Loclmer logic majority marriage model of judicial Monahan moral neutrality opinion originalists political powers practice pragmatic principle of proportionality protection reasoning religion religious freedom religious liberty Richard Posner Ronald Dworkin rule same-sex same-sex marriages Scalia school prayers sex discrimination social and economic sodomy sodomy laws South Africa Sunstein Supreme Court Tempting of America traditional tutional Weisman welfare women