The Ultimate Rule of Law

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Oxford University Press, 2004 - 193 páginas
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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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Índice

The Forms and Limits of Constitutional Interpretation
1
2 Contract Theory
5
3 Process Theory
15
4 Moral Theory
25
5 Judicial Practice
33
Liberty
36
1 Interpretivism
37
2 Pragmatism
44
Fraternity
119
2 Rethinking Old Ideas in a New Millennium
126
3 Legal Enforcement of Social and Economic Rights
129
32 The Right to the Necessities of Life
136
4 The Justice of Fair Shares
144
5 The Law of Fair Shares
148
Proportionality
159
2 The Neutrality of Proportionality
161

3 Religious Liberty and Popular Sovereignty
49
4 Religious Liberty on the Sabbath
57
5 Religious Liberty and State Morality
64
6 Revelations
72
Equality
76
2 Equal Opportunities for Women
80
3 Equal Opportunities for Lesbians and Gays
98
4 Liberty Equality and Proportionality
113
21 Proportionality and Private Law
164
22 Proportionality and Perspective
166
3 The Logic of Proportionality
169
4 The Justice of Proportionality
171
5 Proportionality and Private Schools
176
6 Proportionality and Pragmatism
182
Index
189
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Sobre el autor (2004)


David M. Beatty is Professor of Law at the University of Toronto.

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