By W. J. Waluchow
During this learn, W. J. Waluchow argues that debates among defenders and critics of constitutional money owed of rights presuppose that constitutions are kind of inflexible entities. inside this kind of notion, constitutions aspire to set up good, mounted issues of contract and pre-commitment, which defenders deliberate to be attainable and fascinating, whereas critics deem most unlikely and bad. Drawing on reflections concerning the nature of legislation, constitutions, the typical legislation, and what it's to be a democratic consultant, Waluchow urges a special idea of debts of rights that's versatile and adaptable. Adopting the sort of conception allows one not just to respond to to critics' so much critical demanding situations, but additionally to understand the function invoice of rights, interpreted and enforced through unelected judges, can sensibly play in a constitutional democracy.
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Extra resources for A Common Law Theory of Judicial Review: The Living Tree (Cambridge Studies in Philosophy and Law)
In other words, most states embrace constitutionally limited government. In such states, secondary, power-conferring rules not only create legislative, executive, and judicial powers, but they also impose different kinds of limits on the powers granted. Consider now a second imaginary state in which Regina has all the powers possessed by Rex, except that she lacks authority to legislate on matters concerning religion, and on any day of the week except Wednesday. Suppose further that Regina also lacks authority to implement, or adjudicate on the basis of, any law that exceeds the scope of her legislative competence.
We seem to have further reason, then, to question the conceptual coherence of self-imposed rule-following. It would seem that I cannot sensibly be said to be following a rule when I am free to ignore or change it at will. And if this is true, then we seem led, after all, to the following conclusions about meaningful rule-following: (a) There must be an external mechanism of some kind to enforce compliance with existing rules, a mechanism whose triggering is independent of the will of the person who is bound; and (b) meaningful constitutional limitation requires a separation of powers.
Whether this move provides Austin with an adequate means of dealing with constitutional democracies is highly questionable. For Austin’s sovereign must, as he himself notes, be a determinate individual or group of individuals (the superior) whose commands to others (the inferiors) constitute law. A command, by its very nature, has to issue from some determinate, identifiable source and be directed to some other person(s) who is (are) under threat of penalty. But if we identify the commanders with “the people,” then we end up with the paradoxical result identified by H.
A Common Law Theory of Judicial Review: The Living Tree (Cambridge Studies in Philosophy and Law) by W. J. Waluchow