Constitutional Justice: A Liberal Theory of the Rule of Law

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Oxford University Press, 2003 - 331 strani
In Constitutional Justice, the concept of the rule of law is explained and defended as an ideal of constitutionalism, and the general principles of public law are set in the broader perspective of legal and political philosophy. Although primarily an essay in constitutional theory, itspractical implications are fully explained by reference to case-law examples. Drawing on the experience of a number of common law countries--especially Britain, the United States, and Australia--Allan seeks to identify the common elements of a shared constitutional framework that provides thefoundations, in each case, of a liberal democratic legal order. These common foundations include certain constraints on the exercise of state power, challenging the widespread view that the rule of law should be conceived as a purely procedural ideal.The book explains the essential connections between a range of matters critical to the relationship between citizen and state, including freedoms of speech and conscience, civil disobedience, procedural fairness, administrative justice, the right of silence, and equal protection or equality beforethe law. The limits of parliamentary sovereignty are shown to derive from its status as a common law doctrine, when the common law is interpreted as a deliberative process of moral argument and justification. Legislative supremacy is qualified by a counter-balancing judicial sovereignty, ensuringthe protection of fundamental common law rights of procedural fairness and equality.
 

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Vsebina

First Principles the Rule of Law and Separation of Powers
31
1 The rule of law and equal justice
32
common law rights and public purposes
42
Fullers internal morality of law
52
Legal Obligation and the Concept of Law
61
legal and moral
67
3 A moral and constitutional conception of law
72
4 The intrinsic moral value of fair procedures
77
The Rule of Law and Parliamentary Sovereignty
201
constitutional foundations
207
3 The moral foundations of Harts rule of recognition
216
human rights and European law
225
5 The constitutional limits of parliamentary sovereignty
231
Fundamental Common Law Rights and Equality
243
1 Equality and the separation of judicial power
244
ex post facto laws and unjust legislation
250

Dissent and Disobedience
89
2 Civil disobedience and fidelity to law
95
the clear and present danger test
106
4 The right of silence as a right of protest
112
Equal Justice and Due Process of Law
121
2 Administrative justice and constitutional principle
125
the sphere of the quasijudicial
133
4 Legislative classifications and the definition of act of attainder
148
Justiciability and Jurisdiction Political Questions and the Scope of Judicial Review
161
2 Constitutional convention and political principle
179
3 Adversarial adjudication and the merits of judicial restraint
187
3 Implied rights popular sovereignty and judicial review
259
4 The right to a fair trial in criminal proceedings
271
Public Reason and Political Conflict
283
democracy and liberalism
295
3 Public purposes and private conscience
304
Bibliography
317
Table of Cases
323
Index of Names
327
General Index
329
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O avtorju (2003)


Trevor Allan is Reader in Legal and Constitutional Theory at the University of Cambridge and a Fellow of Pembroke College, Cambridge. He is the Author of `Law, Liberty, and Justice' (OUP 1993).

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