Suchergebnisse

The Long Arc of Legality breaks the current deadlock in philosophy of law between legal positivism and natural law by showing that any understanding of law as a matter of authority must account for the interaction of enacted law with fundamental principles of legality. This interaction conditions law's content so that officials have the moral resources to answer the legal subject's question, 'But, how can that be law for me?' David Dyzenhaus brings Thomas Hobbes and Hans Kelsen into a dialogue with H. L. A. Hart, showing that philosophy of law must work with the idea of legitimate authority and its basis in the social contract. He argues that the legality of international law and constitutional law are integral to the main tasks of philosophy of law, and that legal theory must attend both to the politics of legal space and to the way in which law provides us with a 'public conscience'.

Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive

Baker : the unity of public law? /David Dyzenhaus --Deference from Baker to Suresh and beyond - interpreting the conflicting signals /David Mullan --The Baker effect : a new interface between the Canadian Charter of Rights and Freedoms and administrative law - the case of discretion /Geneviève Cartier --The rule of policy : Baker and the impact of judicial review on administrative discretion /Lorne Sossin --'Alert, alive and sensitive' : Baker, the duty to give reasons, and the ethos of justification in Canadian public law /Mary Liston --The internal morality of administration : the form and structure of reasonableness /Evan Fox-Decent --The state of law's borders and the law of states' borders /Audrey Macklin --Refugees, asylum seekers, the rule of law and human rights /Colin Harvey --Judicial review of expulsion decisions : reflections on the UK experience /Nicholas Blake QC --Rights in the balance : non-citizens and state sovereignty under the Charter /Ninette Kelley --Common law reason and the limits of judicial deference /Trevor Allan --Of cocoons and small 'c' constitutionalism : the principle of legality and an Australian perspective on Baker /Margaret Allars --Judicial review, intensity and deference in EU law /Paul Craig --A hesitant embrace : Baker and the application of international law by Canadian courts /Jutta Brunnée & Stephen J. Toope --Authority, influence and persuasion : Baker, Charter values and the puzzle of method /Mayo Moran --The common law constitution and legal cosmopolitanism/Mark D. Walters --The tub of public law /Michael Taggart

1. Recrafting the Rule of Law -- PART I:LAW UNDER STRESS: 2. A Defence of Radbruch's Formula ; 3. The Interpretation and Invalidity of Unjust Laws ; 4. Legality Without a Constitution: South Africa in the 1980s ; 5. Delivering Positivism from Evil ; 6. Legal Positivism and American Slave Law: The Case of Chief Justice Shaw ; 7. The Rule of Law and Judicial Review: Reflections on the Israeli Constitutional Revolution -- PART II: RECONCEIVING THE RULE OF LAW: 8. Rhetoric and the Rule of Law ; 9. Utopia and the Rule of Law ; 10. The Rule of Law Revisited: Democracy and Courts -- PART III: THE LIMITS OF LEGAL ORDER: 11. Parks, Dogs, and the Rule of Law: Post-communist Reflections ;12. Globalization and the Fate of Law ; 13. Supranational Challenges to the Rule of Law: The Case of the European Union ; 14. Constructing Law's Mandate ; 15. Administrative Policy-making: Rule of Law or Bureaucracy? ; 16. The Real Democracy Problem in Administrative Law.