Judicial Review of Legislation

Author: Gerhard van der Schyff
Publisher: Springer Science & Business Media
ISBN: 9048190029
Format: PDF, Mobi
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Constitutionalism is the permanent quest to control state power, of which the judicial review of legislation is a prime example. Although the judicial review of legislation is increasingly common in modern societies, it is not a finished project. This device still raises questions as to whether judicial review is justified, and how it may be structured. Yet, judicial review’s justification and its scope are seldom addressed in the same study, thereby making for an inconvenient divorce of these two related avenues of study. To narrow the divide, the object of this work is quite straightforward. Namely, is the idea of judicial review defensible, and what influences its design and scope? This book addresses these matters by comparing the judicial review of legislation in the United Kingdom (the Human Rights Act of 1998), the Netherlands (the Halsema Proposal of 2002) and the Constitution of South Africa of 1996. These systems present valuable material to study the issues raised by judicial review. The Netherlands is of particular interest as its Constitution still prohibits the constitutional review of acts of parliament, while allowing treaty review of such acts. The Halsema Proposal wants to even out this difference by allowing the courts also to apply constitutional norms to legislation and not only to international norms. The Human Rights Act and the South African Constitution also present interesting questions that will make their study worthwhile. One can think of the issue of dialogue between the legislature and the judiciary. This topic enjoys increased attention in the United Kingdom but is somewhat underexplored in South African thought on judicial review. These and similar issues are studied in each of the three systems, to not only gain a better understanding of the systems as such, but also of judicial review in general.

Federalism and Legal Unification

Author: Daniel Halberstam
Publisher: Springer Science & Business Media
ISBN: 9400773986
Format: PDF, Docs
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How and to what degree do federations produce uniform law within their system? This comparative empirical study addresses these questions comprehensively for the first time. Originally produced under the auspices of the International Academy of Comparative Law, this volume examines legal unification in twenty federations around the world. Each of the successive chapters presents the forces of unification through the lens of a particular federal system. A comparative overview chapter provides a detailed analysis of the overall results with compelling visual illustrations of legal unification along different dimensions (e.g. by area of law; by federation; by civil vs common law system). The overview chapter summarizes and analyzes the means and methods of legal unification and the degree of legal unification of each system, and explains the driving forces of legal unity and diversity in federations more generally. The volume presents surprising findings that should make scholars rethink their abandonment of the civil law vs. common law distinction in comparative law. ​ This book is a milestone in the study of federalism. It is a rare and welcome melding of comparative law and comparative politics using both original data and qualitative analysis. Wide-ranging, probing, and definitive, this book is an invaluable resource for students of law, politics, and multi-level governance. Gary Marks, Burton Craige Professor, UNC-Chapel Hill, and Chair in Multilevel Governance, Vrije Universiteit Amsterdam

Climate Change and the Law

Author: Erkki Hollo
Publisher: Springer Science & Business Media
ISBN: 940075440X
Format: PDF, Docs
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Climate Change and the Law is the first scholarly effort to systematically address doctrinal issues related to climate law as an emergent legal discipline. It assembles some of the most recognized experts in the field to identify relevant trends and common themes from a variety of geographic and professional perspectives. In a remarkably short time span, climate change has become deeply embedded in important areas of the law. As a global challenge calling for collective action, climate change has elicited substantial rulemaking at the international plane, percolating through the broader legal system to the regional, national and local levels. More than other areas of law, the normative and practical framework dedicated to climate change has embraced new instruments and softened traditional boundaries between formal and informal, public and private, substantive and procedural; so ubiquitous is the reach of relevant rules nowadays that scholars routinely devote attention to the intersection of climate change and more established fields of legal study, such as international trade law. Climate Change and the Law explores the rich diversity of international, regional, national, sub-national and transnational legal responses to climate change. Is climate law emerging as a new legal discipline? If so, what shared objectives and concepts define it? How does climate law relate to other areas of law? Such questions lie at the heart of this new book, whose thirty chapters cover doctrinal questions as well as a range of thematic and regional case studies. As Christiana Figueres, Executive Secretary of the United Nations Framework Convention on Climate Change (UNFCCC), states in her preface, these chapters collectively provide a “review of the emergence of a new discipline, its core principles and legal techniques, and its relationship and potential interaction with other disciplines.”

Dialogues on Human Rights and Legal Pluralism

Author: René Provost
Publisher: Springer Science & Business Media
ISBN: 9400747101
Format: PDF
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Human rights have transformed the way in which we conceive the place of the individual within the community and in relation to the state in a vast array of disciplines, including law, philosophy, politics, sociology, geography. The published output on human rights over the last five decades has been enormous, but has remained tightly bound to a notion of human rights as dialectically linking the individual and the state. Because of human rights’ dogged focus on the state and its actions, they have very seldom attracted the attention of legal pluralists. Indeed, some may have viewed the two as simply incompatible or relating to wholly distinct phenomena. This collection of essays is the first to bring together authors with established track records in the fields of legal pluralism and human rights, to explore the ways in which these concepts can be mutually reinforcing, delegitimizing, or competing. The essays reveal that there is no facile conclusion to reach but that the question opens avenues which are likely to be mined for years to come by those interested in how human rights can affect the behaviour of individuals and institutions.

The Internationalization of Law and Legal Education

Author: Jan Klabbers
Publisher: Springer Science & Business Media
ISBN: 1402094949
Format: PDF
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The internationalization of commerce and contemporary life has led to a globalization of legal standards and practices. The essays in this text explore this new reality and suggest ways in which the new legal order can be made more just and effective.

The Oxford Handbook of Comparative Constitutional Law

Author: Michel Rosenfeld
Publisher: OUP Oxford
ISBN: 0191640174
Format: PDF, ePub, Mobi
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The field of comparative constitutional law has grown immensely over the past couple of decades. Once a minor and obscure adjunct to the field of domestic constitutional law, comparative constitutional law has now moved front and centre. Driven by the global spread of democratic government and the expansion of international human rights law, the prominence and visibility of the field, among judges, politicians, and scholars has grown exponentially. Even in the United States, where domestic constitutional exclusivism has traditionally held a firm grip, use of comparative constitutional materials has become the subject of a lively and much publicized controversy among various justices of the U.S. Supreme Court. The trend towards harmonization and international borrowing has been controversial. Whereas it seems fair to assume that there ought to be great convergence among industrialized democracies over the uses and functions of commercial contracts, that seems far from the case in constitutional law. Can a parliamentary democracy be compared to a presidential one? A federal republic to a unitary one? Moreover, what about differences in ideology or national identity? Can constitutional rights deployed in a libertarian context be profitably compared to those at work in a social welfare context? Is it perilous to compare minority rights in a multi-ethnic state to those in its ethnically homogeneous counterparts? These controversies form the background to the field of comparative constitutional law, challenging not only legal scholars, but also those in other fields, such as philosophy and political theory. Providing the first single-volume, comprehensive reference resource, the Oxford Handbook of Comparative Constitutional Law will be an essential road map to the field for all those working within it, or encountering it for the first time. Leading experts in the field examine the history and methodology of the discipline, the central concepts of constitutional law, constitutional processes, and institutions - from legislative reform to judicial interpretation, rights, and emerging trends.

Courts and Comparative Law

Author: Mads Andenas
Publisher: Oxford University Press, USA
ISBN: 0198735332
Format: PDF, ePub, Mobi
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While the role of comparative law in the courts was previously only an exception, foreign sources are now increasingly becoming a source of law in regular use in supreme and constitutional courts. There is considerable variation between the practices of courts and the role of comparative law, and methods remain controversial. In the US, the issue has been one of intense public debate and it is still one of the major dividing issues in the discussion about the role of the courts. Contributing to the existing discussion of the use of comparative law in the courts, this book provides an inclusive, coherent, and practical analysis of the relevant law and jurisprudence in comparative law in the courts. It examines the consequences for court procedures and the form of judgments, as well as how foreign sources are drawn upon in private international law, European law, administrative law, and constitutional law as well as before general courts. The book also includes case studies of comparative law used in particular spheres of the law, such as tort law and consumer law. Written by practising judges and lawyers as well as leading academics, this book serves as a central reference point concerning the role of comparative law before the courts.

Legislative Delegation

Author: Bogdan Iancu
Publisher: Springer Science & Business Media
ISBN: 3642223303
Format: PDF, ePub, Mobi
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An overarching question of contemporary constitutionalism is whether equilibriums devised prior to the emergence of the modern administrative-industrial state can be preserved or recreated by means of fundamental law. The book approaches this problem indirectly, through the conceptual lens offered by constitutional developments relating to the adoption of normative limitations on the delegation of law-making authority. Three analytical strands (constitutional theory, constitutional history, and contemporary constitutional and administrative law) run through the argument. They merge into a broader account of the conceptual ramifications, the phenomenon, and the constitutional treatment of delegation in a number of paradigmatic legal systems. As it is argued, the development and failure of constitutional rules imposing limits on legislative delegation reveal the conditions for the possibility of classical limited government and, conversely, the erosion of normativity in contemporary constitutionalism.

German Administrative Law

Author: Mahendra P. Singh
Publisher: Springer Science & Business Media
ISBN: 3662024578
Format: PDF, ePub, Mobi
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It is with the greatest pleasure that I add a few introductory remarks to the book of Dr. Mahendra Pal Singh on German administrative law. Between 1981 and 1982 Dr. Singh spent nearly two years in Heidelberg, doing re search partly at the South Asia Institute of the Ruprecht Karl University and partly at the Max Planck Institute for Comparative Public Law and International Law. During his stay in the Federal Republic of Germany, Dr. Singh studied the general principles of German administrative law in a careful and admirable manner, and he has now completed the present book which is based on his studies in Heidelberg. For several reasons Dr. Singh is especially qualified to write this book: His famil iarity with the administrative law of his home country has enabled him to look upon the German law with considerable objectivity; his knowledge of the German lan guage gave him access to the vast amount of German literature and court decisions; and Dr. Singh was able to penetrate this material with a searching and scholarly spirit. The final product seems to be the first comprehensive treatise in English on German administrative law.