Bücher der Reihe Cambridge Studies in Constitutional Law

This revisionary perspective on South Africa's celebrated Constitutional Court draws on historical and empirical sources alongside conventional legal analysis to show how support from the African National Congress (ANC) government and other political actors has underpinned the Court's landmark cases, which are often applauded too narrowly as merely judicial achievements. Standard accounts see the Court as overseer of a negotiated constitutional compromise and as the looked-to guardian of that constitution against the rising threat of the ANC. However, in reality South African successes have been built on broader and more admirable constitutional politics to a degree no previous account has described or acknowledged. The Court has responded to this context with a substantially consistent but widely misunderstood pattern of deference and intervention. Although a work in progress, this institutional self-understanding represents a powerful effort by an emerging court, as one constitutionally serious actor among others, to build a constitution.

Constitutions around the world have overwhelmingly been the creation of men, but this book asks how far constitutions have affirmed the equal citizenship status of women or failed to do so. Using a wealth of examples from around the world, Ruth Rubio-Marin considers constitutionalism from its inception to the present day and places current debates in their vital historical context. Rubio-Marin adopts an inclusive concept of gender and sexuality, and discusses the constitutional gender order as it has been shaped by debates such those around same-sex marriage and the rights of trans persons. Covering a wide range of themes, from reproductive rights to political gender quotas and violence against women, this book offers a comprehensive feminist account of constitutional law. Truly international in scope and ambitious in subject matter, this is an invaluable resource for students and scholars working on gender within multiple disciplines.

The first in-depth treatment of the judicial review of non-statutory executive powers challenges the conventional wisdom on both the rationale and doctrines of judicial review, suggesting a return to neglected concepts, including the idea of office and official action. A must-read for students, practitioners, and scholars of public law.

Political disagreement is a fact of life. Such conflict can prompt people to stand for public office and seek to realise political change. Others take a different route; they start their own country. Micronations and the Search for Sovereignty is the first comprehensive examination of the phenomenon of people purporting to secede and create their own country. It analyses why micronations are not states for the purposes of international law, considers the factors that motivate individuals to separate and found their own nation, examines the legal justifications that they offer and explores the responses of recognised sovereign states. In doing so, this book develops a rich body of material through which to reflect on conventional understandings of statehood, sovereignty and legitimate authority. Authored in a lively and accessible style, Micronations and the Search for Sovereignty will be valuable reading for scholars and general audiences.

This book offers one of the rare empirical studies on the different meanings of proportionality as part of a global constitutional discourse. It develops and applies a theoretically informed comparative methodology for the study of differences in the use of legal transfers. Beyond the transplant versus culture controversy, it enriches our understanding of the relationship between law and its social context. Beyond the common law and civil law cleavage, it provides an in-depth comparison of French, English and Greek judicial review, rendering some core features of these systems accessible to non-initiated readers. The last part of the book provides insights as to the different visions of Europe underlying different phases of European integration and thus enriches our understanding of the process of integration through law.

In times of disenchantment with democracy and 'erosion' of the system of checks and balances, the book proposes to reflect upon the main problems of our constitutional democracies, from a particular regulative ideal: that of the conversation among equals.

Populist, illiberal regimes that claim power in the name of relative majorities are often characterized as quasi-authoritarian. Analysing the constitutional system of illiberal democracies and illiberal phenomena in 'mature democracies', the author argues that this drift to mild despotism is not authoritarianism, but an abuse of constitutionalism.

There are many books about the promises made by human rights but few that deal with the remedies that are and should be available when rights are violated. This book examines remedies in international law but also the domestic law of the US, UK, South Africa, New Zealand and Canada.

The materials translated here provide the intellectual background to Carl Schmitt's political and constitutional theory. This book will be of interest to legal and constitutional theorists, political theorists and historians of political thought more generally, and it will be required reading for all scholars who work on Schmitt.

This volume will interest academic audiences across the fields of human rights law, public law, constitutional theory, jurisprudence, political theory, and political science. It will appeal to lawyers and judges reviewing legislation for compliance with rights, and political scientists and legislators interested in institutional dialogue.

This volume will interest academic audiences across the fields of human rights law, public law, constitutional theory, jurisprudence, political theory, and political science. It will appeal to lawyers and judges reviewing legislation for compliance with rights, and political scientists and legislators interested in institutional dialogue.

Examining doctrinal, conceptual and normative dimensions of judicial review of administrative action, Dean R. Knight explores how Anglo-Commonwealth courts vary the depth of scrutiny in a variety of ways and critically appraises the virtues of different approaches.

Presenting a contrarian voice against a growing trend toward ever greater reliance on courts as democracy-builders, this book is aimed at a broad community of public lawyers, political scientists, and policymakers concerned with the role constitutional courts and regional human rights courts can play in developing democracy in post-authoritarian states.

Stephen Gardbaum argues that recent bills of rights in Canada, New Zealand, the United Kingdom and Australia are an experiment in a new third way of organizing basic institutional arrangements in a democracy. This 'new Commonwealth model of constitutionalism' promises both an alternative to the conventional dichotomy of legislative versus judicial supremacy and innovative techniques for protecting rights. As such, it is an intriguing and important development in constitutional design of relevance to drafters of bills of rights everywhere. In developing the theory and exploring the practice of this new model, the book analyses its novelty and normative appeal as a third general model of constitutionalism before presenting individual and comparative assessments of the operational stability, distinctness and success of its different versions in the various jurisdictions. It closes by proposing a set of general and specific reforms aimed at enhancing these practical outcomes.

Jacob Weinrib's theory of public law elaborates on the idea of human dignity in order to illuminate and justify innovations in constitutional practice, including rights-based judicial review and proportionality. It will be of interest to legal, political and constitutional theorists, constitutional lawyers and judges, and scholars of comparative constitutional law.

For those interested in the relationship between politics, power and constitutions, this book examines the idea of prerogative power and reason of state by looking at the theoretical debates surrounding the development of the British constitution and the British Empire, singling out the East India Company as a focal point.

This book examines how the New Zealand Bill of Rights Act and the UK's Human Rights Act influence legislative decision-making and explores to what extent governmental and parliamentary behaviours have changed on key policy issues which present serious challenges for contemporary democracies in an age of rights.

As the terminal crisis of the Weimar Republic intensified, Hans Kelsen and Carl Schmitt debated whether the Weimar Constitution should be protected by a constitutional court or by presidential dictatorship. This volume provides the first translation of Kelsen's and Schmitt's famous and influential exchange on the 'Guardian of the Constitution'.

Yoav Dotan examines the role of government lawyers in the rise of judicial activism in Israel and explores the question of judicial mobilization at large. Contains an original, large-scale, quantitative study of around 2,000 court files.

The language of 'balancing' and 'proportionality' is pervasive in contemporary constitutional law theory and practice around the world. Taking post-war US and German constitutional jurisprudence as detailed case studies, this book is the first to argue that this familiar language has radically different meanings in different settings.

Although the most important constitutional doctrine worldwide, a thorough cultural and historical examination of proportionality has not taken place until now. This comparison of proportionality with its counterpart in American constitutional law - balancing - shows how culture and history can create deep differences in seemingly similar doctrines. Owing to its historical origin in Germany, proportionality carries to this day a pro-rights association, while the opposite is the case for balancing. In addition, European legal and political culture has shaped proportionality as intrinsic to the state's role in realizing shared values, while in the United States a suspicion-based legal and political culture has shaped balancing in more pragmatic and instrumental terms. Although many argue that the USA should converge on proportionality, the book shows that a complex web of cultural associations make it an unlikely prospect.

The second edition of Judges on Trial examines the modern meaning of judicial independence. The growth of constitutional adjudication and the need for judicial accountability require a renewed approach to a strained notion. The rules and practices shaping the culture of judicial independence in England are discussed as an illustration.

This detailed case study of the performance of the South African Constitutional Court is aimed at comparative judicial politics scholars with an interest in the role of constitutional courts in new democracies and at political scientists and legal academics with an interest in South Africa.

Janet McLean explores how the common law has personified the state and how those personifications affect and reflect the state's relationship to bureaucracy, sovereignty and civil society, the development of public law norms, the expansion and contraction of the public sphere with nationalization and privatization, state responsibility and human rights. Treating legal thought as a variety of political thought, she discusses writers such as Austin, Maitland, Dicey, Laski, Robson, Hart, Griffith, Mitchell and Hayek in the context of both legal doctrine and broader intellectual movements.

Written with lawyers, social scientists, political theorists, and human rights advocates in mind, Judging Social Rights makes a normative and empirically grounded case for constitutional social rights. It presents an incrementalist theory of adjudication that gives prominence to the democratic role and institutional capacity of the judiciary.

Having identified proportionality as the main tool for limiting constitutional rights, Aharon Barak explores its four components (proper purpose, rational connection, necessity and proportionality stricto sensu) and discusses the relationships between proportionality and reasonableness and between courts and legislation. He goes on to analyse the concept of deference and to consider the main arguments against the use of proportionality (incommensurability and irrationality). Alternatives to proportionality are compared and future developments of proportionality are suggested.

Arguing that judges sacrifice individual rights by using less than their full powers in order to appear democratically legitimate, Robert Leckey provides a detailed comparative account of how judges apply new bills of rights in Canada, South Africa and the United Kingdom, and how their practices deny justice to individuals.