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Vol 23 No 5 May/June 2018

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Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review

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ISBN13: 9780472034154
Published: February 2010
Publisher: University of Michigan Press
Country of Publication: USA
Format: Paperback (Hardback in 2009)
Price: £24.50
Hardback edition , ISBN13 9780472116621

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Judges have a legal obligation to overrule unjust laws. Should a judge enforce the dictates of the law or obey the promptings of his own sense of justice?In "Judges and Unjust Laws", Douglas E. Edlin uses legal theory, constitutional history, and political philosophy in a search for the limits of the power of judicial review. He finds that common law tradition gives judges a dual mandate: to apply the law and to develop it. There is no conflict between their official duty and their moral responsibility. Consequently, judges have the authority - perhaps even the obligation - to refuse to enforce laws that they determine unjust. Indeed, Edlin argues, an independent judiciary can contribute to justice in a modern democracy.