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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

Edited by: Ewan McKendrick
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Legal Theory in the Crucible of Constitutional Justice

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Rory O'ConnellDepartment of Law, University of Lancaster

ISBN13: 9780754620976
ISBN: 0754620972
Published: October 2000
Publisher: Ashgate Publishing Ltd
Format: Hardback
Price: Out of print

A discussion of the fundamental laws of three liberal democratic states - Canada, Ireland and Italy - and the role played by the highest judicial authorities of those states in interpreting the law. The interpretations given are significant for the states, and frequently involve unexpected interpretations of the law.;The author addresses the interrelation between constitutional interpretation and political morality, referring both to the work of constitutional judges and to the work of theoretical writers. He argues that constitutional judges, in the task of constitutional interpretation, try to reconstruct the legal materials before them, to provide the most acceptable reconstruction of the legal system from the viewpoint of political morality. In doing this they rely on (legalized) criteria of political morality to judge the correctness of the interpretation. Their reconstruction is a contribution to the public debate on the legitimacy of the legal order.

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Introduction - legal theory in the crucible of constitutional justice; going back to basic norm(s); political argument - intersubjectivism; the politics of equality; the private is political; the two Romes; constitutional justice and post-positivist legal systems; final thoughts.