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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

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Judicial Review in an Objective Legal System

ISBN13: 9781107534957
Published: September 2015
Publisher: Cambridge University Press
Country of Publication: UK
Format: Paperback
Price: £23.99
Hardback edition , ISBN13 9781107114494

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How should courts interpret the law? While all agree that courts must be objective, people differ sharply over what this demands in practice: fidelity to the text? To the will of the people? To certain moral ideals? In Judicial Review in an Objective Legal System, Tara Smith breaks through the false dichotomies inherent in dominant theories - various forms of originalism, living constitutionalism, and minimalism - to present a new approach to judicial review.

She contends that we cannot assess judicial review in isolation from the larger enterprise of which it is a part. By providing careful clarification of both the function of the legal system as well as of objectivity itself, she produces a compelling, firmly grounded account of genuinely objective judicial review. Smith's innovative approach marks a welcome advance for anyone interested in legal objectivity and individual rights.

Judicial Review, Jurisprudence
1. Introduction

Part I. An Objective Legal System
2. Objectivity - getting reality right
3. Objectivity in a legal system - three cornerstones
4. The moral imperative of the rule of law
5. The moral authority beneath the law
6. A written constitution - bedrock legal authority

Part II. Implications for Judicial Review
7. Judicial review - the reigning accounts' failure
8. Objective judicial review - understanding the law in context
9. Proper review in contemporary conditions