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Vol 22 No 4 April/May 2017

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Principled Reasoning in Human Rights Adjudication

ISBN13: 9781782259817
Published: February 2017
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £65.00

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Implied constitutional principles form part of the landscape of the development of fundamental rights in common law jurisdictions, affecting issues ranging from the remuneration of judges to the appropriation of property by the state.

Principled Reasoning in Human Rights Adjudication offers thematic analysis of the use of the implied constitutional principles of the rule of law and separation of powers in human rights cases.

The book examines the functions played by those principles in rights adjudication in Australia, Canada, the Commonwealth Caribbean and the United Kingdom. It argues that a complete understanding of implied constitutional principles requires thoroughgoing analysis of the sources and methods of implication and of the specific roles played by such principles in the adjudicative process.

By disaggregating particular functions and placing those functions within their respective institutional contexts, this book develops an understanding of the features of cases in which implied constitutional principles are invoked and the work done by those principles.

Human Rights and Civil Liberties
1. Introduction: The Doctrinal and Institutional Context
I. Map of the Book
II. Recurring Themes

Part I: The Conceptual Context and the Meanings of the Implied Constitutional Principles
2. Implied Principles and Constitutionalism
I. Introduction
II. On Implied Principles
III. Separation of Powers and the Rule of Law in Constitutionalism
IV. Conclusion
3. Judicial Conceptions of the Rule of Law
I. Introduction
II. Conceptions of the Rule of Law
III. Development of Heads of Judicial Review
IV. Explicit References to the Rule of Law in Applying a Constitution or Bill of Rights
V. Conflicts Within the Rule of Law: Equality as an Application of the Rule of Law
VI. Conclusion
4. Applications of the Separation of Powers
I. Introduction
II. Varying Separations of Powers
III. Practical Application of the Separation of Powers Principle in Courts in the Westminster-style System
IV. Effect of the Separation of Powers on Human Rights
V. The Separation of Powers in UK Courts post-HRA
VI. Conclusion

Part II: Functions Played by the Implied Constitutional Principles of the Rule of Law and Separation of Powers
5. Implied Principles as Interpretative Aids
I. Introduction
II. Distancing Devices in Hard Cases
III. Common Ground
IV. Institutional Respect
V. Conclusion
6. Implied Principles as Grounds for Invalidating Legislation
I. Introduction
II. The Practice of Invoking Implied Principles as Grounds for Invalidating Legislation
III. Trends and Fault Lines
IV. Conclusion
7. Implied Principles as Gateways to Comparative Law
I. Introduction
II. Comparativism in Constitutional Law and Human Rights
III. Inheritance from Former Colonial Power
IV. Principled Borrowing and a Colonial Legacy
V. Developing Common Approaches to Common Problems
VI. Cyclical Borrowing
VII. Conclusion
8. The Legitimacy of Reliance on Implied Constitutional Principles in Fundamental Rights Adjudication
I. Introduction
II. Process of Implication of the Implied Constitutional Principle
III. The Type of Use Involved
IV. Determinacy
V. The Road to Defeat of Constitutional Amendments?
VI. Conclusion
9. Conclusion
I. Decisional Flexibility
II. Distancing Devices and Institutional Defence
III. Invitations
IV. Continuity and Transition
V. Autochthony
VI. Concluding Thoughts