Legal Theory in the Crucible of Constitutional Justice

Legal Theory in the Crucible of Constitutional Justice

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Constitutional adjudication straddles law and politics, legal and political theory. Referring to legal controversies in Canada (free expression), Ireland (sexual morality) and Italy (religion), this book examines how constitutional judgements rely upon unarticulated political commitments. This interaction between qlawq and qmoralityq allows us to escape the dichotomy of natural law versus positivism in a time when judges increasingly act as moral guardians.This is an important problem: a theory of constitutional adjudication must pay tribute to the right of conscience. There are however problems with the modern positivist solution, in that it goes to the opposite extreme: it makes no sense of ... where two parties agree about the performance of some promisea#39; or a#39;Well if you want to do what is lawful, you must act in this waya#39;. ... Hart is surely right that there are secondary rules in legal orders which are constitutive rules - the rules of contractualanbsp;...

Title:Legal Theory in the Crucible of Constitutional Justice
Author: Rory O'Connell
Publisher:Dartmouth Publishing Company - 2000-01-01

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