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Law in Politics Politics in Law

Law in Politics  Politics in Law Author David Feldman
ISBN-10 9781782252832
Release 2014-07-18
Pages 294
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A great deal has been written on the relationship between politics and law. Legislation, as a source of law, is often highly political, and is the product of a process or the creation of officials often closely bound into party politics. Legislation is also one of the exclusive powers of the state. As such, legislation is plainly both practical and inevitably political; at the same time most understandings of the relationship between law and politics have been overwhelmingly theoretical. In this light, public law is often seen as part of the political order or as inescapably partisan. We know relatively little about the real impact of law on politicians through their legal advisers and civil servants. How do lawyers in government see their roles and what use do they make of law? How does politics actually affect the drafting of legislation or the making of policy? This volume will begin to answer these and other questions about the practical, day-to-day relationship between law and politics in a number of settings. It includes chapters by former departmental legal advisers, drafters of legislation, law reformers, judges and academics, who focus on what actually happens when law meets politics in government.



Parliament

Parliament Author Alexander Horne
ISBN-10 9781509906444
Release 2016-06-02
Pages 344
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This collection of essays by leading academics, lawyers, parliamentarians and parliamentary officials provides a critical assessment of the UK Parliament's two main constitutional roles-as a legislature and as the preeminent institution for calling government to account. Both functions are undergoing change and facing new challenges. Part 1 (Legislation) includes chapters on Parliament's emerging responsibilities for pre-legislative scrutiny of government Bills and for evaluating proposed legislation against explicit constitutional standards. The impact on legislation of the European Union and the growing influence of the House of Lords are also examined. Part 2 (Accountability) investigates how Parliament operates to scrutinise areas of executive action previously often shielded from effective parliamentary oversight, including national security, war-making powers and administrative justice. There are also chapters on parliamentary reform, including analysis of the House of Commons 'Wright reforms', parliamentary sovereignty, privilege and the European Convention on Human Rights, Euroscepticism, and parliamentary sovereignty and the regulation of lobbyists. The book will be of interest to anyone who is curious about the work of Parliament and is aimed at legal academics, practitioners and political scientists.



Parliamentary Sovereignty in the UK Constitution

Parliamentary Sovereignty in the UK Constitution Author Michael Gordon
ISBN-10 9781782255802
Release 2015-04-30
Pages 262
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The status of the doctrine of parliamentary sovereignty in the contemporary UK Constitution is much contested. Changes in the architecture of the UK Constitution, diminishing academic reverence for the doctrine, and a more expansive vision of the judicial role, all present challenges to the relevance, coherence and desirability of this constitutional fundamental. At a time when the future of the sovereignty of Parliament may look less than assured, this book develops an account of the continuing significance of the doctrine. It argues that a rejuvenation of the manner and form theory is required to understand the present status of parliamentary sovereignty. Addressing the critical challenges to the doctrine, it contends that this conception of legally unlimited legislative power provides the best explanation of contemporary developments in UK constitutional practice, while also possessing a normative appeal that has previously been unrecognised. This modern shift to the manner and form theory is located in an account of the democratic virtue of parliamentary sovereignty, with the book seeking to demonstrate the potential that exists for Parliament Â? through legislating about the legislative process Â? to revitalise the UK's political constitution.



Parliament and the Law

Parliament and the Law Author Alexander Horne
ISBN-10 9781782252597
Release 2014-07-18
Pages 404
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Parliament and the Law is an edited collection of essays, sponsored by the Study of Parliament Group and written by leading constitutional lawyers, practitioners and parliamentary officials, with a Foreword by Sir Ross Cranston (a Justice of the High Court and former Solicitor-General). The book provides a wide-ranging overview of the ways in which the law applies to Parliament and considers how recent changes to our constitutional arrangements (in particular the Human Rights Act, the establishment of a Supreme Court and increasing devolution) have impacted on Parliament as an institution. It includes discussion of a number of topical issues, including: the operation of parliamentary privilege in civil and criminal law (examining the recent examples of 'super injunctions' and Members' expenses); the powers of Parliament's Select Committees; the work of Parliament's 'watchdog' Committees: the Joint Committee on Human Rights and the House of Lords Constitution Committee. It reflects on the effect of Freedom of Information on Parliament. It also discusses arguments that have been raised in favour of a new Bill of Rights for the United Kingdom and arguments for and against the continuation of the doctrine of Parliamentary sovereignty. The book is aimed at legal academics, practitioners, political scientists, parliamentarians and parliamentary officials and others interested in the relationships between Parliament and the law. "This book, published under the auspices of the Study of Parliament Group, is very much to be welcomed. The editors are to be applauded for their initiative [and] the various authors have a profound knowledge of Parliament's operation. The essays are a mine of information. For that reason the chapters will prove a springboard for further analysis. But the book is more than that because it raises some profound issues about Parliament's future and its relationship with other institutions of the state. Those in Parliament, whether as Members or officials, and those interested in Parliament, such as academics, public officials (including, dare I say judges), and many others besides, will all learn from it." From the Foreword by Sir Ross Cranston FBA



Arendtian Constitutionalism

Arendtian Constitutionalism Author Christian Volk
ISBN-10 9781509901586
Release 2015-07-30
Pages 168
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The meaning and function of law in Hannah Arendt's work has never been the subject of a systematic reconstruction. This book examines Arendt's work and reconstructs her ideas through political, legal and constitutional theory, and shows that her engagement with law is continuous as well as crucial to an adequate understanding of her political thought. The author argues that Arendt was very much concerned with the question of an adequate arrangement of law, politics and order ? the so-called triad of constitutionalism. By adopting this approach, the author suggests an alternative interpretation of Arendt's thought, which sees her as thinker of political order who considers as crucial a stable and free political order in which political struggle and dissent can occur. Endorsements 'Christian Volk is one of the most original and penetrating Arendt interpreters of his generation. This book addresses some of the most misunderstood aspects of Arendtian thought ? namely, her views of law and constitutionalism. Volk does away with a lot of misconceptions and guides us to a novel view of Arendt on these questions and beyond'. Seyla Benhabib, Yale University 'One could not imagine something new on Arendt these days. Too much has been written in the last decades. But this volume discloses new land and gives a fresh look at Arendt's theory of the political. A great book, and a must for every reading list'. Hauke Brunkhorst, University of Flensburg 'Hannah Arendt is famous for her unusual conception of politics, but as Christian Volk's rich and seminal study shows, Arendt's political theory goes hand in hand with a distinctive understanding of law. Volk persuasively charts the emergence of Arendt's complementary approaches to law and politics out of her analysis of the crisis of the European nation-state, and tests the power of her thought by bringing it into a fresh dialogue with an unusually wide spectrum of contemporary theorists. An impressive work that deserves the new audience it will find in this welcome translation'. Patchen Markell, University of Chicago 'Christian Volk splendidly discovers Hannah Arendt as a legal theorist. Lawyers interested in her seminal work should just read this book'. Christoph Möllers, Humboldt University Berlin 'As Christian Volk persuasively demonstrates, reading Arendt as a constitutional theorist is more than just adding another dimension to the interpretation of her work. Based on comprehensive textual evidence, he can instead show that this has important conceptual implications which shed a completely new light on the basic aspects of her overall theoretical outlook. Emphasising the procedural grounding of her understanding of democracy, it thus presents a major challenge to many widely held beliefs about Arendt ́s work and an irresistible invitation to reinvestigate the foundations, promises and prospects of radical politics.' Rainer Schmalz-Bruns, Leibniz University of Hanover



Comparative Constitutional Theory

Comparative Constitutional Theory Author Gary Jacobsohn
ISBN-10 9781784719135
Release 2018
Pages 552
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The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.



Israeli Constitutional Law in the Making

Israeli Constitutional Law in the Making Author Gideon Sapir
ISBN-10 9781782251859
Release 2014-07-18
Pages 578
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In the domain of comparative constitutionalism, Israeli constitutional law is a fascinating case study constituted of many dilemmas. It is moving from the old British tradition of an unwritten constitution and no judicial review of legislation to fully-fledged constitutionalism endorsing judicial review and based on the text of a series of basic laws. At the same time, it is struggling with major questions of identity, in the context of Israel's constitutional vision of 'a Jewish and Democratic' state. Israeli Constitutional Law in the Making offers a comprehensive study of Israeli constitutional law in a systematic manner that moves from constitution-making to specific areas of contestation including state/religion relations, national security, social rights, as well as structural questions of judicial review. It features contributions by leading scholars of Israeli constitutional law, with comparative comments by leading scholars of constitutional law from Europe and the United States.



Principles of European Constitutional Law

Principles of European Constitutional Law Author Armin von Bogdandy
ISBN-10 9781841134642
Release 2006
Pages 833
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While politics wrestles with the Constitutional Treaty, this volume presents a European constitutional law, not as a mere project but as binding law. There are good reasons to treat the European Union's current primary law as constitutional law. It establishes public power, legitimates legal acts, provides a citizenship, protects fundamental rights, and regulates the relationships among legal orders as well as between law and politics. Reconstructing primary law as constitutional law yields useful insights, as this volume demonstrates. The contributions present theoretical and doctrinal fundamentals from the perspective of German-speaking scholarship, reflect the state of research, clarify methodological approaches, illuminate legal doctrines and assumptions, and identify research desiderata. The perspectives encompass varying methodologies and differing political approaches to integration. This book will be invaluable to all teachers of European Union Law.



Comparative Federalism

Comparative Federalism Author Francesco Palermo
ISBN-10 9781509901517
Release 2017-10-05
Pages 504
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This is the first comprehensive book that explores the subject of federalism from the perspective of comparative constitutional law, whilst simultaneously placing a strong emphasis on how federal systems work in practice. This focus is reflected in the book's two most innovative elements. First, it analyses from a comparative point of view how government levels exercise their powers and interact in several highly topical policy areas like social welfare, environmental protection or migrant integration. Second, the book incorporates case law boxes discussing seminal judgments from federal systems worldwide and thus demonstrates the practical impact of constitutional jurisprudence on policymakers and citizens alike. "This is simply the best analysis of contemporary federalism currently available. It is comprehensive in its coverage, thorough in its analysis, and persuasive in its conclusions. Every student of federalism, from novice to expert, will find benefit from this volume.†? Professor G Alan Tarr, Rutgers University "Wading through the thicket of the multiple forms that the federal idea has taken in the contemporary world, this remarkably comprehensive treatise backed by case law fills a long-awaited gap in the literature on comparative federalism. It combines a mastery of the literature on federal theory with a critical understanding of how it plays out in practice. Outstanding in the breadth of its scope, this magisterial survey will serve as a work of reference for generations of scholars who seek to understand how federalism works in developed as well as developing countries.†? Professor Balveer Arora, Jawaharlal Nehru University New Delhi "This book is an extraordinarily handy work of reference on the diverse federal-type systems of the world. It handles both shared principles and differences of perspective, structure or practice with confidence and ease. It will become a standard work for scholars and practitioners working in the field.†? Professor Cheryl Saunders, The University of Melbourne "This is a remarkable book – for its sheer breadth of scope, combining detail of practice with analysis of federal principles, and for its fresh look at federalism. With great erudition, drawing on world scholarship and the practice of federalism across the globe, Palermo and Kössler magnificently traverse from the ancient roots of federalism to the contemporary debates on ethno-cultural dimensions and participatory democracy. The book sets a new benchmark for the study of comparative federalism, providing new insights that are bound to influence practice in an era where federal arrangements are expected to deliver answers to key governance and societal challenges.†? Professor Nico Steytler, University of the Western Cape



Foundations of Public Law

Foundations of Public Law Author Martin Loughlin
ISBN-10 9780191648182
Release 2012-09-27
Pages 528
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Foundations of Public Law offers an account of the formation of the discipline of public law with a view to identifying its essential character, explaining its particular modes of operation, and specifying its unique task. Building on the framework first outlined in The Idea of Public Law (OUP, 2003), the book conceives public law broadly as a type of law that comes into existence as a consequence of the secularization, rationalization and positivization of the medieval idea of fundamental law. Formed as a result of the changes that give birth to the modern state, public law establishes the authority and legitimacy of modern governmental ordering. Public law today is a universal phenomenon, but its origins are European. Part I of the book examines the conditions of its formation, showing how much the concept borrowed from the refined debates of medieval jurists. Part II then examines the nature of public law. Drawing on a line of juristic inquiry that developed from the late sixteenth to the early nineteenth centuries-extending from Bodin, Althusius, Lipsius, Grotius, Hobbes, Spinoza, Locke and Pufendorf to the later works of Montesquieu, Rousseau, Kant, Fichte, Smith and Hegel-it presents an account of public law as a special type of political reason. The remaining three Parts unpack the core elements of this concept: state, constitution, and government. By taking this broad approach to the subject, Professor Loughlin shows how, rather than being viewed as a limitation on power, law is better conceived as a means by which public power is generated. And by explaining the way that these core elements of state, constitution, and government were shaped respectively by the technological, bourgeois, and disciplinary revolutions of the sixteenth century through to the nineteenth century, he reveals a concept of public law of considerable ambiguity, complexity and resilience.



The Codes of the Constitution

The Codes of the Constitution Author Andrew Blick
ISBN-10 9781509904105
Release 2016-09-22
Pages 272
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This book describes an astounding feat of constitutional writing and publication. For a number of decades, officials working across different branches of the United Kingdom (UK) constitution have been engaged in a series of separate projects. Taken in their totality, they amount to a vast enterprise. Yet, until now, no-one has fully recognised or critically analysed what has taken place. There has been a proliferation in the UK of publicly available codes, normally lacking a basis in statute, providing official accounts of a variety of different features of UK constitutional rules and principles. They cover institutions ranging from the Cabinet to the Civil Service to the judiciary, and relationships between entities such as central government and the devolved executives; and between the UK executive and the Westminster Parliament. Among them are prominent texts such as the Ministerial Code, the Cabinet Manual, the Guide to Judicial Conduct and the devolution Memorandum of Understanding Â? as well as more obscure documents that nonetheless contain important stipulations regarding the operation of the system. Similar developments have taken place in countries including Australia, Canada and New Zealand. The author explores the history of this phenomenon in the UK, how it functions today here and elsewhere in the Commonwealth, and its implications for the UK constitution.



Administrative Law and Judicial Deference

Administrative Law and Judicial Deference Author Matthew Lewans
ISBN-10 9781782253358
Release 2016-01-28
Pages 272
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In recent years, the question whether judges should defer to administrative decisions has attracted considerable interest amongst public lawyers throughout the common law world. This book examines how the common law of judicial review has responded to the development of the administrative state in three different common law jurisdictions ? the United Kingdom, the United States of America and Canada ? over the past 100 years. This comparison demonstrates that the idea of judicial deference is a valuable feature of modern administrative law, because it gives lawyers and judges practical guidance on how to negotiate the constitutional tension between the democratic legitimacy of the administrative state and the judicial role in maintaining the rule of law.



Human Rights Between Law and Politics

Human Rights Between Law and Politics Author Petr Agha
ISBN-10 9781509902828
Release 2017-08-24
Pages 208
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This book analyses human rights in post-national contexts and demonstrates, through the case law of the European Court of Human Rights, that the Margin of Appreciation doctrine is an essential part of human rights adjudication. Current approaches have tended to stress the instrumental value of the Margin of Appreciation, or to give it a complementary role within the principle of proportionality, while others have been wholly critical of it. In contradiction to these approaches this volume shows that the doctrine is a genuinely normative principle capable of balancing conflicting values. It explores to what extent the tension between human rights and politics, embodied in the doctrine, might be understood as a mutually reinforcing interplay of variables rather than an entrenched separation. By linking the interpretation of the Margin of Appreciation doctrine to a broader conception of human rights, understood as complex political and moral norms, this volume argues that the doctrine can assist in the formulation of the common good in light of the requirements of the Convention.



Constitutionalising Secession

Constitutionalising Secession Author David Haljan
ISBN-10 9781782253310
Release 2014-11-01
Pages 448
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Constitutionalising Secession proceeds from the question, 'What, if anything, does the law have to say about a secession crisis?' But rather than approaching secession through the optic of political or nationalist institutional accommodation, this book focuses on the underpinnings to a constitutional order as a law-making community, underpinnings laid bare by secession pressures. Relying on the corrosive effects of secession, it explores the deep structure of a constitutional order and the motive forces creating and sustaining that order. A core idea is that the normativity of law is best understood, through a constitutional optic, as an integrative, associative force. Constitutionalising Secession critically analyses conceptions of constitutional order implicit in the leading models of secession, and takes as a leading case-study the judicial and legislative response to secession in Canada. The book therefore develops a concept of constitutionalism and law-making - 'associative constitutionalism' - to describe their deep structure as a continuing, integrative process of association. This model of a dynamic process of value formation can address both the association and the disassociation of constitutional systems.



Lord Sumption and the Limits of the Law

Lord Sumption and the Limits of the Law Author Nicholas Barber
ISBN-10 9781509902170
Release 2016-02-25
Pages 248
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In Lord Sumption and the Limits of the Law, leading public law scholars reflect on the nature and limits of the judicial role and its implications for human rights protection and democracy. The starting point for this reflection is Lord Sumption's lecture, 'The Limits of the Law', which grounds a wide-ranging discussion of questions including the scope and legitimacy of judicial law-making, the interpretation of the European Convention on Human Rights, and the continuing significance and legitimacy, or otherwise, of the European Court of Human Rights. Lord Sumption ends the volume with a substantial commentary on the responses to his lecture.



EU Constitutional Law

EU Constitutional Law Author Allan Rosas
ISBN-10 9781509909155
Release 2018-05-17
Pages 352
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The third edition of this acclaimed book continues the story of the EU's constitutional journey. The EU's constitution, composed of myriad legal texts, case law and practice, is no less of a moving target than before and the pace of change has, if anything, increased since the publication of the second edition. In a constantly challenging geopolitical context, the EU faces unprecedented political, economic and cultural trials, all of which impact upon the evolution of its constitution. In particular, the migration crisis has given rise to the need for substantial revision of the chapter dealing with the area of freedom, security and justice, and the institutional reforms embarked upon in the quest to restore financial order have taken a more structured form following the inception of a European banking union. Fully updated to include the ramifications of Brexit, the book succeeds – where others have struggled – in making sense of the EU's complex constitutional order, focusing on its essential features but taking into account the profound changes that have taken place over the past 20 years. The EU has become much more than an internal economic market. Recently it may even be argued that the focus of action has been in areas such as immigration and third-country nationals, security and defence policy, and penal law and procedure, and the work towards creating a European banking union underlines the continued need to monitor economic and fiscal policy. Eschewing too much detail, the authors underline the essential values, principles and objectives of the integration regime as well as its basic normative structure and hierarchy. In this context, the decentralised nature of the EU is highlighted as an integral part of its constitutional make-up. Recurring themes include European citizenship, fundamental rights and the rule of law. The book also confronts head-on the problems and challenges facing the Union and the gap which is often perceived between lofty ideals and harsh realities. The book will be useful to students of EU law and European integration but will also appeal to a broader audience of researchers and practitioners, including political scientists.



Repairing British Politics

Repairing British Politics Author Richard Gordon
ISBN-10 9781847318053
Release 2010-02-17
Pages 198
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The constitutional crisis of 2009, sparked by the 'expenses scandal', led rapidly to the questioning of our entire political order. This book presents a major new constitutional analysis of the way we are governed. At the heart of the crisis lay an absence of accountability at the core of government. Repairing British Politics presents some key arguments for constitutional reform focused around a draft written Constitution underpinned by a new principle of constitutional supremacy. This would replace parliamentary sovereignty, which makes accountability more difficult. A written Constitution is not merely desirable; it is a constitutional necessity if Britain is to have true representative democracy. It would change our lives for the better by defining the over-arching values which we consider inviolable. The result would be a more rational, humane and inclusive society based on greater citizen involvement. Without a clear focus, constitutional reform will not happen. The approach taken here is therefore essentially practical and designed to provide a focal point around which a wider debate might be centred. Written in an easily accessible style and including a Glossary of Essential Terms Repairing British Politics is intended as much for the intelligent general reader as for those professionally interested in law and politics. Part 1 sets out a number of arguments in favour of a written Constitution, as well as the most common objections. Part 2 presents a working draft in the form of one possible model for a Constitution. Observations and explanatory notes are attached to each section of this draft Constitution. This model Constitution is intended as the first stage in a public debate, designed to provoke further discussion about the content and method of legislating into law a written Constitution. Part 3 contains the draft of the Act of Parliament that would be needed to introduce any form of constitutional change. We are currently facing a crisis of trust in British politics. Whichever party forms the government the questions raised in Repairing British Politics will not go away.