Constitutional Justice: A Liberal Theory of the Rule of Law

Paperback | November 2, 2004

byT. R. S. Allan

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In Constitutional Justice, the concept of the rule of law is explained and defended as an ideal of constitutionalism, and the general principles of public law are set in the broader perspective of legal and political philosophy. Although primarily an essay in constitutional theory, itspractical implications are fully explained by reference to case-law examples. Drawing on the experience of a number of common law countries--especially Britain, the United States, and Australia--Allan seeks to identify the common elements of a shared constitutional framework that provides thefoundations, in each case, of a liberal democratic legal order. These common foundations include certain constraints on the exercise of state power, challenging the widespread view that the rule of law should be conceived as a purely procedural ideal.The book explains the essential connections between a range of matters critical to the relationship between citizen and state, including freedoms of speech and conscience, civil disobedience, procedural fairness, administrative justice, the right of silence, and equal protection or equality beforethe law. The limits of parliamentary sovereignty are shown to derive from its status as a common law doctrine, when the common law is interpreted as a deliberative process of moral argument and justification. Legislative supremacy is qualified by a counter-balancing judicial sovereignty, ensuringthe protection of fundamental common law rights of procedural fairness and equality.

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In Constitutional Justice, the concept of the rule of law is explained and defended as an ideal of constitutionalism, and the general principles of public law are set in the broader perspective of legal and political philosophy. Although primarily an essay in constitutional theory, itspractical implications are fully explained by refer...

T. R. S. Allan is Reader in Constitutional Law and Theory at the University of Cambridge.

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Format:PaperbackDimensions:342 pages, 9.21 × 6.14 × 0.7 inPublished:November 2, 2004Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:019926788X

ISBN - 13:9780199267880

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Table of Contents

Preface1. Introduction2. First Principles: The Rule of Law and Separation of Powers3. Legal Obligation and the Concept of Law4. Dissent and Disobedience5. Equal Justice and Due Process of Law6. Justiciability and Jurisdiction: Political Questions and the Scope of Judicial Review7. The Rule of Law and Parliamentary Sovereignty8. Fundamental Common Law Rights and Equality9. Public Reason and Political ConflictBibliographyTable of CasesIndex of namesGeneral Index

Editorial Reviews

`Constitutional Justice is a valuable contribution to the debate about form and substance in the rule of law. It is also an important work on constitutional law and theory. By emplpoying the rule of law as a mechanism for explaining the relationship between the common law and legislativeauthority, Allan offers an understanding of the dialectic between reason and sovereign will that lies at the heart of the common law constitutional tradition. ... it shows that to expose the theoretical and historical foundation of a legal tradition of a legal system as an unwritten rule of reasonis not necessarily to threaten democratic values that are supposedly reflected in sovereign legislative will....'Mark D. Walters, University of Toronto law Journal