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Interpreting Constitutions A Comparative Study

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ISBN-10: 0199226474

ISBN-13: 9780199226474

Edition: 2007

Authors: Jeffrey Goldsworthy

List price: $65.00
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Description:

This book describes the constitutions of six major federations and how they have been interpreted by their highest courts. The study compares the interpretive methods that have guided the courts, and explores the reasons for major differences between these methods, looking to the different social, historical, institutional and political circumstances.
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Book details

List price: $65.00
Copyright year: 2007
Publisher: Oxford University Press, Incorporated
Publication date: 7/26/2007
Binding: Paperback
Pages: 384
Size: 6.25" wide x 9.25" long x 0.75" tall
Weight: 1.298
Language: English

Jeffrey Goldsworthy holds a Personal Chair in the Faculty of Law at Monash University in Melbourne, Australia, where his major interests are legal philosophy, and constitutional law, theory and history.

Preface
List of Contributors
Abbreviations
Introduction
The Challenges of Constitutional Interpretation
Comparing Interpretive Methods and Philosophies
An Outline of What Follows
The United States: Eclecticism in the Service of Pragmatism
The Constitution's Origins and Structure
Formation of the Constitution
Basis of the Constitution: Popular versus State Sovereignty
The Legislature and the Executive
The Supreme Court
Constitutional Amendment
Problems and Methods of Interpretation
General Problems of Constitutional Interpretation
Early Examples of Constitutional Interpretation
Text
Ordinary meaning
Technical meaning
Textual structure
'Holistic' interpretation
Text and practice
Constitutional Structure
'Representation-reinforcing Review'
Original Understanding
Appeals to Justice
Precedent
Considerations of Administrability
(Moderately) Disfavoured Interpretive Methods
Presumptive interpretation
Academic writing
Non-United States law
Conclusion
Preferred interpretive techniques
Eclecticism in practice
Techniques and subjects
Critical Evaluation
Canada: From Privy Council to Supreme Court
Introduction to Canada's Constitution
Constitution Act 1867
Constitution Act 1982
Amending Procedures
Charter of Rights
Supreme Court of Canada
Separation of Powers
Problems of Interpretation
Interpretation of the Residuary Clause
Interpretation of the Two Lists
Interpretation of the Charter of Rights
Interpretation of Aboriginal Rights
Interpretation of Judicial Independence
Sources of Interpretation
Constitution as Statute
Legislative History
Previous Decisions
Academic Writings
Comparative and International Sources
Modes of Interpretation
Originalism
Progressive Interpretation
Generous Interpretation
Purposive Interpretation
Unwritten Constitutional Principles
Influences on Interpretation
Bilingual and Bicultural Country
Aboriginal Peoples
Crisis Management by the Court
Conclusions on Interpretation
Dialogue between the Court and Legislatures
Presumption of Constitutionality
Formalism and Creativity
Australia: Devotion to Legalism
The Constitution's Origins and Structure
The Constitution
Judicial Review
The Judges
Problems and Methods of Interpretation
Causes of Interpretive Difficulties
Sources of Interpretive Principles
Current Interpretive Methodology
Words
Context
Extrinsic evidence of framers' intentions and purposes
'Structural' principles and implications
Precedent
Deference to other branches
Policy considerations
Formal and conceptual analysis
Comparative and international law
Academic writings
Weighing the Factors
Application of Interpretive Methodology
Grants of powers
Limitations on power, including rights
Changes Over Time: Recent Debates
Implied rights
Separation of powers
Original meaning and framers' intent
The Balance Between Legitimate and Illegitimate Creativity
Institutional and Cultural Factors
Critical Evaluation
Germany: Balancing Rights and Duties
Introduction
Genesis
Constitutive assembly
Constitutent power and reunification
The Basic Law: General Features
Supremacy of the Constitution
The constitutional structure
Rights, duties, and institutional guarantees
The amending process
The Federal Constitutional Court
Organization and composition
Authority and jurisdiction
Workload and decisional procedures
Problems of Interpretation
Conception of the Constitution
An objective order of values
Negative and positive rights
The horizontality of rights
Structures and relationships
Sources of Interpretation
Unwritten principles
The written Constitution
Historical materials
Judicial precedents
Academic writings
Comparative and international materials
Approaches to Interpretation
Textual interpretation
Drafting history
Structural interpretation
Teleological interpretation
Proportionality
Practical concordance
Passive virtues and dialogical techniques
Cultural and Institutional Determinants
Parliamentary Government
The Civil Law Tradition
Legal Education and Scholarship
Style of Judicial Decision-Making
Specialization
Conclusion
India: From Positivism to Structuralism
Introduction
The Indian Constitution
Salient Features
Parliamentary government
Federalism
Bill of rights
Directive principles
Separation of powers
Amendment of the Constitution
Judicial review
The Judges
Problems and Methods of Interpretation
The Choice of Methods
Positivist and structuralist interpretation
The colonial heritage
The constituent assembly and the role of the judiciary
The Legal Positivism of the Early Years
External Aids to Interpretation
Interpreting the Federal Distribution of Power
Resolving Conflicts between Constitutional Provisions
Freedom of religion
Powers and privileges of legislatures
Towards Sociological Interpretation
Affirmative action for the weaker sections of society
Freedom of speech
Property rights
Towards Structuralist Interpretation: the Basic Structure Doctrine
Emergencies
Post-emergency Judicial Activism
Liberal interpretation of fundamental rights and directive principles
Article 21 revisited
International covenants and fundamental rights
Competing values and balancing
Procedural innovations for access to justice
Transformation from adversarial to polycentric-law making through directions
The independence of the judiciary
The Court as a Political Institution
Institutional and Cultural Factors
Conclusion
South Africa: From Constitutional Promise to Social Transformation
Introduction to South Africa's Constitution
Constitution, 1996
The Colonial Constitutional Order: the Union and Apartheid Constitutions
Democratic Transition, Constitutional Principles and the 1993 Interim Constitution
Regionalism and Cooperative Governance
Rule of Law and the Bill of Rights
Amending Procedures
Constitutional Court
Sources of Interpretation
Constitution as Statute
Legislative History
Public Opinion and Constitutional Values
International and Comparative Sources
Modes of Interpretation
Generous Interpretation
Purposive Interpretation
Positive Obligations and Accountability
Duty to Develop the Common Law and Customary Law
Internal Directives for Interpretation
Problems of Interpretation
Certification and the Problem of Future Constitutional Amendments
Interpreting the Bill of Rights within the Frame of Dignity, Equality and Freedom
Interpretation of Socio-economic Rights
Interpretation of Regional and Concurrent Powers
Influences on Interpretation
History
The Historical Exclusion of Indigenous Law and the Hope of Ubuntu
Legal Legacies and Popular Experience of the Law
Conclusion
Conclusions
Introduction
Comparing Interpretive Methods and Philosophies
The United States
Canada
Australia
Germany
India
South Africa
Explaining the Differences
Legal Culture
Judicial Appointments and Homogeneity
Political Culture
The Nature and Age of the Constitution
'The Felt Necessities of the Time'
Index