The Constitution of Law: Legality in a Time of Emergency
  • The Constitution of Law: Legality in a Time of Emergency
  • The Constitution of Law: Legality in a Time of Emergency

The Constitution of Law: Legality in a Time of Emergency

by David Dyzenhaus
     
 

Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an… See more details below

Overview

Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.

Product Details

ISBN-13:
9780521677950
Publisher:
Cambridge University Press
Publication date:
10/31/2006
Edition description:
New Edition
Pages:
250
Product dimensions:
5.98(w) x 8.98(h) x 0.67(d)

Table of Contents


Acknowledgements     ix
Table of cases     xi
Table of statutes     xiv
Introduction     1
Legality in a time of emergency     17
Introduction     17
Judges and the politics of the rule of law     20
Carl Schmitt's challenge     35
Parliamentary or judicial supremacy?     54
The moral resources of law     60
Constituting the legislature     66
Constitutional positivism     66
The Communist Party case     72
Canada's common law bill of rights     87
Anxiety about judicial review of legislation     89
Disobeying Parliament     102
Evisceration     107
Reconciliation     108
Deference     118
Taking the administrative state seriously     121
Recognizing rationality     121
Maintaining the rule of law     129
Emerging from the shadows     149
In the black hole     160
The unity of public law     174
Introduction     174
The Belmarsh decision     175
Refuting dualism     190
Slack holes and the rule of law     196
The rule of good law     220
Bibliography     234
Index     242

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