Adrian Vermeule
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195383768
- eISBN:
- 9780199855391
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195383768.003.0006
- Subject:
- Law, Constitutional and Administrative Law
This concluding chapter argues that constitutional law can and should move from the common-law constitution to the codified constitution. This shift would have two principal components—one ...
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This concluding chapter argues that constitutional law can and should move from the common-law constitution to the codified constitution. This shift would have two principal components—one institutional, one legal. Institutionally, the power to develop and update constitutional law over time would be partially transferred from lawyer-judges on courts to non-lawyer-judges on courts and to non-lawyer non-judges in legislatures and elsewhere. Legally, constitutional law would increasingly take the form of positive enactments—both formal amendments and statutes.Less
This concluding chapter argues that constitutional law can and should move from the common-law constitution to the codified constitution. This shift would have two principal components—one institutional, one legal. Institutionally, the power to develop and update constitutional law over time would be partially transferred from lawyer-judges on courts to non-lawyer-judges on courts and to non-lawyer non-judges in legislatures and elsewhere. Legally, constitutional law would increasingly take the form of positive enactments—both formal amendments and statutes.
Adrian Vermeule
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195383768
- eISBN:
- 9780199855391
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195383768.001.0001
- Subject:
- Law, Constitutional and Administrative Law
Human reason is limited. Given the scarcity of reason, how should the power to make constitutional law be allocated among legislatures, courts and the executive, and how should legal institutions be ...
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Human reason is limited. Given the scarcity of reason, how should the power to make constitutional law be allocated among legislatures, courts and the executive, and how should legal institutions be designed? Law and the Limits of Reason denies the widespread view, stemming from Burke and Hayek, that the limits of reason counsel in favor of judges making “living” constitutional law in the style of the common law. It questions what's behind the curtain of “settled practices” or “legal rules” and asks to what extent are these in fact a constellation of less-than-rational judgments? The book proposes and defends a “codified constitution”—a regime in which legislatures have the primary authority to develop constitutional law over time, through statutes and constitutional amendments. Law and the Limits of Reason contends that precisely because of the limits of human reason, large modern legislatures, with their numerous and highly diverse memberships and their complex internal structures for processing information, are the most epistemically effective lawmaking institutions.Less
Human reason is limited. Given the scarcity of reason, how should the power to make constitutional law be allocated among legislatures, courts and the executive, and how should legal institutions be designed? Law and the Limits of Reason denies the widespread view, stemming from Burke and Hayek, that the limits of reason counsel in favor of judges making “living” constitutional law in the style of the common law. It questions what's behind the curtain of “settled practices” or “legal rules” and asks to what extent are these in fact a constellation of less-than-rational judgments? The book proposes and defends a “codified constitution”—a regime in which legislatures have the primary authority to develop constitutional law over time, through statutes and constitutional amendments. Law and the Limits of Reason contends that precisely because of the limits of human reason, large modern legislatures, with their numerous and highly diverse memberships and their complex internal structures for processing information, are the most epistemically effective lawmaking institutions.
Adrian Vermeule
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195383768
- eISBN:
- 9780199855391
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195383768.003.0007
- Subject:
- Law, Constitutional and Administrative Law
This introductory chapter addresses the following questions: how should lawmaking authority be allocated among judges, legislators, and executive officials, and how should legal institutions be ...
More
This introductory chapter addresses the following questions: how should lawmaking authority be allocated among judges, legislators, and executive officials, and how should legal institutions be designed? It evaluates a family of views called epistemic legalism. It then proposes a legal regime referred to as the codified constitution. It attempts to show that, under robust conditions, the limits of reason affirmatively support a larger role for lawmaking by legislatures and executive officials than is allowed under epistemic legalism—emphatically including constitutional lawmaking. An overview of the subsequent chapters is presented.Less
This introductory chapter addresses the following questions: how should lawmaking authority be allocated among judges, legislators, and executive officials, and how should legal institutions be designed? It evaluates a family of views called epistemic legalism. It then proposes a legal regime referred to as the codified constitution. It attempts to show that, under robust conditions, the limits of reason affirmatively support a larger role for lawmaking by legislatures and executive officials than is allowed under epistemic legalism—emphatically including constitutional lawmaking. An overview of the subsequent chapters is presented.
Patrick Weller, Dennis C. Grube, and R. A. W. Rhodes
- Published in print:
- 2021
- Published Online:
- October 2021
- ISBN:
- 9780198844945
- eISBN:
- 9780191880315
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198844945.003.0003
- Subject:
- Political Science, Comparative Politics
The chapter describes the conventions and practices of Australian government. A variant of the Westminster system, it has a number of characteristics that define its workings and conventions: a ...
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The chapter describes the conventions and practices of Australian government. A variant of the Westminster system, it has a number of characteristics that define its workings and conventions: a written constitution, a federal system with potentially powerful state governments, and a High Court that can interpret that constitution. It also has a brutal political culture. These characteristics explain the ways in which Australian cabinet government differs from the English model from which it was derived, and the vulnerability of Australian prime ministers to removal by their own parties. These factors lead to a different form of parliamentary government with distinctly different practices.Less
The chapter describes the conventions and practices of Australian government. A variant of the Westminster system, it has a number of characteristics that define its workings and conventions: a written constitution, a federal system with potentially powerful state governments, and a High Court that can interpret that constitution. It also has a brutal political culture. These characteristics explain the ways in which Australian cabinet government differs from the English model from which it was derived, and the vulnerability of Australian prime ministers to removal by their own parties. These factors lead to a different form of parliamentary government with distinctly different practices.
