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The Judges: Active or Passive: Maccabaean Lecture In Jurisprudence

LORD BINGHAM OF CORNHILL

in Proceedings of the British Academy, Volume 139, 2005 Lectures

Published in print:
2007
Published Online:
January 2012
ISBN:
9780197263945
eISBN:
9780191734038
Item type:
chapter
Publisher:
British Academy
DOI:
10.5871/bacad/9780197263945.003.0003
Subject:
History, Cultural History

This chapter discusses the traditionalist view of the judicial role. Three propositions are used as the basis for this view, beginning with the separation of powers. The second and third propositions ... More


The Judicial Role of the House of Lords before 1870

David Lewis Jones

in The Judicial House of Lords 1876–2009:

Published in print:
2009
Published Online:
September 2009
ISBN:
9780199532711
eISBN:
9780191705489
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199532711.003.0001
Subject:
Law, Legal History

This chapter describes the judicial role of the House of Lords before 1870. A significant part of Parliament's role, from the reign of Edward I, lay in providing remedies for petitioners either ... More


Democratic Constitutionalism—Kelsen's Theory of Constitutional Review

Lars Vinx

in Hans Kelsen's Pure Theory of Law: Legality and Legitimacy

Published in print:
2007
Published Online:
January 2009
ISBN:
9780199227952
eISBN:
9780191711077
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199227952.003.0005
Subject:
Law, Philosophy of Law

Kelsen was a fervent advocate of constitutional entrenchment and of constitutional review by a constitutional court. However, Kelsen's theory of legal interpretation and adjudication suggests that ... More


A Substantive Distinction

J. W. F. Allison

in A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law

Published in print:
2000
Published Online:
January 2010
ISBN:
9780198298656
eISBN:
9780191710735
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198298656.003.0008
Subject:
Law, Comparative Law, Legal History

A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory ... More


Legitimacy of the Basic Structure Doctrine

Sudhir Krishnaswamy

in Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine

Published in print:
2011
Published Online:
September 2012
ISBN:
9780198071617
eISBN:
9780199081455
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198071617.003.0005
Subject:
Law, Constitutional and Administrative Law

The basic structure doctrine has, since its inception in Kesavananda Bharati v. State of Kerala in 1973, often been criticized as being illegitimate. This chapter examines the key challenges to the ... More


Equality

Sandra Fredman

in Human Rights Transformed: Positive Rights and Positive Duties

Published in print:
2008
Published Online:
January 2009
ISBN:
9780199272761
eISBN:
9780191709814
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199272761.003.0008
Subject:
Law, Human Rights and Immigration

This chapter examines the interaction between equality of status, found in anti-discrimination law, and distributive equality, found in the Welfare State and socio-economic rights. The development of ... More


The Judicial House of Lords: Abolition and Restoration 1873–6

David Steele

in The Judicial House of Lords 1876–2009:

Published in print:
2009
Published Online:
September 2009
ISBN:
9780199532711
eISBN:
9780191705489
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199532711.003.0002
Subject:
Law, Legal History

This chapter begins with a discussion of the events leading to the attempted abolition of the House of Lords. It also describes Lord Selborne' Supreme Court of Judicature Act in 1873, Lord Cairn's ... More


Judges as Faithful Agents or Independent, Cooperative Actors?

Kent Greenawalt

in Statutory and Common Law Interpretation

Published in print:
2012
Published Online:
January 2013
ISBN:
9780199756148
eISBN:
9780199979523
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199756148.003.0002
Subject:
Law, Philosophy of Law

This chapter mainly inquires how courts should regard the basic relation between legislatures and themselves: are they faithful agents or independent partners, or both? It shows that faithful agency ... More


Judges and Legislators

Geoffrey Marshall

in Constitutional Theory

Published in print:
1980
Published Online:
March 2012
ISBN:
9780198761211
eISBN:
9780191695148
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198761211.003.0005
Subject:
Law, Constitutional and Administrative Law

This chapter discusses the role of the judiciary in the application of law. It discusses different approaches to statutory interpretation in the United States and Britain. It also describes the two ... More


The Legal Order II: Secondary Rules

in H.L.A. Hart, Second Edition

Published in print:
2008
Published Online:
June 2013
ISBN:
9780804756785
eISBN:
9780804779562
Item type:
chapter
Publisher:
Stanford University Press
DOI:
10.11126/stanford/9780804756785.003.0010
Subject:
Law, Philosophy of Law

According to H. L. A. Hart, “rules of obligation” are the primary or ground-floor element of legal order. The systemic quality of law is reflected in the fact that primary rules of obligation can be ... More


Judicial Discretion and the Judicial Role

in H.L.A. Hart, Second Edition

Published in print:
2008
Published Online:
June 2013
ISBN:
9780804756785
eISBN:
9780804779562
Item type:
chapter
Publisher:
Stanford University Press
DOI:
10.11126/stanford/9780804756785.003.0011
Subject:
Law, Philosophy of Law

In The Concept of Law, H. L. A. Hart reinstates the thesis that laws genuinely are rules, explicable as that special kind of social rules found in a 'union of primary and secondary rules'. He rejects ... More


The Legal Culture Paradigm

Charles Gardner Geyh

in Courting Peril: The Political Transformation of the American Judiciary

Published in print:
2016
Published Online:
March 2016
ISBN:
9780190233495
eISBN:
9780190233518
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780190233495.003.0005
Subject:
Political Science, American Politics

Chapter 5 revisits the ailing rule of law paradigm and proposes, in its stead, a new “legal culture” paradigm, which rests on a different set of assumptions that comport more closely with the ... More


The Autonomy of Private Law

Ernest J. Weinrib

in The Idea of Private Law

Published in print:
2012
Published Online:
January 2013
ISBN:
9780199665815
eISBN:
9780191748622
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199665815.003.0008
Subject:
Law, Philosophy of Law, Law of Obligations

This chapter returns to the claim adumbrated in Chapter 1, that private law is autonomous and nonpolitical. Turning from substance to process, from specific tort doctrines to the judicial roles, it ... More


The Changing Judicial Role: Human Rights, Community Law, and the Intention of Parliament

Mary Arden

in Human Rights and European Law: Building New Legal Orders

Published in print:
2015
Published Online:
March 2015
ISBN:
9780198728573
eISBN:
9780191795411
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198728573.003.0009
Subject:
Law, Human Rights and Immigration, EU Law

This chapter discusses statute law and statutory interpretation and then draws some conclusions about the judicial role. The principal premise is that statutory interpretation can be analysed into ... More


Systems and Feelings

Ken I. Kersch

in Passions and Emotions: NOMOS LIII

Published in print:
2012
Published Online:
March 2016
ISBN:
9780814760147
eISBN:
9780814763490
Item type:
chapter
Publisher:
NYU Press
DOI:
10.18574/nyu/9780814760147.003.0010
Subject:
Political Science, Political Theory

This chapter comments on Robin West's essay in the previous chapter, agreeing with her central claim, which is that, in deciding cases, today's judges are increasingly inclined to think of themselves ... More


Injustice in Person: The Right to Self-Representation

Rabeea Assy

Published in print:
2015
Published Online:
August 2015
ISBN:
9780199687442
eISBN:
9780191767104
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199687442.001.0001
Subject:
Law, Human Rights and Immigration

This book explores whether mandatory legal representation may sometimes be justified. Litigation in person is widespread in common-law jurisdictions and self-representation is treated as a ... More


Speculating on Gifts and Promises

in Calculating Promises: The Emergence of Modern American Contract Doctrine

Published in print:
2006
Published Online:
June 2013
ISBN:
9780804753982
eISBN:
9780804768054
Item type:
chapter
Publisher:
Stanford University Press
DOI:
10.11126/stanford/9780804753982.003.0005
Subject:
Law, Legal History

Over the past hundred years, the question of consideration has been tied to which promises should be enforced by the law. The classical scholars' vision of contract may be compared with several other ... More


Achieving Access to Modern Energy Services: A Study of Legal Strategies

Adrian J Bradbrook

in Ending Africa's Energy Deficit and the Law: Achieving Sustainable Energy for All in Africa

Published in print:
2018
Published Online:
April 2018
ISBN:
9780198819837
eISBN:
9780191860096
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780198819837.003.0003
Subject:
Law, Environmental and Energy Law

This chapter provides an overview of the societal problems and the poverty trap created in developing countries where universal access to energy services does not exist. It relates the efforts made ... More


The Right to Health

Sandra Fredman

in Comparative Human Rights Law

Published in print:
2018
Published Online:
December 2018
ISBN:
9780199689408
eISBN:
9780191768293
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780199689408.003.0008
Subject:
Law, Comparative Law, Human Rights and Immigration

Is health a human right? Many would maintain that it is not. On this view health and ill-health are due to natural causes, not to State actions. Others are concerned that health raises too many ... More


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