Tushnet An Essay On Rights

Tushnet An Essay On Rights-75
Thus, one chapter recounts the Human Rights Act failures with respect to counter-terrorism legislation, another charts how the ‘dialogue’ model reduces parliaments' capacities to hold governments to accountable for human rights violations, a further chapter considers which institutions best protect fundament al rights, and another chapter reflects on how the idea of human rights could be ‘rescued’ in Britain today.Other chapters deal with the historical human rights failures of courts during the Cold War and in Northern Ireland, the diverse outcomes of human rights judicial review, and examine aspects of the human rights regimes in a variety of jurisdictions, including Finland, Sweden, New Zealand, Australia, Scotland, Canada, Europe, and the United States.The book expresses ideological scepticism concerning the relative neglect of social and economic rights and institutional scepticism concerning the failures of court-centred means for enhancing human rights goals in general.

Thus, one chapter recounts the Human Rights Act failures with respect to counter-terrorism legislation, another charts how the ‘dialogue’ model reduces parliaments' capacities to hold governments to accountable for human rights violations, a further chapter considers which institutions best protect fundament al rights, and another chapter reflects on how the idea of human rights could be ‘rescued’ in Britain today.Other chapters deal with the historical human rights failures of courts during the Cold War and in Northern Ireland, the diverse outcomes of human rights judicial review, and examine aspects of the human rights regimes in a variety of jurisdictions, including Finland, Sweden, New Zealand, Australia, Scotland, Canada, Europe, and the United States.The book expresses ideological scepticism concerning the relative neglect of social and economic rights and institutional scepticism concerning the failures of court-centred means for enhancing human rights goals in general.

Since the state is often involved as a party in constitutional conflict seeking court permission to override individual rights, Cover’s mention of ‘state law’ is best understood as referring to the ‘law of the state’.

My emphasis on interpretation here tracks Cover’s, insofar as it is an emphasis on constitutional (as a form of legal) interpretation.

In 2006, he served as co-editor of the Journal of Legal Education, which can only be called a centrist meeting-place.

One of the more controversial figures in constitutional theory, he is identified with the 'critical legal studies' movement and once stated in an article that, were he asked to decide actual cases as a judge, he would seek to reach results that would "advance the cause of socialism". His wife, Elizabeth Alexander, is a Unitarian, and formerly directed the National Prison Project of the American Civil Liberties Union. Their daughter Rebecca Tushnet is also a professor of law at Harvard Law School.

Since its high point, CLS has had many lives, much like South Parks’ Kenny character,1 but by now CLS largely rests in peace.

But the conservative side of the American legal academe is flourishing, and Professor Tushnet is also well aware of this.The final section draws on the works of Kant and Arendt and discusses the implications of an approach to constitutional method such as that reflected in the advent of proportionality for the project of constitutionalism more generally. (‘Having a right does not confer much on the rights holder: that is to say, the fact that he or she has a prima facie right does not imply a position that entitles him/her to prevail over countervailing considerations of policy.’) Stone Sweet and Mathews (n 5) 160.The authors base this conclusion on the observation that ‘By the end of the 1990s, virtually every effective system of constitutional justice in the world, with the partial exception of the United States, had embraced the main tenets of proportionality analysis.’ Ibid 74..Contact us if you experience any difficulty logging in.This article presents a functional explanation of why proportionality has become one of the most successful legal transplants in contemporary constitutional law.While the normative appeal of proportionality can be traced to the perception of its integrative aims, in reality, judicial technique does not entirely live up to those aims.Proportionality succumbs to pressures from the centrifugal forces of universalism and particularism that it seeks to integrate.The first three sections show, through an analysis of different constitutional styles which I label Doric, Ionic and Corinthian, how proportionality seeks to place a non-deontological conception of rights within a categorical structure of formal legal analysis.This method aims to synthesize fidelity to form and institutional structure (thesis) with ‘fact-sensitivity’ to contexts in which specific controversies arise (antithesis).It argues that proportionality helps judges mitigate what Robert Cover called the ‘inherent difficulty presented by the violence of the state’s law acting upon the free interpretative process’.More than alternative methods, proportionality calibrates the violence that the justification of state coercion inflicts on private (non-official) jurisgenerative interpretative processes in constitutional cases.

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