The decisions courts make in constitutional rights cases pervade our
political life and touch on our most basic interests and values. The
spread of judicial review of legislation around the world means that
courts are increasingly called on to settle matters of moral and
political controversy, including assisted suicide, data privacy,
anti-terrorism measures, marriage, and abortion. But doubts regarding
the institutional capacities of courts for deciding such questions are
growing. Judges now regularly review social science research to assess
whether a law will effectively achieve its aim, and at what cost to
other interests. They cite studies and statistical information from
psychology, sociology, medicine, and other disciplines in which they
are rarely trained. This empirical reasoning proceeds alongside
open-ended moral reasoning, with judges employing terms such as
equality, liberty, and autonomy, then determining what these require
in concrete circumstances. This book shows that courts were not
designed for this kind of moral and empirical reasoning. It argues
that in comparison to legislatures, the institutional capacities of
courts are deficient. Legislatures are better equipped than courts for
deliberating and decision-making in regard to the kinds of factual and
moral issues that arise in constitutional rights cases. The book
concludes by considering the implications of comparative institutional
capacity for constitutional design. Is a system of judicial review of
legislation something that constitutional framers should choose to
adopt? If so, in what form? For countries with systems of judicial
review, practical proposals are made to remedy deficiencies in the
institutional capacities of courts.
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Moral and Empirical Reasoning in Judicial Review
Produktdetaljer
ISBN
9781509913602
Publisert
2020
Utgave
1. utgave
Utgiver
Vendor
Hart Publishing
Språk
Product language
Engelsk
Format
Product format
Digital bok
Forfatter