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Constitutional JusticeA Liberal Theory of the Rule of Law$
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T. R. S. Allan

Print publication date: 2003

Print ISBN-13: 9780199267880

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199267880.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.date: 24 May 2022

Justiciability and Jurisdiction: Political Questions and the Scope of Judicial Review

Justiciability and Jurisdiction: Political Questions and the Scope of Judicial Review

Chapter:
(p.161) 6 Justiciability and Jurisdiction: Political Questions and the Scope of Judicial Review
Source:
Constitutional Justice
Author(s):

T.R.S. Allan

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199267880.003.0006

Constitutional rights and freedoms, limiting the exercise of legislative and executive power, are unlikely to be of much practical value unless they can be judicially enforced. Although the interpretation of such rights must be duly sensitive to the legitimate demands of the collective welfare, and reasonable governmental determination of the public interest, their requirements should normally be ascertained by independent judges, appropriately detached both from immediate administrative pressures and prevailing public opinion on any particular issue. It is sometimes alleged, however, that certain matters are inherently unsuited to adjudication, either because judicial determination would usurp the proper democratic process, or because judicial qualifications or adversarial legal procedures are inadequate or inappropriate to the task. This chapter discusses political questions and the limits of justiciability, constitutional convention and political principle, and adversarial adjudication and the merits of ‘judicial restraint’.

Keywords:   justiciability, political principle, constitutional convention, judicial restraint, adversarial adjudication

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