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Dec 8, 2017 · The Law of Judicial Precedent. By Bryan A. Garner et al. St. Paul, Minn.: Thomson Reuters. 2016. Pp. xxvi, 910. $49.95. How does the law of judicial precedent work in practice? That is the question at the heart of The Law of Judicial Precedent, the first treatise on the subject in more than 100 years. The treatise sets aside more theoretical ...
approaches. Using the principled approach, a court will set out a series of general guiding principles that underlie that area of law for lower courts to use in coming to decisions. This is a stark contrast to the rule-based approach where authority comes from its automatic and self-contained nature.
Dec 20, 2023 · Rule of law rhetoric has become common among a large range of players internationally. These disparate proponents either have a very different view of the rule of law from that espoused by the United Nation or it is a mere catchphrase empty of meaning. This paper argues for a thick conception of the rule of law encompassing human rights.
- Introduction
- I. Legal Principles
- II. Constitutional Principles
- III. Constitutional Principles and The Exercise of Judicial Review
- Conclusion
Principles cut across modern legal traditions; they form one of the most fundamental notions in law; they ground our legal reasoning; they pervade our legal discourse. However, with a few notable exceptions, most dating back several decades, they have attracted far less scrutiny in the law literature from common law-based systems than other emblema...
In common law-based systems, the notion of principles and their terms of debate have been mainly defined by a small number of U.S. and British legal scholars, most notably Ronald Dworkin. Their contributions, coming from the field of jurisprudence or highly influenced by it, have formed the prevailing conventional account of principles, which is de...
A. The Relationship Between Constitutional Principles and the Constitution
In common law-based countries, the literature on constitutional principles largely tracks the conceptual discussion of legal principles, as that literature also focuses on constitutional principles’ relationship with the constitution. To be sure, sometimes the existence of specific principles (as opposed to what they concretely entail) is not at issue when the constitution explicitly enshrines them. Section 7 of the Canadian Charter of Rights and Freedoms states that no person shall be depriv...
B. Constitutional Principles as Gap Fillers
Pursuant to the second continuum, the most widely accepted role of constitutional principles would be that of a guide to the interpretation of the constitution. In their purely interpretive role, they serve to help explain the purpose of the provisions and the various parts of the constitution and thus identify the correct or preferred interpretation. This role can be contrasted with using constitutional principles to fill the silences, lacunas, and other sorts of gaps of the constitution. Ad...
Principles are part of virtually every legal system and judicial review has become a staple of the vast majority of legal systems.81 This Part turns to the case law and the use of constitutional principles in the exercise of judicial review. While keeping in mind the differences in local contexts, the analysis weaves several national strings of cas...
In the wider transnational law literature, there is a wealth of knowledge on the notion of principles that unfortunately is yet to have been aggregated, distilled, and integrated into the study of our national laws. But if a given work, whatever its perspective or provenance, offers relevant lessons and insights, especially if it has stood the scru...
- Han Ru Zhou
- 2019
How does the law of judicial precedent work in practice? That is the question at the heart of The Law of Judicial Precedent, the first treatise on the subject in more than 100 years. The treatise sets aside more theoretical and familiar questions about whether and why earlier decisions (especially wrong ones) should bind courts in new cases.1 In-
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Mar 6, 2021 · In the civil law tradition, precedents are often used in order to tip the balance in favour of particular outcomes, but are also used as a means to illustrate how a legal point has been dealt with before. In the common law, by contrast, precedents typically play a more decisive role.
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What role do principles and general principles play in international law?
Aug 26, 2019 · The fundamental elements of the international legal system remain subject to debate. Constitutionalism is merely the latest instalment of this continuing conversation on the very nature of international law. In this context certain foundational aspects may be labelled as the system’s ‘constitutional processes’. The primary argument presented in this article is that principles and ...
