Constitutional Justice A Liberal Theory of the Rule of Law

by Allan, T. R. S.

• ISBN13: 9780199267880
• ISBN10: 019926788X
• Format: Paperback
• Copyright: 2003-11-06
• Publisher: Oxford University Press

Summary

This volume examines the concept of the rule of law, arguing that the principles it identifies provide the foundations of a liberal democratic legal order. It explains the essential connections between a range of matters fundamental to the relationship between citizen and state, including freedom of speech, civil disobediance, procedural fairness, and administrative justice.

Author Biography

Trevor Allan is Reader in Legal and Constitutional Theory at the University of Cambridge and a Fellow of Pembroke College, Cambridge. He is the Author of `Law, Liberty, and Justice' (OUP 1993).

Table of Contents

Chapter 1: Introduction	1	(30)
1. The rule of law as a 'rule of reason'	2	(11)
2. British constitutionalism. Dicey s 'rule of law'	13	(8)
3. Equal citizenship and 'constitutional' democracy	21	(10)
Chapter 2: First Principles: the Rule of Law and Separation of Powers	31	(30)
1. The rule of law and equal justice	32	(10)
2. Legislative authorization of executive power: common law rights and public purposes	42	(10)
3. Procedural legality: Fuller's 'internal morality of law'	52	(9)
Chapter 3: Legal Obligation and the Concept of Law	61	(28)
1. A liberal interpretation of the 'internal morality' of law	61	(6)
2. The obligation to obey the law: legal and moral	67	(5)
3. A moral and constitutional conception of law	72	(5)
4. The intrinsic moral value of fair procedures	77	(12)
Chapter 4: Dissent and Disobedience	89	(32)
1. The rule of law and freedom of speech: the 'right of civil disobedience'	89	(6)
2. Civil disobedience and fidelity to law'	95	(11)
3. Advocacy and incitement: the 'clear and present danger' test	106	(6)
4. The 'right of silence' as a right of protest	112	(9)
Chapter 5: Equal Justice and Due Process of Law	121	(40)
1. Introduction	121	(4)
2. Administrative justice and constitutional principle	125	(8)
3. Judicial functions and executive agencies: the sphere of the 'quasi judicial'	133	(15)
4. Legislative classifications and the definition of 'act of attainder'	148	(13)
Chapter 6: Justiciability and Jurisdiction: Political Questions and the Scope of Judicial Review	161	(40)
1. Political questions and the limits of justiciability	161	(18)
2. Constitutional convention and political principle	179	(8)
3. Adversarial adjudication and the merits of judicial restraint'	187	(14)
Chapter 7: The Rule of Law and Parliamentary Sovereignty	201	(42)
1. Introduction	201	(6)
2. Judicial review of administrative action: constitutional foundations	207	(9)
3. The moral foundations of Harts 'rule of recognition'	216	(9)
4. Evolution of the 'rule of recognition': human rights and European law	225	(6)
5. The constitutional limits of parliamentary sovereignty	231	(12)
Chapter 8: Fundamental Common Law Rights and Equality	243	(40)
1. Equality and the separation of judicial power	244	(6)
2. Procedural and 'substantive' due process: ex post facto laws and unjust legislation	250	(9)
3. Implied rights, popular sovereignty, and judicial review	259	(12)
4. The right to a fair trial in criminal proceedings	271	(12)
Chapter 9: Public Reason and Political Conflict	283	(34)
1. Moral pluralism and common law reason	283	(12)
2. Enforcing conventional morality: democracy and liberalism	295	(9)
3. Public purposes and private conscience	304	(13)
Bibliography	317	(6)
Table of Cases	323	(4)
Index of Names	327	(2)
General Index	329