Bills of Rights in the Common Law [Hardcover]

This book argues that judges sacrifice individual rights by using less than their full powers in order to appear democratically legitimate.Combines common law history with comparative common law for a critique of constitutional developments across 3 countries : UK, South Africa & Canada. The time period involved for the Bills of Rights in these countries is effectively the last 30 years. Of interest to both students in political science and law.Combines common law history with comparative common law for a critique of constitutional developments across 3 countries : UK, South Africa & Canada. The time period involved for the Bills of Rights in these countries is effectively the last 30 years. Of interest to both students in political science and law.Scholars have addressed at length the 'what' of judicial review under a bill of rights - scrutinizing legislation and striking it down - but neglected the 'how'. Adopting an internal legal perspective, Robert Leckey addresses that gap by reporting on the processes and activities of judges of the highest courts of Canada, South Africa and the United Kingdom as they apply their relatively new bills of rights. Rejecting the tendency to view rights adjudication as novel and unique, he connects it to the tradition of judging and judicial review in the Commonwealth and identifies respects in which judges' activities in rights cases genuinely are novel - and problematic. Highlighting inventiveness in rights adjudication, including creative remedies and guidance to legislative drafters, he challenges classifications of review as strong or weak. Disputing claims that it is modest and dialogic, he also argues that remedial discretion denies justice to individuals and undermines constitutional supremacy.Introduction; 1. Against Bill of Rights exceptionalism; 2. The common law, judging, and three Bills of Rights; 3. Judicial review of legislation before Bills of Rights; 4. Bills of Rights and other means of accessing judgl(