Constitution Books

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Book SynopsisThe 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.Table of Contents1. Introduction I. Removing the Blindfold II. Scope of the Argument III. Recovering Montesquieu 2. The Adjudication of Constitutional Rights I. Constitutional Rights and Ordinary Legal Rights II. Proportionality in Practice III. Proportionality in the US? IV. Absolute and Prima Facie Rights V. Rights, Proportionality and Utilitarianism VI. Rights as Interests VII. Moral and Empirical Reasoning VIII. Other Adjudicative Methods IX. Conclusion 3. Are Rights Trumps? I. The Shielded-Interest Theory II. The Filtered-Preference Theory III. Constitutional Rights and Statistics IV. Revision of the Filtered-Preference Theory 4. Judicial Capacity and Empirical Research I. Empirical Research and the Origins of Proportionality II. Empirical Evidence in the US Supreme Court III. Adjudicative Facts and Legislative Facts IV. Finding Legislative Facts V. The Courts and Social Science VI. Case Studies VII. Conclusion 5. Comparative Analysis of Institutional Capacities I. The Basic Structure of Judicial Reasoning II. The Basic Structure of Legislative Reasoning III. Capacity for Empirical Reasoning IV. Capacity for Moral Reasoning V. The Tyranny of the Majority? VI. Capacity to Protect Minorities VII. An Historical Perspective VIII. Conclusion 6. The Problem of Entrenchment I. Legal Change and the Rule of Law II. Rawls and the Perpetual Constitution III. The Rarity of Constitutional Amendment IV. The Legislative-Judicial Method of Reversing Nullification Decisions V. Conclusion 7. Judicial Review and Constitutional Design I. The American and Kelsenian Models II. Designing a Constitutional Court III. Council of Revision IV. Does the Legislature Need a Check? V. Deference VI. Conclusion

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Book SynopsisThis book considers the relationship between proportionality and facts in constitutional adjudication. Analysing where facts arise within each of the three stages of the structured proportionality test – suitability, necessity, and balancing – it considers the nature of these ‘facts’ vis-à-vis the facts that arise in the course of ordinary litigation. The book’s central focus is on how proportionality has been applied by courts in practice, and it draws on the comparative experience of four jurisdictions across a range of legal systems. The central case study of the book is Australia, where the embryonic and contested nature of proportionality means it provides an illuminating study of how facts can inform the framing of constitutional tests. The rich proportionality jurisprudence from Germany, Canada, and South Africa is used to contextualise the approach of the High Court of Australia and to identify future directions for proportionality in Australia, at a time when the doctrine is in its formative stages. The book has three broad aims: First, it considers the role of facts within proportionality reasoning. Second, it offers procedural insights into fact-finding in constitutional litigation. Third, the book’s analysis of the dynamic Australian case-law on proportionality means it also serves to clarify the nature and status of proportionality in Australia at a critical moment. Since the 2015 decision of McCloy v New South Wales, where four justices supported the introduction of a structured three-part test of proportionality, the Court has continued to disagree about the utility of such a test. These developments mean that this book, with its doctrinal and comparative approach, is particularly timely.Trade ReviewDr Anne Carter [has] provided ... valuable contributions to the literature considering the role of structured proportionality in the Australian constitutional context. -- Bar NewsDr Carter’s book is an invaluable tool for constitutional litigators. -- Michael Wait SC, Solicitor-General for South Australia * AUSPUBLAW *Table of Contents1. Introduction I. Proportionality and Facts A. What is Proportionality? B. Proportionality in Australia C. Why Facts Matter II. The Aim and Scope of this Book III. Methodology and Comparative Context A. Choice of Comparators B. The Australian Constitutional Framework C. The Comparative Context IV. The Structure of the Book 2. The Fact-Dependent Nature of Proportionality I. Proportionality: A Structured Approach A. Legitimate Aim B. Suitability C. Necessity D. Balancing II. The Nature of Proportionality Reasoning A. Types of Decisions Involved in Assessing Proportionality B. Factual Elements in Proportionality III. Conclusion: Proportionality and Facts 3. Understanding Facts I. What are Facts? II. Classifying Facts A. Kenneth Culp Davis and the Distinction between Adjudicative Facts and Legislative Facts B. ‘Legislative Facts’ and their Alternatives C. Evaluating the Categories III. Facts and Proportionality A. The Suitability Stage: Purpose and Rational Connection B. The Necessity Stage: Predictions and Counterfactuals C. Balancing and Facts IV. Conclusion 4. Proportionality and Facts in Comparative Perspective I. Proportionality Compared II. Recognising Facts? A. The Relevance of Facts B. Differentiating Facts: The Various Stages of Proportionality Analysis III. Finding Facts? A. Informing the Court B. Deference to the Legislature IV. Conclusion 5. Proportionality in Australian Constitutional Law I. The Australian Adoption of Proportionality II. The Development of Proportionality A. The Development of Different Tests B. ‘Appropriate and Adapted’ versus ‘Proportionality’? C. McCloy and the Advent of Structured Proportionality III. Evaluating Proportionality A. Balancing B. Levels of Scrutiny IV. Conclusion 6. The Factual Basis of Proportionality in Australia I. Recognising Facts II. Facts and the Framing of Constitutional Tests A. Reasonably Capable of Being Considered Appropriate and Adapted B. Reasonably Appropriate and Adapted C. Reasonably Necessary D. Structured Proportionality III. The Correlation between Proportionality and Facts? IV. Conclusion 7. Procedural Implications I. The High Court’s Existing Approach: Limitations and Unresolved Issues A. High Court Procedures and their Limitations B. Unresolved Issues II. Recognising Facts: Implications for Procedure A. The Suitability Stage B. The Necessity and Balancing Stages III. Changing Facts and the Problem of Precedent IV. Conclusion 8. Conclusion: Why Facts Matter

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Book SynopsisConsistently with the aims of the series, the book canvasses the Australian constitutional system in a way that explains its form and operation, provides a critical evaluation of it and conveys a sense of the contemporary national debate. The chapters deal with the foundations of Australian constitutionalism, its history from the time of European settlement, the nature of the Australian Constitutions, the framework for judicial review, the legislative, executive and judicial branches of government, federalism and multi-level government and rights protection. Running through all chapters is the story of the gradual evolution of Australian constitutionalism within the lean but almost unchanging framework of the formal, written, national Constitution. A second theme traces the way in which the present, distinctive, constitutional arrangements in Australia emerged from creative tension between the British and United States constitutional traditions on which the Australian Constitution originally drew and which continues to manifest itself in various ways. One of these, which is likely to be of particular interest, is Australian reliance on institutional arrangements for the purpose of the protection of rights. The book is written in a clear and accessible style for readers in both Australia and countries around the world. Each chapter is followed by additional references to enable particular issues to be pursued further by readers who seek to do so. 'The Constitution of Australia' has already been cited in a High Court of Australia case: Momcilovic v The Queen [2011] HCA 34 (8 September 2011)Table of Contents1. Foundations I Settlement II Federation III Independence IV Reconciliation 2. Constitutions I Form and Content II Status III Authority IV Constitution and the Common Law 3. Constitutional Review I Framework II Approach III Sources 4. Representative Democracy I Principle II Institutions III Legislative Function IV Political Rights 5. Responsible Government I Principle II Crown III Government IV Power 6. Separation of Judicial Power I Principles II Commonwealth III States IV Rule of Law 7. Federalism I Principle II Power and Authority III Social and Economic Union IV Co-operation 8. Rights and Freedoms I Principle II Beyond the Formal Constitution III Constitutional Rights IV Rights Instruments

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Book SynopsisJapan boasts the second largest economy in the world and almost two thousand years of history. Yet, its first modern constitution, the Meiji Constitution, was not enacted until comparatively recently (1889). Since then, following World War II, Japan adopted its current Constitution, the Japanese Constitution of 1946. This book is designed to explain the outline of Japan's Constitution, together with a number of its unique characteristics and to offer an historical background and context which help explain its significance. Major topics covered include the constitutional history of Japan, fundamental principles of the Constitution, the people and the Emperor, the Diet and legislative power, Cabinet and executive power, and the Judiciary and judicial power. Also discussed is the protection of fundamental human rights, individual rights - including freedom of expression,economic freedoms, and social rights, pacifism and national defence, and the constitutional amendment and reform. Although the Japanese Constitution was enacted under the strong influence of the United States Constitution, many of its features are very different. For instance the existence of an Emperor, the long dominance of a conservative party over the Government, the relatively strong power of government bureaucrats, the absence of a leadership role in the Prime Minister, the small role the judiciary play in solving constitutional disputes and the struggle over national defence. Written in an accessible style and comprehensive in content, the reader will find this account of the constitutional law of Japan both unique and stimulating.Trade Review...a concise and balanced description of the legal structure of the Japanese constitution. Kazuhiro Takii Journal of Japanese Studies, Volume 40. Number 1. 2014 Professor Matsui's volume is the first major treatment of Japanese constitutional law to appear in English in several years, and will be accessible to students and scholars alike as an excellent introduction to the field. The volume is easy to use, with a handy table of constitutional articles and legislation, as well as suggestions for further reading for those so inclined. Tom Ginsburg Japan Review, Volume 25, 2013Table of Contents1 The Constitution: Context And History Introduction Part I: Constitutional Context Part II: History Part III: Sources Of Constitutional Law Part IV: Supremacy of the Constitution Part V: Fundamental Principles of the Japanese Constitution Conclusion Further Reading 2 The Constitution, the People and the Emperor Introduction Part I: The Popular Sovereignty Principle Part II: The People Part II: Election and Political Party Part IV: The Emperor Conclusion Further Reading 3 The Diet and the Legislative Power Introduction Part I: The Diet Part II: Powers of the Diet Part III: Legislative Process 78 Part IV: Legislators and Bureaucrats: Reality of the Legislative Process Conclusion Further Reading 4 The Cabinet and the Executive Power Introduction Part I: The Status of the Cabinet and the Prime Minister Part II: The Powers of the Cabinet P art III: The Relationship Between the Cabinet and the Diet Part IV: The Prime Minister, the Cabinet and Bureaucrats Part V: Legal Control of the Executive Conclusion Further Reading 5 The Courts and the Judicial Power Introduction Part I: The Courts Part II: Justiciability Part III: The Power of Judicial Review Conclusion Further Reading 6 The Protection of Fundamental Human Rights: Structural Issues Introduction Part I: Fundamental Human Rights Part II: Applicability of Constitutional Rights Part III: Restrictions on Fundamental Human Rights Conclusion Further Reading 7 The Protection of Fundamental Human Rights: Specific Rights Introduction Part I: Equality Part II: Personal Freedoms Part III: Economic Freedoms Part IV: Social Rights Conclusion Further Reading 8 Pacifism And National Defence Introduction Part I: Pacifism Part II: The Self-Defence Force Part III: The Japan-United States Mutual Security Treaty Part IV: The Constitution and International Peace Cooperation Conclusion Further Reading 9 Constitutional Amendment and Reforms Introduction Part I: Constitutional Amendment Part II: Amending the Japanese Constitution or Enacting a New Constitution Conclusion Further Reading

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Book SynopsisOne of the most significant constitutional developments of the past century has been the creation and proliferation of O'administrative tribunals' the main function of which is to adjudicate disputes between citizens and the state by reviewing decisions of government agencies - a task also performed by courts in 'judicial review' proceedings and appeals. Tribunals in aggregate adjudicate many more such disputes than courts, but have received relatively little scholarly attention. This book compares tribunals in Australia, the UK and the US. It offers an account of the concept of 'administrative adjudication', and traces its historical development from the earliest periods of the common law to the twenty-first century. There are chapters dealing with the design of tribunals and tribunal systems and with what tribunals do, what they are for and how they interact with their users. The book ends with a discussion of the place of tribunals in the 'administrative justice system' and speculation about possible future developments. Administrative Tribunals and Adjudication fills a significant gap in the literature and will be of great value to public lawyers and others interested in government accountability.Trade Review...the book provides a clear theoretical analysis of administrative tribunals in different jurisdictions. Lin Feng Asia Pacific Law Review Volume 19, No. 2 Administrative Tribunals and Adjudication is a work of considerable scholarship, which throws new light on an important set of institutions that have not hitherto received the attention they deserve. Michael Adler Journal of Law and Society Volume 37, Number 3, 2010 Professor Cane's excellent book helps to redress the lack of academic attention paid to administrative tribunals...This is an outstanding account of Australian tribunal adjudication and its place in the regime of administrative decision-making and law. The detailed and sophisticated use of comparative law analysis helps to understand the choices that have been taken in Australia, what some of the alternatives were (and are), and also the constraints that will continue to shape administrative adjudication. Edward Santow Public Law Review 2010 Issue 21 Cane presents a precise, richly detailed account of administrative organizations, grounded in an impressive survey of the administrative law literature and Cane's own observations ... Such a detailed account is valuable because, as Cane notes, there is not much literature outside of Australia about what administrative tribunals do. Readers will come away impressed with the breadth of research that Cane has conducted on these tribunals and the care with which he details the differences among them. Robert J. Hume Law and Politics Book Review April 6, 2010 The book is clearly and elegantly structured into seven chapters each analysing a different aspect of tribunals. The strengths of this book are to be found principally in the subtle blend of different types of analysis - constitutional, historical and comparative - used to appreciate the role and significance of tribunals. Cane presents a very scholarly and well-informed synthesis of three dimensions of tribunals: their functions across four jurisdictions, their historical development, and their constitutional significance. This book is very much to be welcomed as an excellent addition to the literature. It provides a valuable and wide-ranging study of an important but long neglected set of institutions and it should encourage administrative law scholars to pay much more attention to the work of tribunals. Robert Thomas The Cambridge Law Journal Volume 70, Part 1Table of Contents1 Survey 1.1 The Project 1.2 Administrative Tribunals and Administrative Adjudication 1.2.1 The AAT is not a court 1.2.2 The AAT reviews decisions 1.2.3 The AAT's jurisdiction 1.3 The Plan of the Book 1.4 Conclusion 2 History 2.1 Introduction 2.2 1066 to 1800 2.3 19th and 20th Centuries 2.3.1 The UK 2.3.2 The US 2.3.3 Australia 2.4 Conclusion 3 Models 3.1 The UK Model 3.2 The US Model 3.3 The Australian Model 3.4 The French Model 3.5 Conclusion 4 Form 4.1 Membership, Appointments and Composition 4.1.1 Membership 4.1.1.1 Expertise and Specialisation 4.1.1.2 The US 4.1.1.3 The UK 4.1.1.4 Australia 4.1.1.5 The Tasks of Non-court Administrative Adjudicators 4.1.2 Appointment Processes 4.1.2.1 Who Appoints and How? 4.1.2.2 Terms and Conditions of Service 4.1.3 Composition 4.2 Separation and Independence 4.2.1 The UK 4.2.2 Australia 4.2.3 The US 4.3 Structure and Systematisation 4.3.1 Jurisdictional Specialisation 4.3.1.1 Patterns of Specialisation 4.3.1.2 The Theory of Specialisation and Amalgamation 4.3.2 Supervision and Accountability 4.3.2.1 Hierarchical Supervision 4.3.2.2 External Supervision 4.4 Conclusion 5 Function 5.1 Introduction 5.2 Categorising Governance Functions: the Legacy of Montesquieu 5.3 Merits Review 5.3.1 Merits Review is a Mode of Review 5.3.2 The Substantive Element of Merits Review 5.3.2.1 The 'Correct or Preferable' Formula 5.3.2.2 The Basis of Merits Review 5.3.3 The Procedural Element of Merits Review 5.3.4 The Remedial Element of Merits Review 5.4 Merits Review and Judicial Review 5.5 The 'Normative Function' of Merits Review and the AAT 5.6 Merits Review Outside the AAT 5.7 The Nature of Tribunal Review in Comparator Jurisdictions 5.7.1 The UK 5.7.2 The US 5.7.3 France 5.8 Conclusion 6 Purpose 6.1 What is Administrative Justice? 6.2 A Formula for Administrative Justice in Tribunals? 6.3 Jurisdiction 6.4 Standing 6.5 Processes 6.5.1 The Paradigm Mode of Decision-Making 6.5.1.1 The Reviewer 6.5.1.2 The Respondent 6.5.1.3 The Applicant 6.5.2 Alternatives to the Paradigm Mode 6.6 Resources 6.7 Conclusion 7 Landscape 7.1 The Accountability 'Sector' 7.2 Tribunals and Ombudsmen 7.3 Tribunals and Internal Review 7.4 Tribunals and Courts 7.4.1 Australia 7.4.2 The US 7.4.3 The UK 7.4.4 Re-conceiving the Relationship Between Courts and Tribunals 7.5 Tribunals and ADR/PDR 7.6 Conclusion

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Book SynopsisIn addition to the economic miracle, with surprising growth in the 1970s and 1980s, Taiwan has further shown the world two others. One is the democratic miracle which brought about a silent revolution from notorious authoritarian regime to full democracy in Asia. Intertwined with that miracle is the constitutional one, in which political reform was undertaken in a constitutional manner and through constitutional means. Indeed, Taiwan’s transition to democracy was made possible by incremental constitutional revisions, courts responsive to changing dynamics, and a civil society engaged in the project of constitutional transformation. These changes ushered in the unprecedented development of a transitional and transnational constitutionalism. This volume seeks to explain the drivers and context of these constitutional transformations. Democratisation, indigenisation and globalisation all drove the transformation of an externally imposed constitution into an internally embraced, vibrant constitution. The changes analysed in this volume include institutional shifts from a cabinet system to a semi-presidential one; from three parliaments to one; from manipulated central-local relations to a functional federalism; from a Constitutional Court that merely rubber-stamped to one that is responsive and supports social and political dialogues. More importantly, this volume details how a short list of constitutional rights has been transformed to a burgeoning rights-based discourse engaged by civil society.Trade ReviewThis book is by no means simply an introduction to Taiwan’s constitutional evolution. Yeh’s insightful analyses shed new light on many topics such as civic constitutionalism, transitional constitutionalism, constitutional identity, unconstitutional constitutional amendments, etc. ... it is definitely a must read not only for those who are interested in Taiwan in particular, but also for students of (comparative) constitutional law in general. -- Chien-Chih Lin, Institutum Iurisprudentiae * International Journal of Constitutional Law *Table of Contents1. TAIWAN’S CONSTITUTION IN WORLD CONSTITUTIONALISM: COMMON AND SALIENT FEATURES 2. TAIWAN’S CONSTITUTIONAL JOURNEY: IMPOSITION AND INDIGENISATION 3. THE EVOLVING PRESIDENCY AND THE EXECUTIVE 4. REPRESENTATION AND LEGISLATIVE PROCESS 5. MULTI-LEVEL GOVERNANCE AND DEVOLUTION 6. JUDICIAL REVIEW AND THE FUNCTION OF THE CONSTITUTIONAL COURT 7. RIGHTS AND FREEDOMS 8. CONCLUSION: CHALLENGES AND PROSPECTS

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Book SynopsisThis short and accessible book provides a provocative re-assessment of the various tangled relationships between law and politics and in so doing examines legal and political thinking on such critical areas as justice,the state, constitutionalism and rights. It introduces lawyers especially to certain important themes in some of the key texts in political thought and introduces political scientists to the legal dimensions of a number of central themes of political studies. Written by one of the leading theorists in constitutional law, the book should prove to be an indispensable companion for any student or teacher interested in law and politics. Contents I. Law and Politics in the Conversation of Mankind II. Justice III. The State IV. Constitutionalism V. ConclusionsTrade ReviewThis book should be an indispensable companion for any student or teacher interested in law and politics, as it introduces the reader to the political dimension of legal notions and as it analyses the legal dimension of a number of central themes of political studies. Chr. Zarari European Review of Public Law January 2001 ...analyses, which he carries through with elegance and erudition...Sword and Scales elegantly and convincingly demonstrates that to view law and politics in terms of such a simple antithesis is both misleading and sterile. Terence Daintith Public Law Review June 2002Table of ContentsI. Law and Politics in the Conversation of Mankind II. Justice III. The State IV. Constitutionalism V. Conclusions

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Book SynopsisThis short and accessible book provides a provocative re-assessment of the various tangled relationships between law and politics and in so doing examines legal and political thinking on such critical areas as justice,the state, constitutionalism and rights. It introduces lawyers especially to certain important themes in some of the key texts in political thought and introduces political scientists to the legal dimensions of a number of central themes of political studies. Written by one of the leading theorists in constitutional law, the book should prove to be an indispensable companion for any student or teacher interested in law and politics. Contents I. Law and Politics in the Conversation of Mankind II. Justice III. The State IV. Constitutionalism V. ConclusionsTrade ReviewThis book should be an indispensable companion for any student or teacher interested in law and politics, as it introduces the reader to the political dimension of legal notions and as it analyses the legal dimension of a number of central themes of political studies. Chr. Zarari European Review of Public Law January 2001 ...analyses, which he carries through with elegance and erudition...Sword and Scales elegantly and convincingly demonstrates that to view law and politics in terms of such a simple antithesis is both misleading and sterile. Terence Daintith Public Law Review June 2002 In sum, this is a book overflowing with ideas and insights, and written in a style which avoids obscure formulations but never the important questions. If in the end, the wide audience that the book deserves is left wanting more, this is not a mark of failure but rather a tribute to the rich suggestiveness and novelty of the author's approach to a very old subject. Neil Walker, EUI, Florence Public Law February 2003 Martin Loughlin's topic is the relationship between politics and justice - between sword and scales. It's as thorough an examination as any lawyer might ever need to read But this is no dusty tome. Loughlin considers contemporary issues that lie at the interface of politics and law He produces points of real relevance. Four years on from its first publication, with Saddam Hussein in jail and our senior judges getting Bolshie, Loughlin's book is now more important than when it was written. Non-lawyers should read it too. Austin Mitchell Tribune June 2004 He conducts as thorough an examination as any lawyer might ever need to readthis is no dull and dusty tome...He produces points of searing relevanceLoughlin's book is even more important than when written. Solicitors' Journal November 2004Table of ContentsI. Law and Politics in the Conversation of Mankind II. Justice III. The State IV. Constitutionalism V. Conclusions

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