Constitutional and administrative law: general Books

Book SynopsisThe founding principle of the US was that the rule of law would be the great equalizer in American life. This book exposes an un-American justice system that incentivizes elite criminality, protects an oligarchical political culture, and sanctions immunity at the top and unyielding mercilessness for everyone else.

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Book SynopsisProperty is a constitutionally protected right around the world. Expropriations are lawful only if they can be legitimately justified. In the past few decades, there has been an increasing number of expropriations in favour of private business projects.Table of ContentsA descriptive theory of the legitimate justification of expropriation; The need for a contextualising and descriptive theory of the legitimate justification; The substantive definition of the legitimate justification; The endurance of the legitimate justification; The governance of the legitimate justification of expropriation; Table of partially equivalent requirements; Chapters on German, Dutch, New York State and South African Law; Applicable law; The legitimate purpose; The contextualisation; The administrative and court procedures; The endurance of the legitimate justification; Exploration and evaluation of differences and similarities; The comparative analysis; The roots of the main similarities and differences; Application of international good governance standards; Recommendations; Summary and conclusion; The goals of the research; A descriptive theory of the legitimate justification of expropriation; German law; Dutch law; New York State law; South African law; Exploring and evaluating similarities and differences; Cases; Legislation.

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Book SynopsisThis is the first comprehensive book that explores the subject of federalism from the perspective of comparative constitutional law, whilst simultaneously placing a strong emphasis on how federal systems work in practice. This focus is reflected in the book’s two most innovative elements. First, it analyses from a comparative point of view how government levels exercise their powers and interact in several highly topical policy areas like social welfare, environmental protection or migrant integration. Second, the book incorporates case law boxes discussing seminal judgments from federal systems worldwide and thus demonstrates the practical impact of constitutional jurisprudence on policymakers and citizens alike. “This is simply the best analysis of contemporary federalism currently available. It is comprehensive in its coverage, thorough in its analysis, and persuasive in its conclusions. Every student of federalism, from novice to expert, will find benefit from this volume.” Professor G Alan Tarr, Rutgers University “Wading through the thicket of the multiple forms that the federal idea has taken in the contemporary world, this remarkably comprehensive treatise backed by case law fills a long-awaited gap in the literature on comparative federalism. It combines a mastery of the literature on federal theory with a critical understanding of how it plays out in practice. Outstanding in the breadth of its scope, this magisterial survey will serve as a work of reference for generations of scholars who seek to understand how federalism works in developed as well as developing countries.” Professor Balveer Arora, Jawaharlal Nehru University New Delhi “This book is an extraordinarily handy work of reference on the diverse federal-type systems of the world. It handles both shared principles and differences of perspective, structure or practice with confidence and ease. It will become a standard work for scholars and practitioners working in the field.” Professor Cheryl Saunders, The University of Melbourne “This is a remarkable book – for its sheer breadth of scope, combining detail of practice with analysis of federal principles, and for its fresh look at federalism. With great erudition, drawing on world scholarship and the practice of federalism across the globe, Palermo and Kössler magnificently traverse from the ancient roots of federalism to the contemporary debates on ethno-cultural dimensions and participatory democracy. The book sets a new benchmark for the study of comparative federalism, providing new insights that are bound to influence practice in an era where federal arrangements are expected to deliver answers to key governance and societal challenges.” Professor Nico Steytler, University of the Western CapeTrade ReviewIn an increasingly crowded field, this new book on comparative federalism stands out for its iconoclasm, for its illuminating and entertaining selection of illustrative examples, but most of all for a significant methodological breakthrough that makes the book both more useful and more coherent than most of its predecessors ... Because they are not bound to the simplifications of a model, [the authors] are free to concede the enormous complexity of forces that shape federal states ... As a result, their accounts of conditions in individual states are unusually thorough, accurate, and persuasive. -- James A Gardner, University at Buffalo School of Law * Publius: The Journal of Federalism *... a work of great importance, strongly inspired by the need for a critical approach to the normative data, to identify and remove the clichés present in the debate ... a volume, in short, which marks the existence of a before and after in the studies on federalism and which is destined to be a point of reference on the subject. (Translated from the original Italian) -- Giuseppe Martinico * Rivista di Diritti Comparati *Comparative Federalism is a comprehensive and insightful reference work on the practical implementation of the ‘federal toolkit’, supported and enriched by informed historical and theoretical framing. The book is generally accessible, well laid out, and clearly written ... The book will appeal to a wide readership, most obviously those working on federalism and power-sharing arrangements from the perspectives of, inter alia, constitutional law and political science, as well as those interested in such topical issues as participatory democracy and multi-level governance. -- Timothy Jacob-Owens, European University Institute * EUI Constitutionalism and Politics Working Group Blog *... this latest contribution to the functioning of federalism is a valuable addition for both scholars and practitioners, especially lawyers who are faced with challenges regarding this subject. -- Mathias Eller * Federal Governance *… this work is certain to be a reference in the field, not only for scholars of federalism, but also for those who would like to approach the federal idea from a purely legal perspective. The clarity and multitude of its examples make it accessible for all those who intend to embark upon their study of the federal paradigm. (Translated from the original Spanish) -- Francisco Javier Romero Caro, Universidad del País Vasco * Revista de Estudios Políticos *Table of ContentsPart I: Foundations 1. Concepts 2. Manifestations 3. History 4. Debates Part II: Self-Rule and Shared Rule 5. Autonomy of Subnational Entities 6. Participation of Subnational Entities at the National Level 7. Financial Relations 8. Prevention and Resolution of Conflicts 9. Local Government Part III: Powers and Policies: Between Autonomy and Homogeneity 10. Fundamental Rights 11. Social Welfare and Healthcare 12. Environmental Protection 13. Immigration and Migrant Integration 14. External Relations 15. Concluding Remarks

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Book SynopsisThis book provides a contextual analysis of constitutional governance in Ireland. It presents the 1937 Constitution as a seminal moment in an ongoing constitutional evolution, rather than a foundational event. The book demonstrates how the Irish constitutional order revolves around a bipartite separation of powers. The Government is dominant but is legally constrained by the courts, particularly in their interpretations of the fundamental rights protected by the Constitution. In recent decades, the courts have weakened the constitutional constraints on the Government. Political constraints imposed by opposition parties in Parliament and new accountability institutions (such as the Ombudsman) have moderately strengthened but the Government remains by far the most powerful political actor. There is a risk that such executive dominance could lead to democratic decay; however, the referendum requirement for constitutional amendment has prevented Governments from accumulating greater constitutional power. The book begins with an overview of Irish constitutional history leading to the enactment of the 1937 Constitution, before exploring the foundational decisions made by the Constitution in relation to territory, people and citizenship. Particular attention is paid to the constitutional relationship with Northern Ireland, currently unsettled by the decision of the United Kingdom to leave the European Union. The book details the key institutions of state (Government, Parliament, President and courts), before analysing how different constitutional actors exercise their respective powers of governance, contestation and oversight. A thematic approach is taken to the courts’ interpretation of fundamental rights, showing how judicial attitudes have markedly changed over time. Further attention is paid to both formal amendment and informal constitutional change. The Constitution today is markedly different from 1937: it is non-committal on national reunification, less influenced by Roman Catholic natural law teaching, and generally more permissive of Government action. It is perhaps these developments, however, that explain its continued success or, at least, its longevity.Trade ReviewThe Constitutional Systems of the World series aims to provide interested readers with accessible volumes that outline the historical, political and legal context that gives life to the bare texts of national constitutions. The Irish contribution to this series succeeds in fulfilling all of these objectives. -- Thomas Mohr, University College Dublin * The Irish Jurist *The Constitution of Ireland: A Contextual Analysis offers a timely interdisciplinary analysis which will be of interest to lawyers, social scientists and other scholars with an interest in Irish public life, as well as interested general readers. It would be ideal for undergraduate and introductory law school courses on Irish and comparative constitutional law; and ideally it will contribute to establishing a tradition of contextual research on Irish constitutional law. -- Tim Murphy * Studies *Oran Doyle’s contribution to Hart’s Constitutional Systems of the World series should be read by anyone with an interest in Irish constitutional law and also by comparative constitutional lawyers. -- Paul Daly, University Research Chair in Administrative Law and Governance, University of Ottawa * I•CONnect *Table of Contents1. Beginnings, Influences and Evolution 2. Constitutional Foundations 3. Government and Oireachtas 4. The President 5. Legislative Power and Interpretation 6. Governance and Public Administration 7. Political Constraints on the Government 8. Courts and the Legal Constraint of the Government 9. Fundamental Rights and Judicial Power 10. Constitutional Change 11. Conclusion

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Book SynopsisThe status of the doctrine of parliamentary sovereignty in the contemporary UK Constitution is much contested. Changes in the architecture of the UK Constitution, diminishing academic reverence for the doctrine, and a more expansive vision of the judicial role, all present challenges to the relevance, coherence and desirability of this constitutional fundamental. At a time when the future of the sovereignty of Parliament may look less than assured, this book develops an account of the continuing significance of the doctrine. It argues that a rejuvenation of the manner and form theory is required to understand the present status of parliamentary sovereignty. Addressing the critical challenges to the doctrine, it contends that this conception of legally unlimited legislative power provides the best explanation of contemporary developments in UK constitutional practice, while also possessing a normative appeal that has previously been unrecognised. This modern shift to the manner and form theory is located in an account of the democratic virtue of parliamentary sovereignty, with the book seeking to demonstrate the potential that exists for Parliament – through legislating about the legislative process – to revitalise the UK’s political constitution.Trade Review...Gordon's book is undoubtedly well researched, logically argued, readable and stimulating. It is a valuable addition to [a] growing body of material on the role of parliamentary sovereignty in the UK Constitution... -- Dr Simon Lavis * Journal of Commonwealth Law and Legal Education *The entire book is detailed and very well argued...it is the best attempt I have seen at saving the concept of parliamentary sovereignty. -- Ronan Cormacain * The Theory and Practice of Legislation *Gordon's book makes an excellent contribution to the literature, providing food for thought for many years to come. -- Alison L Young * Public Law *Table of ContentsPart I—What is the Sovereignty of Parliament? 1. The Function and the Virtue of Parliamentary Sovereignty 2. The Manner and Form Theory of Parliamentary Sovereignty Part II—Understanding Modern Challenges to the Sovereignty of Parliament 3. The Non-Critical Challenges: Devolution, the Human Rights Act and Common Law Constitutionalism 4. UK Membership of the European Union 5. Jackson 6. The European Union Act 2011 Part III—The Virtue and Function of the Manner and Form Theory 7. A Democratic Justification of the Manner and Form Theory 8. The Potential Utility of the Manner and Form Theory

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Book SynopsisLandmark Cases in Public Law answers the need for an historical examination of the leading cases in this field, an examination which is largely absent from the standard textbooks and journal articles of the day. Adopting a contextualised historical approach, this collection of essays by leading specialists in the field provides both an explanation of the importance and impact of the chosen decisions, as well as doctrinal analysis. This approach enables each author to throw light on the driving forces behind the judicial outcomes, and shows how the final reasoning of the court was ultimately as much dependent upon such human factors as the attitudes, conduct, and personalities of the parties, their witnesses, their counsel, and the judges, as the drive to seek legal realignment with the political developments that were widely perceived to be taking place. In this way, this form of analysis provides an exposition of the true stories behind these landmark cases in public law.Table of Contents1. Entick v Carrington [1765]: Revisited All the King’s Horses Richard Gordon 2. Ridge v Baldwin [1964]: ‘Nuff Said’ SH Bailey 3. Padfield v Ministry of Agriculture Fisheries and Food [1968]: Judges and Parliamentary Democracy Maurice Sunkin 4. Anisminic Ltd v Foreign Compensation Commission [1968]: In Perspective David Feldman 5. Council of Civil Service Unions v Minister for the Civil Service [1984]: Reviewing the Prerogative Richard Drabble 6. The Factortame Litigation: Sovereignty in Question John MCEldowney 7. M v The Home Office [1992]: Ministers and Injunctions Christopher Forsyth 8. A v Secretary of State for the Home Department [2005]: The Belmarsh Case Richard Clayton 9. R v North and East Devon Health Authority [2001]: Coughlan and the Development of Public Law Kirsty Hughes 10. R (Jackson) v Attorney-General [2005]: Reviewing Legislation Elizabeth Wicks 11. Bancoult and the Royal Prerogative in Colonial Constitutional Law Satvinder S Juss 12. AXA General Insurance Ltd v HM Advocate and Others [2012]: The Nature of Devolved Legislation and the Role of the Courts The Honourable Mr Justice Lewis 13. Evans v Attorney General [2015]: The Underlying Normativity of Constitutional Disagreement Thomas Fairclough Epilogue: Miller, the Legislature and the Executive Paul Craig

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Book SynopsisThis timely and accessible book is the first to provide a thorough analysis of the 2008 Constitution of Myanmar (Burma) in its historical, political and social context. The book identifies and articulates the principles of the Constitution through an in-depth analysis of legal and political processes and practises, particularly since the 1990s. The core argument of this book is that the 2008 Constitution is crucial to the establishment and maintenance of the military-state. The military-state promotes the leadership role of the military in governance based on a set of ideological commitments and a centralised form of organisation based on the concept of the Union. The book develops this argument by demonstrating how the process of constitution-making and the substance of the 2008 Constitution contribute to its lack of credibility and fuel demands for reform. The vision offered by the 2008 Constitution and its associated institutions has been the subject of fierce contestation, not least, for example, due to concerns over the militarisation of the state. This book is animated by debates over fundamental ideas such as the nature of democracy, the possibility of peace and federalism, the relationship between the executive and the legislature, relations between the Union government and sub-national governments, debates over judicial independence and the oversized role of the Tatmadaw (armed forces). Central to the future of the Constitution and the military-state is the role of the Tatmadaw, which will be a key determinant in any potential shift from the present highly centralised, partly-democratic Union to a federal or decentralised democratic system of governance.Trade ReviewThe Constitution of Myanmar provides a meticulous positive analysis of constitutional praxis in contemporary Myanmar and is an essential new source on authoritarian constitutionalism. -- Maryam S Khan, Institute of Development and Economic Alternatives * Law & Society Review *Dr Crouch’s book is a remarkable exploration of the emerging constitutional order of Myanmar – deeply knowledgeable about Myanmar’s constitutional history, conscious of the profound divisions within Myanmar and the consequent array of demands made upon that order, and acute in its interpretations of a constitution undergoing rapid change. This book will be of great interest to those wishing to understand law and government in Myanmar, but also those interested generally in transitions from military rule, the governance of ethnically diverse societies, and the transition from colonial to post-colonial political orders. -- Professor Jeremy Webber, University of VictoriaThis is a welcome and timely new contribution to the excellent Hart series. It offers a well-informed analysis of the current constitutional arrangements in Myanmar, at a time when proposals for change are once again under discussion. The book will be an invaluable resource for those interested in Myanmar, Asian constitutional systems and multi-level government in times of transition. -- Professor Cheryl Saunders, University of MelbourneMyanmar’s Constitution was not expected to matter much when it was adopted in 2008, but Professor Crouch demonstrates that it has produced a vigorous set of debates about the country’s trajectory. This is the definitive English-language volume on Myanmar’s Constitution and essential for anyone following the country. -- Professor Tom Ginsburg, University of ChicagoTable of Contents1. Introducing Myanmar’s 2008 Constitution I. Constitutional Context II. Constitutional Codification and the Constitutional Tribunal III. The Constitution in a Military-state IV. Organisation of the Book 2. The Origins and Content of the 2008 Constitution: An Overview I. Parliamentary Democracy and the 1947 Constitution II. Ne Win’s ‘Burmese’ Socialism and the 1974 Constitution III. The Military and Constitution-making: 1990S–2000S IV. The Preamble and the Basic Principles of the Constitution V. Conclusion 3. The Military: The Pre-eminence of the Tatmadaw in Governance I. The Three Main National Causes II. The Commander-in-Chief III. Forces Affiliated with the Tatmadaw IV. The National Defence and Security Council V. States of Emergency VI. Tatmadaw Watchmen in the Legislature VII. Courts Martial VIII. Conclusion 4. The Electoral System and Limits on Political Participation I. Political Parties and Candidates II. The Right to Vote and Run for Office III. The Proposal for Proportional Representation IV. The Administration of Elections V. The Resolution of Electoral Disputes VI. Complaints Against Legislators: The Right to Recall VII. Conclusion 5. The Legislature I. The Union Legislature: A Tricameral System II. The Loyalties, Privileges and Responsibilities of Legislators III. The Scope of Legislative Power IV. Conclusion 6. The Executive I. The President as Head of the Union II. The Centralising Mandate of the Union Government III. Constitutional Commitments to a Market Economy IV. Aung San Suu Kyi and the Office of the State Counsellor V. The Administration of Union Territories VI. Conclusion 7. Subnational Governance, Federalism and Ethnic Recognition I. Territorial Representation: States and Regions II. Sub-national Legislative Representation of National Races III. Special Governance Arrangements for Six Areas IV. Conclusion 8. The Judiciary as an Administrative Institution I. The Union Supreme Court II. Sub-national Courts in a Unitary Judicial System III. The Constitutional Tribunal IV. Conclusion 9. Constitutional Duties and the Contingency of Rights I. The Status of International Law and Conventions II. The Pre-eminence of Duties III. Constitutional Writs in the Supreme Court IV. The National Human Rights Commission V. Conclusion 10. The Peace Process and Constitutional Change I. The Peace Process: Normalising Debates on Federalism II. The National Ceasefire Agreement: Peace in the Military-state III. The 37 Principles as Constitutional Foundation 6 IV. The Process and Procedure of Constitutional Amendment V. Proposals for Constitutional Reform VI. Conclusion 11. Conclusion I. The Centrality of the Constitution to the Military-state II. Implications for Comparative Constitutional Inquiry

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Book SynopsisThis monograph looks at how tax is intertwined with constitutional law and the state in the UK. It looks at a variety of topics including tax devolution, scrutiny and reform of tax legislation, the protection of taxpayers and the domestic legal processing of international rules and problems. Tax Law, State-Building and the Constitution presents and interrogates five key claims. First, there is a clear overlap between the concerns of tax and constitutional lawyers. Secondly, the tax system is being deeply affected by the fast pace of constitutional change. Thirdly, decisions taken in the tax field are likely to have a reverse influence on the evolution of the constitution. Fourthly, these relationships are heavily context-dependent, with tax making all the difference to some ongoing constitutional controversies whilst having very little to do with others. Fifthly, by acknowledging tax as an important moving part within the contemporary constitution we might understand both tax and constitutional law a little better. The book therefore contributes to deeper theoretical debates on the identity of tax law as a discipline, the relevance of tax to public lawyers, the meaning of state-building in the recent history of a developed country and the importance of public finances to a wider sense of ‘what is going on’. These are questions that ought to command the attention of tax and constitutional law academics as well as policy makers and reformers. Runner-up of the 2022 SLS Peter Birks Prize for Outstanding Legal Scholarship.Trade ReviewThis book is of enormous importance in making clear that tax law is public law, and in providing detailed coverage of major issues which illustrate this point. It would not go too far to say that it is ground-breaking in suggesting new paths for research and new ways of understanding both legal disciplines. It is extremely well written and easy to understand, and it should be accessible to both tax and public law audiences. -- Tony Prosser, Professor of Public Law, University of Bristol * British Tax Review *Table of Contents1. Tax Law, State-building and the Constitution I. Introduction II. Tax as Public Law III. State Building IV. The UK Constitution V. Normative Perspectives VI. The Approach in this Book VII. Conclusion 2. Tax Devolution I. Devolution in the UK Constitution II. Tax Devolution III. Tax in the Constitution IV. Interim Conclusions 3. Reform and Scrutiny of Tax Policymaking I. Constitutional Debates II. Tax Debates III. Improving Reform and Scrutiny IV. Tax in the Constitution V. Interim Conclusions 4. Taxpayer Protection I. Constitutional Debates II. Protection of Taxpayers III. Tax in the Constitution IV. Interim Conclusions 5. Europe and Beyond I. International Law in the UK Constitution II. International Tax III. Brexit IV. Tax in the Constitution V. Interim Conclusions 6. Constitutional Disruption I. Tax and Development II. Taxpayer Consent III. Institution Building IV. Calm at Westminster V. The Flexible Constitution VI. Constitutional Disruption VII. Best Hidden VIII. A Distinctive Window IX. Concluding Comments

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Book SynopsisThe principles of freedom of expression have been developed over centuries. How are they reserved and passed on? How can large internet gatekeepers be required to respect freedom of expression and to contribute actively to a diverse and plural marketplace of ideas? These are key issues for media regulation, and will remain so for the foreseeable decades. The book starts with the foundations of freedom of expression and freedom of the press, and then goes on to explore the general issues concerning the regulation of the internet as a specific medium. It then turns to analysing the legal issues relating to the three most important gatekeepers whose operations directly affect freedom of expression: ISPs, search engines and social media platforms. Finally it summarises the potential future regulatory and media policy directions. The book takes a comparative legal approach, focusing primarily on English and American regulations, case law and jurisprudential debates, but it also details the relevant international developments (Council of Europe, European Union) as well as the jurisprudence of the European Court of Human Rights.Trade Review[R]igorous in its attention to detail and demonstrates great adeptness in communicating the complexities of various regulatory regimes in a manner that is both informative and interesting. -- Paul Wragg, University of Leeds * Communications Law *This is an ambitious and authoritative monograph that has been thoroughly researched. It is without doubt a seminal piece of work that not only makes a valuable contribution to the free speech debate now but will, no doubt, continue to act as a catalyst and resource for further research and debate long into the future. Koltay has managed to adroitly balance in depth authoritative analysis with accessibility. Consequently, this book will not only be of huge value to academic and practising lawyers operating within the media law and human rights spheres, but will also be of interest to law students, philosophers, communication and journalism academics, journalists and other media professionals in the UK and internationally. -- Peter Coe, Institute of Advanced Legal Studies’ Information Law and Policy Centre, University of London * Entertainment Law Review *Table of Contents1. The Foundations of Free Speech and Freedom of the Press I. Freedom of Speech in the Age of the Internet II. The Category of ‘Speech’ and the Scope of Protection III. Limitation of the Freedom of Speech IV. Freedom of the Press and Media Regulation 2. The Regulation of the Internet and its Gatekeepers in the Context of the Freedom of Speech I. Online Content Providers as ‘Media’ II. The Regulation of Internet Gatekeepers 3. Internet Service Providers I. Introduction II. Obligations of the Internet Service Providers Regarding Illegal Content III. The Problem of Network Neutrality IV. Censorship by Internet Service Providers 4. Search Engines I. Introduction – The Role of Search Engines in Online Public Sphere II. Search Results as Speech III. The Liability of Search Engines for Violations of Personality Rights IV. The Manipulation of Search Results V. Summary 5. Social Media Platforms I. Introduction II. Social Media Platforms and the Democratic Public Sphere III. The Regulation of Platforms by Legislation IV. Private Regulation by Platforms V. Summary 6. Gatekeepers’ Responsibility for Online Comments I. The Case of Online Comments II. The European Court of Human Rights Case Law Relating to Comments – Overview III. The Relevant Criteria in the Cases before the European Court of Human Rights IV. Main Criticism of the Jurisprudence of the European Court of Human Rights V. The Case of Social Media Comments VI. Summary 7. The Future of Regulating Gatekeepers I. Introduction II. Possible Interpretations of Existing Legal Doctrines Concerning the Public Sphere III. The Possible Models of Future European Regulation IV. Summary

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Book SynopsisThis open access book addresses a palpable, yet widely neglected, tension in legal discourse. In our everyday legal practices – whether taking place in a courtroom, classroom, law firm, or elsewhere – we routinely and unproblematically talk of the activities of creating and applying the law. However, when legal scholars have analysed this distinction in their theories (rather than simply assuming it), many have undermined it, if not dismissed it as untenable. The book considers the relevance of distinguishing between law-creation and law-application and how this transcends the boundaries of jurisprudential enquiry. It argues that such a distinction is also a crucial component of political theory. For if there is no possibility of applying a legal rule that was created by a different institution at a previous moment in time, then our current constitutional-democratic frameworks are effectively empty vessels that conceal a power relationship between public authorities and citizens that is very different from the one on which constitutional democracy is grounded. After problematising the most relevant objections in the literature, the book presents a comprehensive defence of the distinction between creation and application of law within the structure of constitutional democracy. It does so through an integrated jurisprudential methodology, which combines insights from different disciplines (including history, anthropology, political science, philosophy of language, and philosophy of action) while also casting new light on long-standing issues in public law, such as the role of legal discretion in the law-making process and the scope of the separation of powers doctrine. The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.Trade ReviewThe Making of Constitutional Democracy is a rich and sophisticated book. Its bibliographical apparatus is simply breathtaking. The depth of Sandro’s engagement with multiple areas of legal theory is remarkable … Sandro engages with constitutional theory, analytical jurisprudence, administrative law, and the philosophy of language with ease and rigor. -- Felipe Jiménez, USC Gould School of Law * American Journal of Jurisprudence *The book is a real learning experience. If you have accepted some of mainstream legal or political thinking, get ready to have several of your received ideas challenged on a sophisticated level … the book is a worthwhile addition to the literature on a number of key topics in legal theory and democratic theory. -- Barbara Levenbook * JOTWELL *Packed with interesting ideas. -- Lawrence Solum * Legal Theory Blog *[This] book ... tackles, with analytical clarity and rigour, an issue that is central to today’s jurisprudential debates: the distinction between law-creation and law-application ... Paolo Sandro puts forward a considerable series of arguments, many of them highly original (and, to my mind, conclusive), that ground the epistemological difference between these two activities and justify their division. His work constitutes, therefore, a major contribution to a fundamental issue: not just in philosophy of law, but in the theory of constitutional democracy as well. * Luigi Ferrajoli, Emeritus Professor of Philosophy of Law, University of Roma Tre, Italy *The book is excellently-sourced, always well-argued, and makes a case for a revival of philosophical interest in some fundamental truisms of legal and political theory: we can no longer assume to understand central concepts such as law-making, separation of powers, discretion, and application of law ... The book is also an exercise in transdisciplinary jurisprudence: here legal theory is in constant dialogue with the empirical findings in other areas of law and beyond. Sandro’s work is relevant, insightful and interesting. * Patricia Mindus, Professor in Practical Philosophy, Uppsala University, Sweden *Paolo Sandro ... appears to have read everything – and I do mean everything – in legal philosophy, political theory, and the philosophy of language. His book is not, however, a compendium of the views of others. It is, rather, chock full of original and innovative arguments, brought together in a spacious book of uncommon appeal. * Stanley L Paulson, Co-Director of the Hans Kelsen Forschungsstelle, University of Kiel, Germany *How does the distinction between creation and application of law bear upon the legitimacy of our constitutional democracies? Bringing the realist’s quandary about the indeterminacy of law to an examination of the conceptual and institutional features of constitutional democracy, Paolo Sandro’s unfailingly erudite yet remarkably accessible book literally has something for everyone in its answer to that question. Its wide-ranging, historically sensitive, and bridge-building analysis makes a compelling case for why a distinction upon which so many assumptions and practices of democratic constitutionalism turn demands a closer look. * Kristen Rundle, Professor of Law, University of Melbourne, Australia *Paolo Sandro ties together the role of law from its creation through its application to the ideals of constitutionalism and democracy. He systematically breaks down the role of law through a systematic approach that shows the breadth of the topic, while also expanding upon many of the elements necessary for constitutional democracy. * Democracy Paradox *Table of ContentsI. Aims and Structure of the Work 1. Law, Power, and Political Authority. On the Scope and Limitations of the Work I. Introduction II. Brief Methodological Remarks III. The Province of the Problem Determined: What is Law? IV. Politics, Political Power, Political Authority V. From Powers to Power. The Familiar Tale of the Ineluctability of the State A. And its Two-pronged Critique: Isonomia and ‘Early’ States VI. The Conditions of Existence of Political Authority: Insights from the Theory of Normative Orders 2. The Dependence of Constitutional Democracy on the Distinction between Creation and Application of Law I. Introduction II. The Contested Relationship between Law and Politics III. Law as lex and as ius: The Duality that Makes Constitutionalism Possible IV. From Constitutions to Constitutionalism: Narrowing the Focus of Constitutional Theory V. The (Proverbial) Tension between Democracy and Constitutionalism VI. Modern Constitutionalism as ‘Legal Otherness’ VII. The Two-fold Justificatory Dependence of Constitutional Democracy on the Idea of Application of Law 3. A Critical Evaluation of Moderate Legal Realism I. Introduction II. Realism vs Formalism III. Let Us be Realist about Adjudication. What do Judges Eat for Breakfast? IV. Realism and Realisms in Law: Meta-theory V. The Lowest Common Denominator of Legal Realism VI. The Two Axes of Rule-scepticism A. Radical-immanent Indeterminacy Thesis B. Radical-transcendental Indeterminacy Thesis C. Moderate-immanent Indeterminacy Thesis D. Moderate-transcendental Indeterminacy Thesis VII. The Unbearable Lightness of Moderate Scepticism 0 VIII. On the Normativity of Law, and On the Digestion of Judges 4. Towards a Unified Account of Discretion in Law I. Introduction II. HLA Hart and the Concept of Discretion. Back to the Future? III. Dworkin and the (Normative) No-Strong-Discretion Thesis IV. Discretion as a Pervasive Feature of Kelsen’s Stufenbaulehre V. Discretion as Balancing in Klatt (and Alexy) VI. The History of Discretion in the Administrative Domain VII. Administrative Discretion in Germany VIII. Discretion in the French-Italian Administrative Tradition IX. The Concept of Discretion in English Administrative Law X. Towards a Unifi ed Account of Discretion in Law A. Normative Discretion B. Interpretive Discretion XI. Conclusion 5. Law and Language and as Language. An Alternative Picture of a Multifaceted Relationship I. Introduction II. The Communicative Model of Law. A Two-way Affair? III. Beyond ‘What is Said’. Speech-act Theory and the Rise of Pragmatics in Legal Interpretation IV. First Objection: Law as Language, Law and Language(s) V. Second Objection: Speech-act vs Text-act Theory VI. Legal Texts as ‘Autonomous’ Text-acts VII. An Alternative Theory of Legal Meaning: Semantic Minimalism VIII. Prolegomena to a Theory of Legal Interpretation IX. Conclusion 6. Creation and Application of Law. An Analytical Distinction I. Introduction II. The Two Extremes: Rejecting vs Assuming the Distinction III. Kelsen on the Relativity of the Distinction between Creation and Application of Law IV. Creation of Law: Of the Typicality of Legal Rules V. The Principle of Legality as a (Semantic) Meta-norm on Law-creation and Law-application VI. Unpacking the Idea of ‘Application of Law’ VII. The Potential Asymmetry between Norm-following and Norm-application VIII. On the (Different) Normativity of Power-conferring Norms IX. Can only Officials Apply the Law? X. Form and Substance. Towards an Analytical Account of Law-application XI. Conclusion XII. PS One Final Objection: Interpretation, Interpretation, Interpretation! 7. The Separation of Powers. A Meta-theoretical Reassessment I. Introduction II. Genealogical Issues. When was the Separation of Powers ‘Invented’? III. A Twofold Meta-theoretical Ambiguity Plaguing the Discussion IV. The Justificatory Debate. Monism vs Pluralism V. Critical Approaches VI. The Separation of Powers as a Formal Theory and as a Normative Doctrine. On the Advantages of Maintaining a Strict Distinction A. The Formal Theory of the Separation or Division of Powers B. A Normative Doctrine of the Organisation of Political Power Based on the Distinction between Law-creation and Law-application VII. Conclusion

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Book SynopsisThis book examines New Zealand’s constitution, through the lens of constitutional realism. It looks at the practices, habits, conventions and norms of constitutional life. It focuses on the structures, processes and culture that govern the exercise of public power – a perspective that is necessary to explore and account for a lived, rather than textual, constitution. New Zealand’s constitution is unique. One of three remaining unwritten democratic constitutions in the world, it is characterised by a charming set of anachronistic contrasts. “Unwritten”, but much found in various written sources. Built on a network of Westminster constitutional conventions but generously tailored to local conditions. Proudly independent, yet perhaps a purer Westminster model than its British parent. Flexible and vulnerable, while oddly enduring. It looks to the centralised authority that comes with a strong executive, strict parliamentary sovereignty, and a unitary state. However, its populace insists on egalitarian values and representative democracy, with elections fiercely conducted nowadays under a system of proportional representation. The interests of indigenous Maori are protected largely through democratic majority rule. A reputation for upholding the rule of law, yet few institutional safeguards to ensure compliance.Table of Contents1. New Zealand Constitutionalism I. Introduction II. Constitutional Essence III. Constitutional Perspective IV. Constitutional Culture V. Constitutional Dialogue VI. Conclusion Further Reading 2. Aotearoa New Zealand I. Introduction II. Maori and Pakeha III. He Whakaputanga o te Rangatiratanga o Nu Tireni: The Declaration of Independence of New Zealand IV. Te Tiriti o Waitangi: The Treaty of Waitangi V. Assertion of British Sovereignty VI. Conclusion Further Reading 3. Head of State and the Crown I. Introduction II. Sovereign as Head of State III. Governor-General as De Facto Head of State IV. Governor-General’s Functions and Powers V. Executive Council VI. The Crown in Law VII. Conclusion Further Reading 4. Democratic Government I. Introduction II. Representative Government: An Elected House III. Responsible Government: A Parliamentary Ministry IV. Conclusion Further Reading 5. Executive I. Introduction II. Cabinet Government III. Prime Minister and Ministers IV. Public Service V. Wider State Sector 0 VI. Public Finance and Managerialism VII. Conclusion Further Reading 6. Parliament I. Introduction II. Parliamentary Institutions III. Parliamentary Functions IV. Parliamentary Dynamics under MMP V. Legislative Supremacy and its Limits VI. Conclusion Further Reading 7. Judiciary I. Introduction II. The Rule of Law and Forms of Law III. The Judiciary as an Institution IV. Judicial Independence and Accountability V. Conclusion Further Reading 8. Accountability and Transparency I. Introduction II. Accountability III. Transparency IV. Conclusion Further Reading 9. Human Rights I. Introduction II. New Zealand Bill of Rights Act 1990 III. Fundamental Rights and the Common Law IV. Other Statutory Rights Protections V. Conclusion Further Reading 10. Te Tiriti o Waitangi I. Introduction II. A Brief History of the Status of Te Tiriti III. Te Tiriti in the Constitution Today IV. Conclusion Further Reading 11. Local and Global Governance I. Introduction II. Local Government III. Maori Governance IV. Non-State Bodies and the Private Sector V. Global Institutions and International Relationships VI. Conclusion Further Reading 12. Constitutional Futures I. Introduction II. A Written Constitution? III. A Maori-centred Nation State? IV. A New Zealand Head of State? V. Pragmatic Tinkering? VI. Enhanced Protection of Rights? VII. Localism versus Globalism? VIII. Conclusion Further Reading

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