Where Our Protection Lies

Separation of Powers and Constitutional Review

Dimitrios Kyritsis (Associate Professor in Law, University of Reading)

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English

Oxford University Press
10 August 2017

Political science & theory; Constitution: government & the state; Judicial review; Parliamentary & legislative practice

In this book Dimitrios Kyritsis advances an original account of constitutional review of primary legislation for its compatibility with human rights. Key to it is the value of separation of powers. When the relationship between courts and the legislature realizes this value, it makes a stronger claim to moral legitimacy. Kyritsis steers a path between the two extremes of the sceptics and the enthusiasts. Against sceptics who claim that constitutional review is an affront to democracy he argues that it is a morally legitimate institutional option for democratic societies because it can provide an effective check on the legislature. Although the latter represents the people and should thus be given the initiative in designing government policy, it carries serious risks, which institutional design must seek to avert. Against enthusiasts he maintains that fundamental rights protection is not the exclusive province of courts but the responsibility of both the judiciary and the legislature. Although courts may sometimes be given the power to scrutinize legislation and even strike it down, if it violates human rights, they must also respect the legislature's important contribution to their joint project. Occasionally, they may even have a duty to defer to morally sub-optimal decisions, as far as rights protection is concerned. This is as it should be. Legitimacy demands less than the ideal. In turn, citizens ought to accept discounts on perfect justice for the sake of achieving a reasonably just and effective political order overall.

By: Dimitrios Kyritsis (Associate Professor in Law University of Reading)
Imprint: Oxford University Press
Country of Publication: United Kingdom
Dimensions: Height: 240mm, Width: 169mm, Spine: 20mm
Weight: 1g
ISBN: 9780199672257
ISBN 10: 0199672253
Pages: 236
Publication Date: 10 August 2017
Audience: Professional and scholarly , College/higher education , Undergraduate , Further / Higher Education
Format: Hardback
Publisher's Status: Active

1: The Possibility of Constitutional Theory 2: A Moral Map of Constitutional Polyphony 3: Are the Courts the Forum of Constitutional Principle? 4: Against the Democratic Objection 5: A Little Less Conversation, A Little More Action 6: Constitutional Review in Representative Democracy 7: Two Modes of Judicial Deference 8: Moral and Constitutional Rights 9: Dynamic Separation of Powers

Dimitrios Kyritsis is an Associate Professor in Law at the University of Reading since 2014. Prior to that he was Lecturer at the University of Sheffield and Hauser Global Law Fellow at New York University. He holds a DPhil from Oxford. His primary research interests are legal philosophy and constitutional theory.