Public reason, which urges that only laws based on principles reasonably agreeable to all those bound by them are legitimate, has rarely been applied to constitutional law, and never in a comparative way. This book aspires to fill that gap, by studying the use of public reason in different constitutional systems. In doing so, it studies public reason both as a normative idea - as a principle postulated for democratic constitutionalism, and as a descriptive account - as helping to understand many important doctrines in constitutional adjudication of some leading constitutional courts around the world, and also in the supranational sphere.
Constitutional Public Reason questions the performance of leading 'exemplars of public reasons', including the top courts of the United States, India, Canada, Australia, Germany, and South Africa, as well as the European Court of Human Rights. It also attempts to show how this performance can be improved in fields such as freedom of expression, non-establishment of religion, and anti-discrimination law. Ultimately, it finds that the best resonance between the ideal of public reason and constitutional interpretation is found in doctrines that locate the illegitimacy of laws in the wrongful motives (or purposes) pursued by legislators. Scrutinising motives is often as important as scrutinising consequences.
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This book shows how public reason is both central and useful for thinking about legitimacy in constitutional law and theory. It helps academics to understand many important doctrines in constitutional adjudication of some leading constitutional courts around the world and in the supranational sphere.
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Preface
Part I: Public Reason and Its Discontents
1: Justifying Public Reason
2: The Parameters of Public Reason
3: Defending Public Reason
Part II: Constitutional Public Reason in Municipal Law
4: Motive-Based Judicial Review: Introduction
5: Problems with Motive-Based Scrutiny and Some Judicial Solutions
6: Freedom of Speech, Viewpoint Regulation, and Wrongful Legislative Motives
7: Illicit Legislative Intentions in the Separation of State and Religion
8: Standards of Scrutiny, Equal Protection, and Illicit Motives for Discrimination
Part III: Supranational Public Reason
9: Constitutional Legitimacy beyond the State
10: European Court of Human Rights in Pursuit of Public Reason?
Afterword
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Wojciech Sadurski is Challis Professor of Jurisprudence at the University of Sydney and a Professor at the University of Warsaw, Centre for Europe. He has previously held a professorship at the European University Institute in Florence from 1999-to 2009 (where he served as head of the department of law in 2003-2006), and he has taught most recently at New York University School of Law, Yale Law School, Fordham Law School, and the University of Parma. Professor
Sadurski is a member of several supervisory or program boards, including the International Association of Constitutional Law, ICON-S, and the Institute of Public Affairs (Poland).
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Converts an influential and popular philosophical ideal into the field of constitutional theory
Defends the principle of public reason against influential critiques
Studies a wide range of philosophical and constitutional scholarship, building bridges between these disciplines
Provides rich comparative constitutional material exploring constitutional case law in the US, Canada, Australia, India, South Africa, and Germany, as well as some supranational courts, such as the European Court of Human Rights and the Inter-American Court of Human Rights
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Produktdetaljer
ISBN
9780192869678
Publisert
2023
Utgiver
Vendor
Oxford University Press
Vekt
746 gr
Høyde
241 mm
Bredde
163 mm
Dybde
22 mm
Aldersnivå
UP, 05
Språk
Product language
Engelsk
Format
Product format
Innbundet
Antall sider
416
Forfatter