How should courts interpret the law? While all agree that courts must be objective, people differ sharply over what this demands in practice: fidelity to the text? To the will of the people? To certain moral ideals? In Judicial Review in an Objective Legal System, Tara Smith breaks through the false dichotomies inherent in dominant theories - various forms of originalism, living constitutionalism, and minimalism - to present a new approach to judicial review. She contends that we cannot assess judicial review in isolation from the larger enterprise of which it is a part. By providing careful clarification of both the function of the legal system as well as of objectivity itself, she produces a compelling, firmly grounded account of genuinely objective judicial review. Smith's innovative approach marks a welcome advance for anyone interested in legal objectivity and individual rights.
How should courts interpret the law? While all agree that courts must be objective, people differ sharply over what this demands in practice: fidelity to the text? To the will of the people? To certain moral ideals? In Judicial Review in an Objective Legal System, Tara Smith breaks through the false dichotomies inherent in dominant theories - various forms of originalism, living constitutionalism, and minimalism - to present a new approach to judicial review. She contends that we cannot assess judicial review in isolation from the larger enterprise of which it is a part. By providing careful clarification of both the function of the legal system as well as of objectivity itself, she produces a compelling, firmly grounded account of genuinely objective judicial review. Smith's innovative approach marks a welcome advance for anyone interested in legal objectivity and individual rights.
Über den Autor
Tara Smith is a Professor of Philosophy at the University of Texas, Austin. She is the author of Moral Rights and Political Freedom, Viable Values: A Study of Life as the Root and Reward of Morality and Ayn Rand's Normative Ethics: The Virtuous Egoist. Her writings have been translated into several languages including Chinese, Japanese and Hebrew.
Inhaltsverzeichnis
1. Introduction; Part I. An Objective Legal System: 2. Objectivity - getting reality right; 3. Objectivity in a legal system - three cornerstones; 4. The moral imperative of the rule of law; 5. The moral authority beneath the law; 6. A written constitution - bedrock legal authority; Part II. Implications for Judicial Review: 7. Judicial review - the reigning accounts' failure; 8. Objective judicial review - understanding the law in context; 9. Proper review in contemporary conditions; Conclusion.
