Dimensions of dignity : the theory and practice of modern constitutional law / Jacob Weinrib.
2016
K3249 .W45 2016 (Map It)
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Title
Dimensions of dignity : the theory and practice of modern constitutional law / Jacob Weinrib.
Published
Cambridge, United Kingdom : Cambridge University Press, 2016.
Call Number
K3249 .W45 2016
ISBN
9781107084285 hardback
1107084288 hardback
1107084288 hardback
Description
xv, 299 pages ; 24 cm.
System Control No.
(OCoLC)910914857
Summary
In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity remains an enigmatic idea. Some explicate its meaning in abstraction from constitutional practice, while others confine themselves to less exalted ideas. The result is a chasm that separates constitutional practice from a theory capable of justifying its innovations and guiding its operation. By expounding the connection between human dignity and the constitutional practices that justify themselves in its light, Jacob Weinrib brings the theory and practice of constitutional law back together.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Acknowledgments
xi
Table of constitutions
xiii
Table of cases
xiv
1.
Human dignity and public law
1
1.1.
Dignity's dilemma
3
1.2.
antinomy of public law
10
1.3.
Dignity's dimensions
14
1.4.
Dignity: the concept and the word
23
pt. I
normative dimension
35
2.
Authority, justice, and public law
37
2.1.
Hart's middle path
41
2.2.
principle of authority
47
2.3.
principle of justice
57
2.4.
Between anarchism and quietism
65
3.
Public authority and private violence
76
3.1.
Radbruch and Alexy on the limits of legality
78
3.2.
pathologies of public law
86
3.3.
public meaning of the principle of authority
91
3.4.
barbarism of Nazi power
99
4.
Toward public justice
108
4.1.
Rawls on ideal and nonideal theory
109
4.2.
Hart's reformist project
116
4.3.
Public justice as an ideal and as a duty
119
4.4.
Progress and particularity
127
pt. II
constitutional dimension
135
5.
modern constitutional state
137
5.1.
problem of accountability
141
5.2.
new form of government
147
5.3.
Assessing commonwealth constitutionalism
160
5.4.
reply to Waldron
167
pt. III
doctrinal dimension
177
6.
Constitutional reform
179
6.1.
rise of eternity clauses
184
6.2.
Against the basic structure doctrine
193
6.3.
Eternity clauses: a justification
200
6.4.
Defending constituent power
205
7.
moral structure of proportionality
215
7.1.
Constitutional conflicts
218
7.2.
Proportionality as a justificatory sequence
223
7.3.
Alexy and his critics
234
7.4.
Rights as trumps: an alternative?
245
Conclusion: public law in postwar theory and practice
253
Bibliography
272
Index
294