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Judges, politics and the Irish Constitution$
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Laura Cahillane, James Gallen, and Tom Hickey

Print publication date: 2017

Print ISBN-13: 9781526114556

Published to Manchester Scholarship Online: September 2017

DOI: 10.7228/manchester/9781526114556.001.0001

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Judges and the idea of ‘principle’ in constitutional adjudication

Judges and the idea of ‘principle’ in constitutional adjudication

Chapter:
(p.64) 4 Judges and the idea of ‘principle’ in constitutional adjudication
Source:
Judges, politics and the Irish Constitution
Author(s):

Tom Hickey

Publisher:
Manchester University Press
DOI:10.7228/manchester/9781526114556.003.0005

Tom Hickey’s chapter seeks to reconcile the principles-oriented contribution that constitutional adjudication (or judicial review) can make to overall public deliberation with the fact of reasonable disagreement on rights. Part I assesses the school of ‘legal constitutionalism’ in the context of Irish constitutional law and experience. Part II introduces a distinctive way of understanding the role of principle in judicial review; one that works from a conception of deliberation that – in contrast to contemporary deliberative democracy theory – embraces disagreement and thus, it is argued, better accounts for the political and contestable nature of rights. The chapter then closes by combining the ideas in these parts to argue that the intuition shared by many to support outright judicial supremacy does not stand up to scrutiny, but that the primary cause of that intuition – the principled nature of judicial review – demands and justifies a more constrained form of judicial power.

Keywords:   constitutional adjudication, legal theory, rights

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