Judicializing Everything?

The Clash of Constitutionalisms in Canada, New Zealand, and the United Kingdom

By: Mark S. Harding

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Hardcover | 22 February 2022

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Hardcover
192 Pages

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23.1 x 16 x 2.2

Hardcover

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Judicializing Everything? focuses on judicial decision-making in parliamentary states that have recently adopted bills of rights.

Nearly every common law jurisdiction in the world has adopted a charter or bill of rights. Yet adopting a new rights document creates, rather than resolves, many fundamental constitutional questions. Should constitutional rights be relevant in private disputes? Does every political question need a constitutional or judicial answer? Should courts and legislatures equally participate in addressing the scope of which issues are to be considered constitutional?

Judicializing Everything? illustrates how debates surrounding these persistent judicial questions are best understood as part of an ongoing clash between distinct forms of constitutionalism on and off the bench. Mark S. Harding canvasses the perennial debates within the field of constitutional studies and provides novel ways of understanding key disagreements between judges and scholars alike. Despite important formal differences between rights documents in Canada, New Zealand, and the United Kingdom, Judicializing Everything? shows that there are also considerable similarities in the kinds of cases, arguments, and legal outcomes in the three countries. As political life becomes increasingly constitutionalised and judicialised, this important book sheds light on the persistence of debates over bills of rights and their interpretation.

Industry Reviews

Judicializing Everything? unfolds political and legal constitutionalism, liberal and post-liberal constitutionalism, macro- and micro-constitutional change, the strength of judicial review, the reach of judicial review, and the law and politics of interpretation of statute law and common law. Mark S. Harding offers a nuanced account of constitutionalism and judicial review in contemporary liberal democracies.

- Thomas M.J. Bateman, Professor of Political Science, St. Thomas University

How best to protect rights: judicial supremacy or legislative primacy? Mark S. Harding's sophisticated contrast of intra-Commonwealth constitutionalisms suggests the answer may be a dynamic balance of judicial and legislative power mediated by the peculiarities of the local constitutional culture. Brilliant, innovative, and timely. A profoundly important book written in the best traditions of constitutional studies, combining rich contextual comparisons, careful case selection, rigorous theoretical inquiry, and deft political analysis. Outstanding!

- Richard Albert, William Stamps Farish Professor in Law, The University of Texas at Austin

Mark S. Harding brings together a number of literatures to examine clashing constitutionalisms. In doing so, he provides an important contribution to a number of scholarly debates, including the different models of judicial review, the public/private distinction and constitutional reach, dialogue theory and coordinate constitutionalism, and interpretation under bills of rights. Judicializing Everything? will be of great interest to scholars of comparative constitutionalism.

- Emmett Macfarlane, Associate Professor of Political Science, University of Waterloo

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