Law and judicial duty
著者
書誌事項
Law and judicial duty
Harvard University Press, 2008
大学図書館所蔵 全11件
  青森
  岩手
  宮城
  秋田
  山形
  福島
  茨城
  栃木
  群馬
  埼玉
  千葉
  東京
  神奈川
  新潟
  富山
  石川
  福井
  山梨
  長野
  岐阜
  静岡
  愛知
  三重
  滋賀
  京都
  大阪
  兵庫
  奈良
  和歌山
  鳥取
  島根
  岡山
  広島
  山口
  徳島
  香川
  愛媛
  高知
  福岡
  佐賀
  長崎
  熊本
  大分
  宮崎
  鹿児島
  沖縄
  韓国
  中国
  タイ
  イギリス
  ドイツ
  スイス
  フランス
  ベルギー
  オランダ
  スウェーデン
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注記
Includes bibliographical references and index
内容説明・目次
内容説明
Philip Hamburger's Law and Judicial Duty traces the early history of what is today called "judicial review." Working from previously unexplored evidence, Hamburger questions the very concept of judicial review. Although decisions holding statutes unconstitutional are these days considered instances of a distinct judicial power of review, Hamburger shows that they were once understood merely as instances of a broader judicial duty.
The book's focus on judicial duty overturns the familiar debate about judicial power. The book is therefore essential reading for anyone concerned about the proper role of the judiciary.
Hamburger lays the foundation for his argument by explaining the common law ideals of law and judicial duty. He shows that the law of the land was understood to rest on the authority of the lawmaker and that what could not be discerned within the law of the land was not considered legally binding. He then shows that judges had a duty to decide in accord with the law of the land. These two ideals-law and judicial duty-together established and limited what judges could do.
By reviving an understanding of these common law ideals, Law and Judicial Duty calls into question the modern assumption that judicial review is a power within the judges' control. Indeed, the book shows that what is currently considered a distinct power of review was once understood as a matter of duty-the duty of judges to decide in accord with the law of the land. The book thereby challenges the very notion of judicial review. It shows that judges had authority to hold government acts unconstitutional, but that they enjoyed this power only to the extent it was required by their duty.
In laying out the common law ideals, and in explaining judicial review as an aspect of judicial duty, Law and Judicial Duty reveals a very different paradigm of law and of judging than prevails today. The book, moreover, sheds new light on a host of misunderstood problems, including intent, manifest contradiction, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent.
目次
* Preface * Introduction * I. Law *1. The Hierarchy of Law *2. The Shift Toward Authority *3. Constitutions * II. Judicial Duty *4. Judicial Duty *5. Independent Judgment *6. Judicial Decisions *7. Authority to Expound * III. Judicial Duty as to Legislative Acts *8. No Appeal from Parliament *9. Colonial Departures * IV. Law and Judicial Duty in America *10. Law and Judicial Duty *11. Reason and Justice within the Law *12. The Range of Constitutional Decisions and the Character of Judicial Duty * V. Judicial Duty in America as to Legislative Acts *13. Holding Legislative Acts Unconstitutional *14. A Lopsided Debate *15. Not Holding Legislative Acts Unconstitutional * VI. Independence and Authority in America *16. Independence *17. Authority * VII. Inexplicit *18. The Inexplicitness of Constitutions *19. Federal Clarifications * Conclusion * Appendix I. Bonham's Case * Appendix II. The Institutio Legalis: Law and Justice in New Jersey * Appendix III. Common Law Adjacent to Statutes: Religious Taxes in Massachusetts * Chronological Table of State Decisions * Index
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