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Vol 24 No 9 Sept/Oct 2019

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The Anti-Suit Injunction

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Negotiable Constitution: On the Limitation of Rights

ISBN13: 9780521111232
Published: November 2009
Publisher: Cambridge University Press
Country of Publication: UK
Format: Hardback
Price: £72.00
Paperback edition , ISBN13 9781107411845

Despatched in 7 to 9 days.

In matters of rights, constitutions tend to avoid settling controversies. With few exceptions, rights are formulated in open-ended language, seeking consensus on an abstraction without purporting to resolve the many moral-political questions implicated by rights. The resulting view has been that rights extend everywhere but are everywhere infringed by legislation seeking to resolve the very moral-political questions the constitution seeks to avoid.

The Negotiable Constitution challenges this view. Arguing that underspecified rights call for greater specification, Grégoire C. N. Webber draws on limitation clauses common to most bills of rights to develop a new understanding of the relationship between rights and legislation. The legislature is situated as a key constitutional actor tasked with completing the specification of constitutional rights.

In turn, because the constitutional project is incomplete with regards to rights, it is open to being re-negotiated by legislation struggling with the very moral-political questions left underdetermined at the constitutional level.

  • Proposes a new understanding of constitutional rights, which will appeal to those who are uncomfortable with the weaknesses of orthodox understandings of constitutional rights
  • Interrogates the role and meaning of limitation clauses found in the European Convention and many bills of rights, and offers a new way of looking at the issues
  • Challenges the role of proportionality and balancing in resolving human-rights claims, providing valuable arguments for those who challenge their pervasiveness

Constitutional and Administrative Law
Introduction: on the limitation of rights; 1. The constitution as activity; 2. The received approach to the limitation of rights; 3. Challenging the age of balancing; 4. Constituting rights by limitation; 5. The democratic activity of limiting rights; 6. Justifying rights in a free and democratic society; 7. Conclusion.