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13 results

The Least Examined Branch
  • The Role of Legislatures in the Constitutional State
  • Edited by Richard W. Bauman, Tsvi Kahana
  • Published online:
    06 August 2009
    Print publication:
    31 July 2006
  • Unlike most works in constitutional theory, which focus on the role of the courts, this book addresses the role of legislatures in a regime of constitutional democracy. Bringing together some of the world's leading constitutional scholars and political scientists, the book addresses legislatures in democratic theory, legislating and deliberating in the constitutional state, constitution-making by legislatures, legislative and popular constitutionalism, and the dialogic role of legislatures, both domestically with other institutions and internationally with other legislatures. The book offers theoretical perspectives as well as case studies of several types of legislation from the United States and Canada. It also addresses the role of legislatures both under the Westminster model and under a separation of powers system.

  • New Ways of Looking at Old Institutions

    • By Richard W. Bauman, Professor of Law and Chair of the Management Board Centre for Constitutional Studies, University of Alberta, Tsvi Kahana, Assistant Professor of Law Queen's University, Kingston, Ontario
  • Edited by Richard W. Bauman, University of Alberta, Tsvi Kahana, Queen's University, Ontario
  • Book:
    The Least Examined Branch
    Published online:
    06 August 2009
    Print publication:
    31 July 2006, pp 1-14

  • Summary

    This book seeks to redress an imbalance. Over the past few generations, scholars who study processes of constitutional lawmaking – including modes of creation, interpretation, and application – have focused largely on how courts work with constitutions. Rival theories of adjudication, whether dealing with how power is allocated in a modern state or with how rights are to be protected in light of constitutional guarantees, have been intricately constructed. Just as theories along this line have proliferated, so too have empirical studies of the performance of judges as constitutional oracles and referees.

    Less attention has been paid to how legislatures, executive officials, or administrative agencies have interpreted their responsibilities to make or revise or implement constitutions. Of these branches, legislatures are the prime focus of this book. How do they respect (or occasionally overstep) constitutional boundaries? When and for what ends do they reverse the constitutional decisions of courts? How do legislatures create new forms of constitution-like instruments, doctrines, and principles? Moreover, how do they realize or make concrete the ideals that underpin a constitutional democracy? Are there discrepancies between what a constitution envisions by way of democratic processes or values and how legislatures operate in fact? In response to such questions, this book offers theoretical perspectives from a multidisciplinary group of authors. The work of legislatures, illustrated by examples derived predominantly from North America, is described as well as normatively assessed.

    The systematic neglect of legislatures by legal and political philosophers has been noted by, among others, Jeremy Waldron.