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Judicial Review in an Objective Legal System
Download Ebook Judicial Review in an Objective Legal System
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Book Description
The debate over judicial review typically frames law's meaning as either rigid or elastic, strictly given or subjectively interpreted. By examining the operation of the wider legal system this book provides a new framework for understanding objective judicial review.
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About the Author
Tara Smith is a Professor of Philosophy at the University of Texas, Austin. She is the author of Moral Rights and Political Freedom, Viable Values: A Study of Life as the Root and Reward of Morality and Ayn Rand's Normative Ethics: The Virtuous Egoist. Her writings have been translated into several languages including Chinese, Japanese and Hebrew.
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Product details
Paperback: 302 pages
Publisher: Cambridge University Press; Reprint edition (September 28, 2015)
Language: English
ISBN-10: 110753495X
ISBN-13: 978-1107534957
Product Dimensions:
5.9 x 0.6 x 9.1 inches
Shipping Weight: 15.2 ounces (View shipping rates and policies)
Average Customer Review:
5.0 out of 5 stars
12 customer reviews
Amazon Best Sellers Rank:
#770,647 in Books (See Top 100 in Books)
The value of a functioning court system is important in the daily operations of the state. However, the growing rise in a centralized federal power, in the US, has added an extra stress on the court's importance and how they execute their responsibilities. As a philosopher, Smith brings much needed clarity and new thinking to the subject of how courts should perform their function of judicial review.To ground her analysis Smith begins with objectivity. What is objectivity? Why should we be objective? How does this relate to the courts? Smith's approach is distinctive because of its use of Ayn Rand's conception of objectivity which differs from many standard or common views on the subject. In "getting reality right" objectivity as a method uses logic to achieve a cognitive grasp of the facts of reality. Smith points out that objectivity is not determined solely by the object of study nor by the subject. It is a relational. As a consequence this means objectivity has key aspects to it such as the fact that knowledge is hierarchical and contextual. And since the law and judiciary deal in highly abstract principles and subjects it becomes really important in maintaining objectivity in our concepts and understanding their foundational base as they relate to reality. From this epistemological standpoint Smith is able to formulate her view of judicial review.She touches on written constitutions versus common law and why she thinks the written form superior. She examines the moral authority of government and its purpose as the protection of individual rights. This serves as the standard by which to judge whether the law is good or not and whether or not it is objective.The second part of the book actually gets into the topic of judicial review. She lays out and then critiques five different review methodologies. This is where Smith is able to leverage her view of objectivity in order to show how each method gets the law wrong. Whether it's trying to go strictly by the text (Scalia) or trying to go by precedent and not rock the boat (John Roberts) or even trying to perfect the law (Dworkin), each method gives us bad rulings because they are not objective. In her approach, judicial review consists of unswerving focus on the law and appreciating its contextual character.A well thought-out analysis that differentiates itself from the other methods. This approach to judicial review deserves a much needed influence.
Most of the other reviewers stated the reasons why this is an important book; Tara Smith lays the foundation of what objective laws should be. She grounds her reasoning in the nature of human beings and their requirements of the laws passed by governments. Basically, all laws should protect real individual rights and she shows how judicial review is a necessary component to ensure just laws.There is one point however, that I think needs clarification. She opposes religious exemptions to laws since it would undermine the rule of law. Since in her view all laws should be about protecting rights, or implementing procedures to protect rights, any exemptions would be near anarchic. However, in the context of dealing with non-objective laws that infringe on rights, a religious exemption can be viewed as a partial repeal. It can be used tactically as a means of reducing the infringement of rights, and can be justified IN THAT CONTEXT.For example, as of this writing, the Trump administration has granted religious exemptions to a religious adoption service in South Carolina. Regardless if one agrees or not with this religious view, this exemption respects the freedom and property rights of this organization against one of the Obama administrations more odious anti-discrimination regulations. In this context religious exemptions can be justified.All in all, this is a worthwhile addition for anyone's law or philosophy library.
Tara Smith clearly articulates her ideal of judicial review in an objective system. She demonstrates this by starting at the roots, describing what she means by objective and discussing common incorrect interpretations of the concept. She goes on to present the current five primary legal analysis theories and shows why she believes each one is incorrect. This section alone is very educational and well worth the reading of the book. This subject is very reasoned based and relevant to society.She concludes by laying out her system, which is a logical progression of the beginning of middle of the book. As usual, all of her ideas are well thought out and she lucidly explains all of her reasonings that lead to her beliefs. This is the sort of discussion that is needed to debate ideas, bringing out the best ones and moving society forwards.HIghly recommend.
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