Judicial Review in an Objective Legal System, by Tara Smith
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Judicial Review in an Objective Legal System, by Tara Smith
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How should courts interpret the law? While all agree that courts must be objective, people differ sharply over what this demands in practice: fidelity to the text? To the will of the people? To certain moral ideals? In Judicial Review in an Objective Legal System, Tara Smith breaks through the false dichotomies inherent in dominant theories - various forms of Originalism, Living Constitutionalism, and Minimalism - to present a new approach to judicial review. She contends that we cannot assess judicial review in isolation from the larger enterprise of which it is a part. By providing careful clarification of both the function of the legal system as well as of objectivity itself, she produces a compelling, firmly grounded account of genuinely objective judicial review. Smith's innovative approach marks a welcome advance for anyone interested in legal objectivity and individual rights.
Judicial Review in an Objective Legal System, by Tara Smith- Amazon Sales Rank: #943025 in Books
- Published on: 2015-09-28
- Original language: English
- Number of items: 1
- Dimensions: 9.02" h x .63" w x 5.98" l, 1.00 pounds
- Binding: Paperback
- 302 pages
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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Most helpful customer reviews
25 of 25 people found the following review helpful. A Welcome Advance By Joshua Windham As a third-year law student, I found this book to be a much-needed breath of fresh air. Amid a seeming labyrinth of legal scholarship warped by decades of tradition-weighted misconceptions, the great virtue of this book is clarity. Smith cuts straight to the core of objectivity, of the distinct reason for our having a legal system at all, and of the ultimate duty that judges are charged with in conducting judicial review. In so doing, she identifies the essential strengths and weaknesses of the arena's major schools of thought, emerging ultimately with a theory bright with novelty and inspiring in its ambition. A must-read for students and jurists alike.
23 of 23 people found the following review helpful. JUDICIAL REVIEW: Clear & Engaging By Ann Ciccolella I was happily surprised at how readable JUDICIAL REVIEW is for an average reader (me). The writing is engaging and very clear and direct. I can imagine that many of Smith's points will spark debate among lawyers, law students as well as legal scholars, but without an objective legal system we are lost. A great read for every intelligent reader.
12 of 12 people found the following review helpful. A Fantastic Thought Provoking Book on Philosophy of Law By Anoop Verma There is tremendous value in Tara Smith’s ‘Judicial Review in an Objective Legal System’ and the book is recommended to those who are sufficiently interested in developing a clear perspective on the issue of judicial review and gaining understanding of the complexities that must be dealt with for reforming the legal system, so that there is improvement in the overall system of governance, and legal power is not misused and individual rights don’t suffer.The book begins with an explanation of the foundational concept of ‘objectivity’: “Objectivity is a particular discipline for directing our thinking.” On why we need to seek objectivity and what kind of value we can expect by being objective, Smith says that we want to be objective, because “we want to be right. We want our beliefs to be true and our conclusions to be valid.”In explaining various aspects of ‘objectivity’, lot of emphasis has been placed on epistemology. “Adherence to objectivity requires conscientious respect for the hierarchical structure of knowledge.” Smith’s hypothesis is that “objectivity is relative to a given context” because of the fact that knowledge is contextual. The explanation of the theory of knowledge in the book paves way for a broader evaluation of objectivity in the legal system and the philosophy of governance.“A government’s laws tell people how its power will be used. Even more basic than this expressive role, however, laws are the ways in which that power is used (assuming that the government in question faithfully adheres to its laws). That is, a nation’s laws constitute its policy concerning the exercise of its power. Consequently, for a government to govern as it should, the context of its laws is crucial.”Smith posits that we must establish rule of law because a rule of law is a moral ideal. “The alternative between the Rule of Law and the Rule of Men is the alternative between the rule of reason and the rule of force. In this context, the rule of reason takes the form of a moral doctrine: the rule of rights.” When they think about the issues related to constitution, most people tend to assume that ‘rule of law’ is a value neutral subject. Smith clarifies that adherence to values is must for the implementation of any system of rule of law, and that it is possible to remain neutral while adhering to values. “Like objectivity, neutrality is never an end in itself. Proper decision making in any realm is determined, in large measure by what one is seeking to accomplish.”How does the legal system get its authority? What gives the legal system the authority to force people to obey its laws? In delivering the answers to these questions, the book provides some interesting insights into the theory of the moral purpose of a government. “The requisite anchor for the moral authority of a legal system rests in that system’s serving the proper function of government, which is to safeguard individuals’ freedom by banning the initiation of physical force.” With this Smith posits that not every legal system has moral authority, because it is possible for a regime to enjoy obedience of the citizens even though it lacks the moral authority to rule.There can only be rule of law when the people have a clear understanding of what the law is and therefore Smith calls the written constitution the bedrock of legal authority. “Firm rights require firm protections. A written constitution most effectively secures them.”After establishing the importance of written constitution, Smith goes on to conduct a detailed examination of the five popular methodologies of judicial review: Textualism, Public Understanding Originalism, Democratic Deference or Popular Constitutionalism, Perfectionism or Living Constitutionalism, and Minimalism. She points out the limitations that are inherent in the five methodologies and provides reasons to prove that all five of them are inadequate for maintaining rule of law. This section is also of interest because in the course of her assessment Smith makes brief commentaries on the views of people like Antonin Scalia and Ronald Dworkin.The crucial question is that according to Smith what is the best methodology for judicial review? She writes: “The essence of my view is that objective review proceeds exclusively by the law, with its meaning and implications ascertained solely by means of logical, context-sensitive analysis.” While explaining why the courts should engage in judicial review, she says that the purpose of the exercise is to ensure rule of law. “Even more basically: to achieve the purpose of a legal system, namely, the greatest possible security for individual rights.”It is important for the courts to rule with objective justification, because when they fail to do so, they permit “the government to do things that it has no authority to do. The casualty is individual rights. For just as a system of objective law works to protect individual rights, so unjustified uses of a legal system’s coercive power destroy them. They seize from a person the freedom of action that properly belongs to him.”Reading this book, which clearly is Smith’s magnum opus, also gives you the feeling of reading a detailed (book-length) version of Ayn Rand’s essay ‘The Nature of Government’. Rand has said: “Since the protection of individual rights is the only proper purpose of a government, it is the only proper subject of legislation: all laws must be based on individual rights and aimed at their protection.” Smith, in her book, persuasively explains why all laws must be focussed on individual rights and how we can achieve a good legal system through objective methodologies.However, the book also faces some problems, which are mainly due to the scarcity or the lack of information in certain areas. As it touches upon many different aspects of legal theory, ‘Judicial Review in an Objective Legal System’ leads to a range of questions in the mind whose answers cannot be found in its pages. For instance, while it explains the philosophy of law in considerable detail, it does not provide adequate analysis of the legal system that exists today. It does not answer the questions like: What are the key problem areas in today’s legal system? What ‘immediate’ steps can be taken to reform the legal system?A step-by-step guide to reform the legal system would certainly be too much to ask for given the complexity of this field, but more clarity could have been given on the general direction in which things must move. The views of the leading jurists and the thinkers of law have not been presented and analysed in detail. The mission of legal system, as mentioned in the book, is not fully clear. Another problem is that Smith has not provided a historical perspective on the legal system—some kind of information on the process by which the legal system has evolved and the general direction in which it is headed would have been quite useful.Overall, ‘Judicial Review in an Objective Legal System’ is an excellent condensation of Objectivist positions in the area of the law, and it is a rare triumph for a book of only 300 pages to shed so much light on complicated subjects like judicial review and the theory of governance.
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