Se-Shauna Wheatle, Principled Reasoning in Human Rights Adjudication

Abstract

A book title such as ‘Principled Reasoning in Human Rights Adjudication’ is bound to raise high expectations. Internal coherence of legal reasoning in human rights cases is a challenge, particularly given the high nature of abstraction in which rights are generally couched. Thus, the title promises to tackle at least partially the common concerns of competence and legitimacy. This book focuses on the latter: Wheatle’s self-proclaimed aim is to ‘enhance’ the scholarly literature that deals with normative questions surrounding the legitimacy of the use of implied constitutional principles by common law courts. Centring on the rule of law and the separation of powers as the two exemplars of such implied constitutional principles, the book strives to provide a thematic, descriptive—rather than normative—examination of the case law from a comparative angle. The United Kingdom, Canada, Australia and the Commonwealth Caribbean, all of which are classified as ‘Westminster-style’ (pp 3–4) parliamentary democracies, are the principal jurisdictions examined. Together, these legal systems provide a significantly large basis for the author’s examination. The scope of the book is further broadened by the wide range of substantive angles looked at; it is clear from the start that this book encompasses a number of public law issues that in and of themselves would be a challenge to tackle. Thus, the recurring themes of the book include the theoretical foundations and practical relevance of the rule of law and the separation of powers, the notion of constitutionalism, judicial independence and institutional self-protection, judicial comparativism as well as the past and present influence of the British Empire on other common law jurisdictions and vice versa. All of these are brought together under the legitimisation of the use of implied constitutional principles as a framework.