This thesis is a comparative study of 'political questions' and non-justiciability in US federal and English public law. Chapter 1 examines the problem of political questions in light of the judicial function in Anglo-American law, distinguishing jurisdiction from justiciability and elaborating the problem presented by the existence of non-justiciable 'political' questions, thereby providing the backdrop to the rest of the study. Chapter 2 traces the development of thinking on, elucidating several competing conceptions of, political questions in the US until the turn in Baker v Carr (1962), while Chapter 3 traces the fortunes of the US political question doctrine - its decline in practice, subjection to attack in the academic literature and more recently its possible resurgence - subsequent to this turn. In Chapter 4 I turn my attention to English law, examining the shift that has taken place in judicial review and the emergence of 'non-justiciability' as an organising principle in English public law. In Chapter 5 I outline a number of doctrinal currents and counter-currents in respect of non-justiciability in English law that are broadly similar to those in respect of debates concerning political questions in the US. Finally, in Chapter 6 I engage in a comparative analysis of political questions in the US and non-justiciability in English public law, arguing that these devices are functionally similar but conceptually different on account of important differences in the constitutional landscape and that debates about each, although ostensibly conducted in terms of constitutional principles, most notably the rule of law and the separation of powers, in fact mask deeper disagreements over constitutionalism, specifically (a more) legal as opposed to (a more) political constitutionalism.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:568078 |
| Date | January 2012 |
| Creators | Tomkins, David James |
| Publisher | University of Oxford |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
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