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Philosopher Kings?The Adjudication of Conflicting Human Rights and Social Values$
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George C. Christie

Print publication date: 2011

Print ISBN-13: 9780195341157

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780195341157.001.0001

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An Overview of Case-By-Case Adjudication, its Possible Goals, and the Influence of Legal Traditions

An Overview of Case-By-Case Adjudication, its Possible Goals, and the Influence of Legal Traditions

Chapter:
(p.119) 9 An Overview of Case-By-Case Adjudication, its Possible Goals, and the Influence of Legal Traditions
Source:
Philosopher Kings?
Author(s):

George C. Christie (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195341157.003.0009

The previous chapters of this book highlighted the problems confronting courts attempting to decide the contentious issues that inevitably arise in the adjudication of cases involving what are accepted as basic human rights. They also considered a number of the ways that have been suggested to meet these problems in a manner that would make a universe of defeasible rights into something that would approach the Hohfeldian rights model and yet still be compatible with traditional notions about the function of courts and the role of judges but have found them wanting. The time has now come to go further and to explore and, if possible, set forth acceptable and plausible ways that might enable courts concerned with the implementation of difficult human rights issues to meet, in an intellectually satisfying way, the challenging demands now being made on them. This chapter considers how, if at all, courts might meet these challenges without becoming either meek and quiescent rubber stamps to decisions made by powerful political actors or a coterie of philosopher kings who are creating a more structured system and hierarchy of rights by imposing their own views, or the views of the social elites to which they belong, on the citizens of a democratic society.

Keywords:   human rights, courts, judicial decision-making, democratic society, defeasible rights, Hohfeldian rights model

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