Guardians of the Constitution: Unconstitutional Constitutional Norms

Abstract

The recent adoption of the UK Human Rights Bill offers the possibility for many developments in the UK legal system. At the centre of the change stand the new system for the protection of civil rights, and the re-drawn relations between the judiciary and the other branches of Government; combined these features raise the spectre of judicial activism. The Human Rights Act appears to resolve the division of responsibilities between the judges and the political branches in a manner which is deferential to the traditional notions of parliamentary sovereignty, following the example of New Zealand. However such textual confines are potentially treacherous if a court's conception of civil rights and constitutionalism leads it to embrace an activist approach. This article explores three foreign examples of judicial activism straining at the textual limits.

Keywords: Judicial activism, constitutional interpretation, human rights, comparative law

JEL Classification: K10