Evolving Role of the Courts: Constitutional Review of Legislation under the New Zealand Bill of Rights Act 1990

<p>The constitutional landscape in New Zealand has undergone significant change over the last 20-35 years to improve the transparency and accountability of decision-making in the three branches of government. While most of these changes are a direct result of legislation, the constitutional role of the court has also been evolving and has seen the development of judicial review of the substance of the law for consistency with the New Zealand constitution. The orthodox view of the constitution is heavily critical of judicial, or constitutional, review of legislation by the courts and considers it to be an illegitimate encroachment on the domain of Parliament. This paper explores the legitimacy of constitutional review of legislation by the courts, specifically constitutional review of legislation under the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). To be legitimate, constitutional review by the courts must have both legal authority and be performed consistently with the constitution. This paper observes that s 5 of the Bill of Rights Act has been employed by the courts, without interference from Parliament, to review legislation for consistency with that Act and that the courts use the purposive approach to interpretation and the proportionality analysis to perform such review consistently with the constitution. Finally, the paper explores whether the developing jurisdiction of constitutional review necessitates a new paradigm to define the constitutional relationship between the courts and Parliament because the orthodox view of New Zealand's constitution is no longer supportable as the definitive position</p>

Evolving Role of the Courts: Constitutional Review of Legislation under the New Zealand Bill of Rights Act 1990

<p>The constitutional landscape in New Zealand has undergone significant change over the last 20-35 years to improve the transparency and accountability of decision-making in the three branches of government. While most of these changes are a direct result of legislation, the constitutional role of the court has also been evolving and has seen the development of judicial review of the substance of the law for consistency with the New Zealand constitution. The orthodox view of the constitution is heavily critical of judicial, or constitutional, review of legislation by the courts and considers it to be an illegitimate encroachment on the domain of Parliament. This paper explores the legitimacy of constitutional review of legislation by the courts, specifically constitutional review of legislation under the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). To be legitimate, constitutional review by the courts must have both legal authority and be performed consistently with the constitution. This paper observes that s 5 of the Bill of Rights Act has been employed by the courts, without interference from Parliament, to review legislation for consistency with that Act and that the courts use the purposive approach to interpretation and the proportionality analysis to perform such review consistently with the constitution. Finally, the paper explores whether the developing jurisdiction of constitutional review necessitates a new paradigm to define the constitutional relationship between the courts and Parliament because the orthodox view of New Zealand's constitution is no longer supportable as the definitive position</p>

Rationality in games and institutions

Against the orthodox view of the Nash equilibrium as “the embodiment of the idea that economic agents are rational” (Aumann, 1985, p 43), some theorists have proposed ‘non-classical’ concepts of rationality in games, arguing that rational agents should be capable of improving upon inefficient equilibrium outcomes. This paper considers some implications of these proposals for economic theory, by focusing on institutional design. I argue that revisionist concepts of rationality conflict with the constraint that institutions should be designed to be incentive-compatible, that is, that they should implement social goals in equilibrium. To resolve this conflict, proponents of revisionist concepts face a choice between three options: (1) reject incentive compatibility as a general constraint, (2) deny that individuals interacting through the designed institutions are rational, or (3) accept that their concepts do not cover institutional design. I critically discuss these options and I argue that a more inclusive concept of rationality, e.g. the one provided by Robert Sugden’s version of team reasoning, holds the most promise for the non-classical project, yielding a novel argument for incentive compatibility as a general constraint.

Lévi-Strauss’s Critique of Durkheim

Lévi-Strauss’s critique of Durkheim is considered an important one for two reasons. First, it is a discussion about the nature of social reality, and it therefore raises questions about the philosophical foundations of Durkheimian sociology. Second, it is regarded as a turning point in the French tradition of social anthropology, Lévi-Strauss’s purpose being to put forward structuralism as a solution to Durkheimian difficulties. In this chapter, first I outline Lévi-Strauss’s core arguments, and then I reassess the significance of his critique in light of the recent debates about his structuralist program in France. I will show that the orthodox view on the relation between the Durkheim school and Lévi-Strauss’s structuralism is oversimplified because it relies heavily on Lévi-Strauss’s own claims, and as a consequence, also oversimplifies Durkheim’s account of social reality. By examining concepts such as “symbolism,” “obligation,” “institution,” “norm,” and “action” in both Durkheim’s and Lévi-Strauss’s theory, I will show that Lévi-Strauss’s structuralist turn is in fact a cognitivist one, which, instead of offering solutions to Durkheimian questions, dismisses those questions.

The Goals of Moral Worth

While it is tempting to suppose that an act has moral worth just when and because it is motivated by sufficient moral reasons, philosophers have, largely, come to doubt this analysis. Doubt is rooted in two claims. The first is that some facts can motivate a given act in multiple ways, not all of which are consistent with moral worth. The second is the orthodox view that normative reasons are facts. I defend the tempting analysis by proposing and defending a heterodox account of both normative and motivating reasons that is inspired by Donald Davidson’s primary reasons. We should adopt the heterodox view, the chapter argues, because it addresses an overlooked but fatal defect in the orthodox conception of reasons, of which challenges to the tempting analysis are a special case.

Desire as Belief

What is it to want something? Or, as philosophers might ask, what is a desire? This book defends ‘desire-as-belief’, the view that desires are just a special subset of our beliefs: normative beliefs. This view entitles us to accept orthodox models of human motivation and rationality that explain those things with reference to desire, but nonetheless to also make room for our normative beliefs to play a role in those domains. And this view tells us to diverge from the orthodox view on which desires themselves can never be right or wrong. Rather, according to desire-as-belief, our desires can themselves be assessed for their accuracy, and they are wrong when they misrepresent normative features of the world. Hume says that it is not contrary to reason to prefer the destruction of the whole world to the scratching of your finger, but he is wrong: it is foolish to prefer the destruction of the whole world to the scratching of your finger, and this is foolish because this preference misrepresents the relative worth of these things.

The Problematics of Scientific Discovery

Historically, the problem of discovery or the problem of the genesis of scientific ideas has been taken seriously by the historians, psychologists, sociologists and philosophers who analyzed the creative thinking and formation of ideas and attempted to provide a meaningful account of them. In fact, the philosophical concern with scientific discovery is as old as science and philosophy of science themselves. However, almost throughout the first half of 20th century, philosophical reflection on the phenomenon of scientific discovery remained in a state of suspended animation. This is because the dominant trend in philosophy of science in this period outlawed it. The dominant view in philosophy of science maintained that the phenomenon of scientific discovery is philosophically irrelevant, and an adequate philosophical understanding of science should confine itself to the way in which scientific theories are justified; it was assumed that the process of justification is a neat, spick-and-span phenomenon eminently suited to be described in terms which are, logically speaking, cut and dry. The process of justification or evaluation according to this orthodox view constitutes the essence of science. Obviously, justification was demarcated from discovery. Justification, because of its supposed epistemic transparency, became the exclusive focus of philosophical attention to the detriment of discovery. The invidious distinction between discovery of scientific ideas and justification of finished ideas of science remained the catchword for a long time. This paper is an attempt to critically examine the nihilistic attitude of the dominant philosophies of science and to arrive at a philosophical theory of scientific discovery.

Clothing the New Poor Law workhouse in the nineteenth century

The workhouse remains a totemic institution for social historians, yet we still know very little about the day-to-day experiences of the indoor poor. Nowhere is this clearer than in discussions about workhouse clothing, which remain overwhelmingly negative in the literature and consistent with the predominant view of the workhouse as a place of suffering and humiliation. Yet more often than not, this view is based on relatively shallow empirical foundations and tends to rely on anecdotal evidence or on the uncritical use of subjective sources such as photographs, newspaper editorials and other cultural products. This article takes a different approach by looking again at the whole range of meanings that workhouse clothing held for paupers and those who oversaw its allocation, and at the practical and symbolic usages to which it was put by them. On the basis of this evidence the authors argue that, contrary to the orthodox view, workhouse clothing was rarely intended to be degrading or stigmatising; that it would have held very different meanings for different classes of paupers; and that, far from being a source of unbridled misery, paupers often found it to be a source of great strategic and practical value.

Demarcating Contextualism and Contrastivism

In this paper I argue that there is a significant but often overlooked metaphysical distinction to be made between contextualism and contrastivism. The orthodox view is that contrastivism is merely a form of contextualism. This is a mistake. The contextualist view is incompatible with certain naturalist claims about the metaphysical nature of concepts within whichever domain is being investigated, while the contrastivist view is compatible with these claims. So, choosing one view over the other will involve choosing to affirm or deny a significant metaphysical claim. As such, a demarcation ought to be put in place between contextualism and contrastivism.

The Sovereignty of Humanity and Social Responsibility for Evil Prevention

In this paper, I suggest that James Sterba’s recent restatement of the logical problem of evil overlooks a plausible theistic interpretation of the divine–human relation, which allows for a theodicy impervious to his atheological argument, which boils down to God’s failure to meet Sterba’s “Evil Prevention Requirements”. I argue that such requirements need not apply to God in a world under full human sovereignty, which presupposes that God never intervenes to change the natural course of events to prevent evils, as God has a decisive “greater good justification” for not intervening, namely respecting human sovereignty. This non-interventionist view of divine providence can be made tenable by the great good and dignity of the God-granted human God-like self-creativity implied by human sovereignty (a concept inspired by Giovanni Pico della Mirandola). The Mirandolian theodicy can both accommodate and complement Dostoyevsky’s Russian Orthodox view of “beneficial suffering”, predicated against the background of the conception of “collective selfhood”, overlooked by Sterba despite “featuring” on the cover of his book, no doubt due to his libertarian–individualistic assumptions about human agency and human flourishing, which a proponent of a theistic theodicy may do well to resist.