Judicial Review and Human Rights: Theory and Practice

This module examines the role played by the courts in protecting, promoting and defining human rights in domestic legal systems. Most common law jurisdictions provide for litigable human rights through constitutions or other fundamental rights documents. In many instances these rights can be asserted against primary legislation as well as executive or administrative decisions. The judiciary are charged with the task of deciding these specialised disputes between the individual and the state. (For the purposes of this course, the term ‘judicial review’ is given its broad definition which includes challenges to legislation as well as administrative decisions). Human rights adjudication gives rise to numerous theoretical and practical issues of law and politics, which are discussed in this course. Key issues addressed include:

• The desirability and dangers of 'judicialisation' of human rights
• The relationship between the courts and other branches of government in the context of human rights protection
• The consequences of a finding that government action violates human rights
• The role that the judiciary play in promoting a 'human rights culture' Obstacles for human rights litigants.

Throughout this module, a critical approach is taken to the appropriateness and efficacy of placing the courts process and the judiciary at the centre of human rights protection. The course draws on sources from common law jurisdictions, including Ireland, the UK and Canada. While there are no formal perquisites for taking this course, students are expected to be familiar with the constitutional law of at least one jurisdiction

Module Pre Requisite: There is no pre-requisite for this module. However, if students have not previously studied the constitutional law of at least one common-law state, additional reading will be assigned at the start of the module.

Learning Outcomes:

On successful completion of this module, students should be able to:

• Describe and analyse the role played by judicial review in the broader political context of human rights guarantees
• Explain and appraise the merits and disadvantages of the systems of judicial review in operation in various common law jurisdictions
• Evaluate the leading constitutional debates on the subject of rights-based judicial review
• Critically evaluate the practice of rights-based judicial review from the perspective of constitutional theory and institutional design
• Categorise and discuss the practical effects produced by the operation of the practice of judicial review and the practical experiences of litigants.

Assessment:

• The summative assessment for this module is primarily by way of an essay, which will account for 95% of each student’s final mark for this module.
  Students are free to choose their own essay topic, subject to lecturer's approval and the word limit for the essay is 5,500 words.

• 5% of each student’s final mark will be based on participation in online discussions through Blackboard.  Students will need to make a minimum of one substantive contribution per week to obtain these marks

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