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1 - Introduction

Published online by Cambridge University Press:  29 July 2009

Francis G. Jacobs
Affiliation:
King's College London
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Summary

The functions of the law seem to have developed dramatically since the days of Miss Emma Hamlyn.

What I seek to show in this book is that many fundamental choices for society are now made, and probably have to be made, not by the legislature, not by the executive, but by the courts. This requires the courts not merely to apply existing legal rules, but to develop the law. In doing so, the courts will necessarily be making value choices, and often balancing competing values, especially where they are confronted with conflicts between them.

For example, in the moral sphere, acute problems arise on the ostensibly sacrosanct right to life: what is its scope? The duty to protect and respect human life may conflict with our conceptions of human dignity. What then should be the response of the courts to the issue of euthanasia?

Many examples of competing values have their origin in the idea of fundamental rights. Especially over the past fifty years, it has become widely accepted in Europe that the protection of fundamental human rights is a principal function of the courts. But often fundamental rights are not, despite the language sometimes used, absolute and unqualified. Freedom of speech may conflict with the right to privacy; currently, there is vital debate about the limits on the fundamental right to practise a religion. So the courts, necessarily, have to strike the balance.

Type
Chapter
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The Sovereignty of Law
The European Way
, pp. 1 - 8
Publisher: Cambridge University Press
Print publication year: 2007

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  • Introduction
  • Francis G. Jacobs, King's College London
  • Book: The Sovereignty of Law
  • Online publication: 29 July 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511493706.004
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  • Introduction
  • Francis G. Jacobs, King's College London
  • Book: The Sovereignty of Law
  • Online publication: 29 July 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511493706.004
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Introduction
  • Francis G. Jacobs, King's College London
  • Book: The Sovereignty of Law
  • Online publication: 29 July 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511493706.004
Available formats
×