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How Successful and Distinctive is the Human Rights Act? An Expatriate Comparatist's Assessment
Author(s) -
Gardbaum Stephen
Publication year - 2011
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/j.1468-2230.2011.00843.x
Subject(s) - constitutionalism , parliamentary sovereignty , political science , law and economics , legislature , optimal distinctiveness theory , human rights , law , remedial education , vagueness , straddle , sovereignty , sociology , economics , politics , psychology , finance , democracy , linguistics , philosophy , fuzzy logic , psychotherapist
This article first assesses the success and distinctiveness of the Human Rights Act 1998 from the perspective of its status as an exemplar of ‘the new Commonwealth model of constitutionalism.’ This new, intermediate model attempts to straddle the dichotomy of parliamentary sovereignty and judicial supremacy by protecting rights through a reallocation of powers between courts and legislatures that brings them into better balance than under either of these two traditional, more lopsided models. As part of its assessment, the article critically examines an influential strand of commentary claiming that in practice the HRA has proven to be less distinctive from US‐style constitutionalism than initially claimed or hoped. The second part of the article seeks to contribute to current debates about reform of the HRA by proposing ways to address its main structural weaknesses, especially the problem of remedial distortion.