CONSTITUTIONAL RIGHTS, JUDICIAL REVIEW, AND THE DISTRIBUTION OF BENEFITS.

Persistent Link:
http://hdl.handle.net/10150/187648
Title:
CONSTITUTIONAL RIGHTS, JUDICIAL REVIEW, AND THE DISTRIBUTION OF BENEFITS.
Author:
MILANICH, PATRICIA GAIL SMITH.
Issue Date:
1982
Publisher:
The University of Arizona.
Rights:
Copyright © is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction or presentation (such as public display or performance) of protected items is prohibited except with permission of the author.
Abstract:
The thesis approaches the question of distributive justice through an analysis of legal rights, focusing in particular on constitutional rights. In Part I (Chapters 1, 2, 3) conceptual issues of the meaning of rights are considered. The concept of a right is analyzed generally as (1) a claim to something; (2) which is logically correlated with a duty; and (3) which is justified, in the case of constitutional rights, by reference to constitutional grounds. The more specific Hohfeldian analysis of legal rights is then coordinated with the general account. Analyzing rights as justified claims leads to the question of what counts as constitutional justification which is in turn intimately tied to a correct account of judicial review. In Part II (Chapters 4,5) a definitive account of judicial review is attempted. After examining the logical base of legal reasoning and concluding that it is essentially dialectical, the major normative theories of judicial review are considered. In particular natural law, legal realism, reasoned elaboration, and legal positivism are considered and all are rejected in part. An attempt is then made to incorporate significant elements of each in a general theory using the coherence methodology of Ronald Dworkin. Finally the results are applied to a paradigm of the sort of judicial reasoning that seems to capture the elements picked out in the earlier analysis. It is argued that the thesis advanced here explains and justifies the judicial reasoning used in that case (Griswold v. Connecticut).
Type:
text; Dissertation-Reproduction (electronic)
Keywords:
Distributive justice.; Judicial review.; Constitutional law.
Degree Name:
Ph.D.
Degree Level:
doctoral
Degree Program:
Philosophy; Graduate College
Degree Grantor:
University of Arizona

Full metadata record

DC FieldValue Language
dc.language.isoenen_US
dc.titleCONSTITUTIONAL RIGHTS, JUDICIAL REVIEW, AND THE DISTRIBUTION OF BENEFITS.en_US
dc.creatorMILANICH, PATRICIA GAIL SMITH.en_US
dc.contributor.authorMILANICH, PATRICIA GAIL SMITH.en_US
dc.date.issued1982en_US
dc.publisherThe University of Arizona.en_US
dc.rightsCopyright © is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction or presentation (such as public display or performance) of protected items is prohibited except with permission of the author.en_US
dc.description.abstractThe thesis approaches the question of distributive justice through an analysis of legal rights, focusing in particular on constitutional rights. In Part I (Chapters 1, 2, 3) conceptual issues of the meaning of rights are considered. The concept of a right is analyzed generally as (1) a claim to something; (2) which is logically correlated with a duty; and (3) which is justified, in the case of constitutional rights, by reference to constitutional grounds. The more specific Hohfeldian analysis of legal rights is then coordinated with the general account. Analyzing rights as justified claims leads to the question of what counts as constitutional justification which is in turn intimately tied to a correct account of judicial review. In Part II (Chapters 4,5) a definitive account of judicial review is attempted. After examining the logical base of legal reasoning and concluding that it is essentially dialectical, the major normative theories of judicial review are considered. In particular natural law, legal realism, reasoned elaboration, and legal positivism are considered and all are rejected in part. An attempt is then made to incorporate significant elements of each in a general theory using the coherence methodology of Ronald Dworkin. Finally the results are applied to a paradigm of the sort of judicial reasoning that seems to capture the elements picked out in the earlier analysis. It is argued that the thesis advanced here explains and justifies the judicial reasoning used in that case (Griswold v. Connecticut).en_US
dc.typetexten_US
dc.typeDissertation-Reproduction (electronic)en_US
dc.subjectDistributive justice.en_US
dc.subjectJudicial review.en_US
dc.subjectConstitutional law.en_US
thesis.degree.namePh.D.en_US
thesis.degree.leveldoctoralen_US
thesis.degree.disciplinePhilosophyen_US
thesis.degree.disciplineGraduate Collegeen_US
thesis.degree.grantorUniversity of Arizonaen_US
dc.identifier.proquest8217438en_US
dc.identifier.oclc681764300en_US
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