The constitutional requirement of legality in limitation of human rights.

摘要

A striking feature of the post-WWII model of rights-protection is the separation of rights and limitations. This thesis concerns the preliminary step in the limitations enquiry, that of legality. It briefly examines aspects of the drafting histories of the relevant constitutional documents. Then, with reference principally to the jurisprudence of the European Court of Human Rights, the Canadian Supreme Court and the South African Constitutional Court, it assesses the coherence of judicial representations of the role of legality within the two-stage process of rights adjudication. It goes on to identify categories of public power in relation to which the legality question arises, and to analyse judicial treatment thereof, with particular attention to whether the rule of law and democracy principles underlying the requirement are promoted by the courts. In so doing, it suggests that consistent and principled adherence to the demands of legality can intensify democracy and foster rights-protection.