The Guardianship of European Constitutionality: A Structural Critique of European Constitutional Review

2017 ◽  
pp. 173-203 ◽  
Author(s):  
Agustín José Menéndez
Keyword(s):  
Constitutional Review

The New Terrain of International Law

2014 ◽  
Author(s):  
Karen J. Alter
Keyword(s):  
International Law ◽  
Case Studies ◽  
Domestic Politics ◽  
Political Influence ◽  
The Political ◽  
International Courts ◽  
Constitutional Review ◽  
Delegation Of Authority ◽  
The World ◽  
The Law

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. This book charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics. The book presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, the book argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. The book explains how this limited power—the power to speak the law—translates into political influence, and it considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.

The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

2019 ◽  
Vol 19 (1) ◽  
pp. 7-37
Author(s):  
Aleksandra Kustra-Rogatka
Keyword(s):  
European Integration ◽  
Legal System ◽  
Constitutional Court ◽  
Centralized Control ◽  
Constitutional Treaty ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
Basic Features ◽  
The Eu

Summary The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.

European Welfare State Constitutions after the Financial Crisis

2020 ◽  
Keyword(s):  
Financial Crisis ◽  
Structural Changes ◽  
Social Protection ◽  
Welfare States ◽  
Constitutional Review ◽  
State Constitutions ◽  
Social Law ◽  
European Welfare State ◽  
One Step ◽  
Recent Financial Crisis

At a time when Europe is in the grip of a new crisis, it is especially useful to look back at the experiences of the European welfare states’ constitutions during the most recent financial crisis. This book provides unique insights by analysing social protection reforms undertaken in nine European countries, from both a social law and a constitutional law perspective. It highlights the mixture of short-term cuts in benefits and of structural changes in social protection schemes. The crisis might have helped to further the partial and temporary implementation of reforms, but it certainly cannot spare us from the debates and political compromises that are unavoidable in order to reform social protection thoughtfully and thoroughly. Moreover, the book records the outcome of relevant constitutional review proceedings and thereby demonstrates that, even if corrections remained restricted to relatively few cases, social rights matter. The financial crisis advanced their protection one step further, but left many questions open. One lesson is of paramount importance, also for helping us overcome the current pandemic crisis: we need a substantial and commonly accepted agreement in the Europe Union on how to balance the economy and social protection in the future.

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