Constitutional Courts as Positive Legislators

2009 ◽  
Author(s):  
Allan Brewer-Carias
Keyword(s):  
Constitutional Courts

Democratic Legitimacy

2011 ◽  
Author(s):  
Pierre Rosanvallon
Keyword(s):  
United States ◽  
The United States ◽  
Democratic Legitimacy ◽  
Political Leaders ◽  
Constitutional Courts ◽  
International Debate ◽  
The Past ◽  
Democratic Authority ◽  
Original Contribution ◽  
Western Democracies

It's a commonplace occurrence that citizens in Western democracies are disaffected with their political leaders and traditional democratic institutions. But this book argues that this crisis of confidence is partly a crisis of understanding. The book makes the case that the sources of democratic legitimacy have shifted and multiplied over the past thirty years and that we need to comprehend and make better use of these new sources of legitimacy in order to strengthen our political self-belief and commitment to democracy. Drawing on examples from France and the United States, the book notes that there has been a major expansion of independent commissions, NGOs, regulatory authorities, and watchdogs in recent decades. At the same time, constitutional courts have become more willing and able to challenge legislatures. These institutional developments, which serve the democratic values of impartiality and reflexivity, have been accompanied by a new attentiveness to what the book calls the value of proximity, as governing structures have sought to find new spaces for minorities, the particular, and the local. To improve our democracies, we need to use these new sources of legitimacy more effectively and we need to incorporate them into our accounts of democratic government. This book is an original contribution to the vigorous international debate about democratic authority and legitimacy.

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.

The role of Constitutional Courts in Transitional Justice: Colombia and South Africa

2016 ◽  
Vol 9 (15) ◽  
Author(s):  
Nadiehezka Paola Palencia Tejedor
Keyword(s):  
South Africa ◽  
Structural Analysis ◽  
Transitional Justice ◽  
Critical Analysis ◽  
Historical Context ◽  
Constitutional Courts ◽  
Political Background ◽  
Similarities And Differences ◽  
Peace And Reconciliation

This work focuses on a compared analysis of the South Afri- can decision related to the “peace and reconciliation act” of this country’s Parliament, and the Colombian decision regarding the amendment of the constitution called “The juridical framework for the peace.” Turning to the structure, it is developed in three major topics: 1. It provides a brief of the historical context, political background and an overview of the two decisions.2. It gives a structural analysis of the powers that each Court has and the nature of the constitutional mechanism through which both Courts decided the constitutionality of the said norms 3. It presents a critical analysis on the similarities and differences between the two systems and judgments. It presents some con- clusions. 

Reinterpreting ‘the Mason Court Revolution’: An Historical Institutionalist Account of Judge-Driven Constitutional Transformation in Australia

2015 ◽  
Vol 43 (1) ◽  
pp. 1-25
Author(s):  
Theunis Roux
Keyword(s):  
Institutional Development ◽  
Social Needs ◽  
Constitutional Courts ◽  
Political Values ◽  
Exogenous Shock

There have been two major periods of judge-driven constitutional transformation in Australia. The first spanned the High Court's successful transformation over the course of the last century of the strongly federalist 1901 Constitution into a weakly federalist one. The second took the form of what is generally thought to have been the less than fully realized ‘Mason Court revolution’ – the Court's attempt, from 1987-1995, to turn the Constitution into a device for expressing core Australian political values. What explains these different outcomes – why was the first transformation so successful and the second only partially achieved? This article proposes an answer to this question based on a generalisable account of the role of constitutional courts in processes of constitutional transformation. In short, the argument is that the seminal Engineers decision triggered a self-reinforcing trajectory of institutional development that led to a stable politico-legal equilibrium by the middle of the last century. The judges responsible for the second attempted transformation sought to break free of this equilibrium in order to respond to what they thought were pressing social needs. In the absence of a significant exogenous shock to the system, however, the equilibrium structured and constrained what they were able to do.

The Max Planck Handbooks in European Public Law

2020 ◽  
Keyword(s):  
Public Law ◽  
The Body ◽  
Comparative Approach ◽  
Max Planck ◽  
Constitutional Courts ◽  
Individual Country ◽  
Country Report ◽  
Supreme Courts ◽  
Legal Space ◽  
Constitutional Adjudication

This book continues the thick comparative approach that lies at the heart of the Max Planck Handbook series. It addresses one of the most significant phenomena of modern-day public law: constitutional adjudication. This book introduces, through individual country reports, the institutions and practices that make constitutional adjudication come to life across the Continent. Thus, each country report will explain the history, design, composition, and practice of the body that engages (or not) in constitutional scrutiny. To draw as complete a picture as possible, the book includes countries with powerful constitutional courts, jurisdictions with traditional supreme courts, and states with small institutions and limited ex ante review. In keeping with the focus on a diverse but unified legal space, each report also details how its institution fits into the broader association of constitutional courts that, through dialogue and conflict, brings to fruition the European legal space.

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