scholarly journals Who cares? A defence of judicial review

2020 ◽  
Vol 8 ◽  
pp. 75-104
Author(s):  
Susanne Baer
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Point Of View ◽  
Fundamental Rights ◽  
Poor People ◽  
International Courts ◽  
The Rule Of Law ◽  
Cultural Minorities ◽  
Long Time ◽  
Critical Approaches

For a long time, politicians and scholars and even judges have criticised national and international courts with the competence of judicial review of legislative and executive powers. The defence usually relies on more or less abstract notions of the rule of law. This article, however, argues that at the heart of the matter are people, as protected by fundamental rights. Critical approaches to the law and studies in comparative constitutionalism allow us to understand why judicial review matters, namely: to whom. From that point of view, judicial review is not just a debatable idea, but it is about, specifically, children and women, non-patriarchal men and social and cultural minorities, poor people and others who are excluded. These are people in need of courts. For people, the rule of law is not just another concept of how things may be run, but is a protective device against arbitrariness, or outright hostility, of political majorities. Way beyond a reference to Germany�s history, judicial review is a �never again� to law as an empty promise.

scholarly journals El recurso directo: entre protección jurídica y constitucionalidad objetiva = Directation: between legal protection and objetive constitutionality

2014 ◽  
pp. 319
Author(s):  
Otto Pfersmann
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Judicial Review ◽  
Direct Action ◽  
Legal Protection ◽  
Fundamental Rights ◽  
Constitutional Rule ◽  
The Rule Of Law ◽  
Constitutional Judicial Review

La posibilidad de que los individuos dispongan de un «recurso directo» para cuestionar normas del sistema jurídico ante el juez de la constitucionalidad no constituye un elemento necesario del Estado constitucional de Derecho. La institución de los «derechos fundamentales», no requiere, en cuanto tal, que la protección de los mismos deba corresponder al juez de la constitucionalidad de las leyes. Lo que permite distinguir los diferentes modelos es el grado en que concentran y distribuyen estas tareas (protección de derechos fundamentales y control de constitucionalidad de la ley, básicamente). Esto depende de varios factores: el grado de exhaustividad del control de la constitucionalidad de las normas, el tipo de supervisión (preventivo o correctivo), el número de órganos encargados del control y el número de componentes del mismo. Se plantea así el problema de la limitación que aqueja al Estado de Derecho, pues cuanto más exhaustiva pretende ser la realización del mismo, menos intensa resulta produciendo un paradójico debilitamiento del derecho fundamental y del principio de exhaustividad. Asistimos, pues, a una mutación del principio «monomicrodicástico» y exhaustivo de jurisdicción constitucional.The possibility for individuals to have a «direct action» to challenge the norms of the legal system before the judge of the constitutionality is not a necessary element of the constitutional Rule of law. The institution «fundamental rights» does not require, as such, that the judge of the constitutionality of the parliamentary statutes should grant their protection. What allows distinguishing the different models is the degree of the concentration and distribution of these basic tasks: protection of the fundamental rights, constitutional judicial review. This depends upon various factors: how exhaust the constitutional judicial review should be, what kind of constitutional supervision may be (preventive or corrective), the number of the organs charged with this task, and the number of its components. The question of the limitation of the Rule of Law is risen, because the more exhaustive its implementation is intended, the less intense, generating a paradoxal weakness of the fundamental right and the completeness principie. A phenomenon appears: the mutation of the «monomicrodicastic» principie and the completeness of the constitutional judicial review.

scholarly journals Judges and Representatives of the People: a Polish Perspective

2020 ◽  
Vol 16 (3) ◽  
pp. 345-378
Author(s):  
Małgorzata Gersdorf ◽  
Mateusz Pilich
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Point Of View ◽  
Mutual Respect ◽  
Public Authorities ◽  
Absolute Power ◽  
The Rule Of Law ◽  
The People ◽  
Protection Of Human Rights ◽  
Constitutional System

Relations between the judiciary and the elected authorities (i.e. the legislative and the executive) in each country and at all times are among the most sensitive from the point of view of statehood. There is an obvious truth expressed in the famous saying of Lord Acton: ‘Power tends to corrupt, absolute power corrupts absolutely’2. The universal calling of judges is to restrain executive and legislative branches of government in their efforts to increase their power, especially at the expense of individuals. A state where there is no sufficiently strong counterweight to the natural omnipotence of the people’s representatives is not in line with the principle of the rule of law, because there is no one to remind the elected powers that their mandate has its limits – contemporarily established in particular by constitutional norms and the international regime for the protection of human rights.3 Naturally, courts do not directly take part in a political discourse, even though some kind of judicial review of the acts of public authorities exists virtually everywhere; these should not be characterised as an interference in political matters.4 The mutual respect of the judiciary and elected authorities proves the maturity of the state constitutional system, regardless of how far-reaching the powers are of judges to examine the constitutionality of legislation.

scholarly journals Rights and Powers in the European Union: Towards a Charter that is Fully Applicable to the Member States?

2020 ◽  
pp. 1-22
Author(s):  
Aida TORRES PÉREZ
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Rights Protection ◽  
Scope Of Application ◽  
Judicial Protection ◽  
Eu Fundamental Rights ◽  
The Eu

Abstract This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the CJEU has extended the scope of application of EU fundamental rights in fields of state powers. While the latent pull of citizenship towards a more expansive application of the Charter has not been fully realized, the principle of effective judicial protection (Article 19(1) TEU) has recently shown potential for protection under EU law beyond the boundaries of the Charter. As will be argued, effective judicial protection may well become a doorway for full application of the Charter to the Member States. While such an outcome might currently seem politically unsound, I contend that a progressive case-by-case expansion of the applicability of the Charter to the Member States would be welcome from the standpoint of a robust notion of the rule of law in the EU.

scholarly journals European prosecution between cooperation and integration: The European Public Prosecutor’s Office and the rule of law

2021 ◽  
pp. 1023263X2110059
Author(s):  
Valsamis Mitsilegas
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Legal Framework ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Applicable Law ◽  
European Public ◽  
Judicial Protection ◽  
Current Rule ◽  
Academic Debate

The article will examine the challenges that the establishment of the European Public Prosecutor’s Office poses for the rule of law – a question which has been underexplored in the policy and academic debate on the establishment of the EPPO, which focused largely on questions of structure and powers of the EPPO and the battle between intergovernmental and supranational visions of European prosecution. The implications of the finally adopted legal framework on the EPPO on the rule of law will be analysed primarily from the perspective of the rule of law as related to EPPO investigations and prosecutions and their consequences for affected individuals – in terms of legal certainty and foreseeability, protection from executive arbitrariness, effective judicial protection and defence rights. The article will undertake a rule of law audit of the EPPO by focusing on three key elements of its legal architecture – the competence of the EPPO, applicable law and judicial review – and the interaction between EU and national levels of investigation and prosecution that the EPPO Regulation envisages. The analysis will aim to cast light on the current rule of law deficit in a hybrid system of European prosecution located somewhere between co-operation and integration.

Migration, law, democracy: identifiyng where the risk is

2009 ◽  
pp. 139-150
Author(s):  
Javier de Lucas
Keyword(s):  
Rule Of Law ◽  
Point Of View ◽  
Risk Society ◽  
Structural Factors ◽  
The Rule Of Law ◽  
Poor Countries ◽  
Definition Of ◽  
Sans Papiers ◽  
Migratory Movements ◽  
Migration Law

- This paper focuses on migration, law and democracy in order to identify where risk lies. The author concentrates on studying a recent case, the Directive on the Return of so-called illegal immigrants (sans papiers) approved by the European Parliament on 18 June 2008. The usual point of view, that of the dominant discourse, maintains that today's migratory movements constitute one of the structural factors that justify the definition of our societies as the "Risk Society". According to this point of view, the migratory flows entail a risk for social cohesion and even a destabilising potential for both democracy and the rule of law. The risk is illustrated by the menacing image of invasion threatening at our doors, hence the classical argument of the "demographic bomb" as the resource of poor countries. The author's thesis sustains that it is precisely our responses, in the form of migratory policy tools, that constitute a risk factor. Some of these tools, including this Directive, have become destabilising elements of the rules of the game and, moreover, of the values of the rule of law and of democracy.

Judicial independence as a precondition for mutual trust? The CJEU in Minister for Justice and Equality v. LM

2018 ◽  
Vol 9 (3) ◽  
pp. 353-365 ◽  
Author(s):  
Petra Bárd ◽  
Wouter van Ballegooij
Keyword(s):  
Member State ◽  
Rule Of Law ◽  
Mutual Recognition ◽  
Judicial Independence ◽  
Fundamental Rights ◽  
Judicial Cooperation ◽  
The Rule Of Law ◽  
State Compliance ◽  
The Right ◽  
The Eu

This article discusses the relationship between judicial independence and intra-European Union (EU) cooperation in criminal matters based on the principle of mutual recognition. It focuses on the recent judgment by the Court of Justice of the EU in Case C-216/18 PPU Minister for Justice and Equality v. LM. In our view, a lack of judicial independence needs to be addressed primarily as a rule of law problem. This implies that executing judicial authorities should freeze judicial cooperation in the event should doubts arise as to respect for the rule of law in the issuing Member State. Such a measure should stay in place until the matter is resolved in accordance with the procedure provided for in Article 7 TEU or a permanent mechanism for monitoring and addressing Member State compliance with democracy, the rule of law and fundamental rights. The Court, however, constructed the case as a possible violation of the right to a fair trial, the essence of which includes the requirement that tribunals are independent and impartial. This latter aspect could be seen as a positive step forward in the sense that the judicial test developed in the Aranyosi case now includes rule of law considerations with regard to judicial independence. However, the practical hurdles imposed by the Court on the defence in terms of proving such violations and on judicial authorities to accept them in individual cases might amount to two steps back in upholding the rule of law within the EU.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

scholarly journals The New Wars: Terrorism and “Asymmetric” Warfare

2021 ◽  
Vol 30 (4) ◽  
pp. 93-108
Author(s):  
Alexander Treiblmaier
Keyword(s):  
Rule Of Law ◽  
Legal Status ◽  
National Defense ◽  
Terrorist Organizations ◽  
The Rule Of Law ◽  
Asymmetric Warfare ◽  
New Wars ◽  
Terrorist Groups ◽  
Long Time ◽  
Rules And Principles

The term “new wars” is often used to describe how terrorist groups achieve objectives in addition to the “classic” means of intervention by states. Terrorist organizations use asymmetric methods of warfare to target the weaknesses of Western states. Consequently, conventional wars have also changed into hybrid wars. The legal status of terrorist organizations is a major problem for the rule of law. In responding to terrorist attacks, the distinction between crime and terrorism is difficult. The “war on terror” is governed by different rules and principles and is extremely difficult to wage. Conflicts last a long time and victory against terrorism is rarely possible due to the networked structure of terrorist organizations and the way they intermingle with the population. In addition to an alliance-wide approach, there is a national solution to answer these new threats in form of the comprehensive national defense in Austria.

scholarly journals Powers and Limits of State during COVID-19 Pandemic: a Critical Appraisal

Yuridika ◽  
2021 ◽  
Vol 36 (3) ◽  
pp. 663
Author(s):  
Iwan Satriawan ◽  
Devi Seviyana
Keyword(s):  
Rule Of Law ◽  
House Of Representatives ◽  
Critical Appraisal ◽  
Balance Of Power ◽  
The State ◽  
Fundamental Rights ◽  
State Of Emergency ◽  
The Rule Of Law ◽  
Power Limits ◽  
The Government

The research aims to analyze the power and limit of the state and whether Indonesia has properly adopted the concept of powers and limits during state emergency of COVID-19 pandemic. The method of the research was normative legal research which used statute and case approach were employed for data analysis. The result shows that a state may apply some types of power in an emergency condition. However, in using its powers, the government must consider principle of limits in a state of emergency. In fact, Indonesia does not properly adopt the balance of power and limit in the state of emergency during COVID-19 pandemic. It is true that the government may take actions to respond to the COVID-19 pandemic. However, the State cannot exceed the limitations of using powers in accordance with state emergency principle. There was a tendency to exceed the limits by the State during the pandemic. The State has violated some state of emergency principles during COVID-19 pandemic such as temporary, the rule of law, necessity, proportionally, intangibility, constitutionalism, harmony, and supervision. The research recommends that the Government and the House of Representatives (the DPR) in the future should obey the state of emergency principles, particularly in terms of state power limits to respect constitutional principles and rule of law. In addition, individuals, groups of people, or organizations may submit judicial review of laws or regulations that violate the state of emergency principles in handling pandemic in the light of protecting the fundamental rights of citizens.

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