Cour suprême, Cour d'arbitrage ou Cour constitutionnelle ?

The comparative analysis of political societies can provide some models for those who are concerned with the reform of an institution. Three comparative models are presented here in the context of the discussion about the role and organization of the Supreme Court of Canada : the American model of a Supreme Court, the Belgian model of an Arbitration Court, and the German model of a Federal Constitutional Court. The different types of jurisdiction of these Courts as well as the different modes of designation of their members are discussed.

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The Right to Assisted Dying: Constitutional Jurisprudence and Its Impact in Canada, Germany and Austria

ICL Journal ◽

10.1515/icl-2021-0008 ◽

2021 ◽

Vol 0 (0) ◽

Author(s):

Kerstin Braun

Keyword(s):

Supreme Court ◽

Supreme Court Decision ◽

Constitutional Court ◽

Supreme Court Of Canada ◽

Assisted Dying ◽

Constitutional Courts ◽

The Supreme Court ◽

Federal Constitutional ◽

The Right ◽

Constitutional Jurisprudence

Abstract Many states are grappling with the regulation of assistance in suicide and ending the life of another upon their request. Initially punishable in most countries, a growing number of jurisdictions have now introduced permissive frameworks decriminalising, to varying degrees, rendering assistance in dying. Other countries, however, have proceeded with the criminal prohibition and several courts have upheld the lawfulness of the respective criminal laws during human rights and constitutional challenges. Yet, the Supreme Court of Canada in 2015, the German Federal Constitutional Court in February 2020 and the Austrian Constitutional Court in December 2020 have respectively declared unconstitutional and void national criminal laws prohibiting rendering assistance in dying. This article first outlines the criminal law framework relating to assisted dying in Canada, Germany and Austria. It subsequently analyses the judgments before pondering their impact on the legal landscape in the three countries. The article concludes that while the Canadian Supreme Court decision appears to have had a significant impact on the introduction of subsequent legislation in Canada, the effects of the Constitutional Courts’ judgments seem much more subdued in Germany and are yet to unfold in Austria.

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Dunsmuir’s Flaws Exposed: Recent Decisions on Standard of Review

McGill Law Journal ◽

10.7202/1017521ar ◽

2013 ◽

Vol 58 (2) ◽

pp. 483-507

Author(s):

Paul Daly

Keyword(s):

Functional Analysis ◽

New Brunswick ◽

Supreme Court ◽

Judicial Review ◽

External Factors ◽

Supreme Court Of Canada ◽

Categorical Approach ◽

The Supreme Court ◽

Different Types ◽

Single Standard

In Dunsmuir v. New Brunswick, the Supreme Court of Canada attempted to clarify and simplify Canadian judicial review doctrine. I argue that the Court got it badly wrong, as evidenced by four of its recent decisions. The cases demonstrate that the new categorical approach is unworkable. A reviewing court cannot apply the categorical approach without reference to something like the much-maligned “pragmatic and functional” analysis factors. The categories regularly come into conflict, in that decisions could perfectly reasonably be assigned to more than one category. When conflict occurs, it must be resolved by reference to some factors external to the categorical approach. The new, single standard of reasonableness is similarly unworkable without reference to external factors. Different types of decision attract different degrees of deference, on the basis of factors that are external to the elegant elucidation of reasonableness offered in Dunsmuir. Clarification and simplicity have thus not been achieved.

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Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949–1992

Canadian Journal of Political Science ◽

10.1017/s0008423900003437 ◽

1993 ◽

Vol 26 (3) ◽

pp. 523-540 ◽

Cited By ~ 31

Author(s):

Peter McCormick

Keyword(s):

United States ◽

Supreme Court ◽

Data Base ◽

Supreme Court Of Canada ◽

Canadian Charter ◽

The Supreme Court ◽

Different Types ◽

Party Capability ◽

Appeal Courts ◽

Different Levels

AbstractNow that the advent of the Canadian Charter of Rights and Freedoms has made the fact of judicial power so obvious, it is important to develop the conceptual vocabulary for describing and assessing this power. One such concept that has been applied to the study of United States and British appeal courts is the notion of “party capability theory,” which suggests that different types of litigant will enjoy different levels of success, as both appellant and respondent. Using a data base derived from all reported decisions of the Supreme Court of Canada between 1949 and 1992, this article applies party capability theory to the performance of Canada's highest court, and compares the findings with similar studies of American and British courts.

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Which Kind of Discretion in Constitutional Adjudication? A Discussion of Mher Arshakyan's The Impact of Legal Systems on Constitutional Interpretation: A Comparative Analysis: The U.S. Supreme Court and the German Federal Constitutional Court

German Law Journal ◽

10.1017/s2071832200002285 ◽

2013 ◽

Vol 14 (8) ◽

pp. 1337-1344

Author(s):

Federico José Arena

Keyword(s):

Comparative Analysis ◽

Supreme Court ◽

Constitutional Court ◽

Constitutional Interpretation ◽

Legal Systems ◽

Federal Constitutional ◽

The Impact ◽

German Federal Constitutional Court ◽

German Federal Constitutional ◽

The U.S

In his paper The Impact of Legal Systems on Constitutional Interpretation: A Comparative Analysis: The U.S. Supreme Court and the German Federal Constitutional Court, Arshakyan carries out an interesting and detailed comparison between American and German constitutional courts by individualizing the properties shared by both courts and identifying the differences.

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Judicial Activism in a Comparative Perspective

10.5771/9783845297446 ◽

2019 ◽

Author(s):

Fabian Schusser

Keyword(s):

Supreme Court ◽

Theoretical Basis ◽

Comparative Perspective ◽

Constitutional Court ◽

Judicial Activism ◽

Constitutional Courts ◽

Critical Junctures ◽

The Supreme Court ◽

Federal Constitutional

This study investigates the phenomenon of judicial activism from a comparative perspective by examining the highest constitutional courts in India and Germany: the Supreme Court and the Bundesverfassungsgericht (Federal Constitutional Court) respectively. In addition to answering the question of what role these courts play in their countries’ political institutional set-ups, the study explains to what extent they can be classed as powerful. Historical neo-institutionalism forms the study’s theoretical basis, which it deploys in endeavouring to understand the courts’ development and in identifying critical junctures in their histories.

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La réforme des institutions centrales. Quelques jalons

Les Cahiers de droit ◽

10.7202/042591ar ◽

2005 ◽

Vol 25 (1) ◽

pp. 173-188

Author(s):

Gérald-A. Beaudoin

Keyword(s):

Supreme Court ◽

Federal Government ◽

Proportional Representation ◽

Constitutional Court ◽

Supreme Court Of Canada ◽

House Of Commons ◽

Advantages And Disadvantages ◽

The Supreme Court

« In this article the author envisages and studies the reform of the Senate, of the House of Commons and of the Supreme Court of Canada ; the function of the Governor General is also considered. A suggestion is made for introducing a system of mitigated proportional representation in the House of Commons, as proposed by the Pepin-Robarts report of January 1979. The authors analyses the advantages and disadvantages of an elected Senate, of a Senate whose members are appointed by the federal government or by the federal and provincial governments, of a second House which would constitute a House of the Provinces ; the author is aganist an equal representation of the provinces in the Senate. Professor Beaudoin favours a specialized constitutional Court of Canada, although he considers that such a reform is very unlikely to happen ; however, he adds that in any case, the Supreme Court is de facto a constitutional court to a certain extent. He recommends that the principle of dualism be more visible. Finally, the author describes how the function of Governor General has evolved since 1926, and outlines the role that the Governor General may play in normal and anormal times. »

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TITIK SINGGUNG WEWENANG MAHKAMAH AGUNG DENGAN MAHKAMAH KONSTITUSI

JURNAL HUKUM DAN PERADILAN ◽

10.25216/jhp.4.1.2015.17-30 ◽

2015 ◽

Vol 4 (1) ◽

pp. 17

Author(s):

Saldi Isra

Keyword(s):

Supreme Court ◽

Judicial Review ◽

Hierarchical System ◽

Constitutional Court ◽

The Supreme Court ◽

Different Types ◽

Legal Uncertainty ◽

Laws And Regulations

The mixing of authority between the Constitutional Court and the Supreme Court has raised a range of issues. In turn, there is the contact authority of the two institutions which could lead to the occurrence of legal uncertainty. In connection with the authority testing regulations, for example, although the Supreme Court and the Constitutional Court have the same right to test the legislation, but with different types and hierarchy of legislation being tested, then the interpretation of the rules of the legislation for which they were these institutions must be subject to a hierarchical system of laws and regulations that apply. Therefore, the validity of the norm is derived from the legislation is higher. Moreover, any decision of the judicial review of the UUD, this decision is erga omnes, including for judges of the Supreme Court and judges of the court under the Supreme Court.Keywords : Authority, Constitutional Court, Supreme Court

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The Federal Constitutional Court in Germany and the “Southwest Case”

American Political Science Review ◽

10.2307/1952280 ◽

1952 ◽

Vol 46 (3) ◽

pp. 723-731 ◽

Cited By ~ 4

Author(s):

Gerhard Leibholz

Keyword(s):

Supreme Court ◽

Constitutional Court ◽

Federal Law ◽

Basic Law ◽

Federal Constitution ◽

The Supreme Court ◽

German Constitution ◽

Federal Constitutional ◽

Constitutional Tribunal ◽

The Republic

The new German Constitution, the Basic Law for the German Federal Republic of May 23, 1949, provides in Article 92 that the highest judicial power shall be vested in a Federal Constitutional Court. Although the Bonn Basic Law thus created a new institution, it is an institution with a precedent in the former Weımar Constitution of 1919. In accordance with the latter, the Constitutional Tribunal (Staatsgerichtshof) had jurisdiction over constitutional controversies within any Land which had no tribunal of its own for the adjustment of such controversies, as well as over controversies, other than civil law matters, among the various Laender or between the Reich and one of the Laender. And the Supreme Court (Reichsgericht), as the highest authority, could establish finally whether disputed Land statutes were compatible with the federal Constitution.The Basic Law, however, grants the new Federal Constitutional Court considerably wider jurisdiction than that accorded either to the Constitutional Tribunal or to the Supreme Court under the Weimar Constitution. The Federal Constitutional Court must, above all, arbitrate both disputes which may arise among the constitutional organs of the Republic, the so-called “federal constitutional” cases, and the so-called “conflicting rules” (Normenkollisionen) cases—the latter designating disputes involving the compatibility of the written federal law or Land law with the Basic Law, as well as the compatibility of the Land law with the federal law.

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The Impact of Legal Systems on Constitutional Interpretation: A Comparative Analysis: The U.S. Supreme Court and the German Federal Constitutional Court

German Law Journal ◽

10.1017/s2071832200002273 ◽

2013 ◽

Vol 14 (8) ◽

pp. 1297-1335 ◽

Cited By ~ 3

Author(s):

Mher Arshakyan

Keyword(s):

Comparative Analysis ◽

Supreme Court ◽

The United States ◽

Legal Argumentation ◽

Constitutional Court ◽

Constitutional Interpretation ◽

Legal Systems ◽

Federal Constitutional ◽

German Federal Constitutional Court ◽

German Federal Constitutional

The central purpose of this paper is to show that there are no major differences in the methods of constitutional interpretation in countries with varying degrees of judicial review. Despite the fact that legal culture and traditions, underlying political theories, and values all affect methods of interpretation, there is no big gap in constitutional interpretation in practice in view of wide interpretive discretion. Obviously all legal systems require compliance with some fundamental interpretive standards irrespective of the legal system, and in a democratic society judicial decisions should be justified at least to avoid arbitrariness. The question is what are the limits beyond which judges cannot go in constitutional democracies? Hence, the style and method of legal argumentation that are used to justify the decision may differ in the countries belonging to different legal systems. Whether there are significant differences between the common law and civil law, constitutional interpretation will be assessed through the comparative analysis of the United States Supreme Court and the German Federal Constitutional Court.

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