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Constitutional Courts And Democratic Values

Author: Víctor Ferreres Comella
Publisher: Yale University Press
ISBN: 0300148682
Size: 59.44 MB
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Víctor Ferreres Comella contrasts the European 'centralised' constitutional court model, in which one court system is used to adjudicate constitutional questions, with a decentralised model such as that of the United States, in which courts deal with both constitutional and non-constitutional questions.

Constitutional Justice East And West

Author: Wojciech Sadurski
Publisher: Springer Science & Business Media
ISBN: 9789041118837
Size: 72.40 MB
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How can the power of constitutional judges to overturn parliamentary choices on the basis of their own reading of the constitution, be reconciled with fundamental democratic principles which assign the supreme role in the political system to parliaments? This time-honoured question acquired a new significance when the post-commumst countries of Central and Eastern Europe, without exception, adopted constitutional models in which constitutional courts play a very significant role, at least in theory. Can we learn something about the relationship between democracy and constitutionalism in general, from the meteoric rise of constitutional tribunals in the post-communist countries? Can the discussions and controversies relating to constitutional review which have been going on for decades in more established democracies illuminate the sources of the strength of constitutional courts in Central and Eastern Europe? These questions lie at the center of this book, which focuses on the question of constitutional review in postcommunist states, from a theoretical and comparative perspective. The chapters contained in the book outline the conceptual framework for analyzing the sources, the role and the legitimacy of constitutional justice in a system of political democracy. From this perspective, it assesses the experience of constitutional justice in the West (where the model originated) and in Central and Eastern Europe, where the model has been implanted after the fail of Communism.

The Constitutional Court And Democracy In Indonesia

Author: Simon Butt
Publisher: BRILL
ISBN: 900425059X
Size: 15.84 MB
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The Constitutional Court and Democracy in Indonesia provides detailed, English-language analysis of the decision-making of Indonesia's Constitutional Court in democracy-related cases.

Constitutional Courts In Asia

Author: Albert H. Y. Chen
Publisher: Cambridge University Press
ISBN: 1108168876
Size: 57.32 MB
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The founding of a constitutional court is often an indication of a chosen path of constitutionalism and democracy. It is no coincidence that most of the constitutional courts in East and Southeast Asia were established at the same time as the transition of the countries concerned from authoritarianism to liberal constitutional democracy. This book is the first to provide systematic narratives and analysis of Asian experiences of constitutional courts and related developments, and to introduce comparative, historical and theoretical perspectives on these experiences, as well as debates on the relevant issues in countries that do not as yet have constitutional courts. This volume makes a significant contribution to the systematic and comparative study of constitutional courts, constitutional adjudication and constitutional developments in East and Southeast Asia and beyond.

Central European Judges Under The European Influence

Author: Michal Bobek
Publisher: Bloomsbury Publishing
ISBN: 1782259902
Size: 30.25 MB
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The onset of the 2004 EU enlargement witnessed a number of predictions being made about the approaches, capacity and ability of Central European judges who were soon to join the Union. Optimistic voices, foreshadowing the deep transformative power that Europe was bound to exercise with respect to the judicial mentality and practice in the new Member States, were intertwined with gloomy pictures of post-Communist limited formalism and mechanical jurisprudence that could not be reformed, which were likely to undermine the very foundations of mutual trust and recognition the judicial system of the Union is built upon. Ten years later, this volume revisits these predictions and critically assesses the evolution of Central European judicial mentality, institutions and constitutionality under the influence of the EU membership. Comparatively evaluating the situation in a number of Central European Member States in their socio-legal contexts, notably Poland, the Czech Republic, Slovakia, Hungary, Slovenia, Bulgaria and Romania, the volume offers unique insights into the process of (non) Europeanisation of national legal systems and cultures.

Constitutional Review In Europe

Author: Maartje de Visser
Publisher: A&C Black
ISBN: 1782252452
Size: 57.94 MB
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Constitutions serve to delineate state powers and enshrine basic rights. Such matters are hardly uncontroversial, but perhaps even more controversial are the questions of who (should) uphold(s) the Constitution and how constitutional review is organised. These two questions are the subject of this book by Maartje de Visser, which offers a comprehensive, comparative analysis of how 11 representative European countries answer these questions, as well as a critical appraisal of the EU legal order in light of these national experiences. Where possible, the book endeavours to identify Europe's common and diverse constitutional traditions of constitutional review. The raison d'Ãatre, jurisdiction and composition of constitutional courts are explored and so too are core features of the constitutional adjudicatory process. Yet, this book also deliberately draws attention to the role of non-judicial actors in upholding the Constitution, as well as the complex interplay amongst constitutional courts and other actors at the national and European level. The Member States featured are: Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland, and the United Kingdom. This book is intended for practitioners, academics and students with an interest in (European) constitutional law.

New Challenges To Constitutional Adjudication In Europe

Author: Zoltán Szente
Publisher: Routledge
ISBN: 1351674749
Size: 32.28 MB
Format: PDF
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In the past few years, constitutional courts have been presented with new challenges. The world financial crisis, the new wave of terrorism, mass migration and other country-specific problems have had wide-ranging effects on the old and embedded constitutional standards and judicial constructions. This book examines how, if at all, these unprecedented social, economic and political problems have affected constitutional review in Europe. As the courts’ response must conform with EU law and in some cases international law, analysis extends to the related jurisprudence of the European Court of Justice and the European Court of Human Rights. The collection adopts a common analytical structure to examine how the relevant challenges have been addressed in ten country specific case studies. Alongside these, constitutional experts frame the research within the theoretical understanding of the constitutional difficulties of the day in Europe. Finally, a comparative chapter examines the effects of multilevel constitutionalism and identifies general European trends. This book will be essential reading for academics and researchers working in the areas of constitutional law, comparative law and jurisprudence.

The Constitution Of Spain

Author: Victor Ferreres Comella
Publisher: Bloomsbury Publishing
ISBN: 1782251340
Size: 14.12 MB
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This book provides a critical introduction to the principles and institutions that make up the Spanish Constitution, which was enacted in 1978. It first explains the process of transition from Franco's dictatorship to democracy, in order to understand the historical circumstances under which the Constitution was framed. After offering a theory to justify the authority of the Constitution over ordinary laws, the book proceeds to explain the basic principles of the Spanish political regime, as well as the structure of its complex legal system. Later chapters focus on various institutions, such as the Crown, Parliament and the Government. A specific chapter is devoted to the territorial distribution of power between the State, the regions and local government. The last two chapters deal with the constitutional role of courts, and the protection of fundamental rights. The book includes some reflections on the challenges that lie ahead and the constitutional reforms that may need to be considered in the future.

The Alchemists

Author: Tom Gerald Daly
Publisher: Cambridge University Press
ISBN: 1108287190
Size: 59.33 MB
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Can courts really build democracy in a state emerging from authoritarian rule? This book presents a searching critique of the contemporary global model of democracy-building for post-authoritarian states, arguing that it places excessive reliance on courts. Since 1945, both constitutional courts and international human rights courts have been increasingly perceived as alchemists, capable of transmuting the base materials of a nascent democracy into the gold of a functioning democratic system. By charting the development of this model, and critically analysing the evidence and claims for courts as democracy-builders, this book argues that the decades-long trend toward ever greater reliance on courts is based as much on faith as fact, and can often be counter-productive. Offering a sustained corrective to unrealistic perceptions of courts as democracy-builders, the book points the way toward a much needed rethinking of democracy-building models and a re-evaluation of how we employ courts in this role.

Judicial Review And Contemporary Democratic Theory

Author: Scott E. Lemieux
Publisher: Routledge
ISBN: 1351602128
Size: 75.18 MB
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For decades, the question of judicial review’s status in a democratic political system has been adjudicated through the framework of what Alexander Bickel labeled "the counter-majoritarian difficulty." That is, the idea that judicial review is particularly problematic for democracy because it opposes the will of the majority. Judicial Review and Contemporary Democratic Theory begins with an assessment of the empirical and theoretical flaws of this framework, and an account of the ways in which this framework has hindered meaningful investigation into judicial review’s value within a democratic political system. To replace the counter-majoritarian difficulty framework, Scott E. Lemieux and David J. Watkins draw on recent work in democratic theory emphasizing democracy’s opposition to domination and analyses of constitutional court cases in the United States, Canada, and elsewhere to examine judicial review in its institutional and political context. Developing democratic criteria for veto points in a democratic system and comparing them to each other against these criteria, Lemieux and Watkins yield fresh insights into judicial review’s democratic value. This book is essential reading for students of law and courts, judicial politics, legal theory and constitutional law.