Constitutional Courts As Positive Legislators
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Constitutional Courts As Positive Legislators
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Author : Allan R. Brewer-Carías
language : en
Publisher: Cambridge University Press
Release Date : 2013-07-11
Constitutional Courts As Positive Legislators written by Allan R. Brewer-Carías and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013-07-11 with Law categories.
In all democratic states, constitutional courts, which are traditionally empowered to invalidate or to annul unconstitutional statutes, have the role of interpreting and applying the Constitution in order to preserve its supremacy and to ensure the prevalence of fundamental rights. In this sense they were traditionally considered "negative legislators," unable to substitute the legislators or to enact legislative provisions that could not be deducted from the Constitution. During the past decade the role of constitutional courts has dramatically changed as their role is no longer limited to declaring the unconstitutionality of statutes or annulling them. Today, constitutional courts condition their decisions with the presumption of constitutionality of statutes, opting to interpret them according to or in harmony with the Constitution in order to preserve them, instead of deciding their annulment or declaring them unconstitutional. More frequently, Constitutional Courts, instead of dealing with existing legislation, assume the role of assistants or auxiliaries to the legislator, creating provisions they deduct from the Constitution when controlling the absence of legislation or legislative omissions. In some cases they act as "positive legislators," issuing temporary or provisional rules to be applied pending the enactment of legislation. This book analyzes this new role of the constitutional courts, conditioned by the principles of progressiveness and of prevalence of human rights, particularly regarding the important rediscovery of the right to equality and non-discrimination.
Constitutional Courts As Positive Legislators
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Author : Allan-Randolph Brewer Carias
language : en
Publisher:
Release Date : 2011
Constitutional Courts As Positive Legislators written by Allan-Randolph Brewer Carias and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2011 with Comparative law categories.
This book analyzes the role of constitutional courts, conditioned by the principles of progressiveness and of prevalence of human rights, particularly regarding the important rediscovery of the right to equality and non-discrimination.
Judicial Law Making In European Constitutional Courts
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Author : Monika Florczak-Wątor
language : en
Publisher: Routledge
Release Date : 2020-05-07
Judicial Law Making In European Constitutional Courts written by Monika Florczak-Wątor and has been published by Routledge this book supported file pdf, txt, epub, kindle and other format this book has been release on 2020-05-07 with Law categories.
This book analyses the specificity of the law-making activity of European constitutional courts. The main hypothesis is that currently constitutional courts are positive legislators whose position in the system of State organs needs to be redefined. The book covers the analysis of the law-making activity of four constitutional courts in Western countries: Germany, Italy, Spain, and France; and six constitutional courts in Central–East European countries: Poland, Hungary, the Czech Republic, Slovak Republic, Latvia, and Bulgaria; as well as two international courts: the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The work thus identifies the mutual interactions between national constitutional courts and international tribunals in terms of their law-making activity. The chosen countries include constitutional courts which have been recently captured by populist governments and subordinated to political powers. Therefore, one of the purposes of the book is to identify the change in the law-making activity of those courts and to compare it with the activity of constitutional courts from countries in which democracy is not viewed as being under threat. Written by national experts, each chapter addresses a series of set questions allowing accessible and meaningful comparison. The book will be a valuable resource for students, academics, and policy-makers working in the areas of constitutional law and politics.
Constitutional Politics And The Judiciary
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Author : Kálmán Pócza
language : en
Publisher: Routledge
Release Date : 2018-11-19
Constitutional Politics And The Judiciary written by Kálmán Pócza and has been published by Routledge this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018-11-19 with Law categories.
Recent confrontations between constitutional courts and parliamentary majorities, for example in Poland and Hungary, have attracted international interest in the relationship between the judiciary and the legislature in Central and Eastern European countries. Several political actors have argued that courts have assumed too much power after the democratic transformation process in 1989/1990. These claims are explicitly or implicitly connected to the charge that courts have constrained the room for manoeuvre of the legislatures too heavily and that they have entered the field of politics. Nevertheless, the question to what extent has this aggregation of power constrained the dominant political actors has never been examined accurately and systematically in the literature. The present volume fills this gap by applying an innovative research methodology to quantify the impact and effect of court’s decisions on legislation and legislators, and measure the strength of judicial decisions in six CEE countries.
The Politics Of Constitutional Review In France And Europe
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Author : Alec Stone Sweet
language : en
Publisher:
Release Date : 2010
The Politics Of Constitutional Review In France And Europe written by Alec Stone Sweet and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2010 with categories.
To the question: Is constitutional review by a Constitutional Court law or politics? This article responds with a survey of various notions of the political, providing illustrations drawn from France and Europe and assessing Louis Favoreu's role in French debates on the legitimacy of review. The article elaborates a basic model of constitutional politics, defined as lawmaking processes - legislative, administrative, judicial - that are mediated by constitutional norms and jurisprudence. Such politics register the extent to which constitutional courts have accrued agency in the world of government. Today, constitutional judges function as positive legislators, with transformative effects on parliamentary governance.
Constitutional Rights And Constitutional Design
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Author : Paul Yowell
language : en
Publisher: Bloomsbury Publishing
Release Date : 2018-04-26
Constitutional Rights And Constitutional Design written by Paul Yowell and has been published by Bloomsbury Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018-04-26 with Law categories.
The decisions courts make in constitutional rights cases pervade our political life and touch on our most basic interests and values. The spread of judicial review of legislation around the world means that courts are increasingly called on to settle matters of moral and political controversy, including assisted suicide, data privacy, anti-terrorism measures, marriage, and abortion. But doubts regarding the institutional capacities of courts for deciding such questions are growing. Judges now regularly review social science research to assess whether a law will effectively achieve its aim, and at what cost to other interests. They cite studies and statistical information from psychology, sociology, medicine, and other disciplines in which they are rarely trained. This empirical reasoning proceeds alongside open-ended moral reasoning, with judges employing terms such as equality, liberty, and autonomy, then determining what these require in concrete circumstances. This book shows that courts were not designed for this kind of moral and empirical reasoning. It argues that in comparison to legislatures, the institutional capacities of courts are deficient. Legislatures are better equipped than courts for deliberating and decision-making in regard to the kinds of factual and moral issues that arise in constitutional rights cases. The book concludes by considering the implications of comparative institutional capacity for constitutional design. Is a system of judicial review of legislation something that constitutional framers should choose to adopt? If so, in what form? For countries with systems of judicial review, practical proposals are made to remedy deficiencies in the institutional capacities of courts.
General Reports Of The Xviiith Congress Of The International Academy Of Comparative Law Rapports G N Raux Du Xviii Me Congr S De L Acad Mie Internationale De Droit Compar
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Author : Karen B. Brown
language : en
Publisher: Springer Science & Business Media
Release Date : 2011-12-30
General Reports Of The Xviiith Congress Of The International Academy Of Comparative Law Rapports G N Raux Du Xviii Me Congr S De L Acad Mie Internationale De Droit Compar written by Karen B. Brown and has been published by Springer Science & Business Media this book supported file pdf, txt, epub, kindle and other format this book has been release on 2011-12-30 with Law categories.
This title presents twenty-nine topics, prepared by leading scholars in more than 20 countries, providing a comparative analysis of cutting-edge legal topics of the 21st century. Considering topics of vital moment to contemporary legal scholars, the title includes pieces on Surrogate Motherhood, The Balance of Copyright in Comparative Perspective, International Law in Domestic Systems, Constitutional Courts as "Positive Legislators," Same-sex Marriage, Climate Change and the Law, The Regulation of Private Equity, Hedge Funds, and State Funds, and Regulation of Corporate Tax Evasion. Each chapter surveys legal developments in the U.S. and Canada, Europe, Asia, Latin and South America, Africa, and the Middle East in a format that permits the reader easy access to similarities and differences in the approaches of the selected national regimes. This comprehensive volume tells the story of parallel trends in the evolution of legal doctrine despite jurisdictional, cultural, and political barriers. While each of the covered countries stands alone as a sovereign, in a technologically advanced world their disparate systems nonetheless have converged to adopt comparable strategies in dealing with complex legal issues. The volume is a critical addition to the library of any scholar hoping to keep abreast of the major trends in contemporary law.
Judicial Power
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Author : Christine Landfried
language : en
Publisher: Cambridge University Press
Release Date : 2019-02-07
Judicial Power written by Christine Landfried and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2019-02-07 with Law categories.
Explores the relationship between the legitimacy, the efficacy, and the decision-making of national and transnational constitutional courts.
The Cambridge Companion To Comparative Constitutional Law
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Author : Roger Masterman
language : en
Publisher: Cambridge University Press
Release Date : 2019-10-03
The Cambridge Companion To Comparative Constitutional Law written by Roger Masterman and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2019-10-03 with Law categories.
Comparing constitutions allows us to consider the similarities and differences in forms of government as well as the normative philosophies behind constitutional choices. The objective behind this Companion is to present the reader with a succinct yet wide-ranging companion to a modern comparative constitutional law course.
General Reports Of The Xviiith Congress Of The International Academy Of Comparative Law Rapports G N Raux Du Xviii Me Congr S De L Acad Mie Internationale De Droit Compar
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Author : Karen B. Brown
language : en
Publisher: Springer
Release Date : 2012-02-29
General Reports Of The Xviiith Congress Of The International Academy Of Comparative Law Rapports G N Raux Du Xviii Me Congr S De L Acad Mie Internationale De Droit Compar written by Karen B. Brown and has been published by Springer this book supported file pdf, txt, epub, kindle and other format this book has been release on 2012-02-29 with Law categories.
This title presents twenty-nine topics, prepared by leading scholars in more than 20 countries, providing a comparative analysis of cutting-edge legal topics of the 21st century. Considering topics of vital moment to contemporary legal scholars, the title includes pieces on Surrogate Motherhood, The Balance of Copyright in Comparative Perspective, International Law in Domestic Systems, Constitutional Courts as "Positive Legislators," Same-sex Marriage, Climate Change and the Law, The Regulation of Private Equity, Hedge Funds, and State Funds, and Regulation of Corporate Tax Evasion. Each chapter surveys legal developments in the U.S. and Canada, Europe, Asia, Latin and South America, Africa, and the Middle East in a format that permits the reader easy access to similarities and differences in the approaches of the selected national regimes. This comprehensive volume tells the story of parallel trends in the evolution of legal doctrine despite jurisdictional, cultural, and political barriers. While each of the covered countries stands alone as a sovereign, in a technologically advanced world their disparate systems nonetheless have converged to adopt comparable strategies in dealing with complex legal issues. The volume is a critical addition to the library of any scholar hoping to keep abreast of the major trends in contemporary law.
