scholarly journals Between Judicial Oligarchy and Parliamentary Supremacy: Understanding the Court's Dilemma in Constitutional Judicial Review

2016 ◽  
Author(s):  
Seow Hon Tan
Keyword(s):  
Judicial Review ◽  
Parliamentary Supremacy ◽  
Constitutional Judicial Review

scholarly journals The Unbroken Supremacy of the Canadian Constitution

2018 ◽  
Author(s):  
Brian Bird
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Conventional Wisdom ◽  
Legal Basis ◽  
The Past ◽  
Parliamentary Supremacy ◽  
The Guardian ◽  
Constitutional Judicial Review

This article revives the awareness of the heritage and inheritance of section 52(1) of the Constitution Act, 1982. It exposes the pre-1982 legal basis for constitutional judicial review in Canada and the mechanics of the transition in 1982 to an express supremacy clause. This article also challenges two popular notions in Canadian constitutional law today. The first is that the addition of section 52(1) in 1982 transformed Canada from a state governed by parliamentary supremacy into a state governed by constitutional supremacy. The second is that the Canadian judiciary became the guardian of the Canadian Constitution in 1982. Contrary to conventional wisdom, 1982 was, with respect to the supremacy of the Canadian Constitution, a moment of continuity rather than a break with the past.

Constitutional judicial review of municipal legal acts

2019 ◽  
Vol 5 (2) ◽  
pp. 181-188
Author(s):  
Tatiana N. Mikheeva ◽  
◽  
Anastasiya Yu. Stepanova ◽  
Keyword(s):  
Judicial Review ◽  
Constitutional Judicial Review

scholarly journals Kári á Rógvi, West-Nordic Constitutional Judicial Review: A Comparative Study of Scandinavian Judicial Review and Judicial Reasoning (Copenhagen: Djøf Publishing, 2013)

2015 ◽  
Vol 10 (1) ◽  
Author(s):  
Rachael L. Johnstone
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Faroe Islands ◽  
Legal Studies ◽  
Legal Literature ◽  
The Common ◽  
Judicial Reasoning ◽  
The University ◽  
Constitutional Judicial Review ◽  
Selection Of

West-Nordic Constitutional Judicial Review is based on Kári á Rógvi’s doctoral dissertation, defended in 2009 at the University of Iceland with the esteemed Eivind Smith and Guðmundur Alfreðsson as thesis opponents. It provides an excellent account of judicial review in the West-Nordic tradition (Norway, Denmark, Iceland, the Faroe Islands and Greenland) based on a selection of ‘leading cases, reminiscent of the common law approach to legal studies. As such, it is something of a novelty in the Nordic legal literature and a long overdue supplement to what Kári laments as the staid legal treatises that form the basis of Nordic legal educations (323-335).

scholarly journals Constitutional and administrative paradigms in judicial control over EU high and low politics

2017 ◽  
Vol 9 (2) ◽  
pp. E-240-E-267
Author(s):  
Pola Cebulak
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Theory ◽  
Two Dimensional ◽  
Judicial Control ◽  
Policy Domain ◽  
External Relations ◽  
Constitutional Judicial Review ◽  
High Politics

Abstract This article explores the particular tensions surrounding judicial review in EU external relations. The tensions are classified using a two-dimensional framework. Firstly, a distinction based on policy domains of high and low politics, which is derived from constitutional theory, and external to the CJEU; and secondly a distinction based on legitimizing paradigms of administrative (EU as effective global actor) or constitutional (judicial review as guarantee of fundamental rights) in character and determined by the Court itself. Even though one would expect a dominance of the administrative paradigm in the domain of high politics, the Court uses both the administrative and the constitutional paradigm in its external relations case-law. The decision on which of these becomes the guiding frame seems to depend more on the policy domain, and be made case by case, which suggests politically sensitive adjudication, rather than a coherent approach to legitimizing the nascent judicial review in EU external relations.

Constitutionalism, Liberalism, and Democracy

2021 ◽  
pp. 35-53
Author(s):  
Andrei Marmor
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
The Political ◽  
Constitutional Courts ◽  
Liberal Politics ◽  
Similar Tendency ◽  
External Threats ◽  
The People ◽  
Democratic System ◽  
Constitutional Judicial Review

This chapter describes the tension between democratic decision-making procedures and constitutional judicial review. It shows that the liberal values that justify a democratic self-government may also vindicate some limits on majoritarian decision-making procedures, but not necessarily in the form of the current constitutional regimes. The chapter argues that constitutional courts are not a necessary feature of a liberal regime. It also acknowledges that democratic decision-making has many defects. These defects concern the fate of persistent vulnerable minorities, the tendency towards short-sightedness, a similar tendency to downplay people's rights and liberties for the sake of greater economic gains or in the force of external threats, and finally the dangers of populism and anti-liberal politics gaining ground within a democratic system. The chapter then depicts courts as essentially conservative institutions which are not — and cannot be — as counter-majoritarian as depicted by legal scholars, mainly because their legitimacy and the acceptance of their decisions depends on the people. It contends that the acceptance and efficacy of judicial review is context dependent, but that some fights still need to be fought in the political, not the legal arena.

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 The Attempt to Human Rights Protection Through Judicial Review in Indonesia

2018 ◽  
Vol 54 ◽  
pp. 02006
Author(s):  
Riris Ardhanariswari ◽  
Muhammad Fauzan ◽  
Ahmad Komari
Keyword(s):  
Human Rights ◽  
State Government ◽  
Judicial Review ◽  
Stable State ◽  
Judicial Power ◽  
Constitutional Court ◽  
Human Rights Protection ◽  
The Law ◽  
Law And Justice ◽  
Parliamentary Supremacy

The Constitutional Court is one of the perpetrators of judicial power, in addition to the Supreme Court as referred to in Article 24 paragraph (2) of the 1945 Constitution. The Constitutional Court is also bound to the general principle of an independent judicial power, free from the influence of other institutions in enforcing law and justice. The Constitutional Court is the first and last level judicial body, or it can be said that it is the only judicial body whose decisions are final and binding. The existence of the Constitutional Court is at the same time to maintain the implementation of a stable state government and is also a correction to the experience of constitutional life in the past caused by multiple interpretations of the constitution. Judicial review towards the constitution is one of the authorities of the Constitutional Court that attracted attention. This shows that there has also been a shift in the doctrine of the parliamentary supremacy towards the doctrine of the supremacy of the constitution. The law was previously inviolable, but now the existence of a law is questionable in its alignment with the Constitution. The authority to examine the Law towards the Constitution is the authority of the Constitutional Court as the guardian of the constitution. This authority is carried out to safeguard the provisions of the Act so that it does not conflict with the constitution and / or impair the constitutional rights of citizens. This shows that the judicial review towards the Constitution carried out by the Constitutional Court is basically also to provide protection for human rights.

I The Constitutional Court, 1 The Historical Development of Italian Constitutional Adjudication

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
Twentieth Century ◽  
Judicial Review ◽  
Historical Development ◽  
Constitutional Court ◽  
Constitutional Adjudication ◽  
Constitutional Judicial Review ◽  
The Way

One of the remarkable facts of constitutional judicial review in Italy is the way in which it was grafted onto a tradition of law that had been very inhospitable to any such practice prior to the mid-twentieth century. The development of this unprecedented institution and the factors that contributed to its success not only assist the reader to understand the subsequent contours and character of the Constitutional Court but also provide a number of very useful insights and lessons for other jurisdictions seeking to establish or consolidate new and fragile systems of constitutional adjudication. This chapter traces that history and identifies those features.

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