Constitutional Court (constitutional + court)

Distribution by Scientific Domains


Selected Abstracts


The Lisbon Judgment of the German Constitutional Court: A Court-Ordered Strengthening of the National Legislature in the EU

EUROPEAN LAW JOURNAL, Issue 5 2010
Philipp Kiiver
This article discusses the judgment of the German Constitutional Court on the constitutionality of the Treaty of Lisbon, concentrating on the court's insistence on the prerogatives of the national legislature. The court's insistence on prior national legislative ratification for the application of the simplified treaty revision procedure and of similar de facto amendment procedures, including the flexibility clause, is conservative but understandable from the perspective of German constitutional law. The prescription of prior bicameral ratification for the application of the flexibility clause makes the German government procedurally one of the most tightly controlled in the EU, although this would not be unique, and the effect of such control will depend on the cleavage between the government and the national legislature, especially the German upper chamber. None of the procedures insisted upon by the court are incompatible with EU Treaty law. Whether the new procedures will actually enhance the democratic legitimacy of EU measures in German perception will depend on the degree to which political parties in the national legislature will publicly politicise their stance on the decisions in question, allowing voters to hold them to account. All the court can do is prescribe opportunities where such politicisation may take place. [source]


Ideational Origins of Progressive Judicial Activism: The Colombian Constitutional Court and the Right to Health

LATIN AMERICAN POLITICS AND SOCIETY, Issue 3 2010
Rodrigo M. Nunes
ABSTRACT Why do some constitutional transitions trigger the emergence of progressive judicial activism? This article addresses this question through an analysis of the creation of the Colombian Constitutional Court and its subsequent activism toward rights in general and the right to health in particular. This research suggests that ideational variables are crucial to explain this outcome. On the one hand, the Constitutional Court's behavior reflects the dominance of the institutional conception that it is the judiciary's role to help fulfill the promises of the constitutional text. On the other, programmatic beliefs about the relationship between the rule of law and market-driven economic growth led powerholders to create the court and appoint judges with this orientation. The emergence of progressive judicial activism in Colombia, this analysis suggests, was the unexpected outcome of purposeful political choices made by proponents of neoliberal economics. [source]


Taking Rights less Seriously.

RATIO JURIS, Issue 4 2007
A Structural Analysis of Judicial Discretion
The strengths and weaknesses of both Dworkin and Hart are analysed, and in view of these, it is argued that a full picture of judicial discretion is between the two extremes. Thus, a moderate theory of judicial discretion is maintained which is based on achievements by Robert Alexy (2002b). The article develops a balancing model of discretion and relates it to the theory of legal argumentation. The limits of discretion and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitutional Court. [source]


The Beginnings of Germany's Federal Constitutional Court

RATIO JURIS, Issue 2 2003
Martin Borowski
Where the beginnings of the Federal Constitutional Court are concerned, the German tradition and the experience with the lawless regime of the national socialists played a fundamental role. To a certain degree the Austrian model and to a lesser degree that of the United States figured in the deliberations of Germany's post-War constitutional framers, too. [source]


Ironies in Human Rights Protection in the EU: Pre-Accession Conditionality and Post-Accession Conundrums

EUROPEAN LAW JOURNAL, Issue 1 2009
Anneli Albi
In the wake of the extensive scrutiny of the human rights credentials of the new Member States under the EU pre-accession conditionality, which itself was riddled with paradoxes, this article considers a rather unexpected irony thrown up by the accession of these countries. It is that the post-communist constitutional courts, which have been applauded for vigorous protection of fundamental rights after the fall of the Communist regime that was marked by nihilism to rights, have come rather close to having to downgrade the protection standards after accession, due to the new constraints of supremacy of EC law. The article will consider the sugar market cases of the Hungarian and Czech Constitutional Courts and of the Estonian Supreme Court, which appear to add weight to the concerns that have been voiced in some older Member States about the fundamental rights protection in the EU. Indeed such concerns were recently also addressed in the concurring opinions to the Bosphorus judgment of the European Court of Human Rights. [source]


Constitutional courts as veto players: Divorce and decrees in Italy

EUROPEAN JOURNAL OF POLITICAL RESEARCH, Issue 3 2001
MARY L. VOLCANSEK
This article argues that constitutional courts in Western European parliamentary systems should be integrated into discussions of how public policies are changed, rather than being viewed as an external veto point. It attempts to bridge a gap between a judicial politics literature that focuses on the micro,level of individual judges' votes and comparative scholarship that operates at the macro,level. A model for viewing constitutional courts as veto players, as a third institutional actor, is proposed and is then illustrated using the cases of legalizing divorce and blocking the executive reissuing decree laws in Italy. The model considers both the indirect and direct influences that constitutional courts can exert on the policy,making process. It also facilitates understanding and explaining the role of courts, as well as legislatures and executives, in conducting the interactions and bargaining that result in policy change. [source]


Law versus the State: The Judicialization of Politics in Egypt

LAW & SOCIAL INQUIRY, Issue 4 2003
Tamir Moustafa
This study seeks to explain the paradoxical expansion of constitutional power in Egypt over the past two decades, despite that country's authoritarian political system. I find that the Egyptian regime established an independent constitutional court, capable of providing institutional guarantees on the security of property rights, in order to attract desperately needed private investment after the failure of its socialist-oriented development strategy. The court continued to expand its authority, fundamentally transforming the mode of interaction between state and society by supporting regime efforts to liberalize the economy while simultaneously providing new avenues for opposition activists and human rights groups to challenge the state. The Egyptian case challenges some of our basic assumptions about the conditions under which we are likely to see a judicialization of politics, and it invites scholars to explore the dynamics of judicial politics in other authoritarian political systems. [source]


Sexual Orientation Discrimination after Grant v South-West Trains

THE MODERN LAW REVIEW, Issue 5 2000
Nicholas Bamforth
In Grant v South-West Trains [1998] ECR I-621, the European Court of Justice implied that, as a general matter, discrimination against an employee on the ground of sexual orientation did not violate Article 141 EC. This article argues that Grant rests on shaky foundations, in that it is conceptually inconsistent with the Court's earlier decision in P v S and Cornwall County Council [1996] ECR I-2143. Furthermore, the scope of Grant has since been qualified by decisions of the European Court of Human Rights , decisions which may well have undermined the status of the case more broadly. However these difficulties are ultimately resolved, the Court of Justice's treatment of sexual orientation discrimination exposes flaws in its approach as a self-proclaimed constitutional court. [source]


Constitutional courts as veto players: Divorce and decrees in Italy

EUROPEAN JOURNAL OF POLITICAL RESEARCH, Issue 3 2001
MARY L. VOLCANSEK
This article argues that constitutional courts in Western European parliamentary systems should be integrated into discussions of how public policies are changed, rather than being viewed as an external veto point. It attempts to bridge a gap between a judicial politics literature that focuses on the micro,level of individual judges' votes and comparative scholarship that operates at the macro,level. A model for viewing constitutional courts as veto players, as a third institutional actor, is proposed and is then illustrated using the cases of legalizing divorce and blocking the executive reissuing decree laws in Italy. The model considers both the indirect and direct influences that constitutional courts can exert on the policy,making process. It also facilitates understanding and explaining the role of courts, as well as legislatures and executives, in conducting the interactions and bargaining that result in policy change. [source]


Ironies in Human Rights Protection in the EU: Pre-Accession Conditionality and Post-Accession Conundrums

EUROPEAN LAW JOURNAL, Issue 1 2009
Anneli Albi
In the wake of the extensive scrutiny of the human rights credentials of the new Member States under the EU pre-accession conditionality, which itself was riddled with paradoxes, this article considers a rather unexpected irony thrown up by the accession of these countries. It is that the post-communist constitutional courts, which have been applauded for vigorous protection of fundamental rights after the fall of the Communist regime that was marked by nihilism to rights, have come rather close to having to downgrade the protection standards after accession, due to the new constraints of supremacy of EC law. The article will consider the sugar market cases of the Hungarian and Czech Constitutional Courts and of the Estonian Supreme Court, which appear to add weight to the concerns that have been voiced in some older Member States about the fundamental rights protection in the EU. Indeed such concerns were recently also addressed in the concurring opinions to the Bosphorus judgment of the European Court of Human Rights. [source]


National Judges, Community Judges: Invitation to a Journey through the Looking-glass,On the Need for Jurisdictions to Rethink the Inter-systemic Relations beyond the Hierarchical Principle

EUROPEAN LAW JOURNAL, Issue 6 2008
Florence Giorgi
The historical conflict between the European Court of Justice (ECJ) and the national constitutional courts regarding primacy is a misunderstanding. In going through the looking-glass, we can understand that, on the contrary, the ECJ and the national constitutional courts adopt comparable solutions in their treatment of legal pluralism, and that they see the negation of pluralism as essential for the survival of their own legal orders. Therefore, these judges must be offered a new theoretical context to help them reconcile their role as supreme guardian with the taking into account of the pluralist context. Finally, practical proposals must be made to give judges the instruments and techniques that are capable of reflecting this plural structure. [source]


The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

EUROPEAN LAW JOURNAL, Issue 3 2005
Mattias Kumm
With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the ,primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, ,Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new ,constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances. [source]


Accession's Democracy Dividend: The Impact of the EU Enlargement upon Democracy in the New Member States of Central and Eastern Europe

EUROPEAN LAW JOURNAL, Issue 4 2004
Wojciech Sadurski
The purpose of this article is to examine this claim, that accession will provide a ,democracy dividend' in this fashion. To this end, the article begins by examining the political conditionality of the accession process, and the extent to which the process of democratisation can be understood as a result of ,external' pressures. It also discusses the extent to which the effectiveness of political conditionality is likely to survive after the accession takes place. The article then moves on to consider the effects of accession upon democracy in the states of the region by looking in detail at three areas that have been particularly important: the role of national parliaments, the new constitutional courts, and the tendency towards decentralisation and regionalism. The article concludes by noting that, although not all of the developments discussed are necessarily good for democracy in the region, the real dividend coming from the accession process lies in the fact that, on a macro-level, membership in the EU will make the democratic transition in Central and Eastern Europe practically irreversible. [source]