Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective

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Wojciech Sadurski
Springer Science & Business Media, Dec 31, 2002 - Philosophy - 453 pages
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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.

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Towards an Institutional Theory of Constitutional Justice
Lessons from the US Experience
Lessons from Canada and elsewhere
4 The German Constitutional Court in an Uneasy Triangle between Parliament Government and the Federal Laender
Political and Social Context and Current LegalTheoretical Debates
The Development of Constitutional Review in Italy
7 Legitimacy and Reasons of Constitutional Review After Communism
The End of Activism? The First Decade of the Hungarian Constitutional Court
In Search of its Own Identity
13 The Russian Constitutional Court in an Uneasy Triangle between the President Parliament and Regions
The Politics of Survival
15 The Role and Experience of the Slovakian Constitutional Court
The Culture of Constitutionalism and Human Rights in the Czech Legal System
The Lithuanian Constitutional Court in its First Decade
Legitimacy of Constitutional Courts Between Policy Making and Legal Science

9 Slovenians Constitutional Court within the Separation of Power
10 The Rise of Constitutional Adjudication in Bulgaria
11 The Experience of the Polish Constitutional Court

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Page 11 - By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field...

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