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

ISBN-13: 9789041118837 / Angielski / Twarda / 2002 / 453 str.

Henri C. Alvarez; W. Sadurski

Opis

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.

Spis treści

List of Contributors. Constitutional Justice, East and West: Introduction; W. Sadurski. Part 1: Constitutional Justice in the Established Democracies. 1. Constitutional Courts as Deliberative Institutions. Towards an Institutional Theory of Constitutional Justice; J. Ferejohn, P. Pasquino. 2. Some Conditions for the Success of Constitutional Courts: Lessons From the U.S. Experience; M. Shapiro. 3. Institutional Dialogue between Courts and Legislatures in the Definition of Fundamental Rights: Lessons from Canada (and Elsewhere); J. Webber. 4. The German Constitutional Court in an Uneasy Triangle between Parliament, Government and the Federal Laender; K.von Beyme. 5. The Experience of the French Conseil Constitutionnel: Political and Social Context and Current Legal-Theoretical Debates; M.-C. Ponthoreau, J. Ziller. 6. Between Politics and the Law: The Development of Constitutional Review in Italy; G. Rolla, T. Groppi. Part 2: Constitutional Justice in Post-Communist Europe. 7. Constitutional Review after Communism: Legitimacy and Reasons; W. Sadurski. 8. The Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the Hungarian Constitutional Court; G. Halmai. 9. Slovenia's Constitutional Court within the Separation of Powers; M. Cerar. 10. The Rise of Constitutional Adjudication in Bulgaria; V. Ganev. 11. The Experience of the Polish Constitutional Court; L.L. Garlicki. 12. The Romanian Constitutional Court: In search of its Own Identity; R. Weber. 13. The Russian Constitutional Court in an Uneasy Triangle between the President, Parliament and Regions; K.von Beyme. 14. The Constitutional Court of Ukraine: The Politics of Survival; K. Wolczuk. 15. The Slovakian Constitutional Court; D. Malová. 16. Judicial Power vs. Democratic Representation: The Culture of Constitutionalism and Human Rights in the Czech Legal System; J. Priban. 17. Defending Order and Freedom: The Lithuanian Constitutional Court in its First Decade; N. Gelazis. Conclusions: Legitimacy of Constitutional Courts: Between Policy Making and Legal Science; S. Bartole. Bibliography. Index.