Selected Papers Presented at the Fourth Central and Eastern European Forum for Legal, Political and Social Theorists, Celje, 23–24 March 2012
Edited By Péter Cserne, Miklós Könczöl and Marta Soniewicka
A New Trend in the Debate on Justifying Judicial Review: Considering the Benefits of Judicial Reasoning
In contemporary constitutional theory a great deal of theoretical attention has been devoted to the issue of justifying judicial review. Scholars have recently revisited the lively debate on the role of constitutional courts, which has resulted in a fundamental rethinking of the balance between judicial and legislative power at a more abstract level. Approaches denying courts the right to invalidate legislative acts and to have the final say on moral issues related to constitutional rights and principles have become more and more prevalent. As a result, the existence of constitutional courts is no longer self-evident. Opponents of constitutional review often claim that it is not the courts but the democratically elected legislature that should be entrusted with the power to determine the content of the constitution, and that, consequently, an institutional structure in which judges can have a special veto power over the decisions of the legislature, represents an unjustifiable distribution of political authority.
The heightened scepticism shown towards constitutional courts can be traced back to two main reasons. First, comments on judicial decisions mostly aim to address and evaluate controversial judgments and point out judicial errors, and this attitude gives the impression that the negative experiences related to the operation of US style constitutional courts are becoming more common.1 Second, new forms of constitutional review have been institutionalised in Canada, New Zealand and ← 101 | 102 → Great Britain, and this progress has become a robust stimulus for discussing...
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