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The Rule of Law and the Challenges to Jurisprudence

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

Over the last two decades scholars and citizens in Central and Eastern Europe had more than enough opportunity to realise that neither democracy nor the rule of law can be taken for granted. Such a realisation also means that if they want to think and speak clearly about or take a stand for their political and legal ideals, they need to reflect on them constantly, and conceptualise them in novel ways, by questioning entrenched lines of argument and problematising established patterns of thought. The contributors of this volume discuss a wide range of subjects from jurisprudential methodology and legal reasoning through democracy and constitutional courts to rights and criminal justice, raising questions and suggesting new ideas on «The Rule of Law and the Challenges to Jurisprudence» in Central and Eastern Europe and beyond.
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A New Trend in the Debate on Justifying Judicial Review: Considering the Benefits of Judicial Reasoning


Ágnes Kovács


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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