New democracies around the world have adopted constitutional courts to oversee the operation of democratic politics. Where does judicial power come from, how does it develop in the early stages of ...democratic liberalization, and what political conditions support its expansion? This book answers these questions through an examination of three constitutional courts in Asia: Taiwan, Korea, and Mongolia. In a region that has traditionally viewed law as a tool of authoritarian rulers, constitutional courts in these three societies are becoming a real constraint on government. In contrast with conventional culturalist accounts, this book argues that the design and functioning of constitutional review are largely a function of politics and interests. Judicial review - the power of judges to rule an act of a legislature or national leader unconstitutional - is a solution to the problem of uncertainty in constitutional design. By providing 'insurance' to prospective electoral losers, judicial review can facilitate democracy.
For nearly three decades, scholars and policymakers have placed considerable stock in judicial reform as a panacea for the political and economic turmoil plaguing developing countries. Courts are ...charged with spurring economic development, safeguarding human rights, and even facilitating transitions to democracy. How realistic are these expectations, and in what political contexts can judicial reforms deliver their expected benefits? This 2007 book addresses these issues through an examination of the politics of the Egyptian Supreme Constitutional Court, the most important experiment in constitutionalism in the Arab world. The Egyptian regime established a surprisingly independent constitutional court to address a series of economic and administrative pathologies that lie at the heart of authoritarian political systems. Although the Court helped the regime to institutionalize state functions and attract investment, it simultaneously opened new avenues through which rights advocates and opposition parties could challenge the regime. The book challenges conventional wisdom and provides insights into perennial questions concerning the barriers to institutional development, economic growth, and democracy in the developing world.
This is a study of the actual role that the Russian Constitutional Court played in protecting fundamental rights and resolving legislative-executive struggles and federalism disputes in both ...Yeltsin's and Putin's Russia. Trochev argues that judicial empowerment is a non-linear process with unintended consequences and that courts that depend on their reputation flourish only if an effective and capable state is there to support them. This is because judges can rely only on the authoritativeness of their judgments, unlike politicians and bureaucrats, who have the material resources necessary to respond to judicial decisions. Drawing upon systematic analysis of all decisions of the Russian Court (published and unpublished) and previously unavailable materials on their (non-)implementation, and resting on a combination of the approaches from comparative politics, law, and public administration, this book shows how and why judges attempted to reform Russia's governance and fought to ensure compliance with their judgments.
This book offers a new theoretical framework for understanding the mediator role played by constitutional courts in democratic conflict solving. The book proposes an informational theory of ...constitutional review in which constitutional courts obtain, process, and transmit information to parties in a way that reduces the uncertainty causing their conflict. The substantive focus of the book is the role of constitutional courts in democracies where the armed forces are fighting internal armed conflicts of different types: Colombia, Peru, and Mexico in Latin America and also Israel, Turkey, and Pakistan. Through detailed analyses of the political context, civil-military relations, and the constitutional jurisprudence on military autonomy and the regulation of the use of force the book shows that constitutional courts can be instrumental in striking a democratically accepted balance between the exercise of civilian authority and the legitimate needs of the military in its pursuit of order and national security.
This paper addresses the relationship between populism and constitutional courts, with reference to the Latin American context. By means of a genealogical reconstruction of the ideas of populism and ...institucionalidad, we study how the debate on judicial activism has been taken up by populist politics. We introduce a theoretical model that sees in contemporary forms of populism a strategy to reparadoxify the legal system, denying courts the ability to protect the organisational autonomy of the judiciary. This is of interest because, in the last 30 years, the courts have represented a new field for the creation of democratic legitimacy, allowing minority groups to defend their political agendas through fundamental rights litigation.
Central European Constitutional Courts in the Face of EU Membership explores German legal influence on other systems of constitutional justice, concentrating on the impact of the Federal ...Constitutional Court's approach to EU integration on constitutional courts in Hungary and Poland.
Can constitutional court decisions shape public opinion on a governmental policy? Previous studies have focused on the US Supreme Court, which enjoys a high degree of public support as the major ...resource of power for courts. In this study, we examine the extent to which courts can influence public opinion regarding a government bill at European courts. First, we argue that the public support for courts also allows them to move public opinion on policies into the direction of their decisions. This works in both directions: they can confer legitimacy to a policy that they support, but they can also de‐legitimize a policy that they oppose. Second, we argue that this mechanism strongly depends on the amount of support that a court receives. It only has an effect for courts that possess a higher institutional legitimacy and among the group of citizens trusting a court.
We test our arguments by combining a most different systems design for France and Germany with a survey priming experiment on a school security bill. France and Germany are selected for a most different systems design as they exhibit different institutional designs as well as different levels of support for the court at the aggregate level. The survey experiment is implemented within large national election surveys, the German Internet Panel and the French National Election Study. Both experiments contain more than 2,600 respondents each. Our survey experiment primes for decision outcomes and different institutions to understand whether there are differences between an institution supporting and opposing a policy and between a court and alternative institutions.
Our findings confirm that with higher public support, courts can move the opinion of citizens to both legitimize and de‐legitimize a policy. This effect can be found at the aggregate level for a court enjoying higher public support, but also at the individual level for respondents with higher trust in the court. Interestingly, courts can even move the opinion of citizens with strong prior attitudes in the opposite direction, if these citizens highly trust the court.
These findings have implications beyond the study itself. First, they confirm that the legitimacy‐conferring effect can also be observed for European courts, not only for the US Supreme Court. Second, they show that the relevance of a mechanism identified for a single case, like the US Supreme Court, might only hold for specific conditions. As public support for courts strongly varies across countries in Europe, we also expect the impact of any mechanism relying on public support to strongly vary, as we can observe in our own analysis.
El derecho al olvido en Colombia Muñoz Losada, Juan Camilo
Revista Jurídica Piélagus,
01/2020, Volume:
19, Issue:
1
Journal Article
Peer reviewed
Open access
Por medio del presente artículo se busca determinar cuál es el contenido, desarrollo y alcance del derecho fundamental al olvido dentro del ordenamiento jurídico colombiano, al igual que su origen; ...se analiza el rol que está cumpliendo la Corte Constitucional en sus sentencias con respecto a este derecho, teniendo en cuenta que es un tema novedoso y de poca aplicación en Colombia. Se puntualizará el alcance y aporte de cada sentencia, que se desprenderá del problema jurídico o la decisión de cada una. Además, se verá cómo este derecho entra en colisión con otros de igual raigambre y en qué casos prima la aplicación del derecho al olvido.
This book analyses the specificity of the law-making activity of European constitutional courts. The main hypothesis is that currently constitutional courts are positive legislators whose position in ...the system of State organs needs to be redefined.
The book covers the analysis of the law-making activity of four constitutional courts in Western countries: Germany, Italy, Spain, and France; and six constitutional courts in Central-East European countries: Poland, Hungary, the Czech Republic, Slovak Republic, Latvia, and Bulgaria; as well as two international courts: the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The work thus identifies the mutual interactions between national constitutional courts and international tribunals in terms of their law-making activity. The chosen countries include constitutional courts which have been recently captured by populist governments and subordinated to political powers. Therefore, one of the purposes of the book is to identify the change in the law-making activity of those courts and to compare it with the activity of constitutional courts from countries in which democracy is not viewed as being under threat. Written by national experts, each chapter addresses a series of set questions allowing accessible and meaningful comparison.
The book will be a valuable resource for students, academics, and policy-makers working in the areas of constitutional law and politics.
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