Against the New Constitutionalism (Elgar Monographs in by Tamas Gyorfi

By Tamas Gyorfi

Ever due to the fact that international warfare II, a brand new constitutional version has emerged around the world that offers a pivotal position to judges. Against the hot Constitutionalism demanding situations this reigning paradigm and develops a distinctively liberal defence of political constitutionalism. the writer concludes that, in consolidated democracies, powerful constitutional assessment can't be justified and argues for the primacy of the legislature totally on epistemic - instead of procedural - grounds.

The writer additionally considers even if the minimalist judicial evaluation of Nordic nations is extra in accordance with the simplest justification of the establishment than the Commonwealth version that occupies a vital position in modern constitutional scholarship.

This booklet can be of significant curiosity to scholars and students of constitutional legislations. it is going to even be of use to constitutional and political theorists, in addition to comparative and public attorneys, searching for an answer to the problems surrounding constitutional review.

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It explains what makes a particular decision-making process legitimate and worthy of our respect. This point is important because one can argue for the same (or the same set of) decision-making procedures by claiming that they are likely to produce the best outcomes (whatever one means by that). In the latter case, what makes the results of the decision-making process worthy of our respect is not that it reflects the support of most citizens, but that it tracks the correct outcome. In the contemporary constitutional discourse many proponents of unconstrained or majoritarian decision-making, like Jeremy Waldron6 and Richard Bellamy,7 combine these argumentative strategies.

We have no reason to assume that the establishment of constitutional courts is an exception to this general rule. The spread of constitutional courts in Europe can serve as a good illustration. 76 It is also well known that the framers of the Spanish constitution were heavily influenced by the German experience. There is a privileged relationship between the Spanish Constitutional Tribunal and the FCC, since the former was modelled on the latter. 78 However, my purpose here is not to catalogue the 75 Julian Go, ‘A Globalizing Constitutionalism?

91 Waldron (n 89) 1372–3. 89 38 Against the New Constitutionalism they (are likely to) produce, sometimes we value the fairness of the procedures our institutions employ independently of the outcomes. Even if a general commitment to democracy is unhelpful in this context, the fact that people disagree on the concept of democracy does not show that the more specific conceptions of democracy would not cut between various positions on the desirability of judicial review. The choice between the process-related and outcome-related justifications of democracy will have far-reaching consequences for the issue under consideration.

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