A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe
English

A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe

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Challenging the conventional wisdom that constitutional courts are the best device that democratic systems have for the protection of individual rights, Wojciech Sadurski examines carefully the most recent wave of activist constitutional courts: those that have emerged after the fall of communism in Central and Eastern Europe. In contrast to most other analysts and scholars he does not take for granted that they are a "force for the good", but rather subjects them to critical scrutiny against the background of a wide-ranging comparative and theoretical analysis of constitutional judicial review in the modern world. He shows that, in the region of Central and Eastern Europe, their record in protecting constitutional rights has been mixed, and their impact upon the vibrancy of democratic participation and public discourse about controversial issues often negative. Sadurski urges us to reconsider the frequently unthinking enthusiasm for the imposition of judicial limits upon constitutional democracy. In the end, his reflections go to the very heart of the fundamental dilemma of constitutionalism and political theory: how best to find the balance between constitutionalism and democracy? The lively, if imperfect, democracies in Central and Eastern Europe provide a fascinating terrain for raising this question, and testing traditional answers. This innovative, wide-ranging and thought-provoking book will become essential reading for scholars and students alike in the fields of comparative constitutionalism and political theory, particularly for those with an interest in legal and political developments in the postcommunist world.

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Published 01 January 2005
Reads 15
EAN13 140203007X
License: All rights reserved
Language English

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Acknowledgements
Preface
PART 1
CONTENTS
ix
xi
1. THE MODEL OF CONSTITUTIONAL REVIEW IN CENTRAL AND EASTERN EUROPE: AN OVERVIEW 1 1. The Emergence of the Current Model 1 2. The Powers of Constitutional Courts and Initiators of the Review Process 5 3. The Tenure and Selection of Judges 14 4. Constitutional Courts’ Pursuit of a Monopoly over Constitutional Adjudication 19 5. Conclusions 25
2. CONSTITUTIONAL COURTS IN SEARCH OF LEGITIMACY 1. The Legitimacy Dilemma 2. Constitutional Courts Between the Judicial and Legislative Branch 3. Why the “Continental” Model of Review: Reasons or Rationalisations? 4. Constitutional Courts as Protectors of Minorities? 5. Conclusions
3. THE MODEL OF JUDICIAL REVIEW AND ITS IMPLICATIONS 1. Abstract Review 2. ExPost Review 3. Final Review 4. Conclusions
4. CONSTITUTIONAL COURTS AND LEGISLATION 1. The Impact of Constitutional Courts on LawMaking 2. Determinants of the “Strength” of Judicial Review 3. Constitutional Court and the Parliamentary Minority 4. The Question of Judicial Activism and Restraint 5. Conclusions PART II
27 27 33 40 58 62
65 65 74 79 85
87 87 90 93 96 104
5. JUDICIAL REVIEW AND PROTECTION OF CONSTITUTIONAL RIGHTS 107 1. Two Theories about Judicial Review 109 2. The FactSensitivity of a Theory of Judicial Review 114
VI
CONTENTS
3. Rights Protection and Disagreement about Rights 4. Prudence and Judicial Review 5. Conclusions
118 124 125
6. PERSONAL, CIVIL AND POLITICAL RIGHTS AND LIBERTIES 127 1. A Right to Life and Dignity 128 2. Freedom of Religion 135 3. The Right to Privacy 146 4. Freedom of Movement and the Right to Choice of Residence 149 5. Citizenship and Voting Rights 151 6. Freedom of Petition, Assembly and Association 156 7. Freedom of Expression 158 8. Conclusions 169
7. SOCIOECONOMIC RIGHTS 1. Controversy Around SocioEconomic Rights 2. Constitutional Catalogues of SocioEconomic Rights 3. The Status of SocioEconomic Rights 4. The Drawing of Distinctions Between Different Types of Rights by the Courts: Social Security Cases 5. The Right to Work 6. Rights to Health and Education 7. Conclusions
8. EQUALITY AND MINORITY RIGHTS 1. Equality and Constitutional Review 2. Gender and Sexual Orientation Equality 3. Special Case of Affirmative Action 4. Minority Issues in Central and Eastern Europe: An Overview 5. Constitutional Design of Minority Rights: Group or Individual Rights? 6. Linguistic Rights 7. The Special Case of Minority Representation in Public Authorities 8. Conclusions
9. “DECOMMUNISATION”, “LUSTRATION”, AND CONSTITUTIONAL CONTINUITY 1. Main Dilemmas Raised by Decommunisation and Lustration Laws 2. Lustration and Decommunisation in Central and Eastern Europe 3. Retroactive Extensions of Statutes of Limitation 4. Conclusions: Transitional Justice and Constitutional Continuity
10. RESTRICTIONS OF RIGHTS 1. Constitutional Design of Limits on Rights
171 173 176 178
181 185 189 190
195 195 199 203 205 207 212 218 222
223 224 234 249 258
263 263
Index
Bibliography
289
355
367
2. Constitutional Review of Statutory Limits on Rights: Proportionality Scrutiny 3. Other Standards of Rights Restrictions 4. Concluding Remarks on Rights Limitations 5. Postscript on Rights and Duties
CONTENTS
VII
266 276 282 284
CONCLUSIONS
Endnotes
301
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