Where Our Protection Lies
Separation of Powers and Constitutional Review
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36 786 Ft
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Product details:
- Publisher OUP Oxford
- Date of Publication 27 July 2017
- ISBN 9780199672257
- Binding Hardback
- No. of pages236 pages
- Size 240x169x19 mm
- Weight 516 g
- Language English 0
Categories
Short description:
Should courts be able to scrutinize primary legislation for its compatibility with human rights? Focusing on the value of the separation of powers, Kyritsis offers an innovative discussion of the role of constitutional courts and the scope of judicial review, and a normative theory of the constitutional review of legislative action.
MoreLong description:
In this book Dimitrios Kyritsis advances an original account of constitutional review of primary legislation for its compatibility with human rights. Key to it is the value of separation of powers. When the relationship between courts and the legislature realizes this value, it makes a stronger claim to moral legitimacy. Kyritsis steers a path between the two extremes of the sceptics and the enthusiasts.
Against sceptics who claim that constitutional review is an affront to democracy he argues that it is a morally legitimate institutional option for democratic societies because it can provide an effective check on the legislature. Although the latter represents the people and should thus be given the initiative in designing government policy, it carries serious risks, which institutional design must seek to avert. Against enthusiasts he maintains that fundamental rights protection is not the exclusive province of courts but the responsibility of both the judiciary and the legislature. Although courts may sometimes be given the power to scrutinize legislation and even strike it down, if it violates human rights, they must also respect the legislature's important contribution to their joint project. Occasionally, they may even have a duty to defer to morally sub-optimal decisions, as far as rights protection is concerned. This is as it should be. Legitimacy demands less than the ideal. In turn, citizens ought to accept discounts on perfect justice for the sake of achieving a reasonably just and effective political order overall.
Table of Contents:
The Possibility of Constitutional Theory
A Moral Map of Constitutional Polyphony
Are the Courts the Forum of Constitutional Principle?
Against the Democratic Objection
A Little Less Conversation, A Little More Action
Constitutional Review in Representative Democracy
Two Modes of Judicial Deference
Moral and Constitutional Rights
Dynamic Separation of Powers
