Full Description
'This collection is a timely survey of the role of constitutional courts in comparative perspective - it provides an excellent summary of developments in a range of jurisdictions, and locates them in a broader social and political context. Among other factors, it considers global trends toward increasing international and regional human rights protection, increased recognition of second and third generation rights, and trends toward decentralization in democratic governance. It is bound to be of broad interest to both comparative constitutional lawyers and scholars.'
- Rosalind Dixon, University of New South Wales, Australia
Constitutional review has become an essential feature of modern liberal democratic constitutionalism. In particular, constitutional review in the context of rights litigation has proved to be most challenging for the courts. By offering in-depth analyses on changes affecting constitutional design and constitutional adjudication, while also engaging with general theories of comparative constitutionalism, this book seeks to provide a heightened understanding of the constitutional and political responses to the issue of adaptability and endurance of rights-based constitutional review.
These original contributions, written by an array of distinguished experts and illustrated by the most up-to-date case law, cover Australia, Belgium, Finland, France, Hungary, Ireland, Italy, Spain, the United Kingdom and the United States, and include constitutional systems that are not commonly studied in comparative constitutional studies. Providing structured analyses, the editors combine studies of common law and civil law jurisdictions, centralized and decentralized systems of constitutional review, and large and small jurisdictions.
This multi-jurisdictional study will appeal to members of the judiciary, policy-makers and practitioners looking for valuable insights into the case law of a range of constitutional and supreme courts in this rapidly expanding field of constitutional adjudication. It also serves as an excellent resource for academics, scholars and advanced students in the fields of law, human rights and political science.
Contributors: J. Bell, E. Carolan, C. Chandrachud, A. Kavanagh, C. Kelly, J. Lavapuro, T. Ojanen, M.-L. Paris, P. Passaglia, A.R. Robledo, M. Rosenfeld, M. Scheinin, J. Stellios, R. Uitz, M. Verdussen, M. Zagor
Contents
Contents:
Preface
Setting the Scene: Elements of Constitutional Theory and Methodology of the Research
Marie-Luce Paris
PART I BILLS OF RIGHTS AND ACTS OF INCORPORATION: US EXCEPTIONALISM AND ADAPTATION OF THE PARLIAMENTARY MODEL
1. The United States of America: A Comparativist Critique of US Judicial Review of Fundamental Rights Cases: Exceptionalisms, Paradoxes and Contradictions
Michel Rosenfeld
2. The United Kingdom: Rights-based Constitutional Review in the UK: From Form to Function
Chintan Chandrachud and Aileen Kavanagh
3. Ireland:
Leaving Behind the Commonwealth Model of Rights Review: Ireland as an Example of Collaborative Constitutionalism
Eoin Carolan
A Tale of Two Rights-based Reviews or how the European Convention on Human Rights Act 2003 has Impacted on the Irish Model of Review
Cliona Kelly
4. Australia:
Australian Constitutionalism and the UK-style Dialogue Model of Human Rights Protection
James Stellios
Adventures in the Grey Zone: Constitutionalism, Rights and the Review of Executive Power in the Migration Context
Matthew Zagor
5. Finland: Intermediate Constitutional Review in Finland: Promising in Theory, Problematic in Practice
Juha Lavapuro, Tuomas Ojanen and Martin Scheinin
PART II CONSTITUTIONAL COURTS AND CONSTITUTIONAL REFORMS: SPECIFIC EUROPEAN EXPERIENCES TOWARDS AN EVOLUTION OF THE KELSENIAN MODEL
6. Italy: The Italian System of Constitutional Review: A Kelsenian Model Moving Towards a Decentralized Model?
Paolo Passaglia
7. Spain: The Spanish Experience of Rights-based Review or how Constitutional Case Law has been More Principled than Legislation in Defence of Fundamental Rights
Agustín Ruiz Robledo
8. France: The French System of Rights-based Review: From Exceptionalism to Parochial Constitutionalism
Marie-Luce Paris
9. Belgium: The Belgian Experience of Rights-based Review: Has the Constitutional Court Become a Body Subordinated to the European Court of Human Rights?
Marc Verdussen
10. Hungary: The Illusion of a Constitution in Europe: The Hungarian Constitutional Court after the Fifth Amendment of the Fundamental Law
Renáta Uitz
PART III CONCLUSION
11. Comparative Law and Fundamental Rights
John Bell
Index
