Suchergebnisse

Constitutionalism is the permanent quest to control state power, of which the judicial review of legislation is a prime example. Although the judicial review of legislation is increasingly common in modern societies, it is not a finished project. This device still raises questions as to whether judicial review is justified, and how it may be structured. Yet, judicial review's justification and its scope are seldom addressed in the same study, thereby making for an inconvenient divorce of these two related avenues of study. To narrow the divide, the object of this work is quite straightforward. Namely, is the idea of judicial review defensible, and what influences its design and scope? This book addresses these matters by comparing the judicial review of legislation in the United Kingdom (the Human Rights Act of 1998), the Netherlands (the Halsema Proposal of 2002) and the Constitution of South Africa of 1996. These systems present valuable material to study the issues raised by judicial review. The Netherlands is of particular interest as its Constitution still prohibits the constitutional review of acts of parliament, while allowing treaty review of such acts. The Halsema Proposal wants to even out this difference by allowing the courts also to apply constitutional norms to legislation and not only to international norms. The Human Rights Act and the South African Constitution also present interesting questions that will make their study worthwhile. One can think of the issue of dialogue between the legislature and the judiciary. This topic enjoys increased attention in the United Kingdom but is somewhat under explored in South African thought on judicial review. These and similar issues are studied in each of the three systems, to not only gain a better understanding of the systems as such, but also of judicial review in general.

This contribution considers the protection of fundamental rights in the Netherlands and South Africa. Both countries strive to be constitutional democracies that respect basic rights. But both countries go about this aim in very different ways. These different paths to constitutionalism are compared, as well as the reasons for these differences and whether it can be said that these differences are justifiable. This is done by comparing the character of the rights guaranteed in the Dutch and South African legal orders, the sources of these rights and the locus or centre of protection in both systems. The conclusion is reached that no single or perfect route to attaining the desired protection of fundamental rights exists, but that one should always enquire as to the state of individual freedom and the right to make free political choices in measuring the worth of a system's protection of rights.

The constitutional identity of the Member States is a topic of increasing importance in understanding the interaction between the EU and its Member States. This is because the EU is enjoined to respect the constitutional identities of its Member States in accordance with Article 4(2) TEU. There is also a trend among Member States to articulate their constitutional identities, in particular in relation to European integration. In this regard, this volume fills a need in scholarship by presenting critical analyses of the constitutional identities of selected Member States. Leading and well-placed experts contribute country studies on a range of states, which are compared using a framework that can be applied to other Member States as well. The analyses and comparison of Member States' constitutional identities take place in the context of the EU's multilevel architecture.

Chapter 1. Introduction: Safeguards and Limits of Judicial Power -- Chapter 2. The Independence of the Belgian Constitutional Court -- Chapter 3. Between Judicial Independence and Democratic Accountability: The Function and Legitimacy of the German Federal Constitutional Court -- Chapter 4. Italy and its Constitutional Court -- Chapter 5. Bipolar Constitutionalism in The Netherlands and its Consequences for the Independence and Accountability of the Judiciary -- Chapter 6. '… destroy all sense of dependence': On the Selection and Independence of the Judiciary in Norway -- Chapter 7. Judicial Independence and Accountability in the British Constitution -- Chapter 8. Independence and Accountability of the South African Judiciary -- Chapter 9. Judicial Independence and Accountability in the Council of Europe and the European Court of Human Rights -- Chapter 10. Accountability through Transparency and the Role of the Court of Justice of the European Union -- Chapter 11. The Last Soldier Standing? Courts versus Politicians and the Rule of Law Crisis in the New Member States of the EU -- Chapter 12. The Last Soldier Standing? Courts versus Politicians and the Rule of Law Crisis in the New Member States of the EU -- Chapter 13. The Strasbourg Court: Judges Without Borders -- Chapter 14. The Strasbourg Court: Acting Within its Limits.

Chapter 1. Introduction: Mapping the Emerging Field of Constitutional Advice -- Chapter 2. Some Advice on Constitutional Advice -- Chapter 3. Do We Need Constitutional Advice? Denmark – The Story of a Self-Sufficient Political System -- Chapter 4. Constitutional Advice and Signals in the Netherlands: Actors and Impact -- Chapter 5. The Council of State of Belgium: Advising the Political Branches, and the Constitutional Court -- Chapter 6. Advising on Constitutional Matters in a Mixed Legal System: The Example of Cyprus -- Chapter 7. Understanding the Dilemma of Constitutional Advice in Transitional Societies: A Comparative Analysis of Ghana and Colombia -- Chapter 8. Openness of Constitutional Review: A Comparative Analysis of How Transparency is Ensured in Ex Ante Constitutional Review -- Chapter 9. Constitutional Reasoning There and Back Again: The Facebook Oversight Board as a Source of Transnational Constitutional Advice -- Chapter 10. Advisory Opinions of the Dutch Council of State as Contributions to a Constitutional Dialogue -- Chapter 11. Courts as Consiglieri: Advisory Opinions in a Comparative Constitutional Perspective.

Chapter 1. Introduction: The City as a Multifaceted and Dynamic Constitutional Entity -- Part I: Cities within national power structures -- Chapter 2 Cities and the Dutch Constitution -- Chapter 3. Modes of Urban Autonomy: The Constitutional Characteristics of Self-Governance in Amsterdam, Paris, and Hamburg -- Chapter 4. Reanimating Brussels: The Beating Heart of the Belgian Federation -- Chapter 5. How much Local Autonomy is Good for a City? An Analysis of the Peruvian Constitutional Design for Cities and its Effects in the Case of the Lima Metropolitan Area -- Chapter 6 Comparative Constitutional Politics in Hong Kong and Macau under Chinese Sovereignty -- Chapter 7. A Tale of Three Cities: The City in German Constitutional Law -- Part II: Cities and citizens -- Chapter 8. The Constitution and the City -- Chapter 9. Urban Governance and the Right to a Healthy City -- Chapter 10. Topical Storm Approaching: Regulating Public Assemblies and Responding to Online Falsehoods in the City-state of Singapore -- Chapter 11. The City of London: Dominance, Democracy, and the Rule of Law? -- Part III: Cities and the international arena -- Chapter 12 Accelerating Cities, Constitutional Brakes -- Chapter 13. European Cities between Self-Government and Subordination: Their Role as Policy-Takers and Policy-Makers -- Part IV: Constitutional law in the age of the city -- Chapter 14. Urbanization, Megacities, Constitutional Silence -- Chapter 15. Redrawing the Boundaries of City Governance: Preliminary Lines of Inquiry into Metropolitan Cities, Socio-Economic Challenges and Constitutional Law.

Chapter 1. Introduction: Exploring the Concept of a Constitutional Identity for the European Union -- Chapter 2. Three Meanings of Constitutional Identity and their Prospects in the European Union -- Chapter 3. A Plaidoyer Against the Sisyphean Endeavour to Imagine the Constitutional Identity of the EU -- Chapter 4. Constitutional Identity of the EU as a Counterbalance for Unconstitutional Constitutional Identities of the Member States -- Chapter 5. Parameters of EU and Member State Constitutional Identity: A Topic in Development -- Chapter 6. St. Augustine and the ECJ on Citizenship -- Chapter 7. The Principle of Solidarity Forging the Constitutional Identity of the European Union -- Chapter 8. United in Diversity – Homogeneity and Differentiation as Parts of the Union's Constitutional Identity -- Chapter 9. European Constitutional Identity as a Normative Concept: Pointing to the Core of European Democracies -- Chapter 10. From Monologues to Dialogue: the US "Certification" Procedure as a Source of Inspiration for EU Cooperative Judicial Federalism.