Castillo Ortiz, P. orcid.org/0000-0003-4540-1855 (2020) The dilemmas of constitutional courts and the case for a new design of Kelsenian institutions. Law and Philosophy, 39. pp. 617-655. ISSN 0167-5249
Abstract
Legal and political controversies persist about the performance of Kelsenian-type constitutional courts in democratic systems. One of the reasons is that the design of these institutions cannot easily accommodate simultaneous but conflicting demands for the strong protection of democracy and human rights, judicial independence and constitutional restraint. Challenging the dominant approach to the design of contemporary constitutional courts, this article proposes a new way to balance these three values through reforms to the structure of Kelsenian institutions. The proposal seeks to institutionalize constitutional restraint, embedding it into courts’ internal functioning rules while, concurrently, emancipating constitutional judges from political control through a reform of appointment procedures. It is argued that the combined effects of these two reforms will produce constitutional courts that are more independent and able to protect the core elements of a democratic political community while, at the same time, increasing constitutional deference to the democratically elected legislator.
Metadata
Item Type: | Article |
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Authors/Creators: |
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Copyright, Publisher and Additional Information: | © The Author(s) 2020. Open Access: This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/. |
Keywords: | Constitutional Review; Institutional Design; Constitutional Courts; Kelsen; Neo-Constitutionalism; Political Constitutionalism |
Dates: |
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Institution: | The University of Sheffield |
Academic Units: | The University of Sheffield > Faculty of Social Sciences (Sheffield) > School of Law (Sheffield) |
Depositing User: | Symplectic Sheffield |
Date Deposited: | 19 Feb 2020 12:43 |
Last Modified: | 29 Jun 2021 09:40 |
Status: | Published |
Publisher: | Springer |
Refereed: | Yes |
Identification Number: | 10.1007/s10982-020-09378-3 |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:157395 |
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