Castillo Ortiz, P. orcid.org/0000-0003-4540-1855 (Accepted: 2020) The dilemmas of constitutional courts and the case for a new design of Kelsenian institutions. Law and Philosophy. ISSN 0167-5249 (In Press)
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
Authors/Creators: |
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Copyright, Publisher and Additional Information: | © 2020 Springer Nature. This is an author-produced version of a paper subsequently published in Law and Philosophy. Uploaded in accordance with the publisher's self-archiving policy. |
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) > Department of Law (Sheffield) |
Depositing User: | Symplectic Sheffield |
Date Deposited: | 19 Feb 2020 12:43 |
Last Modified: | 13 Mar 2021 01:38 |
Status: | In Press |
Publisher: | Springer |
Refereed: | Yes |