Castillo Ortiz, P. orcid.org/0000-0003-4540-1855 and Roznai, Y. (2024) The democratic self-defence of constitutional courts. ICL Journal, 18 (1). pp. 1-24. ISSN 2306-3734
Abstract
Courts around the world are under attack. They are being captured, packed, threatened, and their authority and powers are being limited by governments that seek to undermine the democratic constitutional order. Once courts are weakened or captured, it is easier for these governments to undermine other democratic institutions and even set courts themselves against democracy. Accordingly, using the rationale of ‘militant democracy’, this article proposes the theory of democratic self-defence of constitutional courts. According to this theory, constitutional courts (including apex courts with constitutional review powers) should declare the unconstitutionality of reforms to their institutional design when these are instrumental to a process of democratic decay. Not only that they should do so, but they must do so – as a duty – when the viability of the democratic system of government is at stake. The aim of this self-defence is not the self-interest preservation of institutional powers but the protection of democracy itself. In order to be able to protect democracy, courts must be able to protect themselves.
Metadata
Item Type: | Article |
---|---|
Authors/Creators: |
|
Copyright, Publisher and Additional Information: | © 2024 The Authors. Except as otherwise noted, this author-accepted version of a journal article published in ICL Journal is made available via the University of Sheffield Research Publications and Copyright Policy under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/ |
Keywords: | Democracy; Courts; Legal Constitutionalism; Illiberalism; Democratic decay; Militant Democracy |
Dates: |
|
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: | 16 Jan 2024 10:05 |
Last Modified: | 15 Mar 2024 10:48 |
Status: | Published |
Publisher: | De Gruyter |
Refereed: | Yes |
Identification Number: | 10.1515/icl-2024-0001 |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:207474 |
Download
Filename: Democratic Self-Defence Dec 2023 (accepted).pdf
Licence: CC-BY 4.0