Courts, Politics and Constitutional Law: Judicialization of Politics and Politicization of the Judiciary

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Cover Half Title Series Page Title Page Copyright Page Table of Contents List of contributors Introduction Part I Courts and democracy Chapter 1 Democracy and courts beyond the ideological banality 1.1 Introduction 1.2 Court and separation of powers – Some banal remarks 1.3 The majority principle vs individual freedom 1.4 Can the courts save liberal democracy? References Chapter 2 Disempowering courts: the interrelationship between courts and politics in contemporary legal orders or the manifold ways of attacking judicial independence 2.1 Courts under attack 2.2 The rise of the courts 2.3 Separation of powers 2.4 Typologies of disempowerment 2.5 Erosion of the rule of law 2.6 Approaches to strengthen judicial independence References Part II Courts and their relationship with legislative and executive power Chapter 3 Courts and legislation: do legislators and judges speak the same language? 3.1 Introduction 3.2 Legislation as a fluid collective task: From policy concept to application/interpretation 3.3 The new language of legislation 3.4 The gap between drafters and judges 3.5 Conclusions References Chapter 4 Text, values, and interpretation: the role of judges and legislative power in private law 4.1 Introduction 4.2 Judgments and written norms 4.3 Implementing values via interpretation 4.4 The flexible system of private law 4.5 Legislation against judicial interpretation: Two sides of the same coin? 4.6 Conclusions References Chapter 5 Supreme courts in Sweden: are they “real” judges? 5.1 Introduction 5.2 Swedish supreme courts as civil servants 5.3 Things are (maybe) changing 5.4 Conclusion References Chapter 6 From separation of powers to superiority of rights: the Italian Constitutional Court and end-of-life decisions (the Cappato case) 6.1 Introduction 6.2 Balancing complex values: Judicial choices versus separation of powers 6.3 Balancing complex values: Judicial choices versus parliamentary inertia 6.4 The superiority of the political: A myth to dispel? 6.5 Political decisions through judicial means: The Italian experience 6.6 End-of-life decisions between parliamentary inertia and judicial review 6.7 The new clothes of judicial activism: When the Constitutional Court decides not to decide References Part III Courts, constitution-making, and the separation between constituent and constituted powers Chapter 7 The negative legislator: on Kelsen’s idea of a constitutional court 7.1 Introduction 7.2 Kelsen on constitutional rights 7.3 The negative legislature 7.4 Unconstitutional laws: voidable or void ab initio? 7.5 The void ab initio debate and legal theory 7.6 Conclusion References Chapter 8 Constitutional courts as ultimate players in multilevel constituent power games: the Bulgarian case 8.1 Introduction 8.2 The transfer of constitutional competences to the EU as a precursor for the increasing role of domestic constitutional courts 8.3 The concept of ‘multilevel constituent power game’ 8.4 The concept of constituent power and external power according to the Bulgarian constitutional model 8.5 The Bulgarian Constitutional Court: activist court accomplishing virtual constitutional amendment based on the ‘open texture’ of the 1991 Constitution 8.6 The procedure for transfer of constitutional competences to the EU as ‘unconstitutional constitutional amendment’ enhancing the potential of the Constitutional Court to be ultimate player in multilevel constituent power games 8.7 Conclusions References Chapter 9 Courts in the constitution-making process: paradoxes and justifications 9.1 Introduction 9.2 The paradoxical role of the courts in the constitution-making process 9.3 Formal and substantive justifications 9.4 Conclusions References Chapter 10 The least dangerous branch?: constitutional review of constitutional amendments in Europe 10.1 Introduction 10.2 Judicial activism and constitutional review of constitutional amendments 10.3 Constitutional review of constitutional amendments in Europe since 1945 10.4 Judicial activism in court decisions on constitutional amendments 10.5 Conclusion References Part IV The role of courts in the context of democratic backsliding, illiberal democracies and populist constitutionalism Chapter 11 Constitutional courts in the context of constitutional regression: some comparative remarks 11.1 Introduction 11.2 The involvement of constitutional courts in constitutional regression, and the end of the ‘transition paradigm’ 11.3 The political and constitutional environment in the countries concerned 11.4 The role of constitutional courts in constitutional regression 11.5 The constitutional identity doctrine and the new role of Courts after constitutional regression 11.6 Some concluding remarks on the courts under examination here on the problem how to label the ‘deteriorated’ constitutional systems and on their perspectives References Chapter 12 The use of the EU infringement procedures to protect de facto the rule of law via the development of the parameter: from obligations under the Treaties to the Charter of Fundamental Rights 12.1 Introduction 12.2 The mechanism under Article 7 TEU and its failure 12.3 The infringement procedures under Articles 258 and 260 TFEU and the legal arguments in favor or against its use to protect expressly the values provided by Article 2 TEU 12.4 The use of infringement procedures by the European Commission and the Court of Justice of the EU to protect de facto EU fundamental values under Article 2 TEU 12.5 The factual consequences of such use of the infringement procedure to protect indirectly the fundamental values under Article 2 TEU: from the (impracticable) political ‘nuclear option’ to (effective) legal targeted goals 12.6 The use of the CFREU as the relevant parameter 12.7 Conclusion References Index