Dialogical theory of constitutional jurisdiction
نویسندگان
چکیده
The metaphor of dialogue between constitutional jurisdictions and legislatures was born in Canada to describe the role Supreme Court after adoption Charter Rights Freedoms 1982. Then he engaged Anglo-American academic space comparative law. It is relationship judiciary deliberative paradigm that raises questions, as it difficult see how supervisory function judge his authority repeal or amend legislative texts can be anything other than a transfer within limits separation powers. A famous argument 1803 U.S. decision Marbury v. Madison: Justice Marshall postulated existence written Constitution, supreme since its by sovereign people, implied judicial guarantee, even if text did not state it, which applies all legal acts. including Constitutional justice developed mainly century later, then especially at end World War II, theory accompanied it. Those proposed context continental Europe Austrian theorist Hans Kelsen, who participated creation Austria 1920. Schematically, order hierarchically structured system norms, each norm valid when produced higher rank, up Constitution. checks validity rules system; judge, whether court specializing this control an ordinary headed universal Court, conformity part norms with norm, thus performing essential structuring order. Outside European Union, has been reused two contexts where played very different roles, English-language law America. democratic deliberation extended judge. In dialogic conception, variants constitutionalism understood cooperative, case for revision derives from ability courts help counter failures inclusiveness responsiveness political process, framed here terms "blind spots" "inertia weights."
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ژورنال
عنوان ژورنال: Analìti?no-porìvnâl?ne pravoznavstvo
سال: 2023
ISSN: ['2788-6018']
DOI: https://doi.org/10.24144/2788-6018.2022.06.9