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Vol 21 No 10 Oct/Nov 2016

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Rights-Based Constitutional Review: Constitutional Courts in a Changing Landscape


ISBN13: 9781784717605
Published: April 2016
Publisher: Edward Elgar Publishing Limited
Country of Publication: UK
Format: Hardback
Price: £110.00



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Constitutional review has become an essential feature of modern liberal democratic constitutionalism. In particular, constitutional review in the context of rights litigation has proved to be most challenging for the courts.

By offering in-depth analyses on changes affecting constitutional design and constitutional adjudication, while also engaging with general theories of comparative constitutionalism, this book seeks to provide a heightened understanding of the constitutional and political responses to the issue of adaptability and endurance of rights-based constitutional review.

These original contributions, written by an array of distinguished experts and illustrated by the most up-to-date case law, cover Australia, Belgium, Finland, France, Hungary, Ireland, Italy, Spain, the United Kingdom and the United States, and include constitutional systems that are not commonly studied in comparative constitutional studies.

Providing structured analyses, the editors combine studies of common law and civil law jurisdictions, centralized and decentralized systems of constitutional review, and large and small jurisdictions.

This multi-jurisdictional study will appeal to members of the judiciary, policy-makers and practitioners looking for valuable insights into the case law of a range of constitutional and supreme courts in this rapidly expanding field of constitutional adjudication.

It also serves as an excellent resource for academics, scholars and advanced students in the fields of law, human rights and political science.

Subjects:
Constitutional and Administrative Law
Contents:
Preface

Setting the Scene: Elements of Constitutional Theory and Methodology of the Research Marie-Luce Paris
PART I BILLS OF RIGHTS AND ACTS OF INCORPORATION: US EXCEPTIONALISM AND ADAPTATION OF THE PARLIAMENTARY MODEL
1. The United States of America: A Comparativist Critique of US Judicial Review of Fundamental Rights Cases: Exceptionalisms, Paradoxes and ContradictionsMichel Rosenfeld
2. The United Kingdom: Rights-based Constitutional Review in the UK: From Form to FunctionChintan Chandrachud and Aileen Kavanagh
3. Ireland: Leaving Behind the Commonwealth Model of Rights Review: Ireland as an Example of Collaborative Constitutionalism Eoin CarolanA Tale of Two Rights-based Reviews or how the European Convention on Human Rights Act 2003 has Impacted on the Irish Model of ReviewCliona Kelly
4. Australia: Australian Constitutionalism and the UK-style Dialogue Model of Human Rights ProtectionJames StelliosAdventures in the Grey Zone: Constitutionalism, Rights and the Review of Executive Power in the Migration ContextMatthew Zagor
5. Finland: Intermediate Constitutional Review in Finland: Promising in Theory, Problematic in Practice Juha Lavapuro, Tuomas Ojanen and Martin Scheinin

PART II CONSTITUTIONAL COURTS AND CONSTITUTIONAL REFORMS: SPECIFIC EUROPEAN EXPERIENCES TOWARDS AN EVOLUTION OF THE KELSENIAN MODEL
6. Italy: The Italian System of Constitutional Review: A Kelsenian Model Moving Towards a Decentralized Model?Paolo Passaglia
7. Spain: The Spanish Experience of Rights-based Review or how Constitutional Case Law has been More Principled than Legislation in Defence of Fundamental RightsAgustin Ruiz Robledo
8. France: The French System of Rights-based Review: From Exceptionalism to Parochial ConstitutionalismMarie-Luce Paris
9. Belgium: The Belgian Experience of Rights-based Review: Has the Constitutional Court Become a Body Subordinated to the European Court of Human Rights?Marc Verdussen
10. Hungary: The Illusion of a Constitution in Europe: The Hungarian Constitutional Court after the Fifth Amendment of the Fundamental LawRenata Uitz

PART III CONCLUSION
11. Comparative Law and Fundamental Rights John Bell
Index