Constitutional courts: A primer for decision makers

Journal of Democracy

Volumn 17, Issue 4, 2006, Pages 125-137

  Horowitz, Donald L ^a  

^a DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33750967366     PISSN: 10455736     EISSN: None     Source Type: Journal    
DOI: 10.1353/jod.2006.0063     Document Type: Article

References (24)

1. Except as otherwise indicated, these figures and the figures that follow derive from the Comparative Constitutions Project being conducted by Professors Tom Ginsburg and Zach Elkins of the University of Illinois, who kindly made the data available.
2. Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003), 7-8.
3. Ginsburg, Judicial Review in New Democracies, 9.
4. Patricio Navia and Julio Ríos-Figueroa, "The Constitutional Adjudication Mosaic of Latin America," Comparative Political Studies 38 (March 2005): 189-217.
5. See Said Amir Arjomand, "Law, Political Reconstruction and Constitutional Politics," Sociology 18 (March 2003): 7-32.
6. For an argument to this effect, see Ginsburg, Judicial Review in New Democracies, 22-33.
7. Fareed Zakaria, "The Rise of Illiberal Democracy," Foreign Affairs 16 (November-December 1997): 22-43.
8. For the argument that Britain enjoys a form of judicial review for constitutionality in spite of the doctrine of parliamentary supremacy, see Lori Ringhand, "Fig Leaves, Fairy Tales, and Constitutional Foundations," Columbia Journal of Transnational Law 43 (Spring 2005): 865-904.
9. For an argument that legislative supremacy in a democratic regime would not produce results inferior to those produced by judicial review, see Jeremy Waldron, "The Core of the Case Against Judicial Review," Yale Law Journal 115 (April 2006): 1346-1406.
10. See Sarah Wright Shreive, "Central and Eastern European Constitutional Courts and the Antimajoritarian Objection to Judicial Review," Law and Policy in International Business 26 (Summer 1995): 1201-33.
11. Herbert Hausmaninger, "Judicial Referral of Constitutional Questions in Austria, Germany, and Russia," Tulane European and Civil Law Forum 12 (Winter 1997): 25-37.
12. There is also an unutilized provision for referral of a dispute between organs of the state when the constitutionality of executive action is challenged. See generally Pius N. Langa, "The Role of the Constitutional Court in the Enforcement and Protection of Human Rights in South Africa," St. Louis University Law Journal 41 (Fall 1997): 1259-77.
13. Kim Lane Scheppele, "The New Hungarian Constitutional Court," East European Constitutional Review 8 (Fall 1999): 81-87.
14. Scheppele, "The New Hungarian Constitutional Court."
15. See Kim Lane Scheppele, "Democracy by Judiciary. Or, Why Courts Can Be More Democratic than Parliaments," in Adam Czarnota, Martin Krygier, and Wojciech Sadurski, eds., Rethinking the Rule of Law after Communism (Budapest: Central European University Press, 2005), 53-54.
16. For the recurrent hazards of judicial policy making, see Donald L. Horowitz, The Courts and Social Policy (Washington, D.C.: Brookings Institution, 1997).
17. Wojciech Sadurski, "Postcommunist Constitutional Courts in Search of Political Legitimacy," EUI Working Papers, Law No. 2001/11 (European University Institute, 2001), 4, quoting Leszek Garlicki, a judge of the Polish constitutional court.
18. Radoslav Procháza, Mission Accomplished; On Founding Constitutional Adjudication in Central Europe (Budapest: Central European University Press, 2002), 50, 57.
19. Alexei Trochev, "Implementing Russian Constitutional Court Decisions," East European Constitutional Review 11 (Winter-Spring 2002): 95-103.
20. Constitution of Bosnia and Herzegovina, Art. VI.
21. Constitution of Bosnia and Herzegovina, Art. IV(3)(e)-(f).
22. Request for Evaluation of Constitutionality of Certain Provisions of the Constitution of the Republika Srpska and the Constitution of the Federation of Bosnia and Herzegovina, Case No. 5/98-III (2000).
23. In Saudi Arabia, for example, the Companies Law of 1965 drew on Egyptian and European sources, and in 1982 a Board of Grievances was explicitly modeled on the French Conseil d'Etat. In Malaysia, statutes on evidence and civil procedure in Islamic courts and even some Islamic family-law provisions are based largely on British models. See Donald L. Horowitz, "The Qur'an and the Common Law: Islamic Law Reform and the Theory of Legal Change," American Journal of Comparative Law 42 (Spring and Summer 1994): 233-93, 543-80.
24. See Horowitz, "The Qur'an and the Common Law."