This paper contributes to debates over the democratic desirability of judicial review, by stating a quasi-general case for the desirability of judicial review that is “weak”–or broad but non-final–rather than “strong”-form in nature. Judicial review of this kind, the paper argues, can help counter blockages in the legislative process–such as legislative “blind spots” and “burdens of inertia”–that can otherwise impair the enjoyment of individual rights even of a kind recognized by democratic majorities. This, the paper suggests, provides an important, if contingent, outcome-based case in favor of courts exercising powers of weak-form review. It provides a relatively general argument for why those persuaded by Waldron’s Core Case should distinguish between judicial review that is strong and weak in form when assessing both the legitimacy and desirability of judicial review from a democratic perspective.
This paper's object is to sound a note of caution against the rise of remedial interpretation (ie a court rewriting a statute to render it compatible with a constitutional norm) as an alternative to statutory invalidation as a remedy for violations of constitutional norms in Anglo-American countries (eg s 3 of the UK Human Rights Act, the expanding principle of legality). It argues that there are a number of rule-of-law concerns with the practice, eg, diminishing the transparency of exercises of judicial power and exacerbating the gap between the text and operation of statutes. Finally, it considers the limits of this argument, in particular, that a preference for invalidation over interpretation presumes an absence of institutional failure (ie a responsive, competent legislature that is capable of enacting new constitutionally compatible statutes following invalidation of constitutionally incompatible statutes).
This paper investigates the role of the regional human rights system in Europe and Latin-America in combating institutional failure, as opposed to addressing individual instances of human rights violations. I define institutional failure as a violation of a constitutional duty, typically a human right, of large scope ie that 1. affects large numbers of people, 2. has been ongoing for a considerable amount of time, and/or 3. concerns sufficiently important rights/values. The paper explores what mechanisms regional human rights bodies have in the past used to address broader structural or systemic failures (eg ECHR’s pilot procedure), how effective such mechanisms have been from a comparative law perspective and whether we see a trend towards convergence in this regard. It also raises the question of the legitimacy of regional courts engaging in remedying institutional failure which often involves them in comparatively detailed questions of policy typically reserved to other branches.
The concept of separation of powers is notoriously vague and contested. Usually, we realize what separation of powers (SOP) is only once we have lost it, as evidenced by recent efforts by ruling parties in Hungary & Poland. We argue that to understand recent challenges to the SOP in Central Europe (CE) we need to unpack the concept into four components and take into account historical-political trajectories of CE countries which have prepared ground for the recent assault on the SOP. We show that the SOP has no long tradition in CE and that it was “further” dismantled not only during the Communist rule, but also by a technocratic EU’s “let the experts rule without checks” version of the concept. This in turn opened the gate for populists who have dismantled its remaining components. Based on the CE case study, we argue that the two major recent challenges to the SOP in the region – populism & the rise of unelected institutions – are more interrelated than we thought.