Rights Before Courts. A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe

Abstract

Challenging the conventional wisdom that constitutional courts are the best device that democratic systems have for the protection of individual rights, Wojciech Sadursdki examines carefully the most recent wave of activist constitutional courts: those that have emerged after the fall of communism in Central and Eastern Europe. In contrast to most other analysts and scholars he does not take for granted that they are a "force for the good", but rather subjects them to critical scrutiny against a background of a wide-ranging comparative and theoretical analysis of constitutional judicial review in the modern world.

He shows that, in the region of Central and Eastern Europe, their record in protecting constitutional rights has been mixed, and their impact upon the vibrancy of democratic participation and public discourse about controversial issues often negative. Sadurski urges us to reconsider the frequently unthinking enthusiasm for the imposition of judicial limits upon constitutional democracy. In the end, his reflections go to the very heart of the fundamental dilemma of constitutionalism and political theory: how best to find the balance between constitutionalism and democracy? The lively, if imperfect, democracies in Central and Eastern Europe provide a fascinating terrain for raising this question, and testing traditional answers.

This innovative, wide-ranging and thought-provoking book will become essential reading for scholars and students alike in the fields of comparative constitutionalism and political theory, particularly for those with an interest in legal and political developments in the postcommunist world.

Table of contents:

PART I

1. The Model of Constitutional Review in Central and Eastern Europe: An Overview

The Emergence of the Current Model The Powers of Constitutional Courts and Initiators of the Review Process The Tenure and Selection of Judges Constitutional Courts' Pursuit of a Monopoly over Constitutional Adjudication Conclusions 2. Constitutional Courts in Search of Legitimacy

The Legitimacy Dilemma Constitutional Courts Between the Judicial and Legislative Branch Why the "Continental" Model of Review: Reasons or Rationalisations? Constitutional Courts as Protectors of Minorities? Conclusions 3. The Model Of Judicial Review And Its Implications

Abstract Review Ex-Post Review Final Review Conclusions 4. Constitutional Courts and Legislation

The Impact of Constitutional Courts on Law-Making Determinants of the "Strength" of Judicial Review Constitutional Court and the Parliamentary Minority The Question of Judicial Activism and Restraint Conclusions

PART II

5. Judicial Review and Protection Of Constitutional Rights

Two Theories about Judicial Review The Fact-Sensitivity of a Theory of Judicial Review Rights Protection and Disagreement about Rights Prudence and Judicial Review Conclusions 6. Personal, Civil And Political Rights And Liberties

A Right to Life and Dignity Freedom of Religion The Right to Privacy Freedom of Movement and the Right to Choice of Residence Citizenship and Voting Rights Freedom of Petition, Assembly and Association Freedom of Expression Conclusions 7. Socio-Economic Rights Controversy Around Socio-Economic Rights Constitutional Catalogues of Socio-Economic Rights The Status of Socio-Economic Rights The Drawing of Distinctions Between Different Types of Rights by the Courts: Social Security Cases The Right to Work Rights to Health and Education Conclusions 8. Equality And Minority Rights Equality and Constitutional Review Gender and Sexual Orientation Equality Special Case of Affirmative Action Minority Issues in Central and Eastern Europe: An Overview Constitutional Design of Minority Rights: Group or Individual Rights? Linguistic Rights The Special Case of Minority Representation in Public Authorities Conclusions 9. "Decommunisation", "Lustration", And Constitutional Continuity Main Dilemmas Raised by Decommunisation and Lustration Laws Lustration and Decommunisation in Central and Eastern Europe Retroactive Extensions of Statutes of Limitation Conclusions: Transitional Justice and Constitutional Continuity 10. Restrictions Of Rights Constitutional Design of Limits on Rights Constitutional Review of Statutory Limits on Rights: Proportionality Scrutiny Other Standards of Rights Restrictions Concluding Remarks on Rights limitations Conclusions