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
