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11 - Judging Methods of Mediating Conflicts

Recognizing and Accommodating Differences in Pluralist Legal Regimes

from Part III - Legitimacy, Effectiveness, and Judicial Methods of Decision-Making

Published online by Cambridge University Press:  27 January 2019

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Summary

The chapter tries to answer the question about the political character of judicial review in a more differentiated way. It distinguishes between the object, the effect, and the process of constitutional adjudication. As the constitution imposes obligations and constraints on politics, and as constitutional courts or courts with the power of judicial review are supposed to enforce these obligations and constraints, the object and the effect of judicial review are inevitably political. The process, if exercised in a professional way, is not. When a political conflict is taken to the courts, it enters a different arena with different actors, criteria, and rules. The Court determines the meaning of the relevant constitutional provisions with regard to the case at hand and, if done professionally, this happens according to legal criteria and according to a legal method. Different views exist among the judges, but different views about the correct legal solution of the case, although background assumptions may influence the choice between equally viable legal arguments. Seen this way, different views do not indicate that the realm of law has been left and that ultimately nonlegal considerations count. Judges and courts exist that decide according to personal preferences or political inclinations; these are pathological cases deviating from the regular functioning of judicial review.
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Chapter
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Judicial Power
How Constitutional Courts Affect Political Transformations
, pp. 250 - 280
Publisher: Cambridge University Press
Print publication year: 2019

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