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Constitutional Courts as Positive Legislators

Constitutional Courts as Positive Legislators

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Allan Brewer-Carias
Cambridge University Press, 10/31/2011
EAN 9781107011656, ISBN10: 1107011655

Hardcover, 900 pages, 24 x 16 x 4.1 cm
Language: English

During the past decade the role of constitutional courts has dramatically changed. Today, constitutional courts condition their decisions with the presumption of constitutionality of statutes, opting to interpret them according to or in harmony with the Constitution in order to preserve them, instead of deciding their annulment or declaring them unconstitutional. More frequently, constitutional courts, instead of dealing with existing legislation, assume the role of assistants or auxiliaries to the legislator, creating provisions they deduct from the Constitution when controlling the absence of legislation or legislative omissions. In some cases they act as 'positive legislators', issuing temporary or provisional rules to be applied pending the enactment of legislation. This book analyzes this new role of the constitutional courts, conditioned by the principles of progressiveness and of prevalence of human rights, particularly regarding the important rediscovery of the right to equality and non-discrimination.

Part I. Constitutional Courts as Positive Legislators in Comparative Law
1. Judicial review of legislation and the legislator
2. The role of constitutional courts interfering with the constituent power
3. Constitutional courts interfering with the legislator regarding existing legislation
4. Constitutional courts interfering with the legislator regarding legislative omissions
5. Constitutional courts as legislators on matters of judicial review
Part II. National Reports
Part III. Synthesis Report
Constitutional Courts as Positive Legislators in Comparative Law Preliminary Remarks.