Against the New Constitutionalism

Against the New Constitutionalism

Elgar Monographs in Constitutional and Administrative Law series

Tamas Gyorfi

Ever since the Second World War, a new constitutional model has emerged worldwide that gives a pivotal role to judges. Against the New Constitutionalism challenges this reigning paradigm and develops a distinctively liberal position against strong constitutional review that puts the emphasis on epistemic considerations. The author considers whether the minimalist judicial review of Nordic countries is more in line with the best justification of the institution than the Commonwealth model that occupies a central place in contemporary constitutional scholarship.

Chapter 2: Political principles

Tamas Gyorfi

Subjects: law - academic, comparative law, constitutional and administrative law, politics and public policy, constitutions


The central question of my book, namely the legitimacy of constitutional judicial review, is an institutional question. However, institutional questions about constitutional design are rarely, if ever, freestanding. Whether judicial review is justified depends to a great extent on what one thinks about the legitimizing principles of constitutional democracy. Authorizing courts with the power of judicial review can be a good institutional choice relative to one theory of constitutional democracy and a poor choice relative to another one. This insight also applies to the institutional arguments I will develop in the next chapter of the book. Although many of my institutional arguments are compatible with more justificatory principles of constitutional democracy, they are informed by and tailored to a particular theory of legitimacy. The purpose of the present chapter is therefore to outline the theory of legitimacy that underpins my institutional analysis and defend that position against two potent rivals. Although I spoke about the justificatory principles of constitutional democracies in general, I do not aim to provide a full-scale justification of democratic institutions. My ambition is much more modest here. My analysis focuses on how different justificatory theories try to solve the puzzle to find the right balance between democratic decision-making and the adequate protection of human rights. I will start the explication of the puzzle with a very brief sketch about the institutions of constitutional democracies. Modern constitutional democracies appeared first in the nineteenth century as a result of two significant developments.

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