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 3: From principles to institutions

Tamas Gyorfi

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

Abstract

The central chapter of the book develops four lines of institutional arguments against the New Constitutionalism: the argument from equal participation; the epistemic argument; the public reason argument; and the mismatch argument. The book claims that both general epistemic considerations and the Liberal Principle of Legitimacy make diversity one of the most important requirements of institutional design when we are looking for an institution that specifies the meaning of abstract human rights. Although the proponents of constitutional review are right to point out that the normal political process has many blind spots, in consolidated democracies this consideration is not strong enough to outweigh the countervailing procedural and epistemic arguments. The strongest argument for judicial review, coined the insulation argument in the book, justifies only a limited and corrective role for courts in the specification of human rights.

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