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 5: A theory of weak judicial review

Tamas Gyorfi

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


Although the book mounts a general attack against strong constitutional review in Chapter Three, it does not reject the idea that judges should have a role in the specification of rights. The main purpose of the present chapter is, therefore, to outline a theory of weak constitutional review. It is argued that the strength of a constitutional court is a multidimensional concept and has to be analysed accordingly. The book uses the term ‘weak judicial review’ as a broad umbrella concept and distinguishes three subtypes of it: limited, penultimate and deferential review. It also compares the strengths and weaknesses of the different forms of weak judicial review and evaluates them in light of the normative principles that are spelled out in the earlier chapters of the book.

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