Table of Contents

Judges as Guardians of Constitutionalism and Human Rights

Judges as Guardians of Constitutionalism and Human Rights

Edited by Martin Scheinin, Helle Krunke and Marina Aksenova

This book considers the many challenges that national and supranational judges have to face when fulfilling their roles as guardians of constitutionalism and human rights. The contributors, both academics and judges, discuss key examples of contemporary challenges to judging – including the nature of courts’ legitimacy and its alleged dependence on public support; the role of judges in upholding constitutional values in the times of transition to democracy, surveillance and the fight against terrorism; and the role of international judges in guaranteeing globally recognized fundamental rights and freedoms.

Chapter 12: Guides and guardians: judiciaries in times of transition

Ebrahim Afsah

Subjects: law - academic, constitutional and administrative law, criminal law and justice, human rights, law and society

Abstract

Associate Professor of Public International Law, Faculty of Law, University of Copenhagen. There exists a surprising lack of fundamental disagreement in contemporary discourse about the desirability of the rule of law and the particular set of institutions deemed necessary for its maintenance, not the least of which are independent judiciaries. In short, the rule of law consensus has achieved quasi-canonical status across the political spectrum. Under these conditions, the judiciary, especially at the highest level, cannot content itself to measure state action against an abstract yardstick. Instead, judiciaries must also assume the role of guides offering direction and reassurance to hostile societal actors about the transition process as such. The chapter argues that judges can offer such guidance much more credibly if they visibly have a grand vision for the erection of the legal edifice, something that the new constitutional courts in Central and Eastern Europe readily found in the practice of their Western European, especially German colleagues, but something that was weaker in Russia and entirely lacking in Egypt and the Arab world.

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