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Tamas Gyorfi

The first chapter of the book has three main purposes. First, it defines what the New Constitutionalism is and documents how it has become the orthodox view in constitutional theory. In the terminology of the book, the New Constitutionalism refers to a particular institutional arrangement that comprises four tenets: (1) an entrenched and codified constitution; (2) a codified bill of rights; (3) constitutional judicial review with the power to strike down legislation; (4) the robust exercise of judicial review. However, the New Constitutionalism also refers to the view that the very idea of constitutionalism requires the aforementioned institutional arrangement. Second, the present chapter also addresses the question of why the New Constitutionalism has become the reigning paradigm of constitutional law and explores six possible explanations. Finally, Chapter One spells out the main methodological principles that underpin the book and provides the reader with an outline of the argument.
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Tamas Gyorfi

The central question of the 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. The purpose of Chapter Two is therefore to outline the theory of legitimacy that underpins the institutional analysis of the book (The Liberal Principle of Legitimacy) and defend that position against two potent rivals: the Principle of Equal Participation and Rights Foundationalism.
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Tamas Gyorfi

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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Tamas Gyorfi

Even if the case against the desirability of strong judicial review were conclusive, a realistic constitutional theory would have to face the fact that the authority to specify abstract human rights provisions has been, in most countries, already conferred on the judiciary. Those who are sceptical about the legitimacy of judicial review must therefore also offer a non-ideal, or second-best, theory as to how courts already authorized to apply human rights provisions should interpret those provisions. That is the primary reason why the book dedicates a separate chapter to constitutional interpretation. The general thrust of Chapter Four is that judges should usually defer to the views of the legislature in interpreting the constitution.
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Tamas Gyorfi

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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Tamas Gyorfi

The argumentative strategy of this book is different from that of the leading advocates of political constitutionalism. The main purpose of the concluding chapter is to locate the position of the author in the sceptical camp by contrasting the argument of the book with three other forms of court-scepticism.
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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.