Against the New Constitutionalism
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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.
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Chapter 2: Political principles

Tamas Gyorfi

Abstract

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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