Download e-book for iPad: Comparative Constitutional Reasoning by András Jakab, Arthur Dyevre, Giulio Itzcovich

By András Jakab, Arthur Dyevre, Giulio Itzcovich

ISBN-10: 1107085586

ISBN-13: 9781107085589

To what volume is the language of judicial evaluations conscious of the political and social context during which constitutional courts function? Courts are reason-giving associations, with argumentation taking part in a principal function in constitutional adjudication. even if, a cursory examine only a handful of constitutional platforms indicates vital modifications within the practices of constitutional judges, no matter if in concerns of shape, kind, or language. targeting independently-verified best instances globally, a mixture of qualitative and quantitative research bargains the main accomplished and systematic account of constitutional reasoning to this point. This research is supported by means of the exam of eighteen felony platforms world wide together with the ecu court docket of Human Rights and the ecu court docket of Justice. Universally universal elements of constitutional reasoning are pointed out during this publication, and members additionally learn even if universal legislations international locations fluctuate to civil legislations nations during this recognize.

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72 We conceptualise constitutional reasoning as an exercise in persuasion, and we suggest that the opinion writing practices of constitutional judges is basically determined by the interaction of three factors: (1) the judges’ values and preferences over policy and case disposition, including their conception of the appropriate role of judicial officials; (2) the views and 71 72 Short explanation for non-lawyers: stare decisis (lat. “to stand by things decided”) is the doctrine that courts are under the obligation to follow their own previous decisions (“horizontal” stare decisis) as well as the decisions of courts exercising superior jurisdiction (“vertical” stare decisis): the rules and principles of law upon which a court has justified a past decision (the rationale for the court’s decision – so called ratio decidendi) are binding in all future cases in which the facts are substantially identical.

1 shows that nearly 63 per cent of all judgments were unanimously ratified by all the experts. In 17 per cent of the cases, one expert disagreed and in 14 per cent two. In only 6 per cent of the cases did three or more experts opine that a judgment should not figure on the list. To be sure, such a procedure cannot guarantee absolute reliability. 94 Had the experts been presented with a different initial list or had we gone for different set of experts, we might well have arrived at different results.

In specifying this dual relationship between law and politics, we also uncover a striking paradox. Law can only perform this dual political function to the extent it is accepted as law. A “legal” decision that is transparently “political”, in the sense that it departs too far from the methods and principles of the law, will invite direct political attack. 79 At any rate, we should not be surprised to see constitutional judges emphasizing “legal” reasons over other reasons such as policy arguments or evidence from social scientific research in their opinions.

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Comparative Constitutional Reasoning by András Jakab, Arthur Dyevre, Giulio Itzcovich

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