Rights Before Courts : A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe

This is a completely revised and updated second edition of __Rights Before Courts__ (2005, paper edition 2008). This book carefully examines the most recent wave of the emergence and case law of activist constitutional courts: those that were set up after the fall of communism in Central and Eastern Europe. In contrast to most other analysts and scholars, the study does not take for granted that they are a “force for good” but rather subjects them to critical scrutiny against a background of wide-ranging comparative and theoretical analysis of constitutional judicial review in the modern world. The new edition takes in new case law and constitutional developments in the decade since the first edition, including considering the recent disturbing disempowerment of the Hungarian Constitutional Court (which previously was probably the most powerful constitutional court in the world) resulting from the fundamental constitutional changes brought about by the Fidesz government. Challenging The Conventional Wisdom That Constitutional Courts Are The Best Device That Democratic Systems Have For The Protection Of Individual Rights, Wojciech Sadurski Examines Carefully The Most Recent Wave Of Activist Constitutional Courts: Those That Have Emerged After The Fall Of Communism In Central And Eastern Europe. In Contrast To Most Other Analysts And Scholars He Does Not Take For Granted That They Are A Force For The Good, But Rather Subjects Them To Critical Scrutiny Against The Background Of A Wide-ranging Comparative And Theoretical Analysis Of Constitutional Judicial Review In The Modern World. He Shows That, In The Region Of Central And Eastern Europe, Their Record In Protecting Constitutional Rights Has Been Mixed, And Their Impact Upon The Vibrancy Of Democratic Participation And Public Discourse About Controversial Issues Often Negative. Sadurski Urges Us To Reconsider The Frequently Unthinking Enthusiasm For The Imposition Of Judicial Limits Upon Constitutional Democracy. In The End, His Reflections Go To The Very Heart Of The Fundamental Dilemma Of Constitutionalism And Political Theory: How Best To Find The Balance Between Constitutionalism And Democracy? The Lively, If Imperfect, Democracies In Central And Eastern Europe Provide A Fascinating Terrain For Raising This Question, And Testing Traditional Answers. This Innovative, Wide-ranging And Thought-provoking Book Will Become Essential Reading For Scholars And Students Alike In The Fields Of Comparative Constitutionalism And Political Theory, Particularly For Those With An Interest In Legal And Political Developments In The Postcommunist World. The Model Of Constitutional Review In Central And Eastern Europe : An Overview -- Constitutional Courts In Search Of Legitimacy -- The Model Of Judicial Review And Its Implications -- Constitutional Courts And Legislation -- Judicial Review And Protection Of Constitutional Rights -- Personal, Civil And Political Rights And Liberties -- Socio-economic Rights -- Equality And Minority Rights -- Decommunisation, Lustration, And Constitutional Continuity -- Restriction Of Rights -- Conclusions. Wojciech Sadurski. Considerably Revised New Edition. Includes Bibliographical References (pages 431-444) And Index. Challenging the conventional wisdom that constitutional courts are the best device that democratic systems have for the protection of individual rights, Wojciech Sadurski examines carefully the most recent wave of activist constitutional courts: those that have emerged after the fall of communism in Central and Eastern Europe. In contrast to most other analysts and scholars he does not take for granted that they are a "force for the good", but rather subjects them to critical scrutiny against the background of a wide-ranging comparative and theoretical analysis of constitutional judicial review in the modern world. He shows that, in the region of Central and Eastern Europe, their record in protecting constitutional rights has been mixed, and their impact upon the vibrancy of democratic participation and public discourse about controversial issues often negative. Sadurski urges us to reconsider the frequently unthinking enthusiasm for the imposition of judicial limits upon constitutional democracy. In the end, his reflections go to the very heart of the fundamental dilemma of constitutionalism and political theory: how best to find the balance between constitutionalism and democracy? The lively, if imperfect, democracies in Central and Eastern Europe provide a fascinating terrain for raising this question, and testing traditional answers. This innovative, wide-ranging and thought-provoking book will become essential reading for scholars and students alike in the fields of comparative constitutionalism and political theory, particularly for those with an interest in legal and political developments in the postcommunist world.-- Provided by Publisher Front Matter....Pages i-xx Front Matter....Pages 1-1 The Model of Constitutional Review in Central and Eastern Europe: An Overview....Pages 3-44 Constitutional Courts in Search of Legitimacy....Pages 45-90 The Model of Judicial Review and Its Implications....Pages 91-118 Constitutional Courts and Legislation....Pages 119-141 Front Matter....Pages 143-143 Judicial Review and Protection of Constitutional Rights....Pages 145-166 Personal, Civil and Political Rights and Liberties....Pages 167-251 Socio-economic Rights....Pages 253-287 Equality and Minority Rights....Pages 289-328 “Decommunisation”, “Lustration”, and Constitutional Continuity....Pages 329-382 Restrictions of Rights....Pages 383-415 Back Matter....Pages 417-455