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Constitutionalization and political fighting through litigation
Konstitutionalisierung und politische Kämpfe durch Prozessführung
[journal article]
Abstract The appearance of constitutional jurisdiction, which subsequent to 19th century beginnings in America has spread in several European countries since the end of the 1940's and become a routine procedure after the changes in 1989 in Central and Eastern European countries, is a new product of developme... view more
The appearance of constitutional jurisdiction, which subsequent to 19th century beginnings in America has spread in several European countries since the end of the 1940's and become a routine procedure after the changes in 1989 in Central and Eastern European countries, is a new product of development. Compared to dogmatically chiselled traditional administration of justice made more accurate by judicial case law, this new layer of law, which originally appeared in the form of human rights as the collection of ideological/ political requirements outside legal systems in operation, is characterised by highly different features. One such difference is that the normative content of constitutional rights and freedoms and fundamental principles is more abstract than the rules of traditional fields of law. The other difference is due to the fact that relations between particular rights are mostly irreconcilably strained, and a certain right can be enforced only at the expense of another right or principle. These features did not cause any problems while people had to fight with them as ideal requirements, setting human rights against actual conditions, for the transformation of prevalent conditions. Judicial decisions based on them as constitutional rights and freedoms used for being applied in cases, however, often lead to legal uncertainty.... view less
Keywords
Italy; jurisdiction; lawsuit; human rights; constitutional law; Hungary; constitutional court; United States of America
Classification
Political System, Constitution, Government
Jurisprudence
Method
descriptive study
Free Keywords
constitutional court; rights; litigation cause lawyering; constitutionalization; Italy; Hungary
Document language
English
Publication Year
2002
Page/Pages
22 p.
Journal
Jogelméleti Szemle/ Journal of Legal Theory (2002) 1
Status
Postprint; reviewed
Licence
Creative Commons - Attribution