By András Jakab, Arthur Dyevre, Giulio Itzcovich
To what quantity is the language of judicial evaluations aware of the political and social context within which constitutional courts function? Courts are reason-giving associations, with argumentation enjoying a vital function in constitutional adjudication. even though, a cursory examine only a handful of constitutional platforms indicates very important alterations within the practices of constitutional judges, no matter if in issues of shape, kind, or language. concentrating on independently-verified prime situations globally, a mix of qualitative and quantitative research bargains the main finished and systematic account of constitutional reasoning thus far. This research is supported by means of the exam of eighteen felony platforms around the globe together with the eu courtroom of Human Rights and the ecu courtroom of Justice. Universally universal points of constitutional reasoning are pointed out during this publication, and participants additionally learn even if universal legislation international locations range to civil legislation nations during this admire.
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The separation of judicial power resembles the US model more closely but 4 5 6 7 See George Winterton, ‘The Acquisition of Independence’ in Robert French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution (Federation Press 2003) 41. Australian Capital Television v Commonwealth (1992) 177 CLR 106, 182 (Dawson J): ‘[the Constitution] does not seek to establish personal liberty . . The choice was deliberate and based on a faith in the democratic process to protect Australian citizens’.
Ibid. introduction 17 influence the judges’ writing behaviour. Moreover, these hypotheses are typically formulated without much sense of what actually drives judicial behaviour. 67 We take our cue from Oliver Wendell Holmes. 69 While we believe that constitutional language and doctrines may place important constraints on judges, we believe that these do not represent the only influence on judicial conduct. Empirical research has shown that constitutional adjudication is influenced by the policy preferences of the individual judge70 as well as by institutional and strategic constraints which cannot be straightforwardly characterized as “legal”.
Each of the 18 chapters of this book reports the argumentation practices of a constitutional court on the basis of its 40 leading judgments. To enhance comparability, each chapter follows the same structure. It 99 decisions that were made by the contributors (a method which is otherwise often applied in social sciences, and normally executed by research assistants). Andr´as Jakab, ‘Constitutional Reasoning. A European Perspective on Judicial Reasoning in Constitutional Courts’ (2013) 8 German Law Journal 1215.