TY  - CONF
A1  - Horn, Hans-Rudolf
T1  - Judicial review in the democratic system
T2  - 25th IVR World Congress: Law, Science and Technology Frankfurt am Main 15–20 August 2011 ; Paper Series ; 002
N2  - When judges are authorised to invalidate legal acts for being unconstitutional, the competence of the legislator is directly concerned. The question raises, if thus judges do not usurp legislative power. In the traditional doctrine of the separation of powers the parliament is the first power, based on its direct democratic legitimacy. Yet cancelling legal acts completely or partially does evoke more irritations in the public that could be expected. The people seem to have more confidence to the assumed impartiality of the judges than to the results of the parliamentary work which seems to be dominated by the struggles of the parties. The necessity of judicial review mainly is based on the consideration that individual rights even in an authentic democratic system may be violated by a legal act of the parliament. In this case constitutional courts have the very task to defend individual rights, principles of liberty and authentic equality. Therefore it is justified to speak of the “jurisdiction of liberty”, as the Italian constitutional expert Cappelletti has said. But also without such legitimacy in many countries the Courts intervene in the field of the legislator. The courts themselves discuss the limits of judicial interventions, emphasising themselves, that they have to respect the legislative decisions principally, but do not abide always by their own proclaimed principles. In Spanish recent publications it is spoken of the principle “in dubio pro legislatore”, (in case of doubt in favour the legislator), reminding of “in dubio pro reo”, in order to treat the legislative power not worse than the defendant in a criminal process..
T3  - 25th IVR World Congress: Law, Science and Technology Frankfurt am Main 15–20 August 2011 ; Paper Series - 002 
KW  - separation of powers
KW  - judicial review
KW  - judicial activism
Y1  - 2012
UR  - http://publikationen.ub.uni-frankfurt.de/frontdoor/index/index/docId/24860
UR  - https://nbn-resolving.org/urn:nbn:de:hebis:30:3-248607
PB  - Goethe-Univ.
CY  - Frankfurt am Main
ER  -