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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..
Human rights and climate policy – toward a new concept of freedom, protection rights, and balancing
(2012)
Neither the scope of “protection obligations” which are based on fundamental rights nor the theory of constitutional balancing nor the issue of “absolute” minimum standards (fundamental rights nuclei, “Grundrechtskerne”), which have to be preserved in the balancing of fundamental rights, can be considered satisfactorily resolved–in spite of intensive, long-standing debates. On closer analysis, the common case law definitions turn out to be not always consistent. This is generally true and with respect to environmental fundamental rights at the national, European, and international level. Regarding the theory of balancing, for the purpose of a clear balance of powers the usual principle of proportionality also proves specifiable. This allows a new analysis, whether fundamental rights have absolute cores. This question is does not only apply to human dignity and the German Aviation Security Act, but even if environmental policy accepts death, e.g. regarding climate change. Overall, it turns out that an interpretation of fundamental rights which is more multipolar and considers the conditions for freedom more heavily–as well as the freedom of future generations and of people in other parts of the world–develops a greater commitment to climate protection.
This paper considers the logic FOcard, i.e., first-order logic with cardinality predicates that can specify the size of a structure modulo some number. We study the expressive power of FOcard on the class of languages of ranked, finite, labelled trees with successor relations. Our first main result characterises the class of FOcard-definable tree languages in terms of algebraic closure properties of the tree languages. As it can be effectively checked whether the language of a given tree automaton satisfies these closure properties, we obtain a decidable characterisation of the class of regular tree languages definable in FOcard. Our second main result considers first-order logic with unary relations, successor relations, and two additional designated symbols < and + that must be interpreted as a linear order and its associated addition. Such a formula is called addition-invariant if, for each fixed interpretation of the unary relations and successor relations, its result is independent of the particular interpretation of < and +. We show that the FOcard-definable tree languages are exactly the regular tree languages definable in addition-invariant first-order logic. Our proof techniques involve tools from algebraic automata theory, reasoning with locality arguments, and the use of logical interpretations. We combine and extend methods developed by Benedikt and Segoufin (ACM ToCL, 2009) and Schweikardt and Segoufin (LICS, 2010).