Modern constitutionalism and the ‘new’ division of power
In modern constitutional legal theory several ‘versions’ of the relation between democracy and constitutionalism exist. This debate continues and requires analysis. It is precisely within this debate, which is also closely related to the activist role of judicial authorities and judges, that the pro...
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| Format: | Article |
| Language: | English |
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Pravni fakultet Sveučilišta u Splitu
2009-01-01
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| Series: | Zbornik Radova Pravnog Fakulteta u Splitu |
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| Online Access: | http://hrcak.srce.hr/file/70675 |
| Summary: | In modern constitutional legal theory several ‘versions’ of the relation between democracy and constitutionalism exist. This debate continues and requires analysis. It is precisely within this debate, which is also closely related to the activist role of judicial authorities and judges, that the problem of limiting majority rule is again mentioned and, in particular, in the analysis of the so called ‘ anti-majority difficulty’. Thus, the problem areas of relations between political branches of power and judges are again emphasised. However, this time it is done more intensively than during the period of unquestionable dominance of parliament as the representative of national sovereignty and the bearer of legislative power. Furthermore, the author presents the viewpoints which claim that judicially affirmed rights are the real strength of social change which has until now represented its own type of monopoly of political power. ‘Elevating high courts and supranational tribunals in crucially politically deciding bodies’ which activistically use the institution of judicial supervision more and more often occurs. In particular, the contradictory relation between democracy and constitutionalism, that is, the need for a new approach to mutual relations among institutions of certain branches of state powers is presented. |
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| ISSN: | 0584-9063 1847-0459 |