Constitutional Courts as Positive Legislators: A Comparative Law Study - Hardcover

Brewer-Carías, Allan R.

Hardcover

ISBN 10: 1107011655 ISBN 13: 9781107011656

Publisher: Cambridge University Press, 2011

Synopsis

In all democratic states, constitutional courts, which are traditionally empowered to invalidate or to annul unconstitutional statutes, have the role of interpreting and applying the Constitution in order to preserve its supremacy and to ensure the prevalence of fundamental rights. In this sense they were traditionally considered "negative legislators," unable to substitute the legislators or to enact legislative provisions that could not be deducted from the Constitution. During the past decade the role of constitutional courts has dramatically changed as their role is no longer limited to declaring the unconstitutionality of statutes or annulling them. Today, constitutional courts condition their decisions with the presumption of constitutionality of statutes, opting to interpret them according to or in harmony with the Constitution in order to preserve them, instead of deciding their annulment or declaring them unconstitutional. More frequently, Constitutional Courts, instead of dealing with existing legislation, assume the role of assistants or auxiliaries to the legislator, creating provisions they deduct from the Constitution when controlling the absence of legislation or legislative omissions. In some cases they act as "positive legislators," issuing temporary or provisional rules to be applied pending the enactment of legislation. This book analyzes this new role of the constitutional courts, conditioned by the principles of progressiveness and of prevalence of human rights, particularly regarding the important rediscovery of the right to equality and non-discrimination.

About this title

Book Description:

Constitutional courts condition their decisions with the presumption of constitutionality of statutes, opting to interpret them according to or in harmony with the Constitution in order to preserve them, instead of deciding their annulment or declaring them unconstitutional. This book analyzes the courts' role, conditioned by the principles of progressiveness and of prevalence of human rights, particularly regarding the important rediscovery of the right to equality and non-discrimination.

About the Author:

Allan R. Brewer-Carias has been Professor at the Central University of Venezuela since 1963. He also has been Simón Bolívar Professor at the Law Faculty of Cambridge University (1985-6), where he was a Fellow of Trinity College; at the University of Paris II (1990); and at Columbia University, where he has been Visiting Scholar and Adjunct Professor of Law (2002-4 and 2006-7). He is a titular member of the International Academy of Comparative Law, where he served as Vice President (1982-2010) and of the Venezuelan National Academy of Political and Social Sciences, where he served as President (1997-9). In Venezuela, he was also President of the Public Administration Commission, Senator for the Federal District, Minister for Decentralization and an elected member of the 1999 National Constituent Assembly.

About this edition

• Publisher: Cambridge University Press
• Publication date: 2011
• ISBN 10: 1107011655
• ISBN 13: 9781107011656
• Binding: Hardcover
• Number of pages: 962