
Contents
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A. Introduction A. Introduction
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1. Inquiry and Development of the Study 1. Inquiry and Development of the Study
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2. Institutional Models of Constitutional Jurisdiction 2. Institutional Models of Constitutional Jurisdiction
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a) Parliamentary Preservation of Validity a) Parliamentary Preservation of Validity
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b) Preservation of Validity by Courts b) Preservation of Validity by Courts
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c) Preservation of Validity by Specialized Constitutional Courts c) Preservation of Validity by Specialized Constitutional Courts
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B. The Constitutional Jurisdiction’s Protection of the Separation of Powers B. The Constitutional Jurisdiction’s Protection of the Separation of Powers
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1. Protecting the Horizontal Separation of Powers 1. Protecting the Horizontal Separation of Powers
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a) Protecting the Horizontal Separation of Powers in Early Constitutionalism a) Protecting the Horizontal Separation of Powers in Early Constitutionalism
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b) Securing the Horizontal Separation of Powers in Democratic Constitutional Systems b) Securing the Horizontal Separation of Powers in Democratic Constitutional Systems
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i. Horizontal Separation of Powers in Systems with Parliamentary Preservation of Validity i. Horizontal Separation of Powers in Systems with Parliamentary Preservation of Validity
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ii. Horizontal Separation of Powers in Systems with Preservation of Validity by Ordinary Courts ii. Horizontal Separation of Powers in Systems with Preservation of Validity by Ordinary Courts
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iii. Horizontal Separation of Powers in Systems with Preservation of Validity by Specialized Constitutional Courts iii. Horizontal Separation of Powers in Systems with Preservation of Validity by Specialized Constitutional Courts
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2. Safeguarding the Vertical Separation of Powers 2. Safeguarding the Vertical Separation of Powers
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a) Centralization of Public Authority through Juridification in Early Constitutionalism a) Centralization of Public Authority through Juridification in Early Constitutionalism
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b) Securing the Vertical Separation of Powers in Democratic Constitutional Systems b) Securing the Vertical Separation of Powers in Democratic Constitutional Systems
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i. The Protection of Federated-State Powers by the Constitutional Jurisdiction i. The Protection of Federated-State Powers by the Constitutional Jurisdiction
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ii. Precarious Protection Whenever the Constitutional Court is Appropriated ii. Precarious Protection Whenever the Constitutional Court is Appropriated
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C. Constitutional Jurisdiction as a Threat to the Structure of Powers? C. Constitutional Jurisdiction as a Threat to the Structure of Powers?
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1. Constitutional Jurisdiction and Democratically Legitimized Legislation 1. Constitutional Jurisdiction and Democratically Legitimized Legislation
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2. The Substantive Review of Statutes in Constitutional Systems with a Parliamentary Preservation of Validity 2. The Substantive Review of Statutes in Constitutional Systems with a Parliamentary Preservation of Validity
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a) Professionalization and Juridification a) Professionalization and Juridification
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b) Enhancing the Courts through Europeanization and Internationalization b) Enhancing the Courts through Europeanization and Internationalization
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3. The Substantive Review of Statutes in Constitutional Systems with Judicial Preservation of Validity 3. The Substantive Review of Statutes in Constitutional Systems with Judicial Preservation of Validity
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4. The Substantive Review of Statutes in Constitutional Systems with Specialized Constitutional Courts 4. The Substantive Review of Statutes in Constitutional Systems with Specialized Constitutional Courts
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a) The Timing of the Substantive Review of Statutes a) The Timing of the Substantive Review of Statutes
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b) Proceedings of Substantive Review of Statutes b) Proceedings of Substantive Review of Statutes
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i. Substantive Review of Statutes through Judicial Review Proceedings i. Substantive Review of Statutes through Judicial Review Proceedings
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ii. Substantive Review of Statutes through Individual Complaint Proceedings ii. Substantive Review of Statutes through Individual Complaint Proceedings
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c) Power of Invalidation and Binding Effect c) Power of Invalidation and Binding Effect
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i. The Scope of the Power of Invalidation i. The Scope of the Power of Invalidation
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ii. The Binding Effect and Enforcement of the Decision ii. The Binding Effect and Enforcement of the Decision
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iii. Possibilities of Legislative Reaction iii. Possibilities of Legislative Reaction
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d) Types of Decisions and Constitutional Reasoning d) Types of Decisions and Constitutional Reasoning
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i. Constitutional Courts as ‘Negative’ or ‘Positive’ Legislators i. Constitutional Courts as ‘Negative’ or ‘Positive’ Legislators
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ii. The Formulation of Duties to Act in the Case of Legislative Omission ii. The Formulation of Duties to Act in the Case of Legislative Omission
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iii. Constitutionally Compliant Interpretations iii. Constitutionally Compliant Interpretations
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iv. Requirements for the Justification of Statutes iv. Requirements for the Justification of Statutes
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e) The Transformation of the Substantive Review of Statutes due to EU Protection of Fundamental Rights e) The Transformation of the Substantive Review of Statutes due to EU Protection of Fundamental Rights
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D. Constitutional Jurisdiction and the Separation of Powers in the European Legal Space D. Constitutional Jurisdiction and the Separation of Powers in the European Legal Space
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1. Securing of the Vertical Separation of Powers by Constitutional Courts in the European Legal Space 1. Securing of the Vertical Separation of Powers by Constitutional Courts in the European Legal Space
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a) Preventive Transnational Review of Competences a) Preventive Transnational Review of Competences
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b) The Retrospective Transnational Review of Competence b) The Retrospective Transnational Review of Competence
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c) Approaches for Managing Conflicts Institutionally and Procedurally c) Approaches for Managing Conflicts Institutionally and Procedurally
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2. Substantive Review of Supranational Legal Acts by National Constitutional Courts 2. Substantive Review of Supranational Legal Acts by National Constitutional Courts
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a) Overlapping Constitutions and the Search for a Standard in the European Legal Space a) Overlapping Constitutions and the Search for a Standard in the European Legal Space
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b) Constitutional Jurisdiction as Guardian of Constitutional Identity b) Constitutional Jurisdiction as Guardian of Constitutional Identity
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E. Conclusions for the Relationship between Constitutional Jurisdiction and the Separation of Powers in the Context of Transnationalized Public Authority E. Conclusions for the Relationship between Constitutional Jurisdiction and the Separation of Powers in the Context of Transnationalized Public Authority
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7 Constitutional Jurisdiction and the Separation of Powers in the European Legal Space: A Comparative Analysis
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Published:May 2023
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Abstract
This chapter discusses the relationship between constitutional jurisdiction and the separation of powers by analysing how constitutional law juridifies political processes, how the substantive review of legislation against a constitutional standard is exercised, and how constitutional validity is preserved in times of an increasing internationalization and supranationalization of public authority. It compares the solutions found in different constitutional systems in the European legal space to these problems, in particular with regard to the three main systems in place to secure the constitutionality of laws: parliaments, (all) courts, and specialized constitutional courts. The chapter shows how the ongoing Europeanization and internationalization of law granted the ordinary courts new powers, in particular in systems with specialized constitutional courts.
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