Publication details

Jak porozumět ústavnímu soudnictví? Přínos politické filosofie

Title in English How to Understand Constitutional Review? Political Philosophy’s Contribution
Authors

BAROŠ Jiří

Year of publication 2015
Type Article in Periodical
Magazine / Source Sociální studia
MU Faculty or unit

Faculty of Social Studies

Citation
Web http://socstudia.fss.muni.cz/?q=content/jak-porozum%C4%9Bt-%C3%BAstavn%C3%ADmu-soudnictv%C3%AD-p%C5%99%C3%ADnos-politick%C3%A9-filosofie
Field Political sciences
Keywords constitutional review; political philosophy; sociology of legal concepts
Description This article attempts to propose an adequate approach for understanding constitutional review as a crucial part of the normative project of constitutional democracy. Political science has often been unable to take into account arguments used by constitutional courts in justifying their decisions due to the fact that the behavioral and post-behavioral revolutions have occurred in this field. Nevertheless, new institutionalism has offered an alternative approach emphasizing that judges are prepared to follow the logics of the role they hold. According to this more promising account, judges follow the standards of the legal profession. What is crucial is the continuous effort to convincingly justify court decisions in concrete cases. By doing this, constitutional justices are forced to elaborate their own conceptions of the fundamental concepts of the constitution. These concepts are also the legacy of the specific political philosophy which influenced the drafting of the constitution as well as its understanding by their (authoritative) interpreters. This article elaborates a specific method of the sociology of legal concepts (as it has been developed by the American legal theorist Paul W. Kahn) which would enable the understanding of these concepts from historical and structural perspectives.
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