Sistema jurídico / Doris Lankin.
Doris Lankin
ספר| כותר |
פסקת הגבלה שיפוטית : על היקף ההגנה הראוי לעקרונות חוקתיים מופשטים. |
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| כותרים נוספים |
Judicial limitation clause: on the appropriate scope of protection for abstract constitutional principles |
| מתוך |
מאזני משפט (ULS)001073135 ט (תשעד) 176-226 |
| תקציר/הערה |
Act constitutional principles play an essential role in every comitional mech- both core provisions of the written constitution and onwritten principles that deve anation's founding formulas for organizing itself, and hover above its pyramid of t a precisely their high degree of abstraction, which is the power source of these principl (y providing them with overlapping consensus and stability), that could be their downside and create two potential failures. One failure relates to an abstract constitutional principle that includes a general permission, seemingly unlimited, to infringe upon it by means of regular law thereby depriving the supreme norm of any effectiveness. The second failure concerns a constitutional principle that is silent about the possibility of any infringement pon it, seemingly turning it into an absolute principle thereby creating a democratic deficit and an erosion of conflicting constitutional principles.These failures are well known in comparative law and common in the Basic Laws, and coping with them takes one of two paths: explicit inclusion of a limitation clause in the constitution, which allows infringing upon the principle under conditions that ensure its optimal protection and, in the absence of this, the adoption of a judicial limitation clause that fulfills an identical legal function. First signs of the idea of a judicial limitation clause can already be found both in Israeli case law and legal literature however, it seem that a sistematic theory providing a holistic solution to all the questions that arise when applying this tool has yet to be formulated.This paper suggests applying the tool of judicial limitation clause to all (written and unwritten) abstract constitutional principles - to both strengthen the principle in order to prevent the first failure, by reading an implied prohibition to infringe upon the principle in o compliance with the limitation clause tests and weaken the principle in order to prevent the second failure, by reading an implied permission to infringe upon the principle in compliance with the limitation clause tests. The paper also suggests distinguishing between Two levels of tests when applying the judicial limitation clause according to the type of judicial review that is pertinent: conventional judicial review (which addresses a law that allegedly infringes upon a written or unwritten constitutional principle), to which regular limitation clause tests should be applied and nonconventional judicial review (which deals with constitutional amendments that allegedly infringe upon an abstract constitutional principle anchored in an "eternity clause" or with a law that reflects a political decision of historic dimensions and allegedly infringes upon a written or unwritten abstract constitutional principle), to which special tests should be applied. |
| שפה |
עברית |
| מספר מערכת |
997012473176905171 |
| קישורים |
אתר את הפרסום בקטלוג המאוחד של ספריות ישראל |
תצוגת MARC
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