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Scholars frequently distinguish between “hard” and “soft” forms of judicial review: “hard” review gives courts the final say on constitutional questions, while “soft” review attempts to strike a balance between judicial and legislative supremacy by giving the legislature the ability to override or set aside what the courts have done. By itself, however, the hard/soft distinction captures neither the degree of finality nor the ultimate impact of judicial review. On the one hand, even in systems of nominally hard review, the government usually retains the ability to effectively override the courts via constitutional amendment. On the other hand, a small but growing number of courts – the Taiwanese Constitutional Court among them – have claimed the power to invalidate constitutional amendments as unconstitutional. Using Taiwan as illustration, this chapter highlights three factors that must be considered in evaluating the extent to which courts have the last word on constitutional matters. First is the formal legal effect of the decision (for example, whether a decision has suspended effect or is valid inter partes rather than erga omnes). Second is the ease with which judicial decisions can be formally overridden or set aside (as in the form of legislative override or constitutional amendment). Third is the extent to which judicial decisions require cooperation and implementation by other institutions of government in order to have practical effect.
National judicial systems within the European Union (EU) face pressures toward alignment under the policy agendas for judicial cooperation connected with the Lisbon Treaty and the widespread practice of ‘transnational borrowing’ among courts. Using the CJEU and ECtHR as case studies in the phenomena of judicial culture and transnational judicial communication, this chapter explores how constitutional norms and formal policies interact with contextual influences (including informal judicial interaction and evolving national ideas and practices regarding judging and judicial organisation) to produce increasing legal alignment among the member states. In doing so, the chapter explicitly highlights the need to combine comparative legal analysis with socio-legal research methods in order to understand the evolution of constitutional law.
With its emphasis on emerging and cutting-edge debates in the study of comparative constitutional law and politics, its suitability for both research and teaching use, and its distinguished and diverse cast of contributors, this handbook is a must-have for scholars and instructors alike. This versatile volume combines the depth and rigor of a scholarly reference work with features for teaching in law and social science courses. Its interdisciplinary case-study approach provides political and historical as well as legal context: each modular chapter offers an overview of a topic and a jurisdiction, followed by a case study that simultaneously contextualizes both. Its forward-looking and highly diverse selection of topics and jurisdictions fills gaps in the literature on the Global South as well as the West. A timely section on challenges to liberal constitutional democracy addresses pressing concerns about democratic backsliding and illiberal and/or authoritarian regimes.
The Islamic Republic of Iran prides itself on being the only country with an entirely codified Islamic legal system, and on being a pioneer in the Islamization of constitutional law. Part 1 of this chapter provides an overview of the different models of Islamic constitutionalism currently found in the Muslim world. Part 2 reviews Iran’s highly creative and ambitious project of Islamizing an entire civil law system and codifying Islamic law over a forty-year period and draws attention to the high degree of dynamism and reinterpretation of Shiite legal precepts that this project has required. Part 3 focuses on the making and amendment of Iran’s 1906/1907 and 1979 constitutions – which fused foreign, republican, and Islamic elements in unique ways – and on the role of the 1979 constitution in defining and regulating Iran’s distinctive present-day blend of institutional conflict and policy disagreement among religious conservatives, pragmatic reformers, and revolutionary leftists. Over time, a combination of innovative reinterpretation of Shiite legal principles and constitutional and institutional reform have reshaped the complex relationship between left-leaning legislative institutions constrained by Islamic principles and conservative religious scholars who operate outside the political system but are the arbiters of what it means to respect Islamic principles.