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Abusive Constitutional BorrowingLegal globalization and the subversion of liberal democracy$
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Rosalind Dixon and David Landau

Print publication date: 2021

Print ISBN-13: 9780192893765

Published to Oxford Scholarship Online: August 2021

DOI: 10.1093/oso/9780192893765.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 04 December 2021

The Abusive Borrowing of Political Constitutionalism and Weak-Form Judicial Review

The Abusive Borrowing of Political Constitutionalism and Weak-Form Judicial Review

(p.152) 7 The Abusive Borrowing of Political Constitutionalism and Weak-Form Judicial Review
Abusive Constitutional Borrowing

Rosalind Dixon

David Landau

Oxford University Press

This chapter explores the abusive borrowing of an important set of concepts associated with political constitutionalism, or the idea that political institutions such as legislatures, rather than courts, should be chiefly charged with interpreting and enforcing the constitution. It shows how regimes in Hungary and Poland have relied heavily (and erroneously) on these theories to justify attacks on their judiciaries without seeking to develop the set of political and social preconditions which would be necessary for political forms of constitutional interpretation to make sense. It also shows how allies of Prime Minister Benjamin Netanyahu, in Israel, have (so far unsuccessfully) attempted to import the ‘weak-form’, dialogic, or New Commonwealth model of judicial review instantiated in Canada, which allows for a legislative override, in a context where the chief goal was immunizing the Prime Minister from ongoing criminal prosecution.

Keywords:   political constitutionalism, weak-form review, New Commonwealth model, dialogic constitutionalism, Canadian Supreme Court, Hungary, Poland, Israeli Supreme Court, legislative override

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