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Where Our Protection LiesSeparation of Powers and Constitutional Review$
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Dimitrios Kyritsis

Print publication date: 2017

Print ISBN-13: 9780199672257

Published to Oxford Scholarship Online: September 2017

DOI: 10.1093/oso/9780199672257.001.0001

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Are Courts the Forum of Constitutional Principle?

Are Courts the Forum of Constitutional Principle?

(p.59) 3 Are Courts the Forum of Constitutional Principle?
Where Our Protection Lies

Dimitrios Kyritsis

Oxford University Press

This chapter examines a number of positions that defend the legitimacy of constitutional review on grounds of a special connection between courts and fundamental rights. It starts by insisting that the issue cannot be settled by appeal to any constitutional logic but must make reference to political morality. It then critically assesses the view that sees in courts a forum for the realization of a general procedural right to lodge complaints against political decisions setting back our interests. Such a procedural right, though, is dubious and does not straightforwardly apply to constitutional design. The chapter then turns to Ronald Dworkin’s thesis that courts ought to decide questions of principle and not policy and are better suited for this purpose than legislatures. However, this thesis cannot account for the dependence of the judicial role on legislative decisions.

Keywords:   Ronald Dworkin, principles and policies, institutional rights, deference, right to hearing, right to justification, Alon Harel

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