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© 2017

Rule of Law, Human Rights and Judicial Control of Power

Some Reflections from National and International Law

  • Rainer Arnold
  • José Ignacio Martínez-Estay
Book

Part of the Ius Gentium: Comparative Perspectives on Law and Justice book series (IUSGENT, volume 61)

Table of contents

  1. Front Matter
    Pages i-xi
  2. Rule of Law and Judicial Control of Power

  3. Judicial Control, its Effects and Limits

  4. Human Rights and Judicial Control

    1. Front Matter
      Pages 293-293

About this book

Introduction

Judicial control of public power ensures a guarantee of the rule of law. This book addresses the scope and limits of judicial control at the national level, i.e. the control of public authorities, and at the supranational level, i.e. the control of States. It explores the risk of judicial review leading to judicial activism that can threaten the principle of the separation of powers or the legitimate exercise of state powers. It analyzes how national and supranational legal systems have embodied certain mechanisms, such as the principles of reasonableness, proportionality, deference and margin of appreciation, as well as the horizontal effects of human rights that help to determine how far a judge can go. Taking a theoretical and comparative view, the book first examines the conceptual bases of the various control systems and then studies the models, structural elements, and functions of the control instruments in selected countries and regions. It uses country and regional reports as the basis for the comparison of the convergences and divergences of the implementation of control in certain countries of Europe, Latin America, and Africa. The book’s theoretical reflections and comparative investigations provide answers to important questions, such as whether or not there are nascent universal principles concerning the control of public power, how strong the impact of particular legal traditions is, and to what extent international law concepts have had harmonizing and strengthening effects on internal public-power control.

Keywords

Constitutional or Supreme Courts Control of Power by Administrative Justice Control of Power by Constitutional Justice Control of Power on the Regional Level Control of Power on Universal International Level Deference and Margin of Appreciation Impact on Public on Civil Law Importance of Power Control for Democracy Judicial Review and Its Limits Jurisdictional Control in General Jurisdictional Instruments Legal Control of Public Power Legality of Administrative Action Modern Constitutionalism Non-judicial Bodies Non-jurisdictional Legal Control Rule of Law Separation of Powers and Sovereignty Supreme Court Systems Theory of State

Editors and affiliations

  • Rainer Arnold
    • 1
  • José Ignacio Martínez-Estay
    • 2
  1. 1.Faculty of LawUniversity of RegensburgRegensburgGermany
  2. 2.University of the AndesSantiago, Las CondesChile

About the editors

Rainer Arnold, Dr. Dres.h.c. Professor at the University of Regensburg, in 1979 appointed holder of the Chair of Public Law, in 1999 nominated holder of the Jean Monnet Chair of EU Law and in 2008 holder of the Jean Monnet Chair ad personam „Legal Relations of the EU with Central, Eastern and Southeastern Europe“. Nominated in 2000 hostujíci professor at the Charles University Prague. Corresponding Member of the Academy of Sciences of Bologna, Membre de l’Académie internationale de droit comparé, Fellow of the European Law Institute, in 2008 Fernand Braudel Fellow at the European University Institute, Fiesole/Florence, former Visiting Professor at Universities in Europe (Paris I (Panthéon-Sorbonne), Paris II (Panthéon-Assas), Strasbourg, Toulouse, Rome La Sapienza, Bologna, and other) and in Latin America. Founding member of the International Research Group on Human Rights and Rule of Law.


José Ignacio Martínez is Professor of Constitutional and Administrative Law in the Faculty of Law of the University of the Andes, Chile. Prof. Martínez has been Jean Monnet Chair Holder, and currently serves as Vice Chancellor for Research and Postgraduate Studies at the University of the Andes. Prof. Martínez is author of books and articles published in Chile and other countries. Professor Martínez is a founding member of the International Research Group on Human Rights and Rule of Law.

Bibliographic information

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