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  3. Constitutional Courts as Positive Legislators
  • Cited by 17
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    • Publisher:
      Cambridge University Press
      Publication date:
      04 August 2017
      19 September 2011
      ISBN:
      9780511994760
      9781107011656
      9781107613089
      DOI:
      https://doi.org/10.1017/CBO9780511994760
      Dimensions:
      (234 x 156 mm)
      Weight & Pages:
      1.34kg, 962 Pages
      Dimensions:
      (234 x 156 mm)
      Weight & Pages:
      1.32kg, 962 Pages
      • Subjects:
      Law, Comparative Law
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    Subjects:
    Law, Comparative Law
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    Book description

    During the past decade the role of constitutional courts has dramatically changed. Today, constitutional courts condition their decisions with the presumption of constitutionality of statutes, opting to interpret them according to or in harmony with the Constitution in order to preserve them, instead of deciding their annulment or declaring them unconstitutional. More frequently, constitutional courts, instead of dealing with existing legislation, assume the role of assistants or auxiliaries to the legislator, creating provisions they deduct from the Constitution when controlling the absence of legislation or legislative omissions. In some cases they act as 'positive legislators', issuing temporary or provisional rules to be applied pending the enactment of legislation. This book analyzes this new role of the constitutional courts, conditioned by the principles of progressiveness and of prevalence of human rights, particularly regarding the important rediscovery of the right to equality and non-discrimination.

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