Book contents
- Frontmatter
- Contents
- AUTHOR'S NOTE
- PART ONE CONSTITUTIONAL COURTS AS POSITIVE LEGISLATORS IN COMPARATIVE LAW
- CHAPTER 1 JUDICIAL REVIEW OF LEGISLATION AND THE LEGISLATOR
- CHAPTER 2 CONSTITUTIONAL COURTS' INTERFERENCE WITH THE CONSTITUENT POWER
- CHAPTER 3 CONSTITUTIONAL COURTS' INTERFERENCE WITH THE LEGISLATOR ON EXISTING LEGISLATION
- CHAPTER 4 CONSTITUTIONAL COURTS' INTERFERENCE WITH THE LEGISLATOR REGARDING LEGISLATIVE OMISSIONS
- CHAPTER 5 CONSTITUTIONAL COURTS AS LEGISLATORS ON MATTERS OF JUDICIAL REVIEW
- PART TWO NATIONAL REPORTS
- ARGENTINA
- AUSTRALIA
- AUSTRIA
- BELGIUM
- BRAZIL
- CANADA
- COLOMBIA
- COLOMBIA
- COSTA RICA
- CROATIA
- CZECH REPUBLIC
- FRANCE
- GERMANY
- BELGIUM, FRANCE, GERMANY
- GREECE
- HUNGARY
- INDIA
- ITALY
- MEXICO
- NETHERLANDS
- NORWAY
- POLAND
- PORTUGAL
- SERBIA
- SLOVAK REPUBLIC
- SWITZERLAND
- UNITED KINGDOM
- UNITED STATES OF AMERICA
- VENEZUELA
- PART THREE SYNTHESIS REPORT: CONSTITUTIONAL COURTS AS POSITIVE LEGISLATORS IN COMPARATIVE LAW
- APPENDIX
- INDEX
COLOMBIA
The Colombian Constitutional Court: From Institutional Leadership to Conceptual Audacity
Published online by Cambridge University Press: 04 August 2017
- Frontmatter
- Contents
- AUTHOR'S NOTE
- PART ONE CONSTITUTIONAL COURTS AS POSITIVE LEGISLATORS IN COMPARATIVE LAW
- CHAPTER 1 JUDICIAL REVIEW OF LEGISLATION AND THE LEGISLATOR
- CHAPTER 2 CONSTITUTIONAL COURTS' INTERFERENCE WITH THE CONSTITUENT POWER
- CHAPTER 3 CONSTITUTIONAL COURTS' INTERFERENCE WITH THE LEGISLATOR ON EXISTING LEGISLATION
- CHAPTER 4 CONSTITUTIONAL COURTS' INTERFERENCE WITH THE LEGISLATOR REGARDING LEGISLATIVE OMISSIONS
- CHAPTER 5 CONSTITUTIONAL COURTS AS LEGISLATORS ON MATTERS OF JUDICIAL REVIEW
- PART TWO NATIONAL REPORTS
- ARGENTINA
- AUSTRALIA
- AUSTRIA
- BELGIUM
- BRAZIL
- CANADA
- COLOMBIA
- COLOMBIA
- COSTA RICA
- CROATIA
- CZECH REPUBLIC
- FRANCE
- GERMANY
- BELGIUM, FRANCE, GERMANY
- GREECE
- HUNGARY
- INDIA
- ITALY
- MEXICO
- NETHERLANDS
- NORWAY
- POLAND
- PORTUGAL
- SERBIA
- SLOVAK REPUBLIC
- SWITZERLAND
- UNITED KINGDOM
- UNITED STATES OF AMERICA
- VENEZUELA
- PART THREE SYNTHESIS REPORT: CONSTITUTIONAL COURTS AS POSITIVE LEGISLATORS IN COMPARATIVE LAW
- APPENDIX
- INDEX
Summary
PRELIMINARY CONSIDERATIONS
With regard to the risks and dysfunctions that could have derived from the recognition of the power of control and custody of the supremacy of the Constitution to a judicial body that would be responsible for issuing legal rulings regarding the constitutionality of the law, and whose most paradigmatic exponent was Hans Kelsen, much had to be thought both by authors as well as by statesmen, responsible for its implementation. Put another way, the practice of the constitutional courts, with their excesses and shortcomings, should not surprise us or even result in abandonment of this institutional scheme to make way to schools of thought and political currents that consider the Constitution merely a political decision – yes, a fundamental one, according to Carl Schmit – but, in consequence, dependent on the deciderata of the majority. The control of constitutionality is not, in that perspective, anything more than political power.
In the United States, the constituents of Philadelphia in 1787, having not decided on the control of constitutionality, did delve into the intangible character of the Constitution, which without a doubt is assumed to be the fundamental decision of the Federation. This was precisely what made it possible for Supreme Court Justice Marshall, in the case Marbury v. Madison, to rule that the Supreme Court was entitled to refrain from applying laws contrary to the constitutional text.
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- Constitutional Courts as Positive LegislatorsA Comparative Law Study, pp. 363 - 388Publisher: Cambridge University PressPrint publication year: 2011