The Art of Judicial Adjudication: A Judges Craft

The persuasive function of constitutional adjudication. How to achieve the agreement, not the truth 1 Polish constitutional crisis of 2015-2017 clearly indicates that concerns about politically indexed manner of appointing constitutional judges, scope of the competence of the Constitutional Court and attempts to introduce restrictions or even blocking its operation by the parliamentary majority, led to the erosion of the legitimacy of the constitutional court, built on the conviction about its substantive and completely impartial nature. The essence of constitutional review is the power to rule on the content and conflict of laws, which usually means the loss of binding force of an act of law deemed unconstitutional. This power remains above the authority of the parliament, and therefore also above sovereign's authority. Therefore, it requires rather good justification of its legitimacy, that is, the belief that it is exercised by appropriate entity in the form acceptable by citizens, as well as the conviction that its effects are satisfactory-of course, all these three qualities are extremely difficult to prove. In addition, the Constitutional Court is invariably exposed to intense and heated disputes concerning its activities, which was clearly demonstrated during the crisis created around the Constitutional Court of Poland in the years 2015-2017. This raises the question of the legitimacy of its power built on the idea of fairness and lawfulness of the effects of its actions-that is, judgments about the constitutionality of the law. The following considerations are thus intended to approximate the answer to the question whether and to what extent the judgments of the constitutional court allow for creation of conviction of its rightness, rationality or other reasons for which we would be inclined to agree with interpretation contained therein or materialization of constitutional norms, by nature open and frequently bearing the potential of various interpretations-as well as a number of disputes related to them. The paper analyzes the types of arguments used by the constitutional courts, indicating their persuasive ability and completion of judgement's basic task, which is finding agreement on the content of the rights guaranteed by the constitution.

Interpretation in law is of a little importance in Slovakia, although this is the most prominent area of judge's work in application of a legal text. Interpretation of constitution is even more important when comparing to other legal texts, as constitution is basic law, from which all other relationships in a rule of law state are derived. In this paper we focus on the possibilities and methods of interpretation, which are offered by the text. Our is aim is also to present a closer look on the proper role and place of constitutional court in this field.

2017

The article considers several contemporary issues concerning the execution of the Constitutional Court decisions The author states that the key body vested with necessary competences for ensuring the execution of the discussed decisions is the Constitutional Court itself At the same time, the author concludes that formation of the proper system of the Constitutional Court decision execution firstly depends on the corresponding level of constitutional and political culture of the society This circumstance, in its turn, leads to suppose that the achievement of the discussed goal is possible only if all the subjects included in this sphere express respect to Constitutional Court, its competences and decisions

Revista de Drept Constituțional

This study brings together the decision component into the constitutional jurisdiction (constitutional judge) and the one supporting the decision-making process (assistant-magistrate/referendary/legal assistant/adviser etc. of the constitutional judge). The analysis regarding the appointment/entry requirements into the profession, the duties and the status of the constitutional judge and respectively of the assistant-magistrate, aims at emphasizing, in particular, the complementary roles of the two analysed offices and their importance for the exercise of the constitutional justice.

By focusing on the practice of constitutional courts this paper aims to present a qualitative-analytical tool which could contribute to a better (self-)understanding and evaluation of constitutional adjudication. Since the specific nature and the very existence of constitutional review necessitates an a priori reflection on the legitimacy, exact function and role of constitutional courts within the democratic system a multidimensional model of democracy might give some insight into the theoretical background of the court’s decisions in this respect. This level of analysis focuses simply on the question of which ideal type of democracy might be inherent or envisioned in decisions taken by judges of constitutional courts.

Cell no. +91-9596154422 Introduction: "The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions, bear these considerations in mind." Chief Justice Dickson 1 Constitution is a unique legal document. It enshrines a special kind of norm and stands at the top of the normative pyramid. Difficult to amend, it is designed to direct human behavior for years to come. It shapes the appearance of the state and its aspirations throughout history. It determines the state's fundamental political views. It lays the foundation for its social values.

THE JURISDICTIONAL POWERS OF THE JUDGE (Atena Editora), 2023

The Jurisdictional Powers of the Judge, presents a sociological perspective on the Judge, showing how Society and the content of the legal culture condition the Judge in the service of the idea of Justice. Jurisdiction, conceived as a political-legal power of the State, legitimized through the Principle and guarantee of Due Process of Law and through the development of the Adversary Principle. The Process, as an ethical instrument, capable of consolidating Democracy and transforming the existing means of Access to Justice into effective means for those lacking socioeconomic and cultural conditions. The concept and constitutional foundations of the Jurisdictional Powers of the Judge, gravitating around the Law, from which the Judge derives his power-duty linked to the evidentiary initiative and his competence to judge. It delineates the connection between the constitutional foundations and the jurisdictional powers of the judge, especially within the scope of the Democratic State of Law. The central focus is the appreciation of individual and collective rights and the search for a more accessible and equitable justice. The research historically traces the emergence of the post-World War II Democratic State of Law and examines in detail the Brazilian Constitution of 1988, along with its fundamental rights and guarantees. Incorporating doctrinal views and analyzing basic principles, the study also examines the axiological dimension of enshrined rights and evaluates infraconstitutional laws in their relationship with the Constitution. In its conclusion, the role of the judge, as a promoter of a fair process and facilitator of access to justice, is emphasized.

Constitutional Law Society, 2022

Indonesia is a democratic state based on the law (constitutional democratic state), with the understanding that the Constitution has a position as the supreme law because the whole administration of the state should be based on the Constitution. The Constitutional Court was present as the guardian of the constitution to the realization of the ideals of Indonesia as a democratic state based on law. The research entitled Rechtsvinding and Jurisprudence Used by the Constitutional Court examines the importance of rechtsvinding and the attachment of using jurisprudence in deciding cases according to the authority possessed by the Constitutional Court. This research uses the Socio-Legal method, which is a research method that examines a problem through normative analysis, then uses a non-legal science approach that develops in society. The results of the research that has been done are; 1 Rechtsvinding by the Constitutional Court interpreted as an effort to how the Constitutional Court interpreting the Constitution (1945), testing the laws against the 1945 Constitution, to decide the other cases the authority granted by the 1945 Constitution, 2) The Constitutional Court there is no obligation to be bound and is not there is a prohibition to use the jurisprudence of the Supreme Court.

Journal of Law, Policy and Globalization, 2018

The existence of the Constitutional Court in modern countries is considered a new phenomenon in filling the existing and established state administration system. For countries that experience a change from authoritarian to democracy, the establishment of the Constitutional Court becomes urgent because it wants to change or improve the State-administrative system. The type of research is normative-juridical that intended to discusses concepts, doctrines and theories (principles) and legislation, which correlate to philosophical construction regarding the existence of a Constitutional court ruling. In relation to this normative research, several approaches will be used, namely statutory, conceptual, analytical, philosophical, and case approaches. The results show that the existence of a final and binding ruling by the Constitutional Court in reviewing the law is clear normatively as mandated in the existing constitutional but in terms of the implementation of the existing ruling, the ...