Constitutional identity and judicial independence

Bán-Forgács, Nóra (2024) Constitutional identity and judicial independence. MTA LAW WORKING PAPERS (13). pp. 1-25. ISSN 2064-4515

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Abstract

This chapter focuses on constitutional identity and judicial independence. First, we link constitutional identity with sovereignty arguments. Then we claim that under the current debate over judicial independence, we have a three-dimensional problem. First, according to the sovereignty argument, states are not restricted in designing their own constitutional structure, including their judicial system. So, the question accordingly is who has supremacy over national judiciary, the EU or member states? The second question is who has (real) ownership over the judiciary, or more precisely, who has the supreme power over the judiciary? And third, we question judicial monopoly over the interpretation of the law under populist constitutionalism. We further argue that those who have monopoly over interpretation of the law together with those who have real ownership over the judiciary, in populist constitutionalism are the totalitarian-like states, in contrast to constitutional democracies where the concept of judicial supremacy and separation of powers prevails. We argue that ’Europe provides a laboratory in which these arguments about the consequences of undercutting judicial independence can be empirically examined’.

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