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Judges as Guardians of Constitutionalism and Human Rights

Edited by Martin Scheinin, Department of Law, European University Institute, Italy, Helle Krunke, CECS, Faculty of Law, University of Copenhagen and Marina Aksenova, Professor of International and Criminal Law, IE Law School, Madrid, Spain
This book considers the many challenges that national and supranational judges have to face when fulfilling their roles as guardians of constitutionalism and human rights. The contributors, both academics and judges, discuss key examples of contemporary challenges to judging – including the nature of courts’ legitimacy and its alleged dependence on public support; the role of judges in upholding constitutional values in the times of transition to democracy, surveillance and the fight against terrorism; and the role of international judges in guaranteeing globally recognized fundamental rights and freedoms.
Extent: 400 pp
Hardback Price: $154.00 Web: $138.60
Publication Date: 2016
ISBN: 978 1 78536 585 0
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  • Law - Academic
  • Constitutional and Administrative Law
  • Criminal Law and Justice
  • Human Rights
  • Law and Society
There are many challenges that national and supranational judges have to face when fulfilling their roles as guardians of constitutionalism and human rights. This book brings together academics and judges from different jurisdictions in an endeavour to uncover the intricacies of the judicial function.

The contributors discuss several points that each represent contemporary challenges to judging: analysis of judicial balancing of conflicting considerations; the nature of courts’ legitimacy and its alleged dependence on public support; the role of judges in upholding constitutional values in the times of transition to democracy, surveillance and the fight against terrorism; and the role of international judges in guaranteeing globally recognized fundamental rights and freedoms.

This book will be of interest to human rights scholars focusing on the issues of judicial oversight, as well as constitutional law scholars interested in comparative perspectives on the role of judges in different contexts. It will also be useful to national constitutional court judges, and law clerks aiming to familiarise themselves with judicial practices within other jurisdictions.
‘Constitutionalism is a system whereby legislatures and governments are bound by higher norms, often human rights norms. In this book, the focus is on the role of national and international courts in upholding these norms. Some observers say that there is nowadays an erosion of the rule of law and human rights. The book comes at the right time. It reminds the courts of their responsibility in this area, and public authorities of the need to respect their decisions.’
– Paul Lemmens, Judge, European Court of Human Rights
Contributors: A. Abat i Ninet, E. Afsah, C. Ayala, A. Barak, O. Bassok, D.T. Björgvinsson, W. Hoffmann-Riem, D. Hope, D. Jenkins, H. Krunke, TJ McIntyre, M. Scheinin, B. Tuzmukhamedov, G. Ulfstein, A. Ušacka














Contents:

Preface

1. Introduction
Helle Krunke and Martin Scheinin

PART I JUDGES AS GUARDIANS OF THE FUNDAMENTAL RIGHTS OF THE INDIVIDUAL
2. On Judging
Aharon Barak

3. The Changing Understanding of Judicial Legitimacy
Or Bassok

4. Courts as Protectors of the People: Constitutional Identity, Popular Legitimacy and Human Rights
Helle Krunke

PART II JUDGES AND JUDGING IN TIMES OF TERRORISM AND SURVEILLANCE
5. Judges as Guardians of Constitutionalism and Human Rights: The Judiciary and Counter-Terrorism in the United Kingdom
David Hope (The Lord Hope of Craighead)

6. The Judiciary and the Surveillance State: General Trends and German Experiences
Wolfgang Hoffmann-Riem

7. Judicial Oversight of Surveillance: The Case of Ireland in Comparative Perspective
TJ McIntyre

8. Procedural Fairness and Judicial Review of Counter-Terrorism Measures
David Jenkins

9. The Judiciary in Times of Terrorism and Surveillance: A Global Perspective
Martin Scheinin

PART III THE JUDICIARY IN TIMES TRANSITION
10. The Role of the Judiciary in Egypt´s Failed Transition to Democracy
Antoni Abat i Ninet

11. The Russian Constitutional Court in International Legal Dialogues
Bakhtiyar Tuzmukhamedov

12. Guides and Guardians: Judiciaries in Times of Transition
Ebrahim Afsah

PART IV JUDGES AS GUARDIANS BEYOND THE NATION STATE: REGIONAL AND INTERNATIONAL PERSPECTIVES
13. Constitutionalism and Human Rights at the International Criminal Court
Anita Ušacka

14. The Judicial Dialogue Between International and National Courts in the Inter-American Human Rights System
Carlos Ayala

15. The Role of Judges of the European Court of Human Rights as Guardians of Fundamental Rights of the Individual
David Thór Björgvinsson

16. The Task of Regional and International Courts in Guarding Constitutionalism and Human Rights
Marina Aksenova and Geir Ulfstein

Index