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Rule of Law, Human Rights and Judicial Control of Power

ناشر:
Springer
دسته بندی:

شابک: ۹۷۸۳۳۱۹۵۵۱۸۴۵

سال چاپ:۲۰۱۷

کد کتاب:1178
۴۵۸ صفحه - وزيري (شوميز) - چاپ ۱
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Constitutional law was born in England as a response to absolutism, which implied power without juridical limits, and the monopolization of the law by the sovereign. Faced with absolutism, constitutionalism claimed the subjection of everyone to the law. This notion had been part of the political and legal culture of all medieval Europe. In that conception, the primacy of law was made effective by judges, and the law was not reduced to norms, but rather viewed as a set of criteria, rules, customs, and principles of justice. For this reason, it can be affirmed that constitutional law rests on the same premises, and henceforth arise the concepts of rule of law, judicial review, and rights. Thus, the Rule of Law assumes the primacy of law over power, which implies that the instrument created for that purpose, the constitution, is in a position of supremacy over power. That is to say, power subordinated to the constitution, which makes the control of the former in accordance the latter necessary, affecting the submission of the power to the Rule of Law. Therefore it is common sense that the control lies in the judges, because its function is to resolve conflicts in applying the law, and the constitution is law, at least in part. However, the idea of limiting the power by the law aims at the protection of the person and her rights. In this sense, constitutionalism is based on the idea that human beings are endowed with inherent and inalienable rights, which are conceived as specific liberties and immunities to power, enforceable before a court of law. In other words, the subjection of power to the law, and its control by judges is justified by the need to protect people from possible overreaching, and therefore, from possible violations of their rights.