Courts and Judicial Activism under Crisis Conditions Policy Making in a Time of Illiberalism and Emergency Constitutionalism Comparative Constitutional Change Series

This collection examines topical issues related to the impact of courts on constitutional politics during extreme conditions.

The book explores the impact of activist courts on democracy, separation of powers and rule of law in times of emergency constitutionalism. It starts with a theoretical explanation of the concept, features and main manifestations of judicial activism and its impact in shaping the relationship between constitutional, international and supranational law. It then focuses on judicial activism in extreme conditions, for example, in times of emergencies and pandemics, or in the context of democratic backsliding, authoritarian constitutionalism and illiberal constitutionalism. Thus, the book may be considered as a contribution to the debates on judicial activism, including the discussion of the impact of courts on certainty, proportionality and balancing of rights, as well as on revolutionary courts challenging authoritarian context and generally over the role of courts in the context of illiberalism and democratic backsliding. The volume thus offers an explanation of the concept of judicial activism, its impact on both the legal system and the political order and the role of courts in shaping the structures of the legal order. These issues are explored in theoretical and comparative constitutional perspectives.

The book will be a valuable resource for academics and researchers working in the areas of courts, constitutional law and constitutional politics.

Part I. Judicial activism: Conceptual and comparative constitutional issues

1. Law, politics, and the constitutional courts’ activism: Setting the starting point

2. Activism as defence: The role of courts in shaping the relationship between constitutions and international law: A comparison of the apex courts of Switzerland, Germany and Austria

Part II. Judicial activism of international and supranational courts and its impact on national constitutional orders

3. The revolutionary impact of the European Court of Human Rights case law on the idea of res judicata in criminal justice: The Italian experience
4. Thinking outside the politics box: Framing a judicial role in shaping militant democracy in the European Union

Part III. Judicial activism and illiberal constitutionalism

5. An illiberal turn or a counter-constitutional revolution?: About the Polish Constitutional Tribunal before and after 2015

6. When activism takes the wrong turn: The case of the Romanian Constitutional Court
7. The revolutionary role of constitutional courts in Morocco and Jordan as a contemporary example from the MENA region

Part IV. Judicial activism and emergency constitutionalism

8. Mastering emergency situations: The activist role of the Bulgarian Constitutional Court in redefining the constitutional design of war, state of siege and state of emergency

9. Activism of the Croatian Constitutional Court and Covid-19: A bridge too far

Martin Belov is Professor of Constitutional and Comparative Constitutional Law at the University of Sofia ‘St. Kliment Ohridski’, Bulgaria.