Institutional Failure on Trial
State institutions can fail, and when they do, they often violate human and fundamental rights. As a result, courts increasingly get involved, often in expansive and non-traditional ways. This trend is mostly being applauded by the public and in the literature, but it has so far never been analysed more broadly and in any depth. In my project, I examine how different courts frame their responses to institutional failure, proposing a comparative concept that draws on jurisprudence and scholarly literature from a wide range of jurisdictions, national and international, Southern and Northern, common law and civil law. In a second step, I ask if, when and how these different courts can legitimately and effectively respond to institutional failure.
ICON-S Conference, Santiago de Chile, July 1, 2019
Panel 62: Transformative Constitutionalism and Constitutional Paternalism
What is the role of courts in transforming the constitutional order? Can courts promote and strengthen the democratic institutions? How do courts conduct a ‘structural judicial review‘? Supreme and constitutional courts are increasingly acting as guardians of parliaments, in their supposed interest, aiming at safeguarding a space of manoeuvre for representative actors. This trend can be regarded as “Constitutional paternalism“: A slightly paradoxical notion, as, in many cases, Parliaments would be entitled with appropriate authority and powers to safeguard their position within the constitutional system, simply by exercising their powers. Panelists will explore challenges raised by these developments to the constitutional state: is constitutional paternalism a viable answer to the crisis of Parliaments and representative democracy? Does it violate or instead strengthen separation of powers? Does it rather foster popular distrust in representative democracy and strengthen populism?
Chair: Aileen Kavanagh
Presenters: Michaela Hailbronner, Pietro Faraguna, David Landau, Yaniv Roznai,
Discussant: Samuel Issacharoff