Bernd
10/28/2026 (Wed) 21:24
No.55646
del
10/28/2026 (Wed) 21:24
No.55646
del
>>55643
>All right, so essentially about Brazil. Was guessing maybe the US. And was writing from a Hungarian point of view.
This also holds true in abstract for continental Europe, much of the ideology I'm describing was sourced from post-1945 Germany. The "genius" judge who revised the law on Supreme Court impeachments is a specialist in German constitutionalism.
>CC isn't a lawmaker.
>If they can think up rulings that can effect/regulate lawmaking that is lawmaking.
The point is that lawmaking (i.e. making up the texts we call laws) is not rulemaking, as I have shown. Here's another example, this time from Europe: Article 8 of the ECHR, which sets out a right to respect for family and private life, has been taken by the European Court of Human Rights to mean a duty of states to lower greenhouse gas emissions (the KlimaSeniorinnen Schweiz case). If that sounds like a bit of stretch and if anti-carbon measures are themselves intrusive on private life, that's just a layman's opinion. They have authority, so now the right to privacy means the right to be fined for driving a diesel pickup.
>And if it is unconstitutional then send it back for reconsideration. This is their only job.
Sometimes the constitutional court will merely tell the Legislative to do a better job but not create a binding decisions. On systems with really weak constitutional review that might even be the only thing it can do.
But stronger courts rule out not just the text, but the interpretation and the rule that comes with it. Even stronger courts will make up entirely new rules.
The fundamental difference between continental and Anglo systems of constitutional review is not the court's de facto rulemaking power (power over interpretation is power over the rule), but, like you said, centralization vs. decentralization. (Brazil has a Frankenstein system where you can litigate constitutionality through either procedure).
>All right, so essentially about Brazil. Was guessing maybe the US. And was writing from a Hungarian point of view.
This also holds true in abstract for continental Europe, much of the ideology I'm describing was sourced from post-1945 Germany. The "genius" judge who revised the law on Supreme Court impeachments is a specialist in German constitutionalism.
>CC isn't a lawmaker.
>If they can think up rulings that can effect/regulate lawmaking that is lawmaking.
The point is that lawmaking (i.e. making up the texts we call laws) is not rulemaking, as I have shown. Here's another example, this time from Europe: Article 8 of the ECHR, which sets out a right to respect for family and private life, has been taken by the European Court of Human Rights to mean a duty of states to lower greenhouse gas emissions (the KlimaSeniorinnen Schweiz case). If that sounds like a bit of stretch and if anti-carbon measures are themselves intrusive on private life, that's just a layman's opinion. They have authority, so now the right to privacy means the right to be fined for driving a diesel pickup.
>And if it is unconstitutional then send it back for reconsideration. This is their only job.
Sometimes the constitutional court will merely tell the Legislative to do a better job but not create a binding decisions. On systems with really weak constitutional review that might even be the only thing it can do.
But stronger courts rule out not just the text, but the interpretation and the rule that comes with it. Even stronger courts will make up entirely new rules.
The fundamental difference between continental and Anglo systems of constitutional review is not the court's de facto rulemaking power (power over interpretation is power over the rule), but, like you said, centralization vs. decentralization. (Brazil has a Frankenstein system where you can litigate constitutionality through either procedure).