Conclusion
The courts in both jurisdictions can have a role to play in clarifying fundamental features of the Constitutional documents, but also, more importantly, the constitutional nature of the foundational texts.
They will need to fill a gap that resulted from the more pressing pragmatic and specific concerns of the founding moments in both jurisdictions. This chapter has proposed a role for courts versus the political arms of government in the broader constitutionalism project of a state. It has considered this issue in the context of the particular founding events of the two jurisdictions and in the context of the particular political set-up. It moves beyond idealised visions of the political arms of government to situations with realistic problems that the political arms of government cannot resolve without some input from the courts. The aim has been to cast a spotlight on the voice of the courts as a contributor to the consolidation of founding moments and their role in creating a level of sustainability of a movement.[183] This chapter acknowledges concerns about the judicial role in founding moments: the fact that the judicial branch lacks democratic legitimacy. Thus, this chapter stops short of proposing judicially initiated constitutional moments. In addition, it does not propose a role for the courts in setting out a constitutional theory that will be ‘universally or eternally applicable’.[184] Rather, it makes a more modest suggestion of allowing judicial input on these open questions. This discussion engages the usual debate on the balance of constitutional power between the judiciary and political branches. It seeks to set it within a particular political context. Political and constitutional reforms in both of these jurisdictions are top-down exercises, prompted and managed and approved by the executive and legislature. The potential for collective citizen- oriented and initiated reform through referenda is absent in these jurisdictions. This rationalises a stronger role for the courts as a proxy for ventilating issues on the part of the citizens. The discussion is also premised on the existence of constitutional systems that are intended to be of enduring quality versus temporary and transitional in nature.[185]
More legal literature on Laws.Studio
More on the topic Conclusion:
-
Agricultural law -
Constitutional law -
Fundamentals of Advocacy -
History of state and law -
Muslim (Islamic) law -
Professional ethics of a lawyer -
Roman law -
Theory of state and law -
UK Bar -
US Bar -
-
Conflictology -
Ecology -
Economy -
Finance -
History -
Law -
Medicine -
Philosophy -
Religious studies -