ROLA TRYBUNAŁU KONSTYTUCYJNEGO W OKRESIE PRZEMIAN USTROJOWYCH A PROBLEM AKTYWIZMU SĄDOWEGO
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Date
2005
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Wydział Prawa i Administracji UAM
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ROLE OF CONSTITUTIONAL TRIBUNALS IN THE PERIOD OF POLITICAL TRANSFORMATIONS VS JUDICAL ACTIVISM
Abstract
One of the most interesting issues discussed within the so called transitional constitutionalism
is court activism. Court activism is a phenomenon of extending judicial decisions, and in
particular constitutional tribunal decisions, onto the distribution of a variety of resources. There
are four main reasons for the increasing activism of courts: the need to legitimise the functioning of
other organs of public authority, the transfer of the political and social legislative role to the levels
at which it is executed, legislative inflation, and a greater functional and cultural differentiation of
social systems. The main issue of the activism of constitutional tribunals is related to the question
whether their increased role in the distribution of resources would have or has any significant impact
on the functioning of parliamentary democracy.
Analysing the above issue on the example of granting various privileges to certain social
groups by way of judicial decisions, the author has formulated three conclusions: the relation between
the legislative and a constitutional tribunal largely depends on the unarticulated assumptions
about the very nature of democracy. Therefore it should be postulated that the activity of
court (or the constitutional tribunal) should be limited only to those cases, where, for some reason,
the parliament is unable to amend the existing laws, and its inactivity or inertia would result in
gross grievance and harm to the otherwise due recipients of a given norm, or would lead to other
extraordinarily adverse effects. Secondly, the activism of constitutional tribunals is to a great
extent determined by the way in which the political community perceives the place and role of Parliament
in the state system of the execution of public authority. Thirdly, the involvement of courts
or the constitutional tribunal in the execution of public authority reflects the stabilization in the
state. It may be assumed that where the social, economic or political stability increases, the role of
constitutional tribunals in the creation of political or economic relations in the state will gradually
diminish.
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Ruch Prawniczy, Ekonomiczny i Socjologiczny 67, 2005, z. 2, s. 51-60.