The Role of Courts in Contemporary Legal Orders

Introduction 1

Part I Theory and Philosophy of Judicial Decision-Making: The Impact of Politics, Ethics, Logic and Technology on Legal Argumentation
1 Epistemic Reasonableness: Ethical and Epistemological Reflections from BARD 37
Michele Mangini
2 Judicial Ethos and the Role of Impartial Courts in a Culturally Divided World 59
Ioannis A. Tassopoulos
3 Judicial Dialogue between Ethics and Logic 71
TomአGábriŠ
4 Do Judicial Decision-Making and Quantum Mechanics Have Anything in Common? A Contribution to Realist Theories of Adjudication at the CJEU 83
Tamara Ćapeta

Part II Legitimacy of Courts: Judicial Activism, Supranational Judicial Empire and Beyond
5 Global Rule of Law Instead of Global Democracy? Legitimacy of Global Judicial Empire on the Edge between Westphalian and Post-Westphalian Constitutionalism 99
Martin Belov
6 Judicial Activism and the Democratic Legitimacy of Courts 133
Dilyan Nachev
7 Legal Realism versus Legal Ideology: On Explanatory Models of Judicial Activism 139
Simeon Groysman

Part III The Role of Constitutional Courts in Contemporary Legal Orders
8 Appointing and Electing Constitutional Judges: An Evolving Comparative Landscape 155
Giacomo Delledonne
9 Interrelations between the Constitutional Court and Ordinary Courts from the Perspective of Human Rights Protection 171
Maja Nastić
10 Constitutional Protection of Fundamental Rights: Comparative Analysis of the American and European Model of Constitutional Review 189
Minh Tuan Dang
11 The Constitutional Court as a Negative Constitutional Legislator: The Judicial Review of Constitutional Amendments in Bulgaria 207
Aleksandar Tsekov

Part IV The Role of Administrative Courts in Contemporary Legal Orders
12 Judicial Review of Administrative Action: Impact of the Choice between One Peak and Multiple Peak Models on Legal Certainty 225
Jurgen Goossens
13 The Role of Courts in the Application of the Tax Legislation in Bulgaria 247
Sasho Penov
14 Administrative Courts in Bulgaria at the Stake of the Legislature 257
Maria Slavova
15 Harnessing the Link between Constitutional Law and Tax Law through Constitutionality Reviews on the New International Tax Order 265
Adrianto Dwi Nugroho

Part V The Role of Criminal Courts in Contemporary Legal Orders
16 Problematic Aspects of Criminal Procedure Rules Framed by the Jurisprudence: The Italian Experience 281
Maria Lucia Di Bitonto
17 The Victim as New and Controversial Actor of the International Criminal Court’s Proceedings 289
Ilaria Sforza

Part VI The Role of Courts in the Context of Democratic Backsliding, Illiberal Democracies and Populist Constitutionalism
18 Can Constitutional Courts Become Populist? 305
Simina Tanasescu
19 Challenges to Constitutional Adjudication in Hungary after 2010 321
Fruzsina Gárdos-Orosz
20 Subverting Judicial Independence in the New Authoritarian Regimes: Comparing Polish and Hungarian Judicial Reforms 341
Zoltán Szente
21 Dissenting Coalitions at the Hungarian Constitutional Court 1990-2018 359
Kálmán Pócza, Gábor Dobos and Attila Gyulai
22 Can the Constitutional Court Accelerate Democratic Backsliding? Lessons from the Polish Experience 371
Wojciech Brzozowski
23 The Political Character of the Judiciary: Schmitt, Kelsen and the Polish Constitutional Tribunal 383
Wojciech Engelking

Part VII Courts and Human Rights
24 The Widening of the National Margin of Appreciation Allowed by the Strasbourg Court: A Backward Step for Reproductive Rights in Europe? 397
Joaquin Cayon-De las Cuevas
25 The Contributions of the Italian Constitutional Court and the European Court of Human Rights to the Development of the Principle of Self-Determination: The Effects on the Relationship between the Right to Health and the Right to Personal Data Protection 415
Guerino Fares
26 The Freedom of Expression in the Practice of the Supreme Court and the Constitutional Court of Hungary: With Special Regard to
Defamatory Crimes 433
Zoltan J. Toth
27 Some Aspects of the Freedom of Expression in Relation to the Authority and Independence of the Judiciary in the Light of the Jurisprudence of the European Court of Human Rights 451
Simona Veleva

Part VIII The Role of Courts in Environmental Issues
28 The Evolution of Locus Standi before the Administrative Courts in the Field of Environmental Law: A Comparative Survey 469
Simone Franca
29 Access to Justice in Environmental Matters in the EU: Cooperation and Tension between the Aarhus Compliance Committee and the Court of Justice of the EU 483
Rui Lanceiro
30 International Court of Justice and Environment: Toward New Perspectives? 501
Françoise Paccaud

Part IX Are There Alternatives to Courts?
31 International Institutions and the Development of Internal Compliance Mechanisms as an Alternative to Courts 523
Valère Ndior
32 The Competition between the Competences of the Court of Justice of the EU and Independent and Impartial Tribunals 543
Yanaki Stoilov and Ivan Stoynev

About the Editor 557
About the Authors 559