Chapter

Individual and Constitutional Justice: Can the Power Balance of Adjudication be Reversed?

Jonas Christoffersen

in The European Court of Human Rights between Law and Politics

Published in print June 2011 | ISBN: 9780199694495
Published online September 2011 | e-ISBN: 9780191729782 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199694495.003.0010
Individual and Constitutional Justice: Can the Power Balance of Adjudication be Reversed?

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The institutional balance has tilted in favour of the Court. The chapter argues that it is time to reconsider the role of national authorities as the Court was meant to play only an insignificant and subsidiary role. Going back to the roots, the States must implement the ECHR in their domestic legal orders and follow the case law of the Court; but States must also, depending on the circumstances, deviate from the case law of the Court and independently strike a fair balance between opposing forces and provide their own answers to pertinent human rights issues. But can they do that or is the system blocked by an inherent stalemate?

Keywords: judicial review; principle of subsidiarity; margin of appreciation; Fourth Instance Principle; Protocol No 14; individual justice; constitutional justice; legal pluralism; validity of law

Chapter.  11363 words. 

Subjects: Public International Law

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