The Principle of Separation of Powers
This chapter explains the European inclination toward constitutional courts by noting a specific conception of the principle of separation of powers that emerged in continental Europe as a result of the French Revolution of 1789. Under this conception, which was very influential in many countries, judges were to have a restricted role, and determining the validity of legislation was not a power to be allocated to them. To guarantee the supremacy of the constitution over ordinary law, alternative institutions had to be conceived. Constitutional courts finally emerged as the appropriate bodies for the task. The chapter argues here, however, that in order to construct a modern justification of the European preference for constitutional tribunals, the traditional understanding of the principle of separation of powers should be modified, if not forgotten altogether.
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