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Year 2011 x

Lyana Francot-Timmermans
Lyana Francot-Timmermans is Assistant Professor in Legal Theory at Utrecht University, the Netherlands.

Emilios Christodoulidis
Emilios Christodoulidis is Professor of Legal Theory at the University of Glasgow, United Kingdom.
Article

The Combination of Negative with Positive Constitutionalism in Europe

The Quest of a ‘Just Distance’ between Citizens and the Public Power

Journal European Journal of Law Reform, Issue 1 2011
Keywords democracy, constitutionalism, totalitarism, fundamental rights, judicial review
Authors Cesare Pinelli
AbstractAuthor's information

    The article is focused on European constitutionalism as resulting from the transformations following the experiences of totalitarian states. The notion of democracy was then significantly re-shaped, to the extent that democratic devices (federalism and sometimes referendum) were introduced with a view to balance the excesses of a purely representative democracy. The recognition of social rights and of human dignity reacted against totalitarism and, on other hand, against the individualistic notion of rights affecting the XIX century’s constitutionalism. Constitutional review of legislation was introduced, thus overriding the myth of parliamentary sovereignty, particularly the idea of parliament as the sole authority capable of granting fundamental rights.


Cesare Pinelli
Cesare Pinelli is Professor of Constitutional Law in the Faculty of Law, La Sapienza University of Rome.
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