This book deals with Judicial Review, as the power of
judges to control the constitutionality of State acts, particularly of
Legislation, which not only is the most important subject of contemporary
constitutional law, but also the most distinctive feature of all democratic
constitutional systems. Such power is the consequence of the consolidation in
contemporary constitutionalism of three fundamental principles of law: first,
the existence of a written constitution or of a fundamental law, conceived as a
superior law with clear supremacy over all other statutes; second, the
"rigid" character of such constitution, which implies that the
amendments or reforms that may be introduced can only be put into practice by
means of a particular and special constituent process, preventing the ordinary
legislator from doing so; and third, the establishment in that same written and
rigid constitution or fundamental law, of the judicial means for guaranteeing
its supremacy, over all other state acts, including legislative acts. According
to such principles, consequently, in democratic systems subjected to the rule
of law, the judges can have the power to refuse to enforce a statute when they
deem it to be contrary to the Constitution, considering it null or void with
inter partes effects, through what is known as the "American model"
or the diffuse system of judicial review; or one particular Constitutional
Court or the Supreme Court of the country can be empowered to annul laws considered
unconstitutional, with erga omnes effects, through what is known as the "
European model" or concentrated system of judicial review; with the
possibility for both system to coexist, through what is known as the "
Latin American model" or the mixed system of judicial review. These
systems are analyzed in this book from a comparative constitutional law
perspective, a matter that professor Brewer-Carias has been studying for the
past decades, and on which he has extensively published in books and articles,
in Spanish, French and English. But in addition, he has written many works and
essays in English, that have not been published up to now, in particular for
the preparation of Courses and Lectures he has given as was the case of the
Course of Lectures on "Judicial Review in Comparative Law," he gave
in the LL.M. Course at the Faculty of Law, University of Cambridge, UK., in
1985-1986; and the Lectures he gave on "Judicial Protection of Human
Rights in Latin America. A Comparative Constitutional Law Study on the Latin
American Injunction for the protection of Constitutional Rights ("Amparo
proceeding")," at Columbia Law School in the City of New York, in
2006-2008. The original versions of these Lectures are published in this book,
altogether with many other Papers, Reports and Lectures he has given in the
past years in various Universities in the United States, analyzing from a
comparative constitutional Law perspective, the systems of judicial review in
the world, and in particular, in Latin America. The decision to publish this
book with the recollection of the original versions of all those works, as the
author has pointed out, has the purpose to assure that all those materials
won't be lost, and could be useful for all those who have interest in these matters;
being what they are: the written work of a law professor, made as a consequence
of his research for the preparation of his lectures, not pretending to be
anything else.
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