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A Europe of Rights - The Impact of the ECHR on National Legal Systems (Hardcover)
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A Europe of Rights - The Impact of the ECHR on National Legal Systems (Hardcover)
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This volume focuses, comparatively and dynamically, on the
reception of the ECHR regime within the national legal orders of
the Member States of the Council of Europe. The definition of
"legal order" used is expansive, including the legislature, the
executive, the judiciary, and any public authority established
through constitutional and public law that produces or applies
legal norms. The central inquiry of the book is how, through what
mechanisms, and to what extent, the national legal orders of the
Member States are coordinated with, adapted to, or adjusted by the
ECHR - emphasizing both the cooperative and conflictive aspects of
reception.
The book brings together a series of structured-focused
comparisons: each chapter undertaking a comparative case study
which collects and analyzes basic data on the reception of the ECHR
within national legal orders. These structured-focused comparisons,
whose purpose is not so much to test theory, but to develop
appropriate theoretical concepts and to generate hypotheses, work
on the assumption that comparing two, relatively like cases offer a
better opportunity to build more general theoretical
frameworks.
Through an examination of a set of general questions about how
national decision-makers - governments, legislators, and judges -
have reacted to the evolution of European human rights law, the
chapters enquire how various actors within national legal orders
could take decisions to either hinder or to enhance the status of
the ECHR. What interests or values, individual or corporate, are
judges maximizing? How has this affected the evolution of the ECHR?
How do national constitutions take into account treaty law (or
international lawgenerally)? Do separation of powers doctrines (or
other explicit provisions of public law) permit or prohibit the
judicial review of the legal validity of legislative and executive
acts with reference to "higher" norms? To what extent should the
federal or unitary nature of a Member State make a difference to
reception? That is, should we expect the territorial distribution
of powers and competences - judicial, legislative, administrative -
to have an effect on the status or effectiveness of the ECHR, and
if so, how?
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