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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Constitutional Courts / Supreme Courts as Positive Legislators

Massimo Fichera

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 13 April 2021

Judicial review of executive action — Judicial review of legislation — Preliminary procedures of constitutional courts/supreme courts — Powers and jurisdiction of constitutional courts/supreme courts — Types of constitutional courts/supreme courts — Comparative constitutional law

General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
Managing Editor: Ana Harvey

1 According to Hans Kelsen—who is credited with inventing the modern European constitutional court—adjudication (including constitutional adjudication) is one of the steps of a process through which, together with administration and enforcement, law regulates its own creation (Kelsen, 2010, 23). As Kelsen was aware that constitutional adjudication would inevitably participate in the legislative function, he devised a model of review, which would be concentrated in a specialized court, rather than diffused across judicial authorities. In fact, as he noted, ‘To...
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