Domaren som rättens främsta företrädare - En konstitutionell komparativ studie gällande domstolens möjlighet att tillhandahålla ett effektivt rättighetsskydd

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: When drafting a Constitution, the relationship between politics and law must always be determined. It is up to each legal system to regulate what influence the court should have on the formulation of legislation. When it comes to legislation, the relationship between judicial activism and democracy, can be described as a dichotomy in which two widely different methods stand for different ideals. The trade-off between democracy and judicial activism will be discussed on the basis of the Swedish and US Supreme Court's judicial reviews, as the countries have different methods of execution. By a comparative method, this thesis aims to compare how rights are protected by the Constitution in Sweden and the United States. Swedish constitutional law is characterized by the principle of popular sovereignty, which states that it is the people who have the power over politics in the state. The principle implies a concentration of power to parliament and the government, and it is firmly rooted in the Swedish legal culture. The representative assembly is characterized by predictability and stability. There is a resistance to judicial review that limit the sovereignty of the people. There is an extensive debate about the court's judicial review that has been initiated as the Supreme Court to a greater extent creates their own standards in the legislature's place. In the United States, another order has been chosen. The Supreme Court in the United States has long been granted the right of judicial review thus represent part of the legislative mandate. Throughout history, the Supreme Court in the United States has had an large and long-lasting influence on the development of society. When the court has this legislative power, the system is usually referred to as a flexible legal development. The question is then who is best suited to protect the rights of individuals: the legislature (Sweden) or the court (the United States). The conclusion is that there is no given answer. Arguing which system provides constitutional protection of rights most effectively will not result in much, apart from understanding and inspiration. It is impossible to take the system out of its proper rule of law context without taking into account the constitutional requirements. That approach is only relevant if a whole new state is to be introduced without taking into account any existing traditions. Sweden has the political legislative tradition simply because it is the tradition that works best in Sweden.

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