THE ROLE OF CONSTITUTIONAL JURISDICTIONS IN PROTECTING IUS EVEN AGAINST LEX
THE ROLE OF CONSTITUTIONAL JURISDICTIONS IN PROTECTING IUS EVEN AGAINST LEX

Summary/Abstract: This article briefly presents the relationship between Ius and Lex according to the Roman legal tradition. The understanding of Roman jurists from Antiquity on this issue finds projections and development in the formation of some modern legal systems, reaching the contemporary view of the Rule of law. From institutional perspective, this has led to the creation of constitutional jurisdictions, whose activity can largely be described as controlling the conformity of Lex with Ius. Radbruch’s formula for resolving the potential conflict between legal certainty and justice is considered as a reflection and continuation of the relationship between Ius and Lex. The main purpose of constitutional jurisdictions is noted – to protect the constitution, whose principles and fundamental rights are considered to embody Ius. An attempt is made to outline the limits within which constitutional jurisdictions can protect Ius even against Lex. In this regard, attention is paid to the standards that, according to R. Dworkin, judges use when resolving legal disputes. The problem of the role of constitutional jurisdictions, in cases where the constitution is violated through continued inaction by certain state bodies, is raised. In conclusion, it is pointed that the key to avoiding the dilemma between judicial restraint, or legal minimalism, and judicial activism, or legal maximalism, is the classical understanding of the relationship between Ius and Lex in combination with the principles of the Rule of law and the separation of powers.

• Details
• Contents