This chapter focuses on constitutional identity and judicial independence. First, we link constitutional identity with sovereignty arguments. Then, we claim that in the current debate over judicial independence, we have a three-dimensional problem. First, according to the sovereignty argument, states are not restricted in designing their own constitutional structure, including their judicial system. Accordingly, the question is, who has supremacy over the national judiciary – the EU or Member States? The second question is, who has (real) ownership of the judiciary, or more precisely, who has the supreme power over the judiciary? Third, we question the judicial monopoly on the interpretation of the law under populist constitutionalism. We further argue that those actors who have a monopoly on the interpretation of the law and those who have real ownership of the judiciary in populist constitutionalism are totalitarian-like states, in contrast to constitutional democracies where the concept of judicial supremacy and separation of powers prevails. We argue that Europe is a laboratory in which these arguments about the consequences of undercutting judicial independence can be empirically examined.

Műhelyvita nyelve: magyar

Felkért hozzászólók:

Bencze Mátyás (tudományos főmunkatárs, HUN-REN TK JTI)

Detre László (Magyar Helsinki Bizottság)