Dispute over the Guardian of the Constitution in the Context of Current Debates about the Separation of Powers
Abstrakt
A defence of the institution of constitutional judiciary appears as an important part throughout the works of Hans Kelsen. A model of constitutional review which won recognition in the constitutions of Czechoslovakia and Austria in the 1920th was clearly inspired by that author.
A question of how to overcome a tension between a legislator and constitutional courts remains very topical at present times as well. The article outlines a dispute over the guardian of the constitution between two remarkable lawyers of the pre-World War II. period - Hans Kelsen and Carl Schmitt.
Finally, the article expounds current discourse dealing with the question of position and role of constitutional courts. In the article, the author argues for judicial minimalism and passivist decision-making.