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Judicial review of antiterrorism legislations: Can liberties and raison d’État be reconciled?

Par : Type de matériel : TexteTexteLangue : français Détails de publication : 2015. Ressources en ligne : Abrégé : The constitutional courts are at the heart of the constitutional question regarding the reconciliation between order and liberty. Terrorism interferes with this issue, as it strikes the state at its heart and provokes normative reactions that restrict liberties. This paper offers a comparative analysis of how antiterrorism legislations in France, Italy, and Spain were reviewed by the judges charged with reviewing their constitutionality. It shows how this form of judicial review has been tailored to fit this type of legislation, which exists almost in a parallel legal universe. Forced to adapt to the specificities of terrorism, the judge reviews these matters in an adapted zone of tolerance that is wider than usual. In reviewing the constitutionality of such laws, the judge, while taking into account the specificities of the subject matter, still aims to preserve its legal validity, even if the interpretation stretches the boundaries of law to breaking point. This form of elastic constitutional case law—the principals of which were established before the events of 9/11—reveals the great breadth of constitutional law, as well as its limits, when the events tip the scales in favor of concern for public safety.
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The constitutional courts are at the heart of the constitutional question regarding the reconciliation between order and liberty. Terrorism interferes with this issue, as it strikes the state at its heart and provokes normative reactions that restrict liberties. This paper offers a comparative analysis of how antiterrorism legislations in France, Italy, and Spain were reviewed by the judges charged with reviewing their constitutionality. It shows how this form of judicial review has been tailored to fit this type of legislation, which exists almost in a parallel legal universe. Forced to adapt to the specificities of terrorism, the judge reviews these matters in an adapted zone of tolerance that is wider than usual. In reviewing the constitutionality of such laws, the judge, while taking into account the specificities of the subject matter, still aims to preserve its legal validity, even if the interpretation stretches the boundaries of law to breaking point. This form of elastic constitutional case law—the principals of which were established before the events of 9/11—reveals the great breadth of constitutional law, as well as its limits, when the events tip the scales in favor of concern for public safety.

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