Protection of Fundamental Rights by Constitutional Courts - A Comparative Perspective
"Man", said Benjamin Franklin, "is a tool-making animal". A major contribution of 20th century Western legal thought to tool-making was possibly the publication in 1914 of Reichgesetz und Landesgesetz nach der österreichen Verfassung1 by Hans Kelsen, a Czech lawyer, but Austrian by adoption. Kelsen is noted for his "pure theory of law". By conferring upon a special constitutional court the exclusive power to rule on the constitutionality of legislation and to refuse to enforce legislation that in its judgment violated the constitution, Kelsen found a way for the United States pattern of constitutional adjudication (as established in 1803 by Chief Justice John Marshall in Marbury v Madison) to work in countries which have (as in the United States) a written and "rigid" Basic Law, and even where the doctrine of precedent does not operate.
This is a very short history of the development of that Kelsen "tool" and an evaluation of it.
How to Cite
Authors retain copyright in their work published in the Victoria University of Wellington Law Review.