The Rule to Avoid the Unconstitutionality of Laws
DOI:
https://doi.org/10.70411/MJLS.1.1.20236Keywords:
constitutional law, avoidance of unconstitutionality, separation of powersAbstract
The rule of non-avoidance is considered one of the important rules in the constitutional judiciary, according to which the judge gives an explanation that saves the text from its unconstitutionality, and provided that the language of the text supports that interpretation, it is not possible to give an explanation of the text that does not already exist within the folds of its letters, as these are considered a purely legislative process, not an explanation.
Although the constitutional judiciary has approved this rule in many decisions, especially the Supreme Court in the United States of America, but they believe that resorting to this rule should be in sensitive and critical cases (practical considerations) that sometimes mislead the court and make the use of this rule inevitable and therefore the researcher resorted to research in the concept of the rule of avoiding the unconstitutionality of laws and the position of jurisprudence on them and the most important judicial applications on them.
References
المصادر والمراجع
د حسين جبر حسين الشويلي، قرينة دستورية التشريع، دراسة مقارنة، الطبعة الأولى، منشورات الحلبي الحقوقية، 2018.
William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 2001
Cornell Law Review, Volume 86, Article 3, Issue 4 May, 2001,
) Antonin Scalia, A Matter of Interpretation, Princeton University Press, 1997
Shane Mountjoy, Marbury v. Madison, Infobase Publishing, 2007.
Kevin A. Ring, Scalia’s Court, Library of Congress, 2016,p, ix, 1996.
Felix Frankfurter, Some Reflections on the Reading of Statutes, Volume 23 | Issue 3 Article 18, Colum. L. Rev. 527, 543.
Andrei Marmor, The Language of Law, Oxford University Press,.
) Frank H. Easterbrook, Statutes' Domains, 50 U. Cm. L. REV. 533, 548 (1983).,
Kevin A. Ring, Scalia’s Court, Library of Congress, 2016,.
See Eric S. Fish, Constitutional Avoidance as Interpretation and as Remedy, Michigan Law Review, Volume 114 Issue 7, 2016,
Supreme Court Interpretation of Statutes to Avoid Constitutional Decisions, Columbia Law Review, Vol. 53, No. 5 (May, 1953), pp. 633-636. : Columbia Law Review Association, Inc,
) Hans Kelsen, Pure Theory of Law, Knight trans. from German, 2d ed. 2009,.
Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936)
Bradley C. S.Watson, ourselvews and ourposterity ,Essays in Constitutional Originalism, Lexington Books, 2009.
Downloads
Published
Issue
Section
License
Copyright (c) 2023 Modern Journal of Legal Studies
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
The users are free to:
- Share — copy and redistribute the material in any medium or format.
- Adapt — remix, transform, and build upon the material.
The licensor cannot revoke these freedoms as long as you follow the license terms.
