A ciascuno il suo? Giudice costituzionale e Legislatore tra separazione dei poteri e tutela dei diritti fondamentali: il caso dell’aborto

To each their own? Constitutional Courts and lawmakers between separation of powers and protection of fundamental rights

Abstract

To each their own? Constitutional Courts and lawmakers between separation of powers and protection of fundamental rights – The present essay aims at reflecting, in a comparative perspective, on the role and functions of constitutional Courts in the relationship between the (formal?) principle of the separation of powers and the “substantial” protection – or even judicial creation – of fundamental rights. Dealing with the constitutional doctrines of originalism and living constitutionalism, it will be shown that the “elephant in the room” refers to the way the Constitution is interpreted and applied by Courts and the limits it has when judges are called to decide on sensitive issues which involve ethics and politics (e.g. abortion).

Keywords: Constitutional courts; Living constitutionalism; Originalism; Protection of fundamental rights; Separation of powers.