L’Advisory Jurisdiction delle Corti supreme negli ordinamenti di common law dall’epoca coloniale a quella della Judicialization of Politics

Supreme courts’ advisory jurisdiction in common law legal systems: from the colonial age to the judicialization of politics era

Abstract

Supreme courts’ advisory jurisdiction in common law legal systems: from the colonial age to the judicialization of politics era - The aim of the paper is to examine the advisory role of the judiciary power, with regard to some Common Law systems (or hybrid systems, in which the English tradition has played a fundamental role), from the colonial era to that of the so-called judicialization of politics. Specifically, the following issues are to be investigated: (a) the characteristics of the advisory function of the courts within the non-jurisdictional functions of constitutional justice; (b) the characters of the advisory action of courts in the English law tradition; (c) the reasons underlying the contrasting conception of the advisory function in the United States and Canada; (d) the characters of the reception of function in former British colonies, with particular reference to two case studies; the Indian and Kenyan ones; (e) the characters of the reference function performed by the Supreme Court of London in the settlement of devolution issues. The analysis wants to highlight how the reference function today contributes to increasing the phenomenon of judicialization of politics, even in judicial systems traditionally obsequious to the principle of Parliamentary supremacy.

Keywords: Canada; India; Kenya; Reference jurisdiction; United Kingdom.