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Constitutional Courts and Democratic Values

Constitutional Courts and Democratic Values: A European Perspective

Copyright Date: 2009
Published by: Yale University Press
Pages: 288
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  • Book Info
    Constitutional Courts and Democratic Values
    Book Description:

    In this book, Víctor Ferreres Comella contrasts the European "centralized" constitutional court model, in which one court system is used to adjudicate constitutional questions, with a decentralized model, such as that of the United States, in which courts deal with both constitutional and nonconstitutional questions.

    Comella's systematic exploration of the reasons for and against the creation of constitutional courts is rich in detail and offers an ambitious theory to justify the European preference for them. Based on extensive research on eighteen European countries, Comella finds that centralized review fits well with the civil law tradition and structures of ordinary adjudication in those countries. Comella concludes that-while the decentralized model works for the United States-there is more than one way to preserve democratic values and that these values are best preserved in the parliamentary democracies of Europe through constitutional courts.

    eISBN: 978-0-300-14868-8
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-xii)
    (pp. xiii-xvi)

    IF WE LOOK AT the legal landscape of contemporary Europe, we will be struck by the institutional salience of constitutional courts. Most European countries have established such bodies to guarantee the supremacy of the constitution over parliamentary enactments. Within the European Union, in particular, the vast majority of countries have opted for this kind of arrangement.

    In so doing, Europe has radically departed from the model of judicial review that has existed in the United States sinceMarbury v. Madisonwas decided in 1803.¹ Instead of allowing all judges, in the context of ordinary legal disputes, to set aside legislation...


    • CHAPTER ONE The Rise of Constitutional Courts
      (pp. 3-9)

      Let’s go back to 1920. It is very unlikely that the framers of the constitutions of the new republics of Czechoslovakia and Austria imagined that the institution they had just created (a constitutional court) would be so popular nowadays. Before the Second World War, only Lichtenstein (in 1921) and Spain (in 1931) had decided to establish such a court. The other countries in Europe remained impervious to the invention.¹

      During that period, a particularly powerful voice, that of Hans Kelsen, could be heard in support of the new system. This important legal philosopher (who lived from 1881 to 1973) was...

      (pp. 10-19)

      IN ORDER TO EXPLAIN, at least in part, the European inclination toward constitutional courts, scholars often note that a specific conception of the principle of separation of powers emerged in continental Europe as a result of the French Revolution of 1789. Under this conception, which was very influential in many countries, judges were to have a restricted role. Determining the validity of legislation was not a power to be allocated to them. To guarantee the supremacy of the constitution over ordinary law, alternative institutions had to be conceived. Constitutional courts finally emerged as the appropriate bodies for the task.


    • CHAPTER THREE A Traditional Justification: LEGAL CERTAINTY
      (pp. 20-26)

      ALL LEGAL SYSTEMS MUST try to satisfy the value of legal certainty to a sufficient extent. Both citizens and public officials need to be relatively sure what the law is. If a system of constitutional review of legislation is set up, it is important to design it in such a way that legal certainty is not impaired. Hans Kelsen, and others after him, have argued that the centralized model is much better in this respect. To what extent is this so? In the United States, for example, judicial review is decentralized, yet legal certainty seems to be sufficiently preserved. It...


    • CHAPTER FOUR The Justification of Constitutional Review: THE SKETCH OF AN ARGUMENT
      (pp. 29-35)

      THE INSTITUTION OF judicial review of legislation is relatively easy to justify when it operates in the field of federalism. In politically decentralized polities, the laws enacted by the state legislative assemblies often clash with the laws of the federation. Since it is not reasonable to permit each level of government to decide the limits of its own authority, the intervention of an external institution like the judiciary seems justified. Constitutional review acquires “the utmost importance” in federal states, Hans Kelsen wrote.¹ Indeed, as in America, judicial review in many European nations emerged as a technical solution to the legislative...

    • CHAPTER FIVE The Special Nature of Constitutional Discourse
      (pp. 36-54)

      IF WE WANT TO CREATE a forum of principle where fundamental rights are taken seriously, there are various things to be said in favor of the centralized model of judicial review. As I will try to highlight in this chapter, there are potential advantages to creating a special constitutional tribunal that is relatively detached from the ordinary judiciary. This is especially so in civil-law countries.

      Constitutional judges need to have a degree of “leisure” and “insulation” to reflect upon fundamental values, as Alexander Bickel put it. The centralized model offers an obvious advantage in this regard: the constitutional court can...

    • CHAPTER SIX The Structure of the Constitutional Conversation
      (pp. 55-70)

      SO FAR, I HAVE SUGGESTED some reasons why a constitutional court is better equipped than ordinary courts in civil-law countries to interpret the abstract principles of political morality that the constitution expresses. In this chapter I wish to examine the forms of the constitutional conversation. What is the court asked to focus on? Who can have access to it? Who defends the position of the government? What kind of review (concrete or abstract) can the court exercise? As I argue, various features of the European model help enhance the public visibility of constitutional courts, as well as their impact on...

    • CHAPTER SEVEN Overcoming Judicial Timidity
      (pp. 71-85)

      A CONSTITUTIONAL COURT, I contended in the previous chapter, performs its functions in a zone of high public visibility. I now want to claim that, despite this visibility, the court cannot be timid, in two senses. First, the court cannot shy away from constitutional issues; it has to confront them. Second, it is not easy for the court to be extremely deferential toward the legislature. A significant percentage of the laws that are challenged must be found to be totally or partially unconstitutional. Though many different factors can push judges in one direction or the other when it comes to...

    • CHAPTER EIGHT The Democratic Objection to Constitutional Review
      (pp. 86-97)

      THE CHARGE IS WELL KNOWN: from a democratic point of view, it is contended, it is not legitimate for courts to invalidate statutes that a popularly elected assembly has enacted. What can be said in response to this democratic objection, which is usually referred to as the “countermajoritarian difficulty”?¹

      Even if we are ultimately in favor of judicial review, we should acknowledge that there is an important connection between the democratic principle and the enactment of a statute by the majority of a popularly elected parliament. Democracy is conceptually tied to the existence of a procedure that gives citizens an...

    • CHAPTER NINE Democratic Checks on Courts
      (pp. 98-108)

      FOR EUROPEAN COUNTRIES of the civil-law tradition, I want to claim, there are indeed some advantages to constitutional courts in terms of democratic checks.

      Consider, first, the appointment process. European countries have generally felt the need to place legislative review in the hands of judges who are chosen through a procedure in which the democratic branches have an important say. As Pedro Cruz Villalón explains, the historical emergence of constitutional review was possible only because the bodies in charge acquired an intense democratic legitimacy.¹

      The problem, however, is that most European countries prefer a nonpolitical method to recruit the ordinary...


    • CHAPTER TEN Decentralizing Tendencies in the System
      (pp. 111-121)

      IN THE PREVIOUS CHAPTERS, I have presented a cluster of arguments to support the case in favor of creating and maintaining a centralized model of judicial review in European civil-law countries. Some forces, both internal and external to the domestic legal systems, however, are pushing the model toward a more decentralized arrangement. Internally, the pressure comes from the principle that ordinary judges should interpret statutes in conformity with the constitution. Externally, the pressure derives from supranational developments. Ordinary judges, working under the guidance of the European Court of Justice, are entitled to review national legislation to guarantee that the laws...

    • CHAPTER ELEVEN The Impact of the European Court of Justice
      (pp. 122-138)

      IF CONSTITUTIONAL COURTS worked in a domestic legal vacuum, the only source of potential erosion to worry about would be the interpretive powers that ordinary judges can exercise if they are not contained in the right way, as we explored in the previous chapter. But the international forces that have given birth to the European Union and to the Council of Europe have complicated the picture. These organizations may affect in serious ways the centralized Kelsenian system of judicial review that exists at the domestic level. (In this discussion, I often refer to the centralized model as “Kelsenian” rather than...

    • CHAPTER TWELVE The Impact of the European Court of Human Rights
      (pp. 139-154)

      IN THIS FINAL CHAPTER we should now turn to another important organization, the Council of Europe, a principal mission of which is to protect human rights. The European Convention on Human Rights, which the Council of Europe adopted in 1950, must be observed by national legislation. As I will argue, however, there is no reason to depart from the centralizing logic of the Kelsenian model in this context. To justify my claims, I will emphasize some of the differences between E.C. law and the European Convention on Human Rights.

      One of the most notable achievements of the Council of Europe(which...

  8. Afterword
    (pp. 155-158)

    THIS BOOK HAS BEEN a long argument to support the European preference for constitutional courts. I have tried to highlight the potential virtues of the centralized model of judicial review in the particular context of parliamentary democracies that belong to the civil-law tradition.

    When European scholars nowadays readMarbury v. Madison,however, they cannot fail to be attracted by its powerful logic. After all, is it not the case that Europeans share the premises from which Chief Justice John Marshall derived his famous conclusion? His central argument, as everybody knows, boiled down to this. First, the constitution is law. Second,...

  9. NOTES
    (pp. 159-222)
  10. INDEX
    (pp. 223-238)