Page1 Page1 How constitutional courts make decisions. pasquale pasquino, NYU – partial draft September 2016 Constitutional courts are institutions producing judge-made-law. [M. Cappelletti, Giudici legislatori, Giuffrè, 1984]. Prima facie this form of making law – Rechtserzeugung, in Kelsenian language – contradicts a classical basic tenet of any representative government (the political regime we call nowadays democracy), a system characterized by the ideology claiming that exclusively state organs appointed pro tempore, through popular elections and electorally accountable to the voters, are the only ones authorized and have henceforth the authority of imposing on citizens binding collective decisions, typically in the form of legal norms. Members of these high courts are neither elected by the citizens nor accountable to them (in general, moreover, they cannot be reappointed - there are, as usual, some exceptions) [Czech Republic and ?]. Nonetheless, they make decisions that have to be obeyed by citizens and other state organs exactly like statutes passed by elected and accountable officials in parliaments – even though, which is a crucial point 1 , the procedure of judicial law-making is deeply different from the one used by elected representative assemblies in Parteienstaaten, a political system dominated by political parties. This law-making function is clear in the case of Supreme and Constitutional courts but also and more and more when we consider supra-national and international courts of justice. Where does the legitimacy of these institutions and the obligatory force of their decisions come from? I focus here on the national apex courts of some European countries – since as a general rule I believe that it is better for me to speak about what I know well. But I’m aware that there is some new work concerning the legitimacy of international courts. I think for instance of the book co- authored by Armin von Bogdandy [ In Whose Name? A Public Law Theory of International Adjudication, Armin von Bogdandy and Ingo Venzke, Oxford University Press, 2014]. 1 See M. Cappelletti, Giudici legislatori.
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How constitutional courts make decisions. Pasquino... · Page 3 3. How members of these Courts are appointed, for how long and with what qualifications3; 4. Why Constitutional/Supreme
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How constitutional courts make decisions.
pasquale pasquino, NYU – partial draft September 2016
Constitutional courts are institutions producing judge-made-law. [M. Cappelletti, Giudici
legislatori, Giuffrè, 1984]. Prima facie this form of making law – Rechtserzeugung, in Kelsenian
language – contradicts a classical basic tenet of any representative government (the political
regime we call nowadays democracy), a system characterized by the ideology claiming that
exclusively state organs appointed pro tempore, through popular elections and electorally
accountable to the voters, are the only ones authorized and have henceforth the authority of
imposing on citizens binding collective decisions, typically in the form of legal norms.
Members of these high courts are neither elected by the citizens nor accountable to them (in
general, moreover, they cannot be reappointed - there are, as usual, some exceptions) [Czech
Republic and ?]. Nonetheless, they make decisions that have to be obeyed by citizens and other
state organs exactly like statutes passed by elected and accountable officials in parliaments –
even though, which is a crucial point1, the procedure of judicial law-making is deeply different
from the one used by elected representative assemblies in Parteienstaaten, a political system
dominated by political parties.
This law-making function is clear in the case of Supreme and Constitutional courts but also and
more and more when we consider supra-national and international courts of justice.
Where does the legitimacy of these institutions and the obligatory force of their decisions come
from?
I focus here on the national apex courts of some European countries – since as a general rule I
believe that it is better for me to speak about what I know well. But I’m aware that there is some
new work concerning the legitimacy of international courts. I think for instance of the book co-
authored by Armin von Bogdandy [In Whose Name? A Public Law Theory of International
Adjudication, Armin von Bogdandy and Ingo Venzke, Oxford University Press, 2014].
1 See M. Cappelletti, Giudici legislatori.
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This question of the legitimacy of national apex courts as co-legislators is certainly relevant from
the perspective of my approach, which is the one typical of the theory of the state and
constitutions -- a discipline that lived its most glorious days in Germany and in France at the time
of the Weimarer Republik and the Third Republic and that is now threatened with extinction
because of the increasing and possibly inevitable division of academic labor between political
science and public law.
Be that as it may, rather than presenting the arguments that can demonstrate the legitimacy of
judicial review inside constitutional democracies (– we may come back to that topic in the
discussion if you want –) I will show the path that one should follow to answer this question,
before and independently of somewhat abstract philosophical arguments (that I have presented in
some previous papers: Straus papers/ and Russell Hardin Festschrift).
To begin with, one should notice that by legitimacy is not meant here just legality (the fact that
judicial review is written down in the constitution or firmly established as a constitutional
convention, as in America and in Israel) or even the sociological circumstance of acceptance by
the citizens/public opinion, but instead the rational arguments one can offer to establish why we
have good reasons to support this form of law making2. Now, in order to answer the question of
the legitimacy of contemporary judge-made-law, we need to consider a set of relatively complex
and connected questions in comparative perspective, something that cannot possibly be done by a
single person, but needs international cooperation (in the research that I present here I focus
essentially on the Constitutional Courts of three countries: France, Germany and Italy, which are
stable democracies and for which I know their language, constitutional history and political life).
The questions one has to investigate are, so it seems to me, the following:
1. What the Constitutional/Supreme Courts do;
2. How they do what they do – how they produce binding legal norms, called in different
languages: Entscheidungen, sentenze/ordinanze, décisions, opinions, etc.
But also:
2 In a stable democratic system. I need to draw attention to the fact that Constitutional/Supreme courts with the
function of constitutional adjudication exist nowadays in almost every political system in the world. But their actual
function in unstable democratic or in authoritarian regimes is a complex topic which is the subject of systematic
investigation only recently. See: Tom Ginsburg & Alberto Simpser, Constitutions in Authoritarian Regimes, CUP,
2013 and Sam Issacharoff, Fragile Democracies, CUP, 2015.
Contested Power in the Era of Constitutional Courts, CUP, 2015. {book on Russia and on Egypt}
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3. How members of these Courts are appointed, for how long and with what qualifications3;
4. Why Constitutional/Supreme Courts have been established (or accepted, as in the United
States and Israel) by the elected political actors4 and by public opinion;
and last, but not least
5. The conditions for success of their actions (first of all: the existence of an independent
judiciary).
Only if we have some clear ideas about this set of questions can we hope to answer in a
satisfactory way the question of the legitimacy of constitutional adjudication.
In this text I’ll spell out some partial answers to these questions, drawing attention in particular to
the first two points: What these Courts do and How they do what they do.
1. Constitutional Courts, so we are told, have the function to control the hierarchy of norms;
to interpret the constitution; and, if they work, to be an obstacle to the exercise ultra vires,
of the abuse of power by state organs.
The spatial metaphor that was developed at the beginning of the 20th
century by the Austrian
legal school, notably by Adolf Julius Merkl and Hans Kelsen – which is not identical to the
American supremacy clause, the equivalent of the German principle of the Weimar Constitution
Reichsrecht bricht Landesrecht – does not seem to say more than that in the rhetoric of judicial
review, the concept of a hierarchy of norms is and has to be systematically used to justify
constitutional adjudication. It would be much better and less misleading to connect judicial
review of primary legislation with the rigidity of the constitution [See Bryce5 and my paper in
Cardozo Law Review6 and
7], which represents the attempt to establish limited government in a
3 See: EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION), THE
COMPOSITION OF CONSTITUTIONAL COURTS, December 1997, CDL-STD(1997)020, Science and technique
of democracy, No. 20 4 On this topic see: T. Ginsburg, Judicial Review in New Democracies, CUP, 2003 and P. Pasquino and F. Billi
(eds.), The Political Origins of Constitutional Courts: Italy, Germany, France, Poland, Canada, United Kingdom,
Olivetti Foundation, 2009: http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3284&context=facpubs 5 J. Bryce, Flexible and Rigid Constitutions: https://archive.org/details/constitutions00brycgoog
For the Austrian federal court before the introduction of the Verfassungsgericht in 1920, see Charles Eisenmann,
(Preface byHans Kelsen, and Georges Vedel), La justice constitutionnelle et la haute Cour constitutionnelle
d’Autriche, Paris, Economica, coll. «Collection Droit public positif », 1986 [first edition, 1928]. 10
Haig Patapan, Judging Democracy: The New Politics of the High Court of Australia, CUP, 2000. 11
“The Origins of Judicial Review: A Plea for New Contexts,” Stanford Law Review, 49 (May1997), 1031-64. 12
Article 61 of the French Constitution writes:
“Institutional Acts [lois organiques], before their promulgation, Private Members' Bills mentioned in article 11
before they are submitted to referendum, and the rules of procedure of the Houses of Parliament shall, before coming
into force, be referred to the Constitutional Council, which shall rule on their conformity with the Constitution.
To the same end, Acts of Parliament may be referred to the Constitutional Council, before their promulgation, by the
President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate,
sixty Members of the National Assembly or sixty Senators.”
**
If the constitutional reform approved by the Parliament will be approved in Italy by the popular referendum in
November, there will also be in Italy the possibility of referral ex ante by members of the Parliament, but only and
exclusively for national electoral laws: {for Weiler}: Modifiche agli articoli 73 e 134 della Costituzione.
1. All'articolo 73 della Costituzione, il primo comma è sostituito dai seguenti: «Le leggi sono promulgate dal Presidente della Repubblica entro un mese dall'approvazione.
Le leggi che disciplinano l'elezione dei membri della Camera dei deputati e del Senato della Repubblica possono essere sottoposte, prima della
loro promulgazione, al giudizio preventivo di legittimità costituzionale da parte della Corte costituzionale, su ricorso motivato presentato da almeno un quarto dei componenti della Camera dei deputati o da almeno un terzo dei componenti del Senato della Repubblica entro dieci giorni
dall'approvazione della legge, prima dei quali la legge non può essere promulgata. La Corte costituzionale si pronuncia entro il termine di trenta
giorni e, fino ad allora, resta sospeso il termine per la promulgazione della legge. In caso di dichiarazione di illegittimità costituzionale, la legge
non può essere promulgata».
2. All'articolo 134 della Costituzione, dopo il primo comma è aggiunto il seguente:
«La Corte costituzionale giudica altresì della legittimità costituzionale delle leggi che disciplinano l'elezione dei membri della Camera dei deputati e del Senato della Repubblica ai sensi dell'articolo 73, secondo comma». 13
The book by Alec Stone on the French Constitutional Council, The birth of judicial politics in France: the
Constitutional Council in comparative perspective. New York: Oxford University Press, 1992, produced often within
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control ex ante, which was able to rescue the French myth of the loi expression de la volonté
générale.14
Notice that in this case the Constitutional Council (the French politicians still resist calling this
institution a ‘Court’) functions as an intermediary body (the expression was used by Montesquieu
speaking of the Parliaments of the ancien regime, actually the high courts of justice15
, and was
repeated by Alexander Hamilton in Paper 78 of the Federalist Papers) between the majority and
the minority in parliament at the very moment of the making of statute laws, when the bill is
passed by the majority, but not yet promulgated by the President of the Republic and published in
the Bulletin officiel. The Conseil Constitutionnel plays in that case the role of a balancing
mechanism between the party or coalition that wins the election and the loser(s), avoiding a case
where the relationship among them becomes one of all or nothing: all the power to the majority,
no power to the minorities. 16
Very important also in this first category of referrals is the one that occurs in the case of what we
can call conflict among the high state organs (Organstreit in German, conflitti di attribuzione in
Italian). Constitutional democracy (better état de droit constitutionnel, verfassungsmässiger
Rechtstaat) is a system of shared/divided power, not only vertically as in federal regimes, but also
horizontally among the different branches exercising political authority at the central level17
; if a
conflict emerges among them as to their respective competences (likewise in the case of conflicts
between regions, Länder, and the national government) meaning between the legislative and the
executive branches, etc., the only or at least the most sensible way to resolve the conflict is to
bring it to a Court. In these cases, the Constitutional Court works as the organ that has to keep the
balance among the different branches of political authority and protect the polyarchic/pluralistic
American academia the wrong impression that the French model is typically the European one; actually it is just
typical of France. 14
Since the constitution was, like the loi, an expression of the general will, the only possibility of controlling the loi,
the decision of the parliamentary majority, was to do it before it existed in the statute book, before its legal birth! 15
See the entry Parlement/Parlements by Rebecca Kingston: