Abstract
Can elements of the “Constitution” be unconstitutional and what would be the legal consequences? Several courts have considered such hypotheses but few of them have nullified provisions pertaining to the formal constitution. Scholarly debates remain highly controversial and convincing explanations for one or another solution seem to be wanting.
This paper addresses the puzzle from both the point of view of legal theory and at the level of comparative constitutional law in the perspective of analytic normativism. It makes the claim that this approach allows to better analyse the underlying question as a problem of complex hierarchies, which can provide solutions to cases in legal orders as different as Austria, France, Germany or Israel.
Traditionally, the constitution is seen as one bloc on top of the legal system. But what this means remains often mysterious or unclear. If there could be something above this highest element, it could be considered from a moral perspective or in line with legal realism, a mere question of case-law.
According to the conception set forth here, whether different levels of legal norms exist and what normative relations apply between them, is a question of positive law. Hence there may be several layers above what is usually considered primary legislation, if there are several legal forms, differentiated by their mode of production. The truly difficult problem, then, is to find out whether these differences are related to organized derogatory superiority, such that lower deficient norms can be nullified. Such structures appear more and more frequently in contemporary law. To better grasp this, we use the concept ofnon-equivalent polymorphism.
The problem of whether courts are competent to annul lower level constitutional provisions is presently not explicitly settled in formal constitutions. It can—and should—nonetheless be solved through means of constitutional interpretation.
Zusammenfassung
Können Elemente der Verfassung verfassungswidrig sein? Und was wären die rechtlichen Folgen? Einige Gerichtshöfe haben sich mit solchen Hypothesen befasst, aber nur wenige haben bisher Verfassungsbestimmungen wirklich aufgehoben. Die akademische Debatte hierzu bleibt hoch kontroversiell und überzeugende Erklärungen für die eine oder die andere Lösung werden weiterhin gesucht.
Dieser Beitrag versucht eine Analyse sowohl vom Standpunkt der Rechtstheorie als auch des Verfassungsvergleichs aus der Perspektive des Analytischen Normativismus. Er behauptet, dass diese Perspektive eine bessere Analyse der zugrunde liegenden Fragen wie der nach komplexen Normenhierachien erlaubt, und Lösungsmöglichkeiten für verschieden gelagerte Fälle wie die von Österreich, Frankreich, Deutschland oder Israel biete.
Üblicherweise wird die Verfassung als ein Block an der Spitze der Rechtsordnung wahrgenommen. Was dies konkret bedeutet, bleibt aber oft rätselhaft oder unklar. Wenn etwas über diesem höchsten Element existieren würde, könnte dies einerseits von einer moralischen Warte betrachtet werden, andererseits den Prinzipien eines rechtlichen Realismus folgend, also als reine Frage des case-law.
Der hier vorgestellte Ansatz, zu fragen, ob es verschiedene Ebenen von Normen gibt und welche normativen Beziehungen zwischen ihnen existieren, ist im Prinzip ein Rechtspositivistischer: Es können mehrere Schichten oberhalb dessen liegen, was gemeinhin als Primärrecht verstanden wird, wenn Gesetze verschiedene Entstehungsbedingungen aufweisen. Das schwierigste Problem ist dann, zu erkennen, ob diese Unterschiede unterschiedliche derogatorische Kraft bewirken, die eine Annullierung fehlerhafter Gesetze auf niedrigerer Ebene erlaubt. Solche Strukturen finden sich im zeitgenössischen Recht immer häufiger, und um sie besser zu beschreiben, verwenden wir das Konzept desNicht-äquivalenten Polymorphismus.
Die Frage, ob und inwieweit Gerichte die Kompetenz haben, Verfassungsbestimmungen auf niedriger Ebene zu annullieren ist derzeit in Verfassungen nicht geregelt. Sie kann – und sollte – nichtsdestoweniger durch Methoden der Verfassungsinterpretation beantwortet werden.
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Notes
G 12/00-17, Official collection [Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes] VfSlg 16.327/2001.
The Czech constitutional Court followed with a decision Pl. ÚS 27/09 from 10 September 2009 (Official collection 318/2009), annulling the constitutional Act no. 195/2009 Coll., on Shortening the Fifth Term of Office of the Chamber of Deputies. Here, the argument runs as follows: the constitutional Act in question is not constitutional in nature, because it is an ‘individual, specific decision.’ The Art 9 para 2 of the Constitution, pursuant to which ‘any changes in the essential requirements for a democratic state governed by the rule of law are impermissible’ excludes such acts: ‘If the Constitutional Court is forced to answer the question of whether Art 9 par. 1 of the Constitution also authorizes Parliament to issue individual legal acts in the form of constitutional acts (eg to issue criminal verdicts against specific persons for specific actions, to issue administrative decisions on expropriation, to shorten the term of office of a particular official of a state body, etc), the answer is—no!’. In both cases, the normative reason alleged to make the challenged amendment unconstitutional is the “Rule of law”. The mechanisms are however, quite different. In the Austrian case, the Rule of law is one of the principles, stated by the case-law of the Court, which can only be modified by “total revision” of the constitution; in the Czech case, the Rule of law ought to govern the democratic state and cannot be modified by whatever procedure. Both cases lead to several puzzles. In the Austrian case, the question might be why acts in force on a certain date, ie 1st of January 2001, should be unconstitutional just because they are not explicitly mentioned, but generally referred to by their common date of validity and limited to a one certain domain. In the Czech case, one might wonder why the modification of the date of elections by a constitutional act, hence adopted by a qualified majority, should be contrary to the principles of democracy under the rule of law. Shortening the terms of a legislature gives the citizens the right to express their choice more often, thus it seems perfectly in line with the requirements of democracy. It is also questionable whether this can be qualified as an individual act as all citizens generally are concerned. It may also be considered problematic, that the “Rule of law” requires that constitutional acts may not state on particular issues. Art 106 para 1 of the Constitution states, for instance, that the term of the first Czech House of Deputes ends on 6th of June 1996. This is obviously as particular an issue as the one the annulled act was concerned with. We shall revert to the structural problems of these decisions in the last section of this paper.
The German Federal Constitutional Court shaped its doctrine in several steps. First and very soon, the GFCC recognised the ‘existence of superpositive law, binding for the constitutional legislator himself, the Court being competent to review positive law with reference to its exigencies’, such that ‘[a] norm of a Constitution can be null and void, if it infringes in a strictly inacceptable measure fundamental postulates of Justice pertaining to the Constitution itself’ (BVerfGE 1, 14, 23.10.1951). According to this statement, there may be a reason for review of constitutional provisions both for a contradiction with “superpositive” norms and principles of the Constitution itself. This position is ambiguous. It is not clear to what extent it considers that there can be constitutional norms, which would have to be considered unconstitutional and hence annulled. It says, however, very clearly that the Court has competence to review provisions of the Constitution itself.
In a second step, with its judgement from 18th December 1953 (BVerfGE 3, 225), the Court considered, that even provisions of the native Constitution could possibly be unconstitutional in exceptional cases if contrary to principles of Justice, but that this was not the case with a provision limiting the equality of man and woman until a certain date.
In a third and perhaps the most relevant case as of today, the Court introduced the idea that the absolute limits to constitutional change set by art 79, par. 3 of the German Constitution were not absolute. In the Interception-decision from 7th July 1970 (BVerfGE 30, 1), the Court states that “Art 79 (3) GG prohibits a total surrender of the principles mentioned in this provision, but does not prevent a modification of the highest constitutional principles through a Law amending the Constitution if this is done in due respect of the system of the Constitution”. Pursuant to the revision of article 10, paragraph 2, second sentence and article 19, paragraph 4, fourth sentence of theGrundgesetz, the Court accepted a request aiming at reviewing the constitutionality of the constitutional amendments and stated that the eternity clause did in fact not prevent any modification of the substance of the principles the modification of which is prohibited, but only such a modification, that would totally destroy its very essence. The eternity clause, which limits the revision of the Constitution, is thus considered as flexible within certain limits, without the Court giving any precise as to what these limits would exactly consist of, except that it has competence to set those limitsad hoc.
In its famous decision 1146, from 15th December 1988, the Italian Constitutional Court stated that it had competence to review constitutional amendments, because otherwise ‘…there would be a perversion into absurdity of the system of jurisdictional guarantees of the Constitution as defective and inefficient precisely in relation to its norms of highest value’. In substance, the decision argues that the limits to the amending power were not only those explicitly mentioned in the text of the Constitution (as art 139, relating to the republican form of government), but also ‘…the supreme principles of the constitutional order’ and ‘the inalienable rights of the human person’.
The Supreme Court invented a “basic structure” in theKesavananda Bharati case (1973 [4] SCC 225 ff) and again inMinerva Mills Ltd. v Union of India (1980 [3] SCC 625). Another example is the IsraeliMigdal case (Mizrahi Bank v. Migdal Cooperative Village 49[4] P.D.221 [1995]), through which the Supreme Court introduced both formal constitutional law and supraconstitutional principles.
Briefly stated, we share the view ofGeorg Henrik von Wright concerning the nature of conflicts of norms as presented in his paper “Is There a Logic of Norms?”, in Ratio Juris 1991, 2653. Contrary to the traditional opinion according to which Law is by its very essence rational and hence excludes the very possibility of true contradictions between norms (a view still held byKelsen in the first edition of his Pure Theory of Law [Hans Kelsen, Reine Rechtslehre (1934) 31] and in another version in the second edition [1960, 211]: ‘If neither the first, nor the second interpretation is possible [ie discretion to chose between one of two contradictory exigencies or partial derogation, O.P.], the legislator prescribes something meaningless, ie there is a meaningless act of norm-setting and hence no act, the subjective meaning of which could be interpreted as its objective meaning and thus there is no norm at all …’ [my translation]),Kelsen develops in his later work an argument according to which there are strictly no logical relations between norms, hence conflicting exigencies can only be solved, if ever, through other legal norms (Hans Kelsen, Allgemeine Theorie der Normen [1979] 166 et seqq). Integrating this insight,von Wright developed the highly useful concept of “deontic inconsistency” in case the intended behaviour of at least two valid norms cannot be performed simultaneously. He agrees withKelsen that such cases are solvable (meaning one or the other requirement prevails such that one action can be performed according to valid norms) only within the relevant normative setting. On this point see alsoOtto Pfersmann, Review of the French translation of Hans Kelsen’s Allgemeine Theorie der Normen, Théorie générale des normes, Presses Universitaires de France 1996 in Droits 1997, 197; andOtto Pfersmann, Antinomies, in Rials/Alland (eds), Dictionnaire de la culture juridique (2003) 67.
The literature and debate on positivism fills many libraries and it is not our purpose to tediously recite an old and long story—even though it is in fact much less well known than one may suspect—but to shortly state those elements, which are relevant for our debate. Cf for a more detailed analysis of the positivist ontology of legal normsOtto Pfersmann, Pour une typologie modale de classes de validité normative, in Petit (ed.), La querelle des normes—Festschrift for Georg Henrik von Wright, Cahiers de philosophie politique et juridique de l‘Université de Caen, no 27 (1995) 69;Otto Pfersmann, La production des normes: production normative et hiérarchie des normes, to appear in Troper/Chagnollaud (eds), Traité international de droit constitutionnel.
The so called sanction-theory of law gave way to many misunderstandings.Hart attacked it as a form of psychologism unable to account for the normativity of law and as repressive conception of law, unfit to explain its social function. These criticisms are certainly relevant with respect toAustin, but unfounded with respect to normativism, set apart the fact the arguments aiming at criticising this latter approach are themselves psychologistic as I try to argue in “Pour une typologie modale” (Fn 7).
Most objectors to positivism consider this its main disadvantage. They claim that law is either intrinsically moral or that it may at least include morals. According to normativist positivism, the exclusion of morals from law is on the contrary one of its main advantages. It first allows to clearly and neutrally analyse normative systems of a different nature and has thus a scientific advantage (whereas most anti-positivists claim, on the contrary, that legal knowledge is never neutral, but always value-laden, a claim by which, again, anti-positivists try to conflate morals, politics and law into one undistinguishable bouillon). It secondly allows to take an external and axiological position about law from a moral perspective and has thus an advantage in terms of moral philosophy. In other words, according to positivism, anti-positivism is disastrous for moral philosophy.
Some realists—notablyMichel Troper—claim to surmount the difficulty in stating that a judge sets its own competences at the same time at which he determines the law by settling the case. But can one know, that someone who claims to have a certain jurisdiction has a certain jurisdiction? The problem with such positions is that they are much less sociologically neutral than they claim to be. In fact, realist theories mainly amount to saying that when someone who is a judge according to the criteria of a given set of norms, claims to have competences which are not provided for by the relevant norms, than this judge would nevertheless have these competences, because this is “what really happens”. It might very well be that such claims really happen, but such facts don’t endorse the theory, which rests on an inconsistent reference to the legal system considered normatively, mixed with the idea that everything judicial is in and off itself legal. Contrary to its claim to be a “critical” theory, legal realism in such cases simply uncritically promotes whatever judges do. This may be perfectly all right, if it were declared as such or if it were the outcome of a truly empirical sociology of power games, it seems less all right, when it purports, on one side, to state what the law truly is, while making on the other side at the same time the claim, that the investigation covers only factual phenomena. Concerning this debate, seeOtto Pfersmann, Contre le néo-réalisme. Pour un débat sur l’interprétation, Revue Française de Droit Constitutionnel No 50 (2002) 279 and No 52 (2002) 789.
For a detailed account on this topic, seePfersmann, Production des normes (Fn 7) andOtto Pfersmann, Carré de Malberg et la “hiérarchie des normes”, Revue Française de Droit Constitutionnel No 31 (1997) 481 as well asOtto Pfersmann, Hiérarchie des normes, in Rials/Alland (eds), Dictionnaire de la culture juridique (2003) 779. The theory of dynamic or “hierarchized” normative systems is often presented in a simplified way, neglecting its essential elements, ie the distinction between validity and conformity, the paradox of concretisation and the calculus of deficiencies (the legal consequences of there being a deficient, but valid norm).
When a constitutional provision states that some legal act bearing certain deficiencies is not “valid”, it usually does not mean that this act is not valid, but that it can be deprived of validity by the competent jurisdiction. A typical case is provided by the Constitution of Japan, which states in its article 98 ‘This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity’, a provision, which seems to directly deprive unconstitutional acts from any legal existence. But article 81 of the same Constitution attributes to the Supreme Court the competence ‘…to determine the constitutionality of any law, order, regulation or official act’, which supposes on the contrary the existence of unconstitutional acts, otherwise they could not reviewed.
It may of course be that formal constitutional law requires formal constitutional norms to get explicitly qualified as “constitutional”, as in Austria (Art 44 para 1 B-VG).
A famous example of such conceptions isCarl Schmitt’s constitutional theory, which qualified norms contradicting the Constitution, even though they were enacted as constitutional provisions, as “Breaches through the Constitution” (Verfassungsdurchbrechungen) (Carl Schmitt, Verfassungslehre [1928] 99 et seqq). These merely ideological considerations had a deep impact on the founders of the Republic of Bonn: the new German Constitution prohibits constitutional revisions outside the text of theGrundgesetz (Art 79 para 1).
See articles 138–140 of the Swiss Constitution of 1875, becoming articles 192–195 of the present Swiss Constitution of 1999, the main difference being the addition of the requirement to respectius cogens.
See articles 44–46 of the Federal Constitutional Law [B-VG]:
‘Art 44. (1) Constitutional laws or constitutional provisions contained in ordinary laws can be passed by the National Council only in the presence of at least half the members and by a two thirds majority of the votes cast; they shall be explicitly specified as such (“constitutional law”, “constitutional provision”).
(2) Constitutional laws or constitutional provisions contained in simple laws restricting the competence of the Länder in legislation or execution require furthermore the approval of the Federal Council, which must be imparted in the presence of at least half the members and by a two thirds majority of the votes cast.
(3) Any total revision of the Federal Constitution shall upon conclusion of the procedure pursuant to Art 42 above, but before its authentication by the Federal President, be submitted to a referendum by all federal citizens, whereas any partial revision requires this only if one third of the members of the National Council or the Federal Council so demands.
Art 45. (1) For a referendum the absolute majority of the validly cast votes is decisive.
(2) The result of a referendum shall be officially published.’
Polymorphism extends also to this other provision, contained in art 35 par 4 B-VG, concerning the modification of the competencies of the Länder:
‘(4) The provisions of Arts 34 and 35 can only be amended—apart from the majority of votes requisite in general to the adoption of a resolution there—if in the Federal Council the majority of the representatives from at least four Länder has approved the amendment.’
The Austrian and the German cases are discussed inOtto Pfersmann, La révision constitutionnelle en Autriche et en Allemagne: théorie, pratique et limites, in Favoreu/Pfersmann (eds), La Révision de la Constitution (1993) 7.
See articles 166–169 of the Spanish Constitution.
Law of the 14th of August 1884 revising the constitutional laws.
Art 2 para 3 of art 8 of the same law from 25th February 1875 is completed as follows: ‘The republican form of government cannot be the object of a revision. …’
The same provision remains in art 89 para 5 of the Constitution of 1958.
Art 79 (3) ‘Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.’
See art 139 of the Italian Constitution: ‘The republican form cannot be the object of a revision of the Constitution’.
See art 288 of the Portuguese Constitution:
‘Matters in which revision shall be restricted
Constitutional revision laws shall respect:
a) National independence and the unity of the state;
b) The republican form of government;
c) The separation between church and state;
d) Citizens’ rights, freedoms and guarantees;
e) The rights of workers, workers’ committees and trade unions;
f) The coexistence of the public, private and cooperative and social sectors in relation to the ownership of the means of production;
g) The requirement for economic plans, which shall exist within the framework of a mixed economy;
h) The elected appointment of the officeholders of the bodies that exercise sovereign power, of the bodies of the autonomous regions and of local government bodies by universal, direct, secret and periodic suffrage; and the proportional representation system;
i) Plural expression and political organisation, including political parties, and the right to democratic opposition;
j) The separation and interdependence of the bodies that exercise sovereign power;
l) The subjection of legal rules to a review of their positive constitutionality and of their unconstitutionality by omission;
m) The independence of the courts;
n) The autonomy of local authorities;
o) The political and administrative autonomy of the Azores and Madeira archipelagos.’
The Constitutional Court annulled (in its decision 148, 16th April 2003) certain provisions of the proposition to revise the Constitution as contrary to the limitations of the competence to modify the Constitution according to art 148 para 2. In a later decision (686, 30th September 2003), the Court states, that its competence is limited toa priori review.
Nonetheless, the Supreme Court invented a “basic structure” in theKesavananda Bharati case (Fn 5) and again inMinerva Mills Ltd. v Union of India (Fn 5).
For a detailed account, seePfersmann, Contre le néo-réalisme (Fn 10).
At the opposite of legal realism we find moral realism. Moral realism supposes the existence of moral entities. Again, it is not our concern here to discuss moral theory. The example may just point at a difficulty. The theory is contradictory: it wants to havemorals prevail, but how does the court know any better than anyone what morals is? And what if the court did not make morals (but say, something immoral) prevail (if he knew, let us admit, what morals is; ie why should a court be any better than any other human being or collective body of human beings)?
This is the well known position ofRonald Dworkin, especially in his Freedom’s Law: The Moral Reading of the American Constitution (1996). Political and moral conceptions are held by several authors in American scholarship (egThurgood Marshall, Reflections on the Bicentennial of the United States Constitution, Harv Law Rev 1987, 1; again under the title “The Constitution: a Living Document”, in Marshall/Smith (eds), Supreme Justice: Speeches and Writings [2003] 281;Paul Brest, The Misconceived Quest for the Original Understanding, Boston U Law Rev 1980, 171;William Brennnan Jr., The Constitution of the United States: Contemporary Ratification, in Rakove [ed], The Debate over Original Intent [1990] 23;Mark Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, Harv Law Rev 1983, 781 [793-804];Michel Rosenfeld, Just Interpretations Law between Ethics and Politics [1998]). There are several reasons for this development: a confusion between the analysis of meaning and the quest for a “good” or “just” decision; the high degree of rigidity of the American amending procedure, a conception of law as competitive adjudication where judges have to be convinced in terms of moral rhetoric rather than science may trigger a lot of scholarship. On the other hand, political conceptions considering it desirable to revert to same previous state of the law or take a “textualist” or “originalist” position which better fits their preferences (seeRobert Bork, Neutral Principles and Some First Amendment Problems, Ind L J 1971, 1, again in Rakove [ed], The Debate over Original Intent [1990] 197;Robert Bork, The Tempting of America: The Political Seduction of the Law [1990];Antonin Scalia/Amy Gutmann, A Matter of Interpretation [1997]). It may of course be and it seems highly plausible that a politically conservative lawyer will choose a theory that makes his choices appear to fit the constitution as it is, but from this it does of course not follow the elements of semantic analysis contained in certain “originalist” or “textualist” positions would be per se ideologically conservative.
This point is extensively developed inOtto Pfersmann, De l’impossibilité du changement de sens de la constitution, in Mélanges Pierre Pactet (2003) 353.
This point is discussed inOtto Pfersmann, Le sophisme onomastique. A propos de l’interprétation de la constitution, i: Melun Soucramamien (ed), L’interprétation constitutionnelle (2005) 33. For instance “purposive interpretation” as favoured by Aharon Barak (Aharon Barak, Purposive Interpretation in Law [2007]) is not interpretation in the meaning here adopted, but a strategy of modification of the once interpreted norm-formulation.
We thus strictly resist the famous Dworkinian idea of a “right answer”, let alone of only right answer. It may, to some, appear unfortunate that cases might yield a whole range of right answers, but this is an inevitable property of legal systems, where legislative norms are formulated at a certain level of generality and abstractness and imply thus a certain array of indeterminacy. This is of course not the place to indulge into this already old debate on which I presented my own position inOtto Pfersmann, Ontologie des normes juridiques et argumentation, in Pfersmann/Timsit (eds), Raisonenment juridique et interpretation (2001) 11.
In a well documented study,Kemal Gözler proposes a negativist approach: if nothing is explicit stated, then nothing exists. From this premise, he draws the conclusion that there is a review of amendments only in Chile and Romania, where it restricted to procedural questions study (Kemal Gözler, Judicial Review of Constitutional Amendments: A Comparative Study [2008]). This position seems too narrow for the reasons developed in Section V: many things are indirectly explicit, ie they are contained in the meaning of the norm-formulation, accessible through interpretation.
According toAnne Peters/Isabella Pagotto, Das Verhältnis von Völkerrecht und Landesrecht in der Schweiz, ius.full: Forum für juristische Bildung 2004, 54,ius cogens (ie the “imperative rules of Public international law”) prevail strictly against internal legal norms, including the Federal constitution. It would follow that the Federal council has to stop any popular initiative aiming at introducing constitutional norms violatingius cogens. But this supposes precisely the solution to the problem of the relation between production and derogation. And as derogation is generally weak in the Swiss constitutional order, there is no sufficient reason to consider otherwise regarding the problem of constitutional norms, which would be hp-unconstitutional because they would be contrary toius cogens. Interestingly the Federal court has made the law of the ECHR prevail against federal legislation in a particular instance (BGE 125 II 417, S. 424 E. 4.c. [1999]—PKK). But this proves only that it happened in one particular case, not that the Constitution has organised certain principles of review or that there would be anipso facto prevalence.
Art I of the Declaration of Independence, Official Gazette [BGBl] No 1/1945.
The justification of the decision seems to have largely been inspired by an article of the former member of the Council Georges Vedel, Schengen et Maastricht, Revue Française de Droit Adminstratif 1992, 173. This reference is misleading, becauseVedel was addressing the question of the legitimacy of the constitutional judge against the “revision power” and not the problem of the relation of a constitutional revision to higher constitutional principles.Olivier Dutheillet de Lamothe, sitting at the time of the decision develops a similar argument, quotingVedel, in defence of the Council’s decision (Olivier Dutheillet de Lamothe, L’autorité de l’interprétation constitutionnelle, in Melun Soucramamien (ed), L’interprétation constitutionnelle [2005] 193). It is exactly the same argument, which one can find in the official commentary of its own decision by the Council itself, accessible online at < conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/2003-469DC-ccc_469dc.pdf >.
Journal Officiel de la République Française, 05.10.1958, 9151.
CA 6821/93, 1908/94, 3363/94.
HCJ 6801/93Bank Mizrahi vs. Migdal Cooperative Village, 254, JusticeBarak: “Under this view, constitutional silence requires judicial review and authorizes the Court to declare unconstitutional legislation void”.
The literature on the constitutional revolution is already very numerous. See egAharon Barak, Constitutional Revolution: Israel’s Basic Laws, Forum Constitutionnel 1992–1993, 83; same author, The Constitutionalization of the Israeli Legal System as Result of the Basic Laws and its Effect on Procedural and Substantive Criminal Law, Israel Law Review 1997, 3;Yoseph Edrey, The Israeli Constitutional Revolution/Evolution, Models of Constitutions, and a Lesson from Mistakes and Achievements, AJCL 2005, 77;Claude Klein, A New Era in Israel’s Constitutional Law, Israel Law Review 1971, 376; same author, Basic Laws, Constituent Power and Judicial Review of Statutes in Israel, Eur Publ Law 1996, 225 (228 f); (from a political science perspective:)Ran Hirschl, Israel’s ‘Constitutional Revolution’: The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order, AJCL 1998, 427;Doron Navot/Yoav Peled, Towards a Constitutional Counter-Revolution in Israel?, Constellations 2009, 429.
On the conceptual, logical and semantic difference between opinion and decision seeOtto Pfersmann, Concrete Review as indirect constitutional complaint in French Constitutional Law in Comparative Perspective, EuConst 2010, 223.
See for instance HCJ 2605/05Academic Center of Law and Business v. Minister of Finance.
I have termed these structuresgnoseopoietic paradoxes inOtto Pfersmann, The Only Constitution and Its Many Enemies, in Sajó/Uitz (eds), Constitutional Topography: Values and Constitutions, (2010) 45; as well as inPfersmann, La production des norms (Fn 7). In a revolutionary situation, which extends over an indeterminate time interval, scholarly as well judicial opinions may be revolutionary or counter-revolutionary whatever their intentions, because within the interval of indeterminacy as to the issue of the revolution any opinion can be in contradiction with legal reality.
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Pfersmann, O. Unconstitutional constitutional amendments: a normativist approach. Z öffentl Recht 67, 81–113 (2012). https://doi.org/10.1007/s00708-012-0130-x
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DOI: https://doi.org/10.1007/s00708-012-0130-x