The Model of Judicial Review and Its Implications

Abstract

In this Chapter the main features of judicial review in CEE are discussed and evaluated, in terms of three contentious oppositions: abstract versus concrete review; ex post versus ex ante review; and final versus overridable review. Regarding the first opposition, the choice of abstract review goes to the very heart of the legitimacy dilemma; a concrete review lends itself to the creation of various constraints, both of a rhetorical and institutional character, that minimise the legitimacy problem of constitutional courts. In turn, even if abstract review is adopted, there is no compelling reason to object strenuously to an ex ante review, even of a purely advisory character at the early stages of drafting a bill. Indeed, this may be a prudent way of saving legal and political resources by establishing an early warning system. Finally, the insistence on the finality of the decisions of constitutional courts reveals a misunderstanding of the nature of inter-institutional constitutional dialogue, which should be aimed at a reasoned deliberation over the most plausible articulation of vague constitutional mandates. In sum, the current system of judicial review as established in the post-Communist countries of CEE does much to magnify legitimacy problems, and little to minimise the potential for clashes with legislatures.