Abstract
As elsewhere, in CEE constitutional courts face an acute legitimacy problem. This chapter begins by outlining the contours of the problem, focusing on what is at stake in the controversy over the legitimacy of judicial review, namely: the perception of the objectivity of ascertaining the “true” meaning of constitutional norms, and the decision as to the best possible institutional devices in terms of gaining access to that objectively valid meaning. But there is a certain paradox faced by constitutional courts: their best means of defending their legitimacy to articulate the constitutional norms lies in conceiving themselves as quasi-legislative institutions, a characterisation that the courts strenuously resist. The chapter reviews the reasons provided in support of the introduction of an abstract/concentrated (“Kelsenian”) system of judicial review in the post-Communist states of CEE, and traces the legitimacy dilemma to the insufficiency of these grounds to supply convincing arguments in favour of such a system. One rationale stands apart from the others: the suggestion that constitutional courts as set up in CEE are protectors of minorities and minority rights. But practice shows that these courts are not necessarily better protectors of minority rights than other political institutions.
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Notes
- 1.
By “quasi guardians” Dahl means the officials charged with the protection of fundamental rights and interests who are not themselves democratically controlled – such as the judges endowed with the power to declare legislation unconstitutional.
- 2.
Robert A. Dahl, Democracy and Its Critics (Yale University Press: New Haven, 1989) at 188.
- 3.
Alec Stone Sweet, “Constitutional Courts”, in Michel Rosenfeld and Andras Sajó, eds., The Oxford Handbook of Comparative Constitutional Law (Oxford University Press: Oxford 2012): 816–30 at p. 828.
- 4.
Michael S. Moore, “Law as a Functional Kind”, in Robert P. George, ed., Natural Law Theory: Contemporary Essays (Oxford University Press: Oxford, 1992): 188–242 at 229.
- 5.
Id. 229.
- 6.
Id. 228.
- 7.
The 1997 Constitution provided a two-year transitional period during which the decisions of the Constitutional Tribunal on the unconstitutionality of laws enacted under the old Constitution could be overridden by parliament; this possibility expired definitively on 17 October 1999.
- 8.
Marek Safjan, “Epitafium dla nieostatecznych orzeczeĔ”, Rzeczpospolita (Warsaw) 4 October 1999 at C-2.
- 9.
Elsewhere, but still in the context of the same debate, Chief Justice Safjan claimed that the decisions of the Constitutional Tribunal conclusively put an end to emotional and politically charged debates “by appealing to objectified legal reasons, not to political criteria”, Marek Safjan, “Sąd ostateczny”, Wprost 17 October 1999 at 8 (emphasis added).
- 10.
Quoted by Robert Alexy in “Constitutional Rights, Balancing, and Rationality”, Ratio Juris 16 (2003): 131–40 at 133.
- 11.
James L. Gibson, Gregory A. Caldeira & Vanessa A. Baird, “On the Legitimacy of National High Courts”, American Political Science Review 92 (1998): 343–58 at 344–45.
- 12.
Id. at 345, emphasis added.
- 13.
Id. at 345.
- 14.
See e.g. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press: Cambridge Mass., 1980): 135–79.
- 15.
See Jeremy Waldron, “Precommitment and Disagreement”, in Larry Alexander, ed., Constitutionalism: Philosophical Foundations (Cambridge University Press: Cambridge, 1998): 271–99 at 280–81.
- 16.
For an impressive statement and elaboration of the “comparative institutional” thesis, see in particular Neil K. Komesar, Imperfect Alternatives (The University of Chicago Press: Chicago, 1994).
- 17.
There are also significant cultural factors, eg, the dominant social expectations concerning certain types of people who are encouraged to stand for election, or to apply for nomination to certain bodies. These cultural expectations are of course, themselves, partly determined by institutional factors (for example, by the procedures and formal criteria for election or nomination).
- 18.
Philip Pettit, Republicanism (Oxford University Press: Oxford, 1997): 215–30.
- 19.
See Jon Elster, “Majority Rule and Individual Rights”, in Stephen Shute and Susan Hurley (eds.), On Human Rights (Basic Books: New York, 1993): 175–216 at 179–80, 192–93.
- 20.
See Jeremy Waldron, Liberal Rights (Cambridge University Press: Cambridge, 1993): 392–421.
- 21.
Often this is the only sense in which “legitimacy” is used, especially when legitimacy of constitutional (and other) courts is discussed by political scientists; see, e.g., Gibson et al., supra note 11.
- 22.
Bruce Ackerman, The Future of Liberal Revolution (Yale University Press: New Haven, 1992) at 109. Note that this is Ackerman’s wording, not Sólyom’s.
- 23.
Id. at 143 n. 21.
- 24.
See Waldron, supra note 15 at 272–73.
- 25.
Id. at 273.
- 26.
Martin Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press: Chicago, 1981).
- 27.
Id., chapter 1.
- 28.
Id. at 8.
- 29.
Id. at 1.
- 30.
Id. at 8.
- 31.
Jürgen Habermas, Between Facts and Norms, trans. William Rehg (Polity Press: Cambridge, 1996) at 262, emphasis in original.
- 32.
As is the case, e.g., in Poland and Hungary.
- 33.
As is the case in all other CEE countries, with the exception of Estonia. For a discussion of the selection of judges, see Sect. 1.3.
- 34.
For a similar argument with respect to the Supreme Court of the United States, see Christopher L. Eisgruber, Constitutional Self-Government (Harvard University Press: Cambridge Mass., 2001) at 64–66.
- 35.
For such a conception of the role of the Supreme Court of the United States, see Richard H. Fallon, “The Supreme Court, 1996 Term – Foreword: Implementing the Constitution”, Harvard Law Review 111 (1997): 54–152 at 144–145.
- 36.
Id. at 145, footnotes omitted, emphasis in the original.
- 37.
See, generally, Wojciech Sadurski, “Conventional Morality and Judicial Standards”, Virginia Law Review 73 (1987): 339–97.
- 38.
Burt Neuborne, “Judicial Review and Separation of Powers in France and the United States”, N.Y.U. Law Review 57 (1982): 363–442 at 368.
- 39.
Part 7 of the Constitution of the Slovak Republic.
- 40.
Art. 124 of the Constitution of the Slovak Republic.
- 41.
See Zdzislaw Czeszejko-Sochacki, Leszek Garlicki & Janusz Trzcinski, Komentarz do Ustawy o Trybunale Konstytucyjnym (Wydawnictwo Sejmowe: Warszawa, 1999) at 8, who state that, in Poland, the majority of authors consider the Constitutional Tribunal as belonging to the judicial branch.
- 42.
Leszek Garlicki, ed., Konstytucja Rzeczypospolitej Polskiej: Komentarz (Wydawnictwo Sejmowe: Warszawa, 1999) (loose-leaf edition), Chap. 8 at 10.
- 43.
Owen Fiss, “Judiciary Panel: Introductory Remarks”, 19 Yale J. Int. L. (1994): 219–221 at 220.
- 44.
Ruti Teitel, “Post-Communist Constitutionalism: A Transitional Perspective”, Columbia Human Rights Law Review 26 (1994): 167–190 at 178.
- 45.
Ruti Teitel, “Transitional Jurisprudence: The Role of Law in Political Transformation”, Yale Law Journal 106 (1997): 2009–2080 at 2033 (footnote omitted).
- 46.
“Kelsenian” is herein used as a short-hand to describe the Continental model of abstract and centralised review. I am however conscious that the model that emerged in Europe after the Second World War, in particular in Germany, but also in Italy, Spain, France etc, is not a purely “Kelsenian” model, because it envisaged, among other things, a rights-based scrutiny of constitutionality of laws, and contained important elements of “positive” legislation. In both these respects, Hans Kelsen expressed the opposite views when he advocated the establishment of the constitutional court in Austria.
- 47.
Under the 1975 Constitution of Greece (art. 95), all courts have the power not to apply legal provisions that they consider to be contrary to the Constitution. A diffuse system exists also to a certain degree in Switzerland (although only the laws of the Cantons, not the federal ones, can be judicially reviewed) and in Portugal.
- 48.
Allan Randolph Brewer-Carías, Judicial Review in Comparative Law (Cambridge University Press: Cambridge, 1989) at 128–131.
- 49.
See Alec Stone Sweet, Governing with Judges (Oxford University Press: Oxford, 2000) at 120–21.
- 50.
More on this in Sect. 1.4.
- 51.
Wiktor Osiatynski, “Paradoxes of Constitutional Borrowing”, I.CON 1 (2003): 244–68 at 260.
- 52.
See Ackerman, supra note 22 at 108–9.
- 53.
Bruce Ackerman, “The Rise of World Constitutionalism”, Virginia Law Review 83 (1997): 771–797 at 776.
- 54.
The United Kingdom and the Netherlands have no judicial constitutional review at all, while Denmark, Ireland, Greece and Sweden have adopted systems bearing resemblance to the US-style model of decentralised judicial review.
- 55.
Louis Favoreu, “American and European Models of Constitutional Justice”, in David S. Clark, ed., Comparative and Private International Law: Essays in Honor of John Henry Merryman on His Seventieth Birthday (Duncker u. Humblot: Berlin, 1990), p. 110.
- 56.
See, e.g., John Ferejohn & Pasquale Pasquino, “Constitutional Courts as Deliberative Institutions: Towards an Institutional Theory of Constitutional Justice” in Wojciech Sadurski, ed., Constitutional Justice, East and West (Kluwer Law International: The Hague, 2002): 21–36 at 31. A leading Russian constitutional expert used a similar argument when explaining to me why the decentralised system of review would not work in Russia: the majority of judges, he asserted, are old-fashioned and simply “do not know how to apply the Constitution”. Interview with Professor Boris A. Strashun, of the Center for Analysis of Constitutional Justice at the Constitutional Court of the Russian Federation, Moscow, 19 November 2001.
- 57.
Personal conversation with a judge of the Polish Supreme Court, 16 July 2002.
- 58.
Teitel, supra note 45 at 2032.
- 59.
Stone Sweet, supra note 49 at 37; see also Stephen M. Griffin, American Constitutionalism (Princeton University Press: Princeton, 1996) at 121.
- 60.
See, e.g., Andrzej Wasilewski, “Przedstawianie pytan prawnych Trybunalowi Konstytucyjnemu przez sądy (art. 193 Konstytucji RP)”, Panstwo i Prawo 54:8 (1999): 25–39 at 29; Anna M. Ludwikowska, Sądownictwo konstytucyjne w Europie Srodkowo-Wschodniej w okresie przeksztalcen demokratycznych (TNOiK: Torun, 1997) at 21.
- 61.
On “new constitutionalism” in Europe, contrasted to pre-World War II European constitutionalism, see Stone Sweet, supra note 49 at 31 and 37–8.
- 62.
Interview with Professor Boris A. Strashun, of the Centre for Analysis of Constitutional Justice at the Constitutional Court of the Russian Federation, Moscow, 19 November 200.
- 63.
This is not merely a theoretical possibility. Consider the current status of affirmative action, one of the most contentious issues in American constitutionalism. In 1996 the Court of Appeals for the 5th Circuit invalidated an affirmative action plan implemented by the University of Texas Law School and held that the use of race as a factor in university admissions was constitutionally proscribed; Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996). The other circuits follow the 1978 Supreme Court’s decision Regents of University of California v. Bakke, 438 U.S. 265 (1978), which explicitly permitted certain forms of race-based preferences in admissions. The Hopwood court argued that it was not bound by the Bakke precedent because Justice Powell’s opinion (according to the Court) did not garner a majority (in fact, the central part of Powell’s opinion, though not an opinion in its entirety, was joined by the majority of judges). The Supreme Court denied certiorari in Hopwood, 518 U.S. 1033 (1996). I am grateful to Robert Post for pointing this out to me.
- 64.
Michel Troper & Christophe Grzegorczyk, “Precedent in France”, in D. Neil MacCormick & Robert S. Summers, eds., Interpreting Precedents: A Comparative Study (Dartmouth: Aldershot, 1997): 103–140 at 112–13 and 117.
- 65.
See, e.g., Lech Morawski & Marek Zirk-Sadowski, “Precedent in Poland”, in MacCormick & Summers, supra note 64 at 219–58.
- 66.
Stone Sweet, supra note 49 at 40.
- 67.
Fiss, supra note 43 at 219.
- 68.
For a characterisation of the Japanese system of constitutional review as “modelled very much after the American system of judicial review”, see Itsuo Sonobe, “Human Rights and Constitutional Review in Japan”, in David M. Beatty, ed., Human Rights and Judicial Review (Kluwer: Dordrecht, 1994): 135–174 at 138.
- 69.
I develop this argument in Sect. 3.1.
- 70.
John C. Reitz, “Political Economy and Abstract Review in Germany, France and the United States”, in Sally J. Kenney, William M. Reisinger & John C. Reitz, Constitutional Dialogues in Comparative Perspective (Macmillan: London, 1999): 62–88 at 74–84.
- 71.
In contrast, such a deadline regarding a challenge initiated in the course of concrete review (but not constitutional complaint) that is, occasioned by a concrete litigation, would clearly be pernicious. A person has no control over when she can be brought to court under a particular law that she can then claim unconstitutionally violates her rights!
- 72.
As an example of such a time limit, one might mention the rule in Poland until 1997 that abstract review of statutes applied only to statutes enacted no earlier than 5 years before the date of the Constitutional Tribunal’s decision (Art. 24 of the Law of 29 April 1985 on Constitutional Tribunal). This limit has been abandoned by the new statute on Constitutional Tribunal, adopted 1 August 1997. One may hypothesise that one reason why this provision was dropped had to do with its very low practical relevance: in a system of predominantly abstract review, where challenges to laws are most likely to be launched by the defeated parliamentary minority, it is highly unlikely that laws that have been on the books for a very long time will be called into question.
- 73.
Reitz, supra note 70 at 80–81.
- 74.
Id. at 81.
- 75.
Id. at 81. See also Lea Brilmayer, “The Jurisprudence of Article III: Perspectives on the ‘Case or Controversy’ Requirement”, Harvard Law Review 93 (1979): 297–321 at 313.
- 76.
See Stone Sweet, supra note 49 at 80–83.
- 77.
See id. at 66–8.
- 78.
The words in quotation marks are from Lea Brilmayer, “A Reply”, Harvard Law Review 93 (1980): 1727–33 at 1732, and they apply not so much to an abstract review initiated by political bodies but to the idea of public interest litigation launched by “altruistic plaintiffs”.
- 79.
Robert Badinter, quoted in Jean Gicquel, Droit constitutionnel et institutions politiques, 14th edn (Montchrestien: Paris, 1995), at 767 (emphasis in original).
- 80.
See Reitz, supra note 70 at 81–84.
- 81.
Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker”, Journal of Public Law 6 (1957): 279–295.
- 82.
See Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 343 (1977), discussed by Brilmayer, supra note 78 at 318–19. In this decision, the Supreme Court unanimously accepted the standing of a state governmental commission composed of representatives of the apple industry (thus treating it as analogous to a voluntary association) to challenge the constitutionality of a statute regulating the packaging of apples. This is as clear a case as they have produced in terms of using concrete review in order to change economic policy.
- 83.
Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575, 598, emphasis added.
- 84.
See Charles R. Epp, The Rights Revolution (University of Chicago Press: Chicago, 1998) at 86.
- 85.
Interview with Laszló Sólyom, East Europ. Constitut. Rev. 6:1 (Winter 1997): 71–77 at 72.
- 86.
Andrew Arato, “Constitution and Continuity in the Eastern European Transitions: The Hungarian Case (part two)”, in Irena Grudzinska-Gross (ed.), Constitutionalism & Politics (Slovak Committee of the European Cultural Foundation, Bratislava 1993): 271–87 at 271.
- 87.
Interview with Boris Ebzeev, East Europ. Constit. Rev. 6:1 (Winter 1997): 83–88 at 86.
- 88.
Martin Shapiro, “The Success of Judicial Review”, in Kenney, Reisinger & Reitz, supra note 70: 193–219 at 205.
- 89.
See Arato, supra note 86 at 272–3.
- 90.
Spencer Zifcak, “Hungary’s Remarkable, Radical, Constitutional Court”, Journal of Constitutional Law in Eastern and Central Europe 3 (1996): 1–56 at 27.
- 91.
See, similarly, Wiktor Osiatynski, “Rights in New Constitutions of East Central Europe”, Colum. Hum. Rts. L. Rev. 26 (1994): 111–166 at 151 n. 185.
- 92.
Lee Epstein, Jack Knight & Olga Shvetsova, “The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government”, Law & Society Review 35 (2001): 117–63.
- 93.
For discussion of this case, see Chap. 9, pp. 363–64.
- 94.
Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (in 1991–1994), Sofia, 10 May 2001.
- 95.
According to Jonathan Macey, structural constitutional rules are “self-executing”, in contrast to “directives that forbid government officials from doing certain things” (such as, infringing individual rights), which “rely on an allegiance to vague constitutional principles”; Jonathan R. Macey, “Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory”, Virginia Law Review 74 (1988): 471–518 at 503.
- 96.
“Constitution Watch”, East Europ. Constitut. Rev. 9:1/2 (Winter/Spring 2000) at 23.
- 97.
Id. at 27.
- 98.
See Neuborne supra note 38 at 369, footnote omitted.
- 99.
See Cass Sunstein, “Introduction: The Legitimacy of Constitutional Courts: Notes on Theory and Practice”, East Europ. Constitut. Rev. 6:1 (Winter 1997) at 61–63.
- 100.
The Polish Constitutional Tribunal struck down an amendment to the so-called “lustration law” on the basis that significant changes to the bill were made by the Senate, which had thus overstepped its law-making powers; see Decision K 11/02 of 19 June 2002, http://www.trybunal.gov.pl/OTK/teksty/otkpdf/2002/K_11_02.pdf, discussed in Chap. 9, pp. 358–59.
- 101.
See Ely, supra note 14.
- 102.
Neil K. Komesar, “Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis”, Univ. of Chicago Law Rev. 51 (1984): 366–446 at 386; see also generally William W. van Alstyne, “A Critical Guide to Marbury v. Madison”, Duke Law Journal (1969): 1–47 at 23–4.
- 103.
See text accompanying footnote 85 above.
- 104.
Zifcak, supra note 90 at 27, footnote omitted.
- 105.
Arato, supra note 86 at 272.
- 106.
See Ely, supra note 14.
- 107.
Decision K. 3/98 of 24 June 1998, Orzecznictwo Trybunaáu Konstytucyjnego, Rok 1998 (C.H. Beck: Warszawa 1999), item 19: 308–71 at 353, translation in East European Case Reporter of Constitutional Law 6 (1999): 130–211. References here are to the Polish text.
- 108.
Id. at 353. See, similarly, cases cited by Jerzy Oniszczuk, Konstytucja Rzeczypospolitej Polskiej w orzecznictwie Trybunaáu Konstytucyjnego (Zakamycze: Kraków, 2000) at 161, translation in East European Case Reporter of Constitutional Law 6 (1999): 130–211.
- 109.
See Eisgruber, supra note 34 at 165–167 and 169–175.
- 110.
Decision K. 3/98 supra note 107 at 353.
- 111.
Id.
- 112.
Id. at 354.
- 113.
Dissenting opinions by Justice Rymarz, at 363–64, and Justice Zdyb, at 365–71.
- 114.
Dissenting opinion by Justice Zdyb, at 370.
- 115.
Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (in 1991–1994), Sofia, 10 May 2001.
- 116.
See, e.g. Jean-Pierre Massias, Droit constitutionnel des États d’Europe de l’Est (Presses universitaires de France: Paris, 1999) at 163.
- 117.
Jürgen Habermas, The Postnational Constellation: Political Essays, trans. Max Pensky (Polity: Cambridge, 2001) at 122.
- 118.
Jeremy Waldron, “Rights and Majorities: Rousseau Revisited”, in John W. Chapman & Alan Wertheimer, eds, Majorities and Minorities: Nomos XXXII (New York University Press: New York, 1990): 44–75 at 59, footnote omitted.
- 119.
Griffin, supra note 59 at 116, footnote omitted.
- 120.
Id. at 116, emphasis added.
- 121.
Id. at 116.
- 122.
Dahl, supra note 81 at 282.
- 123.
Alec Stone Sweet, “Constitutional Dialogues: Protecting Rights in France, Germany, Italy and Spain”, in Kenney, Reisinger & Reitz, supra note 70: 8–41 at 27.
- 124.
Of course, for the purposes of the theory of minority protection against the tyranny of majority it is not necessary (or even proper) to understand “minority” in statistical terms but rather in terms of under-representation of a particular category of citizens in the political system.
- 125.
Bulgarian Constitutional Court decision of 22 April 1992, discussed in Chap. 8, pp. 326–28.
- 126.
Vello Pettai, “Democratic Norm Building and Constitutional Discourse Formation”, paper presented at the workshop “Rethinking the Rule of Law in Post-Communist Europe”, European University Institute, Florence, 22–23 February 2002. More on this in Chap. 8, pp. 321–22.
- 127.
See Kataryna Wolczuk, “The Constitutional Court of Ukraine: The Politics of Survival”, in Sadurski, supra note 56: 327–48 at 338–39.
- 128.
See, respectively, Decision no. K. 26/96 of 28 May 1997 (abortion), Decision K. 11/90 of 30 January 1991 (religious teaching in schools), and Decision K. 17/93 of 7 June 1994 (broadcast law). All these three decisions are discussed in Chap. 6.
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Sadurski, W. (2014). Constitutional Courts in Search of Legitimacy. In: Rights Before Courts. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-8935-6_2
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