In the last few months, several constitutional judges have made the headlines. Among others, the German Federal Constitutional Court has opposed the European Central Bank’s Public Sector Purchase Programme, leading the European Commission to issue a formal notice to Germany for breaching fundamental EU law principles. The Brazilian Supreme Federal Tribunal has annulled former President Lula’s convictions, paving the way for Lula’s candidacy to the next presidential election. The South African Constitutional Court has sentenced former President Zuma to 15-months in prison for contempt of court, triggering violent popular protest.
Current constitutionalism grants judges an overwhelming role. By guaranteeing the full respect of the “supreme law of the land”, they ensure the well-functioning of public authorities and the protection of fundamental rights. As well as the deepest political antagonisms, the most complex ethical questions are frequently presented to judges instead of classical representative institutions. This judicialised form of constitutionalism is not the only one that humanity has lived under since Ancient Greece. In my book Contentieux constitutionnel comparé. Une introduction critique au droit processuel constitutionnel (Comparative Constitutional Review. A Critical Introduction to Procedural Constitutional Law), I explore this situation as a cultural fact rather than a necessary feature of our political societies.
Through seven chapters, I first explore the intellectual history of constitutional review, covering both the concrete examples that are presented as foreshadowing contemporary practices, as well as the doctrines, reasoning archetypes, and references that emerged from it and led to the universalisation of the “Verfassungstaat” as a constitutional form. I then design an original methodology of comparative study, based on a pragmatic combination of realist political jurisprudence and analytical law of procedure. The third chapter addresses the appointment and status of constitutional judges, thus exposing their organic connections with the other constitutional organs. It is followed by an examination of constitutional courts understood as institutions, and of the more or less centralised or decentralised system of constitutional review that is hic et nunc established in a given state. Under the title “constitutional litigation”, I continue by exploring the increasingly vast jurisdiction of contemporary constitutional courts (solving normative antinomies, imposing action in the case of unconstitutionality by default, monitoring democratic processes, acting as criminal courts for the highest political institutions, dissolving anti-constitutional political parties, giving abstract interpretations of the fundamental norm, etc.). The sixth chapter thoroughly examines the constitutional procedure, starting with its more or less open activation, including the contradictory examination of the constitutional claim itself, and concluding with the voting process inside the court. The last chapter is dedicated to the constitutional decision. After examining the various styles of constitutional judicial decision-making, I explore the whole taxonomy of decisions that are usually made by constitutional judges, from the simplest ones to the ones where their activism leads courts to act as parliaments or as public administrations. I finally discuss their authority and efficiency, which greatly depends on their strategic interactions with the other constitutional actors.
Pursuant to what I announced in a previous book criticising the classical distinction between two main models of constitutional review, an American one and a European one, my latest treatise offers the first worldwide examination of the current practice of constitutional review. It addresses much more than the “usual suspects” in this respect – the Supreme Court of the United States, the German Federal Constitutional Court, etc. – and covers more than 200 systems in a systematically comparative perspective. For example, refraining from granting any case a specific status from a scientific viewpoint, I take into account the cases, frequently understood as more or less anomalous, of authoritarian constitutional jurisdictions. The very fact that the most awful dictatorship takes pains to establish such an organ is conceived as part of the cultural object under study. I also give full weight to the cases of purely nominal institutions. Going beyond the naïve explanations sometimes offered for the establishment of constitutional justice, and the pre-existing literature about constitutional borrowing, the book also accounts for the emergence of a worldwide form of constitutionalism. As no single explanation or justification seems to fit every case, a plurality of scenarios is presented.
In order to deal with this topic and solve the methodological inaccuracies I previously identified, I venture to propose an original comparative methodology. This research has also led me to publish a specific book on this topic, where I give details as to the back-and-forth between legal theory and comparative law to which I was constrained.
My proposal relies on a pragmatist perspective that allows for combining instruments drawn from the respective toolkits of political science, procedural law, and cultural studies. In order to understand the influence of constitutional judges in contemporary political societies, I start from a realist perspective and regard them as full-blown legal entrepreneurs. Although this highlights the decisive contribution of judges to the governance of our societies and the strategic interactions they have with other institutions, political jurisprudence tends to neglect the most technical aspects of the enforcement of constitutions. Nevertheless, the original features of the governance with (and by) judges are mostly due to its judicial character. To put it bluntly, government by the judiciary is not only government. It is also by the judiciary. Accounting for this aspect is mostly regarded as the province of jurists, who unhappily tend to ignore or downplay the power of judges. I try to offer an original association of both perspectives. More specifically, I contend that a proper understanding of the way judges create law and enjoy a share of political power requires paying attention to the most technical aspects of legal procedure (How are constitutional judges appointed? When do they retire? Who can activate constitutional review? How is the examination of constitutional evidence organised? What are the procedures of judicial decision-making? What are the temporal constraints that have an influence on the judges’ work? How are constitutional decisions drafted? What are the resources of other actors to evade constitutional enforcement? What are the judges’ resources to avoid that evasion? etc.). I thus borrow from what is known in Latin America and Germany as “derecho procesal constitucional” and “Verfassungsprozessrecht”, respectively. Both in the substance it deals with and in the perspective it suggests, this book truly is the result of a comparative outlook.
This is the reason why the book covers and discusses the empirical material and doctrines that shape constitutional review as a cultural object, thus offering what is expected of a treatise of comparative constitutional review. Moreover, it offers a new vision of the discipline of study itself. Having benefited tremendously from reading the work of my colleagues all across the world and discussing it with them, I hope this book will contribute to the ongoing enquiry about the kind of political society we are living in.
Posted by Professor Guillaume Tusseau (SciencesPo)
British Association of Comparative Law 