Judicial Law-Making in European Constitutional Courts (Routledge 2020), edited by Monika Florczak-Wątor

Research aims and hypothesis

Constitutional courts determine the shape of the legal order, not only by derogating unconstitutional norms but also by modifying and supplementing those norms that remain as part of the legal order after being declared constitutional or partially unconstitutional. The latter applies to cases where the provisions are not contested in their entirety but only to a limited extent or in terms of a specific meaning; therefore, if they are found to be unconstitutional, they lose their validity only to a limited extent. Such a derogation is usually not revealed in the wording of a provision declared partially unconstitutional and, for this reason, often requires the legislative intervention of the parliament. Reconstruction of the normative content of a provision that is partially unconstitutional frequently leads to the conclusion that it has not been narrowed down following a partial derogation but, on the contrary, it has been extended to matters that have been previously excluded from its scope. This and many other examples from the case law analysed in Judicial Law-Making in European Constitutional Courts  show that contemporary European constitutional courts are no longer just negative lawmakers but are, rather, fully positive legislators. Their role as creators of legal norms and competitors with parliaments is constantly growing, which raises the question of their legitimacy to push their own vision of the legal, social and political order.

Key terms for the research

The authors of the book assumed for the purpose of their analysis that the term ‘constitutional court’ may be understood as any court that decides disputes of a fundamental (in this sense, ‘constitutional’) nature to support the functioning of a given national or international organisational structure. Therefore, the research includes both traditional constitutional courts established on the basis of the Kelsenian model of constitutional justice as well as international courts that protect the legal orders created at the European level.

The research also adopted a broad understanding of the concept of law-making, including the repeal, modification and supplementation of a law by a constitutional court through its creative interpretation of the law, as well as the court’s adjudication on the constitutionality of a law, the determination of the extent of any declared unconstitutionality and the legal consequences of the ruling.

Selection of countries

The book discusses twelve European constitutional courts, divided into three categories.

The first category includes four constitutional courts in Western European countries: the German Federal Constitutional Court, the Italian Constitutional Court, the Spanish Constitutional Court and the French Constitutional Council. These judicial bodies have a rich, decades-long tradition of constitutional review and a stable constitutional position within the system of state organs, as well as authority and respect among national decision makers. Their jurisprudence on many issues has been pioneering, influencing not only the domestic legal order but also the legal system of the European Union and the Council of Europe.

The second category covers constitutional courts established in Central and Eastern European countries, including the Visegrad countries (Poland, Hungary, the Czech Republic and the Slovak Republic) as well as representatives of the Baltic states (Latvia) and the Balkan states (Bulgaria). These courts were mostly established after the fall of communism in the early 1990s. Their position within the system of state organs and their political authority are much weaker, although they have played an important role in the process of democratisation of the constitutional orders of the countries in which they operate, particularly in the early period of political transition. Their current weakness and dependence on political factors are shown in the book through an analysis of the constitutional crisis in Poland and Hungary. These two constitutional courts, which until recently were considered the most powerful and influential in Central and Eastern Europe, have been taken over by illiberal governments, which had an impact on their law-making activities.

The third category of constitutional courts includes two international courts functioning in the European legal space, namely, the Court of Justice of the European Union and the European Court of Human Rights. These courts not only protect the standards established by the EU treaties and the European Convention on Human Rights, respectively, but also creatively develop these standards by performing functions similar to those performed by national constitutional courts. Furthermore, in countries where traditional constitutional courts have found themselves in crisis (Poland and Hungary), the role of the guardian of constitutional standards has been taken over by these two international courts.

In conclusion, the study included constitutional courts which have different jurisprudential traditions, historical experience, political position and scope of competences, but at the same time, they have many common features enabling them to be included in a comparative analysis. It was particularly important that all the included courts have acquired the competence to creatively interpret the legal order within which they operate and, even more, that through their judgments, they are able to develop and modify that legal order.

Research methodology

Each of the first twelve chapters of the book is devoted to one specific constitutional court. These chapters, prepared on the basis of a questionnaire developed by the book’s editor, are similarly structured and address similar research problems. Their authors present the legal basis for the functioning of the considered constitutional court, the evolution of its constitutional position and its competencies as well as the social trust it enjoys and the level of public acceptance of its rulings. The aim of further analysis was to demonstrate how constitutional courts modify or supplement legal provisions by applying various methods of interpretation, and how, in the case of a ruling on the unconstitutionality of a law, this can result in large, qualitatively diverse changes in the content of the provision under review. The authors of the individual chapters present various examples of constitutional court decisions containing a law-making component as well as the consequences of these decisions for the applicable legal order.

The law-making activity of constitutional courts was simultaneously analysed at the constitutional and subconstitutional levels. Within this framework, the authors of specific chapters tried to identify the different types of positive impact constitutional courts have on the legal order. They discuss law-making through the creative interpretation of laws as well as the ways in which courts shape the content of law through various legal effects arising from their judgments. The authors also tackle the issue of legislative omissions and the question of whether constitutional courts can, in some cases, supplement legislation or even substitute for the legislator. Finally, they analyse the power of constitutional courts to create procedural rules on judicial review and to formulate legislative recommendations for law-making authorities.

The final chapter of the book contains a research synthesis by the editor of the collection. The similarities and differences in the constitutional courts’ judicial law-making are analysed from a comparative perspective at both the constitutional and subconstitutional levels.

Research results

The research carried out for this volume led to the conclusion that the influence of constitutional courts on the applicable legal order is significant and unquestionable. They are no longer negative lawmakers as they do not restrict themselves to constitutional review and to repealing legal norms considered unconstitutional; rather, they actively correct, supplement and develop law as a result of creative interpretation and the formulation of their rulings, resulting in predetermined legal effects. Additionally, constitutional courts commonly indicate to parliaments the need to change the law, thereby initiating further steps for its correction, supplementation and development.

The law-making activity of constitutional courts, as described in the book, manifests itself at the level of both constitutional and subconstitutional norms.

At the constitutional level, constitutional courts do not just protect the wording of the constitution (although this also happens, especially in cases where the constitution contains unchangeable clauses); they also protect the spirit and axiology of the constitution. The constitutional courts limit the freedom of parliaments to amend the constitution, thus guaranteeing the inviolability of its identity. Similarly, constitutional courts have the power to define constitutionally acceptable limits of a country’s involvement in European integration processes. On the other hand, constitutional courts creatively develop constitutional rules and principles as well as laws that regulate constitutional rights and freedoms. They are the ultimate creators of the constitution, which is applied in practice by the courts and by public authorities.

At the subconstitutional level, the law-making abilities of constitutional courts are particularly manifested in their partial and interpretative rulings as well as rulings confirming the unconstitutionality of legislative omissions. Moreover, constitutional courts create intertemporal norms to postpone either the effectiveness of a ruling or the deprivation of the effectiveness of a provision deemed unconstitutional in that ruling. Additionally, constitutional courts frequently include detailed signalling guidelines in the justifications of their rulings that can determine the content of future legal regulations adopted by parliament.

Conclusions

The research, the results of which are presented in the book published with the kind support of the Polish National Science Centre (Decision No. 2015/18/E/HS5/00353), undoubtedly requires further development, as the jurisprudence of constitutional courts is constantly evolving in different and not always obvious directions. The current state of research on the law-making activities of constitutional courts allows us to identify the trends that we have discussed in this work. These trends are common to different types of constitutional courts, making their comparative analysis possible. However, we have no doubt that the ways in which constitutional courts interact with law within different constitutional orders are not exhausted, and the new ways that emerge will require further comparative research.

Posted by Monika Florczak-Wątor, Professor of Constitutional Law and Director of the Centre for Interdisciplinary Constitutional Studies at the Jagiellonian University in Cracow.