Constitutional courts versus supreme courts

Constitutional courts exist in most of the civil law countries of Westem Europe, and in almost all the new democracies in Eastem Europe; even France has developed its Conseil Constitutionnel into a genuine constitutional jurisdiction. While their emergence may be regarded as one of the most successful improvements on traditional European concepts of democracy and the rule of law, it has inevitably given rise to questions about the distribution of power at the supreme judicial level. As constitutional law has come to permeate the entire structure of the legal system, it has become impossible to maintain a fi rm delimitation between the functions of the constitutional court and those of ordinary courts. This article looks at various confl icts arising between the higher courts of Germany, Italy, Poland, and France, and concludes that, in both positive and negative lawmaking, certain tensions are bound to exist as a necessary component of centralized judicial review. 1 . The Kelsenian model: Parallel supreme jurisdictions 1.1 The model The centralized Kelsenian system of judicial review is built on two basic assumptions. It concentrates the power of constitutional review within a single judicial body, typically called a constitutional court, and it situates that court outside the traditional structure of the judicial branch. While this system emerged more than a century after the United States’ system of diffused review, it has developed — particularly in Europe — into a widely accepted version of constitutional protection and control. 1 Today, constitutional courts exist in most of the countries of Western Europe that have civil law legal systems, with the Netherlands and the Nordic countries the major exceptions. Constitutional *Judge of the European Court of Human Rights; former judge of the Constitutional Tribunal of Poland.