An Evolving Interactive Constitutional Scenario in Europe: : The Framework of the Research.
Since World War 2 and until early in the 21st century, the awareness of the historical failure of a merely procedural notion of the democratic principle and of the principle of legality – both principles having been formally respected in the countries whose dictatorships, in their early stage supported by electoral and parliamentary majorities, led to Shoah and ultimately to the war – has produced a more sophisticated system of checks and balances among governmental institutions in individual states, thus allowing their form of government to proceed quite beyond a mechanistic application of the principle of separation of powers.
Judicial review of constitutionality by centralised ad hoc courts, having the power to invalidate parliamentary legislation - as well as, more widely, any exercise of public power - has become the distinguishing feature of mainstream constitutionalism in Europe and elsewhere.
Repeatedly and systematically, Constitutions have placed both substantive and procedural limitations on parliamentary powers of law-making and also of amending the Constitution itself; Constitutions have enlarged the scope of as well as the typology of procedural instruments allowing direct or indirect access to constitutional judicial review of legislative acts, administrative decrees and even judicial decisions.
Moreover, a further strengthening of the judicial role in protecting fundamental rights and freedoms is a consequence of international interactive cooperation within the Council of Europe (the reference is to the European Convention and to the European Court of Human Rights in Strasbourg) as well as of the process of European integration within the European Union, having regard to the judicial origin and early development of a new system of protection of fundamental rights set up mainly by the European Court of Justice in Luxembourg and later developed by the Charter of Fundamental Rights of the European Union.
Developments in the same direction are experienced in Africa and Latin America, suggesting original solutions with varying formal and substantive impact on the protection of rights and of the rule of law.
At the same time, one is to emphasise, almost as two faces of the same coin, not only an easily noticeable expansion of the role of constitutional adjudication – for instance, well beyond the limited role of the Kelsenian negative lawmaker - but also – although it must be acknowledged that we deal here with a permanently contentious issue - a prevailing attitude of acquiescence to such an expansion by the political branches of government within state systems as well as by states’ governments with regard to the two European courts.
The wide introduction of constitutional judicial review is a factor of characterisation of post World War 2 European constitutionalism - national, international and supranational – to the extent that the very form of government may be regarded as having experienced a historical transformation, from the rule of law to the «rule of constitutional law», from the Rechtsstaat to the «Verfassungsrechtsstaat», from the principe de legalité to the «principe de legitimité constitutionnelle», from the Stato di diritto to the «Stato costituzionale di diritto». In other words, any description of current constitutionalism in Europe that should limit itself to the traditional 1800 model based on separation of powers and ignore the inclusion of the judiciary, with particular regard to constitutional courts, within the governmental organisation of checks and balances would be inaccurate, inadequate and quite misleading.
Does such historical transformation require also a corresponding theoretical transformation and elaboration as a permanent feature of the western legal tradition? Francisco Rubio Llorente, former member in the Spanish Constitutional Court, significantly wrote that “the introduction of constitutional jurisdiction in Europe has not been the product of an evolution, but rather of a revolution”; and suggested that there is the need for “a theory of jurisdiction more descriptive of its true nature than the theory of the “automaton judge, a theory that would accentuate the creative moment” (F. RUBIO LLORENTE, in A. PIZZORUSSO (ed.), Law in the Making. A Comparative Survey, Springer Verlag, 1988, 165).
The Supreme Court of the United States that could be defined as “the least dangerous branch” in The Federalist Papers or the European continental judge who is not but “la bouche de la loi” according to the well known definition by Montesquieu – inasmuch as both definitions implied the total absence of any even indirect political discretionary power in the hands of the judiciary (in fact, the automaton judge) – do not quite correspond with the current and prevailing features of the judiciary as we know it to operate today.
The inclusion of the judiciary – and particularly of constitutional courts – within the present organisation of government and of policy-making institutions has grown to be quite physiological, an incremental consequence of the strengthening of the rule of constitutional law as distinct from the traditional rule of law, a proper non majoritarian guarantee against the very possibility of a majoritarian dictatorship, a further step strengthening checks and balances – including non majoritarian checks and balances - between and among governmental institutions.
The consequence is that (i) the rule of constitutional law – when taken seriously – does require the recognition of a function of its own: namely, the function of constitutional policy-making; that (ii) such function has a negative character (invalidating any expression of public powers inconsistent with the supreme law of the land) as well as a positive feature (a proactive commitment to the full enforcement of the constitution); and that (iii) such arrangement does provide a systemic balancing function, as indicated, although paradoxically, by the prevailing acquiescence by the political branches of government as well as by their occasional reaction to an unacceptable excessive expansion of the judiciary, by means of employing the instrument of constitutional revisions, therefore changing the very parameters of constitutional interpretation.