Building Reputation in Constitutional Courts: Political and Judicial Audiences
2011; Volume: 28; Linguagem: Inglês
ISSN
0743-6963
Autores Tópico(s)Comparative constitutional jurisprudence studies
Resumoreview, in particular, preventive or ex ante promulgation, provides a weak mechanism for a constitutional court to try to condition other courts. There is no obvious relation between the review of legislation in the abstract and the work of regular courts. However, given the importance of the constitutional court, creative techniques can be developed to achieve influence over ordinary judges. For example, the French idea of conforming interpretation, although dependent on the voluntary compliance of other courts, is still conceptually influential; 1 yet courts that lack abstract review (e.g., Italy) have a reduced ability to shape legislative outcomes and consequently have less political influence. 52 The possibility of a conflict between the two major court systems has substantive implications. First, it puts pressure on constitutional judges to achieve a coherent body of constitutional jurisprudence or doctrines to convince the ordinary court of the legal integrity of constitutional decision-making. 3 Therefore, it transforms the nature and scope of constitutional review by demanding apolitical decision-making. The constitutional court must be a better legal craftsman when it relies on ordinary courts to implement its decisions. 47. ToM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES 134-37 (2003) (on court relations in Taiwan). 48. In Chile, for example, until 2005, the Constitutional Court exercised abstract review while the Supreme Court performed concrete review. Royce Carrol & Lydia Tiede Beshear, Judicial Behavior on the Chilean Supreme Court, 8 J. EMP. LEGAL STUD. 856, 860 (2011). 49. KELSEN, supra note 6, at 246. 50. See Garlicki, supra 3, at 65. 51. Id. at 62. 52. See Stone Sweet, supra note 4, at 88. 53. In the limit, developing a court-made constitution that supplements or even replaces the original text. See, e.g., Garlicki, supra note 3, at 68. 549 HeinOnline -28 Ariz. J. Int'l & Comp. L. 549 2011 550 Arizona Journal ofInternational & Comparative Law Vol. 28, No. 3 2011 Second, conflict or competition among the courts increases the political value of constitutional review because it might provide an indirect mechanism for influencing both policy and the judiciary-particularly if politicians use the constitutional court to interfere with the ordinary courts. The natural inclination for the constitutional court is to expand its reach into areas that make it more politically relevant, one example being the progressive constitutionalization of private law in several jurisdictions. 54 Third, the balance of power is shaped by the constitution itself; that is, the extent to which a constitutional court is conceived not only as a negative legislator, but also as a positive legislator with formidable powers of statutory interpretation.ss As a positive legislator, the court strikes laws and actively interprets the conditions under which they can be implemented. If a constitutional court has a role as a positive legislator, it can act either as a counterweight against the parliamentary majority or as a substitute if no stable parliamentary majority exists. Concrete review is not immune from politics. However, the capacity to advance an ideological agenda through concrete review is more limited than through abstract review. Concrete review requires the constitutional court to develop specific legal reasoning in terms of rhetoric and judicial syntax that makes it similar to a decision of a regular court while at the same time advancing a particular ideological agenda. Because regular courts do not engage in abstract review, the constitutional court is not under pressure to use similar specific legal reasoning in those cases. Another type of review is preventive (abstract) review, in which a court blocks unconstitutional policies before implementation. Whereas concrete review judicializes constitutional courts, preventive review has the opposite effect. Preventive review makes a constitutional court less judicial and more politicalindeed legislative. Constitutional courts as idealized by Kelsen are political in nature, notwithstanding their judicial form and procedure.5 Hence, they should not be part of the traditional judiciary or court structure. Constitutional law is political in nature, and constitutional adjudication is a necessary part of the political process. Therefore, the distinction between law and politics is not likely to be clear in constitutional review.59 The double role as a political and a judicial institution (not supported by the original negative legislator model, but now pursued by all existing constitutional courts) creates an inevitable judicialization of politics for three 54. Rogdrio B. Arantes, Constitutionalism, the Expansion of Justice and the Judicialization ofPolitics in Brazil, in THE JUDICIALIZATION OF POLITICS IN LATIN AMERICA (Rachel Sieder et al. eds., 2005). 55. See Leslie Turano, Spain: Quis Custodiet Ipsos Custodes?: The Struggle for Jurisdiction Between the Tribunal Constitucional and the Tribunal Supremo, 4 INT'L J. CONST. L. 151, 152-53 (2006). 56. See Stone Sweet, supra note 4, at 42. 57. Id. 58. Garoupa, supra note 30, at 149; STONE SWEET, supra note 5, at 135-37. 59. STONE SWEET, supra note 5, at 136. HeinOnline -28 Ariz. J. Int'l & Comp. L. 55
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