Comparative Public Law

JUDICIAL REVIEW OF LEGISLATION

EX-ANTE JUDICIAL REVIEW

When we talk about this kind of review, we talk about a preventive control

which occurs before that the act/bill enter into force and therefore it is not

binding. This check is theoretical and verifies the coherency of the act with the

constitution. The countries that implement it want to protect the supremacy of

the Parliament. We do this check of coherency before the entrance into force

for this reason, so the Parliament have the time to change the law if needed. It

is usually reserved to a narrow group of applicants (President, Parliament’s

Speaker, MPs)

EX-POST JUDICIAL REVIEW

In this case it is realized after the law acquires its binding force. The review can

be either abstract (there is not an actual case or a specific infringment of the

constitution) or concrete (starting from an actual case). It can be realized by all

judges (diffused model) or by a special institution (centralized model)

DIFFUSED MODEL

We have two case law to analyse:

- The Bonham’s case (UK 1610):

Bonham claimed that his detention by the college amounted to false

imprisonment. On the contrary, the College relied on its statute of

incorporation, which authorized it to regulate all physicians in London, to

punish practitioners not licensed by the college and to receive one-half of all

the imposed fines. Justice Coke argued that because the statute recognized to

the college the right to act at the same time as the prosecutor, plaintiff, and

judge in the dispute conceived of this as contrary to the principles of the

common law.

In this decision, Sir Edward Coke (chief justice for the Court of Common Pleas in

England) stated that the detention of Bonham was against the constitution of

the UK. The single fact that the same entity, the London College, was acting as

defendant, prosecutor and judge of Bonham was against the principle of

common law. In the end, the idea of parliamentary supremacy prevailed, and it

was stated that the parliament is supreme, so courts cannot declare an act

against the principle of common law. Any statute passed by the English

Parliament that is contrary to "common right and reason" must be declared

void.

- Marbury vs Madison (US 1803):

The Supreme Court issued a milestone when it comes to judicial review.

Marbury v. Madison, legal case in which, on February 24, 1803, the U.S.

Supreme Court first declared an act of Congress unconstitutional, thus

establishing the doctrine of judicial review. The court’s opinion, written by Chief

Justice John Marshall, is considered one of the foundations of U.S. constitutional

law.

The diffused model is always a concrete review; it needs a case. All the judges

are allowed to the judicial review but there is a hierarchy. If the Supreme Court

12 stare decisis

decides something this is valid for all the other courts. This is the

principle or principle of the binding precedent. Each Court is bound by its own

precedents. Anyway, a Court can overturn a precedent if social circumstances

have changed and if there are different evidence in the new case.

CENTRALIZED MODEL

According to Kelsen’s theory the Constitution is the higher norm in a country

and therefore there should be an institution to decide whether a law is coherent

with it or not. This institution is the Constitutional court.

The rulings of this institution are final. The appointment of the judges of this

court is different from the others and there is a political discretionally.

The Court may realize an abstract or a concrete review. The concrete review is

initiated by the judiciary during a litigation.

Litigation: when the ordinary judge has to apply a law and has the idea that

this law may not be constitutional. The ordinary judge stops the procedure and

transfer the process to the constitutional court.

Ordinary judges send questions to the Constitutional Court provided that two

conditions are respected:

- The question is relevant for deciding the pending case;

- There is a reasonable doubt about the constitutionality of the norm.

erga omnes

The Court may annul the law with binding effects (valid for all) and

then the law becomes unconstitutional for all the possible cases.

When it comes to Court’s decisions we have different style. On the one hand,

there could be a very synthetic style without long statement or

contextualization. On the other hand, these elements can be put in the final

document.

There are two different ways of acting also when it comes to decisions, some

courts prefer unanimity and others leave to the judges the possibility to

express their opinion.

It is fundamental to underline the non-retroactive effect of the decisions. The

decisions can have multiple effects:

- Declaration of unconstitutionality/ constitutionality

- Declaration of partial unconstitutionality/ constitutionality

- Interpretative decisions (the Court provides for an interpretation saving

the constitutionality of the law)

- Adding decision (The law is unconstitutional in the part failing to provide

for something) = “this has to be added to the law in order to make it

consistent with the constitution”.

- Warning decision (the legislator is warned about the need to change a

law that contains unconstitutional elements) = “by now we are saving it

but one day we will not, it is better to change it in this direction”.

- Postponing decision (The Court gives to the legislator an amount of time

for avoiding legislative vacuum postponing the effects of the decision)

OTHER COMPETENCIES OF CONSTITUTIONAL COURTS

The Constitutional Courts have to do with the attribution of competences

among state organs.

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The Constitutional Courts, thanks to the Mexican example, can be questioned

from individuals if they want to directly claim a violation of rights.

Each legal system has clarified:

- against which act the complaint can be raised (legislative, administrative,

omissions)

- Who is entitled to the complaint (individuals, legal persons)

The Constitutional Courts is also entitled to ban political parties not respecting

fundamental principles of the Constitution.

THE POLITICAL MODEL (FRANCE)

In the case of France there was the reluctance to appoint judges who could

question decisions of the legislator. Therefore the “Conseil Constitutionnel” is

politically appointed: 9 members, 9 years: 3 President, 3 Speaker of the

National Assembly, 3 Speaker of the Senate; former President are members

too.

Powers:

- mandatory control on organic laws and parliamentary rules of procedures

- abstract and preliminary review if required by the PR, Speakers

- posteriori and concrete review with the filter of the Council of State or the

Court of Cassation (since 2008)

THE UK SUPREME COURT

The Supreme Court has been established in 2005, before the highest court was

the Appellate Committee of the House of Lord.

12 judges in office until 75 but it does not have power of judicial review.

Lecture 8, 1 of March 2024

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GUEST LECTURE

Lecture 9, 4 of March 2024

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FORMS OF THE STATE

The form of state is the way the state is organized with regard to the attribution

of the sovereignty; more specifically the way the relationship between people,

territory and sovereignty is structured.

From an historical point of view, we have had different forms od state which

marked an evolution:

- Feudal system: it is not considered a proper form of state because it

was based on a caste-system organization. The castes were

interdependent, and it resulted from the dismemberment of the Western

Roman Empire.

- Absolute State (XVII Century): the first major move in this direction

was made by Luis XIV who, in the attempt of strengthening the power

over the nobles and avoid revolts reformed the administration of the

state (“I am the state”). He built Versailles in order to gather there all the

14 nobles and control them. This was the moment in which the idea of the

King being chosen by God started to spread, this meant that his power

could not be challenged. This form of state is also called patrimonial

state, because both the land and the people inhabiting it were conceived

as a property of the king absolute power on them. (England exception)



- Enlightened Absolutism (the end of XVII Century): the principal

evolution from the previous stage was the separation of the property of

the King and those of the State. The King was now subject to the laws of

the State and some sort of protections and assistance was introduced for

the peasants. (Prussia and Austria)

- Liberal State (XVIII-XIX Century): this form of State developed under

the influence of the French revolution. The main achievement was the

separation of power theorized by Montesquieu the power must be



divided in three branches. In this period the idea of the supremacy of a

fundamental law/written social contract (constitution) starts to develop.

The Parliament acquires a pivotal role in the state structure, but the

suffrage is still limited to elites. The last great change was the

introduction of the negative rights to individuals there are areas



(economy/property) where the state cannot interfere, these rights were

promoted by the bourgeoisie during the French revolution.

- Authoritarian/Totalitarian State (XX Century): according to different

scholars the difference between Authoritarian and Totalitarian is not

based on the exercise of sovereignty, both have a dominant party

present in the social life with a following curve of the Constitution to its

will. In the Authoritarian (Italy) system it is supposed that certain margins

for re-establishing the liberal state continue to be present, but they are

completely delated in the Totalitarian (Germany and URSS). From a legal

perspective there are no difference because in both cases rights are not

protected and the Constitution is not fully implemented.

- Socialist State (XX Century): it is a peculiar kind of authoritarian

state, established for the first time in 1917 in Russia. The main difference

with the previous system is the economic approach. In these cases, we

have seen planned economy and abolition of property rights. In the other

authoritarian systems, we have not seen a reject of capitalism or free

market.

- Democratic and Social State (XX Century): they developed after the

war and dismantle of the authoritarian states. The pillars of this system

are the people sovereignty (universal suffrage), protection of rights and

welfare state.

As of today, we have two main forms of state:

- Constitutional Monarchy: the King is bound by the Constitution and

acts as a non-party political head of the state. He represents the national

unity.

- Republic: the first case in which we saw the development of this idea

was the independence of the 13 colonies in America. They wanted to

gather their values around a new idea/system. I