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2016 | OriginalPaper | Buchkapitel

2. Rule-of-Law and Judicial Federalism: The Role of Ordinary Courts in the Enforcement of Fundamental Rights

verfasst von : Alfredo Narváez Medécigo

Erschienen in: Rule of Law and Fundamental Rights

Verlag: Springer International Publishing

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Abstract

In order to find out whether the law of a given country has any say in Rule-of-Law achievement—or failure—it is first necessary to establish on a theoretical level what Rule-of-Law means. Indeed, only a critical legal approach (i.e., not merely descriptive) can shed light on whether the law per se is a determinant of Rule-of-Law realization and, therefore, on whether cultural components have been thus far overrated as the explanation for Rule-of-Law failure in certain contexts. On the other hand, critique of a specific legal system can only be meaningful if it is based on an objective standard, that is, on legal norms that objectively correspond to the Rule-of-Law ideal. The first evident problem is that even though the concept Rule-of-Law has consolidated as the overarching objective guiding almost every reform effort all over the world, there is hardly any consensus on what it concretely stands for. Despite the overwhelming agreement worldwide on the Rule-of-Law as a desirable goal and as a good idea for every society, the debate concerning the concept’s scope and meaning is far from over, particularly when taking into account the usual tensions—when not contradictions—faced by practitioners with diverging views on the topic. The classic theoretical inquiries on whether the Rule-of-Law represents merely the establishment of law and order in a given territory or rather includes democratic procedures that legitimize government decisions are by no means resolved. Quite the opposite: there is still much disagreement on whether Rule-of-Law denotes merely the predictability provided by limited government or instead comprises also a substantive character which involves the effectiveness of certain rights and/or the existence of some sort of social justice. These theoretical discussions intensified with the growing inclusion of the term Rule-of-Law in the political agenda and its indiscriminate use to justify any transformation of a legal or judicial institution worldwide. If there is not a fairly clear Rule-of-Law concept at hand, however, any value judgment issued with regard to a specific legal system’s suitability to achieve the Rule-of-Law will be arbitrary and, consequently, any conclusion based on that critique will be meaningless.

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Vorheriges Kapitel General Introduction

Nächstes Kapitel Constitutional Review in the United States of America: Does “Diffused” Mean Complete Decentralization?

See Carothers (2006a, b), pp. 3–4.

See Stromseth et al. (2006a, b), p. 56; and Kleinfeld (2006), p. 32.

See Carothers (2008), p. 52.

See Kleinfeld (2006), pp. 33–35. She claims that the Rule-of-Law as a concept includes different ends and not infrequently those ends are incompatible with each other. This happens, for instance, with the implementation of law and order and human rights in some contexts. Similarly Carothers (2008), p. 50, points out: “… when diverse national and international actors gather and agree that they are all committed to helping build the rule of law in a particular country or context, they usually agree on much less than it initially appears. They may all proceed with a putatively common rule-of-law agenda but in practice pursue quite different preoccupations, either in relative isolation from one another or sometimes at cross purposes.”

See Raz (2009b), p. 211, who considers Rule-of-Law and democracy as two very different things.

See Dworkin (1985), pp. 11–12, who argues against the “Rule book conceptions” of the Rule-of-Law. These are not sufficient for a just society, he claims, when one considers the different theories of adjudication they recommend.

See Carothers (2008), p. 50. On the negative impact of poor Rule-of-Law definitions see Kleinfeld (2006), p. 50.

See, for instance, Bumke and Voßkuhle (2008), pp. 294–312. Referring to the German context, they point out that some other key elements include the principle of separation of powers, the lawfulness of the administration, the principle of proportionality, the binding effect of law and justice on the judiciary, the principle of legal certainty, legal protection against violation of the law by public authorities, and due process principles in criminal and criminal procedural law. Curiously enough, however, many of these elements can also be seen as basic rights for individuals provided they are considered as such by a constitution (or by a constitutional court) and there is the mechanism to enforce them judicially. One good example of this is how the German Federal Constitutional Court (BVerfG) has considered that every statute contrary to the constitution violates the general freedom of action (allgemeine Handlungsfreiheit) granted by German Basic Law (Ger. GG) (1949), art. 2, cl. 1, published in Bundesgesetzblatt Teil I 1 1949:1–19, and entitles the individual to challenge the measure through a constitutional complaint. See Elfes, BVerfGE 6, 32 (1957), p. 41, and its implications in infra Chap. 4.

By ordinary it is meant that these courts are not specialized in constitutional matters.

For a brief yet clear account of these meanings and their origin see Kleinfeld (2006), pp. 36–46. She notes that whereas the government bound by the law conception can be traced back to Aristotle and a desire to prevent arbitrariness, the law and order meaning is rather strongly connected with the Hobbesian notion of the State as a provider of security. Kleinfeld tracks the idea of equality before the law also to ancient Greece, yet points out that its connection to the Rule-of-Law concept is mainly due to Albert Venn Dicey, who elaborated the first modern definition of the term. A similar phenomenon occurred with the longstanding ideas of efficient and predictable justice and enforced human rights. While the former was retaken in part by Friedrich August von Hayek in his efforts to foster the market economy, the latter was recaptured by Dicey from the Enlightenment’s idea of individual rights. See also Shklar (1998), pp. 21–37. She claims there are two very different archetypes of the concept: one elitist and based on reason which can be attributed to Aristotle; the other one egalitarian and grounded on ‘freedom from fear’, which she associates with Montesquieu.

See Bumke and Voßkuhle (2008), pp. 294–312. For a distinction between the uses of Rechtsstaat and the Rule-of-Law see Rivers (2007), pp. 891–904.

See Secretary General of the United Nations (2004), p. 4.

See Stromseth et al. (2006a, b), p. 69.

In a now classic essay first published in 1977 by Raz (2009b), pp. 210–211, it was described as one of the “main fallacies on the treatment of the doctrine of the Rule-of-law” the assumption that the concept stands for democracy, justice, equality (before the law or otherwise), human rights of any kind, or respect for persons or for the dignity of man. Shklar (1998), p. 21, pointed out already in the 1980s that “it would not be very difficult to show that the phrase ‘the Rule of Law’ has become meaningless thanks to ideological abuse and general over-use”.

For example, the controversial definition provided by Dicey (1982), p. 120, was included in an account of the British legal system. That of Hayek (2001), pp. 75–76, represents an attempt to justify a political economy idea: one against planned economy and in favor of the free market. The notions Rule-of-Law developed by Fuller (1969), pp. 33–94; Raz (2009b), p. 212 and Dworkin (1985), pp. 11–12, are all rather connected to their discussions in philosophy of law and, as such, to their analysis on the relationship between law and morality.

See Shklar (1998), p. 21. Her main thesis is that the new conceptions of the Rule-of-Law did not consider the objectives the original versions where supposed to serve and this impasse has turned the concept into a vacuum. See also Radin (1989), p. 784, who tries to redefine the concept based on a “Wittgensteinian” notion of rules, that is, one which considers consensus as an inherent feature of any rule; and Fallon (1997), pp. 1–56, where he systematically analyses diverging conclusions reached by the United States Supreme Court with the Rule-of-Law concept.

To such efforts belong the ‘multiple-end’ notion of Rule-of-Law developed by Kleinfeld (2006), pp. 34–47, and the ‘pragmatic definition’ established by Stromseth et al. (2006a, b), p. 78.

Not without some semantic distinctions and mild variations in content, such classification is followed by Radin (1989), p. 784; and by Stromseth et al. (2006a, b), pp. 69–70. The innovative distinction between ‘ends-based’ and ‘institutional’ definitions held by Kleinfeld (2006), p. 36, is rather used in the context of Rule-of-Law implementation. It aims for practitioners to “consider their reforms aim by aim, rather than institution by institution, so that they can actually gauge the likelihood of their success”.

Some of the best-known supporters of this conception are Hayek (2001), pp. 75–76; Fuller (1969), p. 39; and Raz (2009b), pp. 212–213.

Raz (2009b), p. 214, resumes this position quite clearly: “This is the basic intuition from which the doctrine of the rule of law derives: the law must be capable of guiding the behavior of its subjects. It is evident that this position is a formal one. It says nothing on how the law is to be made: by tyrants, democratic majorities, or any other way. It says nothing about basic rights, about equality, or justice…”

The main supporters of such notion are said to be Dicey (1982), p. 107; Rawls (1999), p. 208; and Dworkin (1985), pp. 11–12.

See Dworkin (1985), p. 26.

For an explanation of the inclusion of democratic values in the Rule-of-Law agenda, see Carothers (2008), p. 54.

See Fallon (1997), pp. 32–33.

For Stromseth et al. (2006a, b), p. 78, for instance, Rule-of-Law “describes a state of affairs in which the state successfully monopolizes the means of violence, and in which most people, most of the time, choose to resolve disputes in a manner consistent with procedurally fair, neutral, and universally applicable rules, and in a manner that respects fundamental human rights norms (such as prohibitions on racial, ethnic, religious and gender discrimination, torture, slavery, prolonged arbitrary detentions, and extrajudicial killings).” She points out that some authors consider equality before the law and democratic procedures as elements of the instrumental conception.

See Stromseth et al. (2006a, b), p. 69.

According to Rawls (1999), p. 208, for instance, “…yet because these precepts guarantee only the impartial and regular administration of rules, whatever these are, they are compatible with injustice…”

See Carothers (2008), pp. 53–54.

See Dworkin (1985), p. 12.

See Kleinfeld (2006), p. 45.

See Radin (1989), p. 791.

See Shklar (1998), p. 21.

See Holmes (1997), pp. 991–1009; Radbruch (1946), pp. 105–108; and Hart (1977), pp. 17–37.

See Lovett (2002), p. 67. The same concern is reflected by Radin (1989), pp. 782–783.

For instance, both the position of Radbruch (1946), p. 105, to subject the validity of statutes to their compatibility with basic principles of morality, as well as the material notion of the German Rechtsstaat described by Böckenförde (2007), pp. 164–168, have the German Third Reich in mind.

For example, both Hart (1977), p. 37; and Raz (2009b), p. 224, deny that the moral character of a rule determines its legal validity.

This is why Raz and Dworkin end up with so different notions of the Rule-of-Law.

To be more precise, it is usually assumed that only a legal system can match the Rule-of-Law, but a system does not need the Rule-of-Law to be a legal system. Contrary to this trend, see Lovett (2002), p. 42. A rather important exception would be Kelsen (2008), pp. 125–137. In a theory of law in which law and State are one and the same thing—that needs to be able to rule to a certain extent in order to be considered law and that can have any moral content whatsoever—the concept Rule-of-Law would be redundant and not very useful.

See Raz (2009b), p. 212, who makes precisely this point.

The definition of Hayek (2001), pp. 75–76, emphasizes this very idea: “Stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.”

See Rawls (1999), p. 210; and Hayek (2001), p. 76.

See Shklar (1998), p. 26.

For Rawls (1999), p. 207, “a legal system is a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social cooperation. When these rules are just, they establish a basis for legitimate expectations. They constitute grounds upon which persons can rely on one another and rightly object when their expectations are not fulfilled.”

The easy path would be to analyze whether modern constitutions, the ultimate pillars of the Rule-of-Law doctrine, contain more than the formal elements. Just by looking at the catalogues of basic rights that are regularly included it could be easily confirmed they do. This would be, however, a question of fact, and probably fallacious if used in an ‘ought to’ context as when debating the Rule-of-Law ideal. The more interesting question is if there could be a necessary relationship before the inclusion of these elements in positive law that could theoretically explain them as an essential element.

Raz (2009b), p. 214.

See Fuller (1969), p. 53.

See Rawls (1999), p. 209; and Fuller (1969), pp. 63–64.

See Fuller (1969), pp. 79–81.

This principle is also named “Ought to implies can” by Rawls (1999), p. 210.

See Hart (1997), pp. 100–110.

See Kelsen (2008), p. 77.

The wording used by Raz (2009b), p. 213, is “the lay sense of law” in contrast to the professional sense of the term.

See Hart (1997), pp. 127–128.

See Raz (2009b), pp. 215–216.

Fuller (1969), p. 81, points out somewhat eloquently: “We arrive finally at the most complex of all desiderata that make up the internal morality of the law: congruence between official action and the law. This congruence may be destroyed or impaired in a great variety of ways: mistaken interpretation, inaccessibility of the law, lack of insight into what is required to maintain the integrity of a legal system, bribery, prejudice, indifference, stupidity, and the drive toward personal power [....] Just as the threats to this congruence are manifold, so the procedural devices designed to maintain it take, of necessity, a variety of forms…”

See Rawls (1999), pp. 50–51; and Raz (2009b), pp. 216–217.

See Hart (1997), p. 160; and Fuller (1969), p. 81.

Rawls (1999), p. 210.

See Rawls (1999), p. 210; and Raz (2009b), pp. 216–217.

The issue of the indeterminacy of the law should be left aside here. While one should be aware of the existence of the hard cases, of the “problems of the penumbra” identified by Hart (1977), p. 23, the Rule-of-Law ideal is mostly not about the penumbral cases. It rather assumes that the law has the potential ability to guide people’s conduct.

Whereas Raz (2009b), pp. 217–218, includes the accessibility to courts as well as the prohibition of crime-preventing agencies to pervert the law through discretion, authors like Fuller (1969), p. 81, consider also the right to appeal an adverse decision to a higher tribunal.

The highly criticized association made by Dicey (1982), pp. 107–108, between the Rule-of-Law and constitutional rights would not sound that distant anymore.

See Fallon (1997), p. 8.

See Raz (2009b), p. 217.

Fuller (1969), p. 81.

As Raz (2009b), p. 210, has pointed out, the Rule-of-Law competes with other values which are probably more important for some people. These values are frequently constitutionalized.

See Raz (2009b), p. 217; Fuller (1969), p. 81; Dicey (1982), p. 108; and Dworkin (1985), p. 27.

See Dicey (1982), pp. 110–111.

For Raz (2009b), p. 217, “…it is in connection with political freedom in this sense that constitutional guaranteed rights are of great importance.” Nevertheless, in his view the Rule-of-Law is compatible with gross violations of human rights and it has no bearing on the existence of spheres of activity free from governmental interference.

See Fuller (1969), p. 81.

As it will be shown, certainty in the legal system could be reinforced that way. Dworkin (1985), p. 32, summarizes this advantage: “Society makes an important promise to each individual, and the value of the promise seems to me worth the cost. It encourages each individual to suppose that his relations with other citizens and with his government are matters of justice, and it encourages him and his fellow citizens to discuss as a community what justice requires these relationships to be. It promises a forum in which his claims about what he is entitled to have will be steadily and seriously considered at his demand.” See also Fallon (1997), p. 53.

This means, in short, that one cannot exist without the other. For Kelsen (2008), p. 51, however, whereas the right always needs an obligation, the right is only a possibility and not a necessity.

Compare, for instance, Lüth, BVerfGE 7, 198 (1958), p. 205, with Dicey (1982), pp. 115–120.

For instance, it is clear that in principle it makes no difference in regards to predictability whether a published statute was democratically voted or enacted by the executive power.

See Raz (2009b), pp. 210–211.

See Hume (2000), p. 302, after whom this logical rule is named: “I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surprised to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, it is necessary that it should be observed and explained; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention would subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceived by reason.”

See Michelman (2003), pp. 13–34.

See, for instance, Elfes, BVerfGE 6, 32 (1957), p. 41.

See Dworkin (1985), p. 16, who points out that “though the rights model concedes that the rule book is in this way a source of moral rights in court, it denies that the rule book is the exclusive source of such rights.”

See Alexy (1986), pp. 53–54.

See Raz (2009b), p. 210.

Provided it is not only political demagogy and the constitution enjoys a reasonable degree of entrenchment.

Raz (2009b), p. 229.

See Dworkin (1985), p. 12.

See Raz (2009b), p. 222.

See Rawls (1999), p. 210.

See Kelsen (1929), p. 52.

See Raz (2009b), p. 225.

See Fuller (1969), pp. 81–82; and Dworkin (1985), p. 16.

See Dicey (1982), pp. 115–116; and Dworkin (1985), pp. 11–12.

See Carothers (2008), pp. 59–60; and Kleinfeld (2006), p. 47.

The subjective and objective dimensions of constitutional scrutiny are explained in the last section of this chapter. See infra Sect. 2.4.1.

See Schlaich and Korioth (2010), pp. 6–7.

As it will be thoroughly discussed, in some legal systems ordinary courts are not allowed to control acts of Parliament directly. Yet as it is argued by Kelsen (1929), p. 52, “…in the referred legal conditions it cannot be said that the constitution is guaranteed. This is only the case when there is the possibility to nullify unconstitutional acts.” (Author’s translation). Thus, empowerment in those systems is achieved insofar as the ordinary court, to which the powers of judicial review—in the particular sense of being able to declare the unconstitutionality of acts of authority regardless of the State power from which they derive, what is also known as richterliches Prüfungsrecht—are limited, enjoys instead the ability to detonate the mechanism through which the constitutional review of the act of Parliament will be performed by a specialized organ.

As it will be further explained in this chapter (infra Sect. 2.4.4), there has to be of course a limit on the acts of the State that can be subject to review. Otherwise the system would have no end. While the limit usually rests in the activity of the constitutional jurisdiction, this does not mean that their decisions cannot be unconstitutional in the dogmatic sense, but rather that there is no further entity entitled to judge that and remedy it. American Supreme Court Justice Robert Houghout Jackson made this point eloquently in a concurring opinion on Brown v. Allen, 344 U.S. 443 (1953), p. 540: “…There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final”.

See Fuller (1969), p. 81.

See Kelsen (2008), pp. 94–95.

See Kelsen (2008), pp. 95–97.

It represents the activity of “saying the law” in a legal controversy. See Kelsen (2008), p. 89.

100

See Kelsen (1929), p. 65.

101

In the words of Raz (2009b), pp. 225–226, “it is of the essence of the law to guide behavior through rules and courts in charge of their application. Therefore, the rule of law is the specific excellence of the law. Since conformity to the rule of law is the virtue of law in itself, law as law regardless of the purposes it serves, it is understandable and right that the rule of law is thought of as among the few virtues of law which are the special responsibility of the courts and the legal profession.”

102

See Shapiro (1981), pp. 154–155.

103

See Raz (2009b), p. 216, and more critical, Shapiro (1981), pp. 1–5. The main argument for this conclusion is that independent courts are impartial to the dispute and follow certain standard procedures to reach their conclusions. Thus, certainty in the application of the law would be assured through a contradictory procedure (the trial) carried out by impartial experts in the law (the judges). However, this is a conclusion that has been highly contested, at least in two fronts: The first and best known argument comes from Kelsen (1929), p. 44, who rejects a substantial difference between what the administration and the judiciary do in regards to application of the law. More recently however, the critique falls especially in regards to rights which imply a high degree of technical expertise in their realization or implementation by administrative agencies. As an introduction to this problem, see Shapiro (2002), pp. 173–199. Compare also Hesse (1991), pp. 221–230.

104

See Raz (2009b), p. 225.

105

See Raz (2009b), p. 220.

106

See Posner (1985), pp. 69–71.

107

The distinction between constitutional right and constitutional procedural right will be of the utmost importance when analyzing the subjective and objective dimensions of constitutional judgments. See infra Sect. 2.4.1 in this chapter.

108

See Kelsen (2008), p. 60; and Alexy (1986), p. 472.

109

See, for instance, Ger. GG (1949), art. 93, cl. 1, No. 2, and Political Constitution of the United Mexican States (Mex. Const.) (1917), art. 105, para. II, published in Diario Oficial V(30) 1917:1–13.

110

See Fiss (1996), pp. 23–24.

111

The Rule-of-Law conception of Dworkin (1985), p. 27 praises this individual empowerment before the courts: “For individuals have powers under the rights conception that they do not have under the rule book conception. They have the power to demand, as individuals, a fresh adjudication of their rights. If their rights are recognized by a court, these rights will be enforced in spite of the fact that no parliament had the time or the will to enforce them.”

112

See Raz (2009b), pp. 225–226.

113

See Dworkin (1985), p. 27.

114

See Dworkin (1985), p. 16.

115

See Kommers (1997), pp. 59–62.

116

See, for instance, Ger. GG (1949), art. 20, cl. I.

117

See Schuppert (1999a, b), p. 299.

118

See Schmitt (1993), p. 125.

119

See Trenor (2005), p. 457, and compare with Germany, where according to Kommers (1997), p. 36, before the Basic Law “there was no place for judicial review.”

120

See, for instance, Stone Sweet (1992), p. 219.

121

This was the case, for instance, in the United Kingdom, where the House of Lords was, until 2009, the Highest Court of the Land. See Le Sueur (2004), pp. 3–7.

122

See Schwartz (2006), pp. 19–48.

123

See Fallon (1997), p. 53.

124

The traditional sense of the term is defining concretely and individually a right or an obligation.

125

See Schlaich and Korioth (2010), pp. 244–246.

126

See Hervey (2003), pp. 194–195.

127

It could also be discussed whether a right without the procedural entitlement to enforce it is actually a right. The assumption here is that it is as long as the implementation of such right is not discretional to the reviewing authority, that is, as long as someone can challenge for the individual and the review is obligatory for the court (e.g. abstract control of norms or collective action).

128

See Dicey (1982), pp. 3–5.

129

See, among many, Freund (1954), pp. 106–162.

130

See Stone Sweet (1992), p. 132.

131

See Constitution of the French Republic (Fr. Const.) (1958), arts. 61.1 and 62, published in Journal Officiel de la République Française 0238 1958:9151–9172, as amended by Constitutional Law to modernize the Institutions of the 5th French Republic (Fr. L. Const. Inst. 5° Rep.) (2008), arts. 29–30, published in Journal Officiel de la République Française 0171(2) 2008:11890–11896.

132

This misunderstanding is one of the reasons why Mexico has developed a parallel constitutional jurisdiction which has become the last word in almost every ordinary trial. See infra Chap. 5.

133

See Kenntner (2005a), p. 786.

134

This is the unintended consequence of the recent decision of the Mexican Supreme Court in October 25, 2011 that authorizes every court in the country the disapplication of “unconstitutional” or “unconventional” statutory law. See infra Chap. 5.

135

If, for instance, a criminal code would be declared unconstitutional, an elemental sense of justice would demand to set free all of those convicted for the unconstitutional crime description. See infra Chap. 5.

136

See Montesquieu (1989), p. 163.

137

For instance, it is an essential element of the German Rechtsstaat. See Bumke and Voßkuhle (2008), pp. 295–297.

138

The classic examples are the extraordinary powers of legislation given to the executive and the submission of the executive to the legislative in parliamentary systems.

139

See Kau (2007), p. 83. The principle of Parliamentary Sovereignty, however, is present in the common law tradition of England. See Dicey (1982), pp. 3–5.

140

Marbury v. Madison, 5 U.S. 137 (1803).

141

In England, for instance, as there is no written constitution, Rule-of-Law is rather related to the ability of the courts to apply ordinary law, but this is always subject to retaliation from the Parliament. See Fallon (1997), p. 9.

142

See Trenor (2005), p. 457.

143

See Pushaw (1996), pp. 413–425.

144

Whereas the German notion of richterliches Prüfungsrecht involves the review of the law (mostly of administrative action but also of statutes) through statutory and constitutional standards by a judicial-type organ, Verfassungskontrolle represents the resolution of disputes between the political organs acknowledged by the constitution. See Kommers (1997), p. 4. Contrary to his distinction, however, it is the latter concept that is wider. While Verfassungskontrolle implies the powers to determine the constitutionality of a legal measure enacted by a public organ (statutory, administrative, or judicial), richterliches Prüfungsrecht does not necessarily imply the settlement of a constitutional political dispute.

145

Whereas in the European tradition the duties of judicial review in regards to acts of the executive or administrative agencies can be done by the ordinary courts (usually administrative courts, but also courts of general jurisdiction), the task of constitutional control has been just a capacity of a specialized organ with jurisdiction on State matters. For the transition of jurisdiction on State matters (Staatsgerichtsbarkeit) to jurisdiction on constitutional matters (Verfassungsgerichtsbarkeit) see Schlaich and Korioth (2010), pp. 6–8; and Kommers (1997), p. 5.

146

Whereas European scholarship uses the ‘separation’ and ‘unity’ semantics; American scholars refer to this dichotomy as ‘decentralized’ or ‘centralized’ models. See Kau (2007), p. 79.

147

See Stone Sweet (2008), p. 223; and Jackson and Tushnet (1999), p. 465.

148

See Stone Sweet (2008), p. 224. See also infra Chap. 3.

149

See Trenor (2005), p. 357.

150

Kau (2007), p. 368, is mistaken when he implies that this kind of control is only given to federal courts.

151

This is known as the ‘case or controversy’ requirement and implies that abstract constitutional control is not part of the American Einheitsmodell.

152

See Jackson and Tushnet (1999), p. 458.

153

See Fuller (1969), p. 81.

154

The constitutional review of judicial decisions in this decentralized model is channeled usually only through the ordinary mechanisms of appeal, that is, it is—albeit with important exceptions—regularly represented by the control of the judgment which is exercised by the courts of appeal enjoying a higher position in the judicial hierarchy.

155

See U.S. Code Title 28 (28 U.S.C.) (2006), § 1257.

156

This is the principle that binds courts to the authority of superior courts as it forces them to solve a case in the same way it has been previously decided by a higher tribunal in the judicial hierarchy. See Jackson and Tushnet (1999), p. 468.

157

See Stone Sweet (2008), p. 222; and Jackson and Tushnet (1999), p. 467.

158

There are usually courts specialized in administrative matters, but it is not excluded that courts of general jurisdiction review administrative action as well. Constitutional review of judicial action is shared both by the ordinary courts and the constitutional court.

159

By jurisdictional here it is meant that the organ follows a judicial contradictory procedure to reach a decision and is integrated by professional judges at least in some part. The French Constitutional Council would in a way correspond to this model, but neither are its members necessarily related to the judicial realm nor is its procedure completely contradictory. See Stone Sweet (1992), p. 219.

160

For an updated regional distribution of this model worldwide, see the several tables available at http://www.concourts.net/tab/tab1.php?lng=en&stat=1&prt=0&srt=0.

161

See Fleury (2008), p. 63.

162

See Dicey (1982), pp. 3–5.

163

See Kommers (1997), p. 36.

164

See Schlaich and Korioth (2010), pp. 244–246.

165

See, for instance, the ‘force of statute’ effects of some of the judgments in German Federal Constitutional Court Act (Ger. BVerfGG) (1951), § 31, No. 2, published in Bundesgesetzblatt Teil I 45 1993:1473–1487.

166

There is normally an exception towards the review of pre-constitutional legislation, but this is usually not considered constitutional review in the strict sense of the term. In reference to this exception in Germany, see Kau (2007), p. 300; and Fleury (2008), p. 63. The constitutional review of preconstitutional legislation, however, should be considered constitutional review insofar as it enforces the primacy of constitutional rules. See infra Chap. 4.

167

See Hesse (1991), pp. 29–32.

168

See, for instance, the Vorlageverfahren in Ger. GG (1949), art. 100, the cuestión de inconstitucionalidad in Spanish Constitution (Spa. Const.) (1978), art. 163, published in Boletín Oficial del Estado CCCXVIII(311.1) 1978:29313–29339, and the recently introduced question constitutionnelle in Fr. Const. (1958), art. 61.1.

169

See Schlaich and Korioth (2010), pp. 7–8; and Kau (2007), p. 75. As a matter of fact the original creator of this model of constitutional review did not consider challenges of individual acts (i.e. administrative resolutions or judgments) as an essential element of the attributions of a constitutional court. Since the unconstitutionality of the individual act—insofar the constitutionality of a statute is not questioned—could only be indirect, he rather considered that the resolution of these challenges should be a task for ordinary administrative courts. See Kelsen (1929), pp. 62–63.

170

See, in this sense, Kommers (1997), pp. 3 and 42.

171

See Shapiro (2002), pp. 174–175.

172

For a distinction between two and three-tier federalisms, see Kommers (1997), pp. 68–69.

173

See Saunders (1995), p. 61.

174

See Cameron and Falleti (2005), p. 260.

175

See Fuller (1969), p. 81.

176

If there was a centralized system of constitutional control of statutes (Verwerfungsmonopol), one would have to include in this ordinary mechanisms of congruence the possibility of federal and local courts to refer the case to the constitutional organ. Still, that would be an interaction strictly in regards to competencies and not hierarchical one. It would be a similar situation to that one between the European Court of Justice (ECJ) and the national courts of the European Union’s (EU) member states. See Cohen (1996), pp. 421–461.

177

See Winkle (1974), p. 68. Whether this relationship by many courts is usually not regarded as “hierarchical” but rather as the exercise of different competencies, they are no doubt hierarchical insofar as a judgment can be overturned.

178

Here ‘state’ is used in the sense of ‘Bundesland’. When ‘State’ is capitalized, it is used in the sense of ‘Staat’.

179

For the use of federal common law as a way to review decisions from state courts, see Winkle (1974), pp. 71–72.

180

See Constitution of the United States of America (U.S. Const.) (1789), amend. X, available at http://www.usconstitution.cc/, as well as Kau (2007), p. 53.

181

See Burnham (2006), pp. 189–191.

182

See Kau (2007), p. 54.

183

See Holt (1985), pp. 169–189. For the evolution of federal question jurisdiction see infra Chap. 3.

184

In other words, to bring a federal question before federal courts is facultative. See Winkle (1974), p. 72; and Burnham (2006), p. 185. For a more detailed analysis of the distribution of jurisdiction between federal and state courts in the United States see infra Chap. 3.

185

See 28 U.S.C. (2006), § 1257. There is, as it will be mentioned, a possibility for lower federal courts to review state court decisions via habeas corpus. This writ, however, is limited to violations of liberty and thus basically restricted to criminal cases.

186

This presupposes that the case, given its “objective importance” in the eyes of the U.S. Supreme Court, is relevant enough to be considered for discussion. See Graf Vitzthum (2005), p. 322, and U.S. Sup. Ct. Rules (2013), rule 10, available at http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf.

187

Diversity jurisdiction cases are not included here as they are more about which law to apply than a question of which jurisdiction. See Winkle (1974), p. 72. For the evolution of habeas corpus in the United States see infra Chap. 3.

188

See, among many decisions of the so-called “Warren Court”, Brown v. Allen, 344 U.S. 443 (1953), and Fay v. Noia, 372 U.S. 391 (1963).

189

See Winkle (1974), p. 73. This problems ended up eventually in a severe restriction of the federal writ as of the 1980s. See infra Chap. 3.

190

See Kau (2007), p. 60.

191

See Monaghan (1975), pp. 10–14.

192

See Graf Vitzthum (2005), p. 322.

193

It is meant here the relationship between judicial authorities within the National State. Germany, Italy, and Spain are the usual referents for this kind of judicial federalism. What has been traditionally understood as European judicial federalism has more to do with the relationship between the supra-national judicial authorities of the EU, that is, between the ECJ and the judiciaries of the member states. For this kind of analysis see Cohen (1996), pp. 421–461.

194

See Heyde (1999), pp. 17 and 46.

195

This court is not to be confused with the constitutional court which is also a federal judicial organ. Given its relevance for judicial federalism, the revision of judgments by the federal constitutional court is subject of analysis in the following section.

196

There are some exceptions to this rule. For instance, whereas the German Federal Administrative Court is first instance court against some administrative resolutions of the Federal Ministry of Interior, the Spanish Supreme Court is trial court in cases concerning civil liability of members of the Federal Government and Terrorism. See, respectively, German Administrative Judiciary Act (Ger. VwGO) (1960), § 50, published in Bundesgesetzblatt Teil I 18 1991:686–711, and Spanish Organic Law for the Judicial Power (Spa. LOPJ) (1985), art. 56.2, published in Boletín Oficial del Estado(157) 1985:20632–20678.

197

See Jolowicz (2000), pp. 299–327; and Shapiro (1981), pp. 37–39 and 149.

198

See Heyde (1999), p. 46.

199

See Kau (2007), p. 59.

200

See, for instance, Ger. GG (1949), art. 95.

201

See, for instance, Spa. Const. (1978), art. 123, cl. I, in connection with Spa. LOPJ (1985), art. 55.

202

France is not, however, a federal country.

203

That is why these courts are usually known as ‘cassation’ or ‘revision’ courts. See Shapiro (1981), p. 149.

204

To foster this unifying role of the federal court, the procedural rules usually contain a mechanism of leave or ‘explicit admission’ in which, provided the relevance requirements are fulfilled, the local court that issued the final judgment has to explicitly grant the right to file the federal appeal. See, for instance, Ger. VwGO (1960), §§ 132–133.

205

Indeed, in the American model the higher status of federal courts before local judiciaries has never been as marked as in Europe. Even with the American original procedural configuration, if one chose the local judiciary to solve a federal question case, the federal appeal would have reached the U.S. Supreme Court only if the supreme court of a state held a statute as unconstitutional when deciding the federal question, when the constitutionality of a state statute was affirmed, or when the state court had decided against a federal interest. See U.S. Judiciary Act (1789), § 25, published in Stat. 1(21):73–93. This deference towards local courts is even stronger with the current procedural rules: ever since the “direct appeals” were eliminated in 1988—and the U.S. Supreme Court enjoys a completely discretional docket—the federal revision of state supreme courts’ decisions that hold (federal or state) statutes as unconstitutional will depend on the U.S. Supreme Court’s willingness to grant certiorari. See Graf Vitzthum (2005), p. 322.

206

See Fleury (2008), p. 39.

207

See Kommers (1997), p. 3.

208

The referral procedure is established by Ger. GG (1949), art. 100; Spa. Const. (1978), art. 163, and more recently Fr. Const. (1958), art. 61.1.

209

See Kommers (1997), p. 3; and Schlaich and Korioth (2010), pp. 303–304.

210

The usual criteria are: the case’s relevance for the legal order; that the local court does not share the criteria already established by the federal court; or a violation of due process by the local court. See, for instance, Ger. VwGO (1960), § 132.

211

While in Austria and in France this is not the case, in Spain and Germany the individual mechanisms of constitutional procedural law have consolidated as essential to the legal realm. See Kommers (1997), p. 14; and Kenntner (2005b), p. 270.

212

This limitation occurs, for instance, with the French Constitutional Council. See Stone Sweet (1992), p. 219. The inclusion of the referral procedure in Fr. Const. (1958), art. 61.1 in an amendment of July, 2008 has not changed this substantially. See L. Const. Inst. 5° Rep. (2008), art. 29. While in Austria the Verfassungsgerichtshof does not control judgments, it can certainly control administrative acts. See Austrian Federal Constitutional Laws (Aut. B-VG) (1930), art. 144, cl. I, published in Bundesgesetzblatt für die Republik Österreich 1(1) 1930:1–26.

213

Compare Hesse (1991), p. 226.

214

As a matter of fact one of the main procedural limitations to the exercise of these mechanisms is that the act which is challenged must specifically violate the constitutional rights of the complainant and not constitutional law in general. See, for instance, Ger. GG (1949), art. 93, cl. I, para. 4a, and Mex. Const. (1917), art. 103, para. I.

215

According to Kelsen (1929), p. 67, in order to avoid jurisdictional conflicts, the cases that are not based on unconstitutional statutes should have been left aside of the constitutional jurisdiction and remained a task for the ordinary administrative courts.

216

See Graf Vitzthum (2005), p. 322.

217

See 28 U.S.C. (2006), § 1257. For a detailed description of the evolution of the U.S. Supreme Court's certiorari jurisdiction see infra Chap. 3.

218

For instance, constitutional procedural mechanisms such as the German Verfassungsbeschwerde or the Spanish Recurso de amparo are mostly filed against judgments from ordinary courts. See, respectively, Ger. GG (1949), art. 93, cl. I, para. 4a, and Spa. Const. (1978), art. 53.2.

219

See Kenntner (2005b), p. 270.

220

This is not supposed to mean that the American model of judicial organization guaranties less effectively the Rule-of-Law than the European. As it will be seen, this depends mostly on the legal system’s ability to provide legal predictability. In the American model of diffused constitutional control and binding precedent, the ordinary mechanisms of appeal and the discretional review by the U.S. Supreme Court serve adequately such purposes. See infra Chap. 3.

221

See Kelsen (1929), p. 67.

222

See Fleury (2008), p. 64. This requirement, however, does not really solve the problem. It rather forwards the issue and makes it part of the already existing problem of determining the boundaries between ordinary and constitutional jurisdiction.

223

See Kenntner (2005b), p. 270. To sustain that constitutional courts apply only constitutional law and ordinary courts apply only ordinary law is to deny that constitutional rules are binding for every authority or, in other words, that there is a direct effect of the constitution. In a theory of the Rule-of-Law that fosters constitutional supremacy such conclusion is, therefore, absurd. See also Schlaich and Korioth (2010), p. 14.

224

See Schuppert (1978), p. 43.

225

This includes the uniformity role which the U.S. Supreme Court sporadically exercises through its discretional docket in certiorari.

226

See Hoffmann-Riem (2003), p. 189.

227

Inefficiency here is used in its most primary meaning describing a cost-benefit relationship. That is, if the same desired result could be achieved with the use of only one instead of two units, the model applying two units for such purpose is inefficient.

228

See Kenntner (2005b), p. 271.

229

See Schlaich and Korioth (2010), p. 11.

230

See Hoffmann-Riem (2003), pp. 181–182.

231

See, for instance, Elfes, BVerfGE 6, 32 (1957), p. 41. This judgment, however, speaks of a constitutional violation in regards to a statute (Normen) and not necessarily in regards to a judgment given its own vices. See infra Chap. 3. For other examples, see Schlaich and Korioth (2010), pp. 11–12.

232

See, for instance, Mex. Const. (1917), arts. 14 and 16. For a similar example in Germany see Hoffmann-Riem (2003), pp. 190–191, in regards to Lüth, BVerfGE 7, 198 (1958), and the establishment of basic rights as a control criterion in the application of ordinary law.

233

See Roth (1996), pp. 547–548.

234

See Kenntner (2005a), p. 786.

235

See Roth (1996), pp. 547–548.

236

It is not a surprise that the main argument against this conclusion comes from Kelsen (1929), p. 67.

237

According to Kenntner (2005b), pp. 270–271, in the German realm this cooperation relationship has not been harmonic at all given the insufficiency of the formulas used by the BVerfG.

238

See Hoffmann-Riem (2003), pp. 188–189.

239

See Hoffmann-Riem (2003), p. 175.

240

The American Habeas corpus, the German Verfassungsbeschwerde, and the Mexican Juicio de Amparo only proceed against constitutional violations that involve basic rights. However, the extensive dogmatic postures in basic rights protection which frequently turn any constitutional discrepancy indirectly a basic right issue send the problem back to the realization of constitutional law in general. See Schlaich and Korioth (2010), pp. 9–12; and Roth (1996), p. 547.

241

See Hoffmann-Riem (2003), p. 175.

242

Raz (2009a), p. 226.

243

Even though the subjective and objective dimensions are described here semantically mostly with regard to constitutional rights, it is important to remember that they presuppose, respectively, the subjective and objective dimensions of the correlative constitutional obligations. This clarification is omitted in the main text for clarity purposes, but will achieve special significance when discussing the objective-legal character of a constitutional judgment. See Kelsen (2008), p. 55, and infra Sect. 2.4.1.2.

244

See, for instance, U.S. Sup. Ct. Rules (2013), rule 10, and Fiss (1996), pp. 23–24.

245

See, among many, Hesse (1991), pp. 118–127.

246

See Kelsen (2008), pp. 56–58.

247

The act of authority subject to constitutional scrutiny can be of course an omission. See Alexy (1986), pp. 194–195.

248

There are, of course, many kinds of constitutional judgments. For a well-structured typology, see Schlaich and Korioth (2010), pp. 241–279.

249

In this case, it forces the activity of a court with powers to perform constitutional scrutiny. See supra Sect. 2.1.3 in this chapter.

250

One can think, for instance, in the abstract control of norms which is proper of centralized systems of constitutional review. The holder of the procedural right to constitutional review that challenges the constitutionality of a norm for violating a constitutional right is usually not the holder of the constitutional right at stake. Compare Hesse (1991), p. 144.

251

The delivery of a ‘constitutional judgment’ can only be considered a ‘right’ when such constitutional scrutiny represents a correlative ‘obligation’ for the reviewing organ. As it was mentioned already apropos of the judicial realization of constitutional rules, not everyone enjoys always and in every case the procedural capacity to initiate the mechanism of constitutional scrutiny. Therefore, if the obligation to perform constitutional (judicial) review is institutionalized only through the activity of selected bodies authorized to initiate such mechanism in a legal system, the individual dimension of a case can determine its constitutional relevance only when there is a general mechanism of constitutional review that empowers the individual as one of these selected bodies.

252

Dworkin (1985), p. 27.

253

See Kenntner (2005a), p. 786.

254

Whereas the objective-legal character of a basic right would describe a direct relationship between a constitutional rule (conferring a general right) and every recipient of such rule in general, the objective character of a constitutional judgment only has a bearing on that general relationship insofar these constitutional rules are object of interpretation by a judicial organ and, consequently, their meaning, scope, and/or validity are further developed by such court. Since not every constitutional judgment has erga omnes effects or, in other words, not every judgment concerning basic rights has the ‘force of a statute’, then strictly speaking these two notions cannot be identical. This might explain why the concept “objective-legal character of basic rights” is deeply rooted in systems with centralized constitutional control where judgments of the constitutional court can have the force of a statute. See Schlaich and Korioth (2010), pp. 301–304.

255

This dimension includes all the addressees of a constitutional rule in general, that is, both the hypothetical holders of a constitutional right as well as all the entities with a general duty to their realization. See, for instance, Ger. VwGO (1960), §§ 132–133, and Bumke and Voßkuhle (2008), pp. 8–9.

256

Certainly, the objective character also comprises the general duty of every organ of the State to pursue, in its own sphere of competencies, the general realization of the constitutional rule as interpreted by the constitutional judgment. See Bumke and Voßkuhle (2008), pp. 8–9.

257

Some legal systems give different effects to a constitutional judgment depending on this particular feature. This is problematic as it fosters inequality in the application of the law. With such a differentiation the system might foster, for instance, that in two different cases filed against the same act, for the exact same reasons and with exactly the same arguments, one is overruled and the other one confirmed by the constitutional court. See the several cases referred to in infra Chap. 5. There, the majorities required for a decision on unconstitutionality in cases filed through Amparo are different that those filed in abstract control.

258

See Steiner (2001), p. 2921.

259

The clearest example of this is the writ of certiorari in the Supreme Court of the United States. See Graf Vitzthum (2005), p. 322.

260

See Kelsen (2008), pp. 62–64.

261

See Dworkin (1985), p. 27.

262

The individual dimension of constitutional scrutiny as a source of obligation was explained previously in this chapter (Sect. 2.4.1.1).

263

Compare Hesse (1991), p. 32.

264

See Fuller (1969), p. 81.

265

Raz (2009b), p. 213.

266

See Dworkin (1985), p. 32.

267

See Schlaich and Korioth (2010), p. 6.

268

Hoffmann-Riem (2003), p. 176.

269

See Hesse (1991), pp. 202–203.

270

This implies the powers either of referral or of “disapplication”. See supra Sect. 2.2.3 in this chapter.

271

This implies the judgment’s status as binding precedent or as a decision with Gesetzkraft. See, for instance, Ger. BVerfGG (1951), § 31, No. 2.

272

See Hoffmann-Riem (2003), p. 206.

273

See Hoffmann-Riem (2003), pp. 201–202.

274

This is meant only in the sense that it is authorized by the constitutional court, not that it is correct or wrong. See Kelsen (2008), pp. 107–109.

275

To make it obligatory to non-judicial authorities is not necessary if judicial review is reasonably complete, for legislative and administrative powers will be subject to the courts.

276

See Hoffmann-Riem (2003), pp. 201–202.

277

Compare Hesse (1991), p. 32.

278

See, for instance, Solange II, BVerfGE 73, 339 (1986), p. 375.

279

See Hart (1997), pp. 124–125.

280

See Shapiro (2007), p. 17.

281

See Kelsen (2008), p. 99.

282

Constitutions cannot solve every contingency and therefore, should be only guiding rules.

283

See Kelsen (2008), p. 79, and Schlaich and Korioth (2010), pp. 270–277.

284

Compare Hesse (1991), pp. 29–32.

285

Hoffmann-Riem (2003), p. 188 (author’s translation).

286

See Schlaich and Korioth (2010), p. 7.

287

Dworkin (1985), p. 27.

288

According to Hoffmann-Riem (2003), p. 189, the constitutional court should have a prerogative to determine the standards of scrutiny in constitutional interpretation. This prerogative is particularly strong vis-à-vis ordinary courts when there are no established criteria set by the legislator.

289

In centralized systems these decisions are anyway monopolized by the constitutional court. See Stone Sweet (2008), p. 224.

290

See Hoffmann-Riem (2003), p. 191.

291

Compare Hesse (1991), p. 199.

292

Many authors are in love with the idea that they are only different competencies and no real hierarchical relationship. If one court can overrule the decisions of another one, one of them is exercising a superior role and thus has a higher position. Whether this relationship is considered “hierarchical” in the original meaning of the term is rather semantics.

293

See Schuppert (1978), p. 44.

294

See Kelsen (1929), pp. 62–63, and the notion of parity developed in infra Chap. 3.

295

See Kenntner (2005a), p. 786.

296

See Kelsen (2008), p. 77.

297

Kelsen (2008), p. 83 (author’s translation).

298

See Roth (1996), p. 561.

299

The constitutional courts usually do not act without being asked to. See Steiner (2001), pp. 2919–2920.

300

Both on the German Verfassungsbeschwerde and the Mexican Amparo the law assumes that the purpose of such mechanisms is to protect rights individually. Nevertheless, on the former there is sort of a discretional rule of rejection. See Ger. BVerfGG (1951), §§ 93 d, para. 3. On the latter, in contrast, there is no such rule and, therefore, there has to be a grounded judgment to reject the case.

301

At least this is the interpretation that is given to their label as mechanisms for the protection of constitutional rights.

302

See Ger. BVerfGG (1951), §§ 93 d, para. 3, and U.S. Sup. Ct. Rules (2013), rule 10.

303

See Kenntner (2005b), p. 270.

304

See Kommers (1997), pp. 112–113 and 551 (note 85).

305

See Hoffmann-Riem (2003), p. 181.

306

See Roth (1996), p. 547.

307

Hoffmann-Riem (2003), p. 176.

308

Compare Hesse (1991), pp. 29–32.

309

Raz (2009b), p. 215.

310

See Roth (1996), p. 574.

311

Hoffmann-Riem (2003), p. 182.

312

Compare Hoffmann-Riem (2003), p. 214.

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Titel: Rule-of-Law and Judicial Federalism: The Role of Ordinary Courts in the Enforcement of Fundamental Rights
verfasst von: Alfredo Narváez Medécigo
Verlag: Springer International Publishing
Buch: Rule of Law and Fundamental Rights
Print ISBN: 978-3-319-24561-4

Electronic ISBN: 978-3-319-24562-1

Copyright-Jahr: 2016
DOI: https://doi.org/10.1007/978-3-319-24562-1_2

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