Constitutional Court Systems: Concentrated and Diffuse Models
There are two primary systems of judicial review regarding the constitutionality of laws: diffuse (as seen in the USA) and concentrated (the Austrian-Kelsen model).
Diffuse Control (USA)
In the diffuse model, all courts can assess the constitutionality of laws. This assessment occurs incidentally during a case when a law’s constitutionality is questioned.
- All ordinary courts can rule on the constitutionality of laws.
- Differences between courts are resolved by superior courts, ultimately the Supreme Court, whose decision is binding.
- A law suspected of unconstitutionality is not subject to direct challenge.
- Constitutional review happens via an “exception of unconstitutionality” during a case where the law is applied.
Concentrated Control (Austrian-Kelsen)
In the concentrated model, a single jurisdiction, typically a Constitutional Court, holds the power of constitutional review.
- A Constitutional Court (CC) has a monopoly on determining the constitutionality of laws.
- Cases are initiated by a constitutional motion (direct challenge), allowing broader review.
- This facilitates the annulment of unconstitutional laws, even those not currently causing controversy.
Key Differences Between the Systems
1. Scope of Review
The diffuse system allows all courts to review, while the concentrated system centralizes this power in a Constitutional Court.
2. Initiation of Review
The diffuse system relies on challenges arising during cases, while the concentrated system allows for direct challenges to laws.
3. Standing
In the diffuse model, parties in a dispute where the law is applied have standing. In the concentrated model, standing is typically restricted to bodies safeguarding the public interest.
4. Effects of Judgments
In the diffuse model, judgments are typically retroactive (ex tunc) and limited to the case (inter partes). However, the principle of stare decisis can broaden the impact. In the concentrated model, judgments often lead to the annulment of the law.
Kelsen’s View on Constitutional Guarantees
Kelsen viewed law as a hierarchical system, with each level determined by a higher one, ultimately grounded in the constitution. He saw the legal guarantee of the constitution as crucial, ensuring the regularity of legal acts. This regularity is maintained through the necessary alignment between lower and higher standards. For Kelsen, constitutional guarantees ensure the constitutionality of laws immediately subordinate to the constitution. The annulment of an unconstitutional act is the most effective guarantee.
Kelsen conceived of the Constitutional Court not as a traditional court but as a “negative legislator,” annulling unconstitutional laws. This contrasts with the American judicial review model.
Convergence of Systems
There is a progressive merging of these judicial review models. The effectiveness of precedent in the US and the self-efficacy of European Constitutional Court judgments are becoming increasingly similar. It is possible to combine different systems and move towards a common system.