Constitutional Justice: Origin, Review, and Outlook
Constitutional Justice
Concept
To provide a valid concept of constitutional justice, two elements must be addressed:
- Formal Element: An activity is jurisdictional because it is conducted by an independent body that acts under the law based on legal reasoning and the principle of contradiction.
- Material Element: Constitutional justice involves exercising several powers related to specific processes that characterize the institution. These include litigation used to control the constitutionality of laws, special protection of fundamental rights, and ensuring the vertical and horizontal distribution of power.
A body falls into the category of constitutional justice when it is judicial in character, has a status different from ordinary courts, and its jurisdiction lies with constitutional processes.
Origin
The birth of constitutional justice requires the prior acceptance of constitutional supremacy. The principle of constitutional supremacy rests on the normative character of the Constitution, making it not just a set of programming principles but a true rule of law.
The specific historical origin of the control of constitutionality, and the practical realization of these ideas, is usually placed in the year 1803. U.S. Judge Marshall, then Chief Justice of the Supreme Court of the U.S., delivered the sentencing in Marbury v. Madison, finding a Congressional act inapplicable because it was contrary to the Constitution. From this point, the U.S. would develop the idea of judicial review, at any level, of the constitutionality of laws applicable to cases. If the review leads them to believe the law is unconstitutional, it does not apply to the case they are learning.
The characteristic features of this control of conformity of laws with the Constitution are:
- All judges can perform this check.
- It is a concrete control, as it is exercised during a particular dispute.
- The dispute has a current character.
- Control is exercised by way of exception.
- Decisions have res judicata, meaning that the unconstitutionality only applies to the matter and the parties to the dispute.
Today, the American Supreme Court acts similarly to the organs of constitutional justice in Europe. It is no exaggeration to say that it has become another model for constitutional review.
In European constitutional justice, a practical counterpart soon emerged for several reasons: the principle of parliamentary supremacy, the reaction of absolutist powers after Napoleon’s fall in defense of the monarchical principle, and the positions of members of the Hegelian left. It would be the theoretical effort of Hans Kelsen, in the first third of the twentieth century, that made possible the emergence of the Constitutional Court, a specialized body of constitutional justice.
Review and Outlook
One of the significant issues that have traditionally faced constitutional justice is its own legitimacy. But all the controversy over constitutional courts has always centered on two issues:
- The tension between politics and law.
- Determining where the Constitutional Court draws its decision criteria, which leads to questions about its democratic legitimacy and power to amend or revise the Constitution.
From the standpoint of Constitutional Law, the debate justifies a tribunal to deal with constitutional processes and exercise the functions of a body with jurisdiction, whether or not integrated into the Judiciary.
Constitutional justice serves as a power control, subjecting public bodies to the limits laid out in the constitutional text. The will of the people, as expressed in the Constitution, prevails over the representatives. Ensuring the supremacy of the Constitution is the foundation for the work of bodies of constitutional justice. Constitutional justice reinforces the basic consensus with the Basic Law, creating a cohesive society under the criteria of legal peace.
Constitutionalization and Prosecution
The expansion and settlement of constitutional justice have transformed the jurisdictions that have experienced this phenomenon, resulting in their constitutionalization. The Constitution, as the highest legal authority, is applied due to its normative character. The body of constitutional justice is at the forefront of producing an effect through the application of judicial action.
The departure from authoritarian regimes underlines the importance of constitutionalizing legal orders (Germany, Spain, Greece, Italy, Portugal, and former Eastern bloc countries). The Constitution is not only hierarchically superior to other legal norms but also the center of the legal order, influencing various legal disciplines.
It is clear that a judicial body, such as constitutional justice, must use the methodological approach of the law. The guarantees of the rule of law and the requirements of the principle of legal certainty apply to it. The decisions of a body of constitutional justice are not only legal but also political, as the body cannot avoid the significant impact of its work and is obliged to consider it.
This configures a delicate position for the constitutional court. It is a legal body but must be familiar with necessary policy. Sometimes it has to act prudently amidst power disputes, leading it to use arguments and techniques unfamiliar to ordinary courts.
Conclusions
The institution of constitutional justice has become one of the most prominent figures in both the theoretical structure of most legal and political systems and their practical application.
The legitimacy of constitutional justice is now settled on arguments such as the defense of the supremacy of the Constitution, guaranteeing fundamental rights and freedoms, controlling power, integrating based on certain values, and protecting parliamentary minorities.