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48 - Constitutional Courts and Supreme Courts

from Part III D - The Legal System

Published online by Cambridge University Press:  27 March 2025

Richard Bellamy
Affiliation:
University College London
Jeff King
Affiliation:
University College London
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Summary

There are two practices of constitutional review: the diffuse review by the judiciary with supreme courts as the final appellate body in common law countries and the concentrated review by constitutional courts outside the ordinary judiciary in civil law countries. Though we observe a tendency towards a convergence of diffuse and concentrated review, there are still differences. In this chapter, the comparative merits and problems of concentrated versus diffuse review are evaluated. In order to compare the types of apex courts, a normative concept of constitutional review is developed. According to this concept, the most important precondition for legitimate and effective constitutional review is the difference between judicial and political decision-making. Judges who are capable of respecting this difference, enhance social integration by establishing a specific mechanism to correct procedural and substantive injustices. When evaluated by this standard, neither supreme nor constitutional courts are superior. Rather, the problem of both practices concerns a gradual process of a judicialization of politics. More and more political questions are decided by apex courts with constitutional review power, thereby reducing political alternatives. In concluding, a division of labor between judges and legislators is suggested that promises legitimate and effective constitutional review enriching democratic governance.

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Publisher: Cambridge University Press
Print publication year: 2025

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References

Recommended Reading

Bellamy, R. (2007). Political Constitutionalism. A Republican Defense of the Constitutionality of Democracy, Cambridge, UK: Cambridge University Press.CrossRefGoogle Scholar
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Issacharoff, S. (2015). Fragile Democracies. Contested Power in the Era of Constitutional Courts, Cambridge, UK: Cambridge University Press.CrossRefGoogle Scholar
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Lübbe-Wolff, G. (2022). Beratungskulturen. Wie Verfassungsgerichte arbeiten, und wovon es abhängt, ob sie integrieren oder polarisieren, Berlin: Konrad-Adenauer-Stiftung.Google Scholar
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Stone Sweet, A. & Shapiro, M. (2002). Abstract and Concrete Review in the United States. In Shapiro, M., Sweet, A. Stone, eds., On Law, Politics, and Judicialization. Oxford: Oxford University Press, pp. 347375.CrossRefGoogle Scholar

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