Simone Lawson
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether challenged laws are unconstitutional, i.e. whether they conflict with constitutionally established rules, rights, and freedoms. Some countries have separate constitutional courts, while others delegate constitutional authority to their ordinary court system. The Austrian Constitutional Court, established in 1921, is the oldest constitutional court in the world. The Austrian System, which involves a separate special constitutional court that only hears cases concerning the constitutionality of the national legislature's acts, has been adopted by many countries. Constitutional Courts have a unique place in the sociology of law, as they deal with individually known actors rather than social groups, and apply a body of law that is more open-textured and politically controversial than normal law.
| Characteristics | Values |
|---|---|
| Court type | High court |
| Jurisdiction | Restricted to constitutional matters and issues connected with decisions on constitutional matters |
| Authority | Rules on whether challenged laws are unconstitutional; i.e., whether they conflict with constitutionally established rules, rights, and freedoms |
| Structure | Very small |
| Judges | Elected with super-majorities, leading to equal appointment rights between government and opposition |
| Decisions | Flexible forms of judicial decision-making free the court from stark yes/no alternatives |
| Powers | Judicial review, reviewing electoral complaints, and hearing cases concerning complaints against referendums and popular initiatives |
| Location | The Constitutional Court of Berlin is located in the same building as the Kammergericht |
| Example | The Constitutional Court of Austria was the first dedicated constitutional court |
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What You'll Learn
Constitutional courts are a high court that deals with constitutional law
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether challenged laws are unconstitutional, i.e., whether they conflict with constitutionally established rules, rights, and freedoms.
The First Austrian Republic established the first dedicated constitutional court, the Constitutional Court of Austria, in 1919. However, it only gained the power to review the laws of Austria's federal states when the country's new constitution came into effect on 10 October 1920. The idea of a separate constitutional court that solely heard cases concerning the constitutionality of the national legislature's acts became known as the Austrian System and was later adopted by many other countries.
Some countries, such as Russia before 2020, have constitutional and charter courts that hear cases relating to conformity with regional constitutions or charters of laws adopted by regional legislatures and governors' decrees. These courts are typically independent and not subordinate to the country's main constitutional court.
Constitutional courts are the highest courts in constitutional matters and have exclusive jurisdiction over disputes about the powers and constitutional status of branches of government. They can decide on the constitutionality of parliamentary or provincial bills, amendments to the constitution, and whether a parliament or president has failed to fulfil a constitutional obligation.
High Courts, on the other hand, are the highest judicial authorities in their respective states or union territories. They have the power to issue writs, including habeas corpus and mandamus, to enforce citizens' fundamental rights and ensure that government actions are valid per the constitution. High Courts can also transfer cases to more appropriate lower courts and hear appeals from subordinate and district courts.
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They rule on whether challenged laws are unconstitutional
A constitutional court is a high court that deals primarily with constitutional law. Its key role is to rule on whether challenged laws are unconstitutional—that is, whether they conflict with constitutionally established rules, rights, and freedoms. The concept of judicial review, which underpins the work of constitutional courts, was adopted by the United States, Canada, and Australia before 1919, following shared principles inherited from British colonial law.
The Austrian System, established in 1920, was the first to provide for a dedicated court for the judicial review of parliamentary laws. This system has been subsequently adopted by many other countries. The Austrian Constitutional Court, established in 1921, is the oldest constitutional court in the world.
Constitutional courts are distinguished by their focus on individual actors rather than social groups, applying a body of law that is often more politically controversial than normal law. The selection of judges for constitutional courts tends to be more openly political than for ordinary courts, aiming to balance judicial independence with democratic legitimacy.
Constitutional courts have the power to declare laws void, but they may also use alternative approaches, such as ordering lawmakers to make changes within a given timeframe or employing non-binding commentaries to facilitate political compromises. These flexible forms of judicial decision-making allow constitutional courts to actively influence policymaking and future policies.
The United States Supreme Court is often regarded as the world's oldest constitutional court due to its early role in invalidating a law as unconstitutional in Marbury v. Madison. However, the specific role and structure of constitutional courts vary across different countries and legal systems.
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They are not always separate courts
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether challenged laws are unconstitutional, i.e., whether they conflict with constitutionally established rules, rights, and freedoms. While some countries have separate constitutional courts, others delegate constitutional judicial authority to their ordinary court systems, with the final decision-making power resting in the supreme ordinary court.
For example, the Supreme Court of the United States has been called the world's oldest constitutional court due to its authority to invalidate laws as unconstitutional. Similarly, the Supreme Court of Appeal in South Africa, the highest court in all matters except constitutional matters, hears appeals against decisions of High Courts, whose decisions are binding on Magistrates' Courts.
In contrast, the Austrian System, adopted by many countries, establishes a separate special constitutional court dedicated solely to hearing cases concerning the constitutionality of the national legislature's acts. The Austrian Constitutional Court, established in 1921, is the oldest constitutional court globally. The Constitutional Court of Austria, established in 1919, gained the power to review the laws of Austria's federal states when the country's new constitution came into effect in 1920.
Some countries, like Germany, have state-level constitutional courts, such as the Constitutional Court of Berlin and the Bavarian Constitutional Court, which have the power of judicial review and other responsibilities assigned by the state constitution. The organization and selection of judges for constitutional courts vary, with some countries electing judges with super-majorities or distributing nominating rights among different constitutional organs.
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CCs apply a body of law that is more open-textured and politically controversial
A constitutional court (CC) is a high court that deals primarily with constitutional law. Its main authority is to rule on whether challenged laws are unconstitutional, i.e., whether they conflict with constitutionally established rules, rights, and freedoms. CCs apply a body of law that is typically more open-textured and politically controversial than ordinary law.
CCs are unique in that they deal with individually known actors rather than social groups, and their decisions can have a significant impact on policy-making and political compromises. CCs have found creative solutions to navigate the delicate balance of power between the judicial and political spheres. For example, instead of declaring a law void, a CC might order the lawmaker to amend it within a specified period. Alternatively, they might employ obiter dicta, or non-binding judicial commentaries, to facilitate compromises between proponents and opponents of a contentious law.
The political nature of CCs is further reflected in the selection of judges, which tends to be more openly political than in ordinary courts. Various models have been adopted to balance judicial independence and democratic legitimacy, including majoritarian solutions (election by the majority), super-majorities leading to equal appointment rights between government and opposition, and the involvement of professional bodies in the nomination process.
CCs have a distinct role in interpreting and enforcing the constitution, and their decisions can shape the relationship between law and politics. This makes them a valuable subject of study in the sociology of law. However, their unique characteristics also present challenges in applying socio-legal findings and generalizing their behaviours to other courts.
The concept of CCs has been adopted by various countries, with some establishing separate constitutional courts while others integrate constitutional judicial authority into their existing court systems. The Austrian System, which involves a dedicated court for reviewing the constitutionality of the national legislature's acts, has been particularly influential.
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CCs are very small, dealing with individual actors
CCs, or Constitutional Courts, are distinct from other courts in several ways. Firstly, they are very small in size, and deal with individual actors rather than social groups. This means that CCs interact with individually known actors, which sets them apart from other courts that deal with broader social groups. This distinction is important because it influences the nature of the cases that come before CCs and the decision-making process.
The cases that come before CCs often involve questions of constitutionality and the interpretation of the Constitution. They deal exclusively with constitutional matters, applying a body of law that is typically more open-textured and politically controversial than normal law. This means that CCs play a crucial role in interpreting, protecting, and enforcing the Constitution, ensuring that it is applied correctly and consistently.
The small size of CCs also contributes to their flexibility in decision-making. Unlike other courts that are restricted to yes or no decisions, CCs have found creative ways to navigate this binary. For example, instead of declaring a law void, a CC might order the lawmaker to amend it within a specified time frame. Alternatively, they might use the interpretation of laws or obiter dicta (non-binding judgements) to facilitate political compromises between proponents and opponents of a controversial law.
The selection of judges for CCs also differs from that of ordinary courts. The political function of CC judges is more openly acknowledged, and the selection process aims to balance judicial independence with democratic legitimacy. This can take various forms, such as election by super-majorities, distribution of nominating rights among different constitutional organs, or the inclusion of professional bodies in the nomination process.
In summary, CCs are small courts that deal with individual actors and play a crucial role in interpreting and upholding the Constitution. Their size and structure allow for flexibility in decision-making, and their focus on constitutional matters sets them apart from other courts in the judicial system.
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