Constitutional Review in the Member States of the EU‐28: A Political Analysis of Institutional Choices
| Published date | 01 March 2020 |
| DOI | http://doi.org/10.1111/jols.12210 |
| Author | Pablo Castillo‐Ortiz |
| Date | 01 March 2020 |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, NUMBER 1, MARCH 2020
ISSN: 0263-323X, pp. 87–120
Constitutional Review in the Member States of the EU-28:
A Political Analysis of Institutional Choices
Pablo Castillo-Ortiz∗
Literaturein law and political science has suggested a number of factors
explaining choices on the implementation of constitutional review.
However, so far little is known about how such factors combine in order
to lead to different models of review. With the aid of configurational
research, this article sheds light on that question for all countries of
the current EU-28. In this region, the Kelsenian model of specialized
courts, the system of review by the judicial branch, and the model
of parliamentary sovereignty still currently coexist. This article shows
that phenomena such as the type of legal family of the country, an
authoritarian past, or political fragmentation play a major role in
choices of models of constitutional review. However, it is only when they
combine that they are capable of leading to particular outcomes.
INTRODUCTION
By ‘constitutional review’, academic and political discourses refer to the
capacity of judicial-type organs to overturn legislation deemed to be in
contradiction with the national constitution. Although constitutional review
is one of the most modern features of constitutional systems,1in the last few
decades it has experienced an exponential growth in popularity world-wide
and has become an essential practice in most democracies.2Constitutional
∗School of Law, University of Sheffield, Winter Street, Sheffield, S3 7ND,
England
p.castillo-ortiz@sheffield.ac.uk
I want to thank Calum Young for valuable comments on an earlier version of this article.
The usual disclaimer applies.
1 A. Stone Sweet, ‘Constitutional Courts and Parliamentary Democracy’ (2002) 25 Wes t
European Politics77.
2 F. Ramos Romeu, ‘The Establishment of Constitutional Courts: A Study of 128
Democratic Constitutions’ (2006) 2 Aus. Rev. of Law and Economics 103, at
103; S. Gardbaum, ‘Separation of Powers and the Growth of Judicial Review in
87
© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
review of legislation is characterized, however, by a diversity of models and
approaches. In a relatively small and politically homogenous area such as the
European Union (EU), three main approaches to the review of legislation
coexist: the Kelsenian model of concentrated review by one specialized
court, the model of diffuse review of legislation by the judicial branch, and
the model of parliamentary sovereignty in which constitutional review is
generally forbidden.
Constitutional review has attracted a great deal of attention, especially in the
fields of law and politics. From a theoretical perspective, scholars have often
debated the normative problems associated with the relationship between
constitutional review and democracy.3Doctrinal research has made a great
effort to describe, classify, and analyse the different systems of review world-
wide.4From an empirical and causal perspective, judicial politics literature
has made an essential contribution to the understanding of a wide range of
topics, such as judicial decision making, judicial independence, inter-court
relations, and so on.5
The question of the choices of different models of constitutional review
has specific implications. In the political and sometimes academic arenas,
the different models of constitutional review are usually justified through
normative claims about the need to ensure the rule of law, their contribution to
the achievement of better policy outcomes, or their role in the defence of the
constitutional rights of citizens.6The existence of these narratives shows the
political importance of constitutional review.Systems of constitutional review
are central elements of political edifices. They constrain political actors,
influence political processes, and affect policy outcomes. In fact, it is a priori
paradoxical for politicians to create these systems of constitutional review that
Established Democracies (or Why Has the Model of Legislative Supremacy Mostly
Been Withdrawn From Sale?)’ (2014) 62 Am. J. of Comparative Law 613, at 614; T.
Ginsburg and M. Versteeg, ‘Why Do Countries Adopt Constitutional Review?’ (2013)
30 J. of Law Economics and Organization 587, at 587.
3Inter alia J. Waldron,‘The Core of the Case against Judicial Review’ (2006) 115 Ya le
Law J. 1346; D.Kyritsis, ‘Constitutional Review in Representative Democracy’ (2012)
32 Oxford J.of Legal Studies 297.
4Inter alia M. Cappelletti and J. C. Adams, ‘Judicial Review of Legislation: European
Antecedents and Adaptations’ (1965–1966) 79 Harvard Law Rev. 1207; V. Ferreres
Comella, Constitutional Courts and Democratic Values (2009); M. De Visser,
Constitutional Review in Europe: A ComparativePerspective (2014).
5Inter alia K. Alter, ‘Explaining National Courts’ Acceptance of European Court
Jurisprudence: A Critical Evaluation of Theories of Legal Integration’ in The
European Court and National Courts – Doctrine and Jurisprudence. Legal Change
in Its Social Context, eds A.-M. Slaughter, A. Stone Sweet, and J. Weiler (1997)
227; G. Vanberg, ‘Legislative–Judicial Relations: A Game-Theoretic Approach to
Constitutional Review’ (2001) 45 Am. J.of Political Science 346.
6Inter alia M. Kumm, ‘Democracy Is Not Enough: Rights, Proportionality and the Point
of Judicial Review’ (2009) NYU School of LawResearch Paper No. 09–10; A. Dyevre,
‘Technocracyand Distr ust: Revisitingthe Rationale for Constitutional Review’ (2015)
13 International J. of Constitutional Law 30.
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
ultimately constrain their own power. By understanding the reasons behind the
choices of concrete models of review that political actors make, we can shed
light on this paradox and understand an important aspect of political behaviour
and decision making in the context of constitutional politics. Furthermore, we
can complement the normative debates about the merits of each model of
review with evidence about the actual reasons behind their implementation.
So far, empirical research on this topic is scarce. Some works have
tried to explore the question of choices of models of review through case
studies or using qualitative approaches.7Other authors have used quantitative
approaches in order to try to understand the variables that explain the decision
either to implement constitutional review or not,8or the option for the
constitutional court model.9However, given the methodology employed by
these articles, we do not yet know much about how different factors combine
to produce particular outcomes in specific cases. Likewise, to the best of this
author’s knowledge, little or nothing is known about the reasons behind the
adoption of the other approach to constitutional review in the EU: the model
of diffuse review.
Relying on qualitative comparative analysis (QCA), this research fills that
gap for the current constitutions of all EU member states. Unlike the correla-
tional approaches on which existing literature on the topic is based, QCA
allows for the identification of conditions that are necessary but not sufficient
for the production of an outcome (in the case of this research, the impl-
ementation of a certain approach to constitutional review in a country), as well
as the combinations of conditions that suffice to produce such an outcome.
The article presents a hypothetical-deductive model capable of explaining
the combinations of factors that lead to the choice of the centralized form
of constitutional review. Additionally, it inductively explains the choices
of the systems of diffuse review and parliamentary sovereignty. Bridging
different theories and strands of literature, the article shows that these choices
are the result of the interaction between different political and socio-legal
phenomena.
The findings suggest that the Kelsenian model relies heavily on the
presence of Romano-Germanic legal families, but only in their combination
with factors such as an authoritarian past or political fragmentation.
Expressed in more precise QCA terminology, a Romano-Germanic legal
system is a necessary but not a sufficient condition for the creation of a
specialized constitutional review court. This logic of necessity, uncovered
by QCA, qualifies existing knowledge about the impact of legal families on
constitutional review. The analyses also show that whenthe conditions leading
7 See M. Shapiro, ‘The Success of Judicial Review and Democracy’ in On Law,Politics
and Judicialization, ed. M. Shapiro and A. Stone Sweet (2002) 149; A. Stone Sweet,
‘Why Europe Rejected American Judicial Review: And Why It May Not Matter’
(2003) 101 Michigan Law Rev.2744.
8 A. Lijphart, Patterns of Democracy (1999); Ginsburgand Versteeg, op. cit., n. 2.
9 Ramos Romeu, op. cit., n. 2.
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
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