Constitutional Courts between law and politics

When dealing with the issue of Constitutional Courts in relation to politics, the first question is where these institutional actors should be positioned on an ima­ginary map of two ideal-typical continents, namely the legal world and the political world.

As far as the legal system is concerned, Constitutional Courts are ranked at the top, being the supreme and ultimate interpreters of the constitution, and conse­quently of the constitutionality of different law-making measures, in particular (but not exclusively) statutes. In other words, constitutional review is the legal competence allowing such courts to enjoy an exclusive decision-making power and a legal superiority in relation to the other branches of power, to an extent which is often unknown to most of the other judicial bodies within a national community. In addition to this lofty position within the legal structure, Constitutional Courts also tend to occupy a dominant place in the political building characterising a democratic form of state. Constitutional Courts are entrusted by the political system (and, through it, by the community as such) to act as the ultimate guar­dians of the basic values that inspired the founding fathers and mothers when

JURGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF law and democracy, 1998, Cambridge: The MIT Press, 266. Compare to Frederick W. Frey, The Problem of Actor Designation in Political Analysis, 17 comparative politics 127-129 (1985).

9 Hans Kelsen, Law, State, and Justice in the Pure Theory of Law, in H. kelsen, what is justice? justice, law and politics in the mirror of science, 1957, Berkeley: University of California Press, 289.

10 SeeHABERMAs, between facts and norms, supra at 233-234; Kaarlo tuori, critical legal positivism, 2002, Aldershot: Ashgate Publishing, 36-39; and luhmann, law as a social system, supra at 188 (and his idea of ‘juridical rationality’). See alsoMAx weber, economy and society: an outline of interpretive sociology, 1978, Berkeley: University of California Press, 657. writing the fundamental documents (or in establishing the fundamental customs) underpinning and regulating the life of the political community.^[20] [21]

However, if the Constitutional Courts are seen from the perspective of the relations of law and politics, one can assert that they actually occupy a third posi­tion, at a much deeper level, functioning as a sort of transfer point between the legal and political worlds. If one considers the primary position occupied by Constitutional Courts (which is often implicit in the building of a modern democracy), this location can be identified as a bridge between values produced in the political world and in legal thinking. As stated by a political scientist:

constitutional courts act systematically both in the legal and the political systems. Almost every judgment has some consequences on the legal system (e.g. the abrogation of an unconstitutional law) and the political system (e.g. the ret­roactive defeat of the parliamentary majority that enacted this law).

As previously seen, the primary function of a Constitutional Court is constitutional review, i.e., to continuously monitor the compatibility of legislation and other normative measures with the basic values as announced in the constitution or other fundamental laws. While this role assigned to the Courts is largely undis­puted, it carries an underlying problem of conflicting logic. At one end, the legal message of the Constitution, namely the models of behaviours prescribed, is heavily affected by the fact that constitutions are not only written by political actors (as are most legal measures), but are also often the product of extremely complex political compromises or very general political statements.

Since the primary goal of a Constitutional Court is to ‘protect’ such documents, it is easy to understand how this institutional actor tends to end up being a legal player, but inclined towards the political world. Three different features affect Constitutional Courts, making them actors that, though having their feet in the legal world, tend to lean heavily towards the political arena. First, Constitutional Courts are legal actors leaning into politics from an institutional perspective, i.e., from the perspective of where these courts are positioned among the different organisations in a certain community which has as its primary goal governing the behaviour of individuals, and are characterised as being permanent as well as making and enforcing rules governing human behaviour.

At the same time, a Constitutional Court indirectly places the activities and operations of political actors, such as national or local assemblies, under scrutiny. It is true that its evaluation is directly legal in nature, but it is also true that the law is the main voice of political actors - at least in a democratic form of a state that has adopted the rule of law. Each time Constitutional Courts modify, approve, or even remain silent as to that which political actors have expressed through the law, the courts operate in the political institutional arena, particularly by allowing or disallowing certain political actors to produce statements that are directly relevant to and binding for the entire community from which such actors have (directly or indirectly) been chosen.^[27] In other words, Constitutional Courts are legal institu­tional actors because of their being a court, but, at the same time, they are gate­keepers in relation to the political world, allowing the actors in the latter to be heard (or not) in the legal world.

Alongside this institutional factor, concerning the location of Constitutional Courts among the different actors, a second factor operates from a structural perspective in such a way as to render Constitutional Courts as legal actors heavily leaning into the political arenas. It has been mentioned how Constitu­tional Courts reside outside of the ordinary court system and are independent from other branches of the public authorities. However, Constitutional Courts always tend to present a certain ‘structural cohesion’ with the actors belonging to the political arena. This means that almost all Western legal systems have foreseen that political actors, either as legislators or within the executive branch, can have partial (as in Italy) or total (as in the US) control as far as concerns the individuals who are to sit as justices in the Constitutional Courts.

Despite this important political influence in deciding the structure of Constitu­tional Courts, these courts cannot be considered as having a purely and exclusively ‘political structure’. Though the justices sitting in such courts can (and often are) politicised individuals, they nevertheless come from the legal world, i.e., the pre­dominant feature of individuals sitting in Constitutional Courts is normally that they are chosen among lawyers or individuals with a formal education in law. In other words, even when all justices are chosen based on political considerations and personal political ideologies and affiliations, the selection process is limited (either by law or by constitutional customs) to individuals trained at least formally in the art of law, e.g., holding a law degree. Moreover, most (but not all) of the time, the recruitment procedures require that the candidates have some experience from the judiciary branch at a high level.²

Lastly, Constitutional Courts can be seen as legal actors inclined towards the political world from a functional perspective, i.e., by observing the function these courts have in the relations between lawyers and politicians.^[29] [30] [31] [32] Viewed from this functional perspective, one can note how Constitutional Courts perform an inter­mediary function between these two arenas. As briefly sketched above, one of the major contributions of a Constitutional Court to its community is mediating between the highly political statements present in the constitution. The articles of a constitution tend to be dominated, from a legal perspective, by the rationality of the political discourse; at the same time, they are ‘legally relevant’ concepts and cate­gories, i.e., concepts binding public officials and the community in general through their observance of the parameters of the rationality required by a legal system.²

This mediating role played by Constitutional Courts is not only directed at the legal world, where the Courts define for its actors in legal terms what the general statements of goals in the constitutional documents or practices mean, eg., by guiding a justice in the interpretation of constitutionally questionable statutes.

Since a constitution is the product of the will of a community (through their political representatives), at least in theory, a Constitutional Court in a democratic state has the function of mediating to the community and, in particular, to its political representatives, the value message that this same community and its political actors originally adopted, but now in terms of a legal message, i.e., a message primarily directed at the actors given the duty of implementing the legal rules as interpreted (or accepted) by the Constitutional Court. As, in particular, the American legal realists and Alf Ross have pointed out, judges in general play a decisive role as the point of passage where the ‘law-in-books’ becomes the ‘law-in-action’, i.e., the normative apparatus of rules felt as binding by the population or by the public officers.^[33]

In this case, Constitutional Courts have the primary function of translating into binding norms for the political actors and the community, the law-in-books that the political actors have enacted. Constitutions tend to be documents where the political origins of the law, a typical feature of contemporary law, surface more clearly than in other legal documents (e.g, a statute regulating taxation law). Constitutions are often used not only as a legal document grounding a new legal system, but also as a primary form of ‘political symbol’, i.e, a message to the community from the political actors as to which fundamental values the state/community is based upon.^[34] Moreover, and as a consequence of this partially political nature, legal language in the Constitution tends to be interspersed with political language.^[35] A classic example of this is the article of the Italian constitution stating that property ownership is guaranteed by the law as long as it fulfils its social function.^[36]

This being the situation, where judges are the intermediaries between the ‘paper law’ and ‘real law’, with the ‘paper law’ being the constitution - a mixture of political statements and legal concepts - it is not surprising that Constitutional Courts, more than other branches of the judiciary, become the law-making actors by being the interpreters of the law. As already pointed out by many legal scholars, the interpreta­tion of the law that is typical for a court in general can become a law-making power.^[37] In the case of the Constitutional Courts, this phenomenon is more evident, because the legal text against which the interpretation of the statutes has to take place (namely the constitutional document) is so vague that the clarification of its content and of its borders becomes law-making (at least if seen from a legal perspective) directly applicable in concrete cases (as regards the concrete constitutional review) or in gen­eral (as regards the abstract constitutional review).^[38] In summary, Constitutional Courts, for all the reasons mentioned above, are a special type of institutional actor that, though positioning themselves among the legal actors, i.e., the actors aiming at interpreting and applying the law, tend to lean heavily into the political world of law­making, since Constitutional Courts through interpretation shape the legal panorama regulating a certain community.^[39]

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