The New Constitutional Law and the Ascent of the Judiciary
At the end of World War II, countries in continental Europe underwent a major institutional redesign, with repercussions of short, medium, and long term on the Roman-Germanic world at large.
Constitutional law came out of the conflict entirely [64] reconfigured, both as to its object (new constitutions were enacted), and as to its role (centrality of the Constitution over the law). As well, the ways and means of interpreting and applying its standards were also altered (emergence of new constitutional hermeneutics). These dogmatic changes were also accompanied by a remarkable institutional change, denoted by the creation of constitutional courts and the steady rise of the Judiciary. In lieu of the legislative rule of law prevalent in the nineteenth century, arose the constitutional rule of law, with its many implications.[65] This new model has been identified as Postwar Constitutionalism, New Constitutional Law or Neoconstitutionalism.[66]This new constitutional law evolved in an environment of profound transformation within legal culture, which included: (i) the attenuation of legal formalism, (ii) the development of a post-positivistic philosophical view and (iii) the transition of the Constitution to the center of the legal system. Constitutional texts became more analytical, with the provision of an extensive catalog of fundamental rights. Furthermore, societies grew more complex and plural. As a consequence, there was a reduction in the ability to address a large number of questions through express normative provisions, increasing the experience of uncertainty in the law. In this environment, both the Constitution and infra-constitutional laws transferred decision-making power to the interpreters of the legal system, through the use of principles and open-texture clauses.
Judicial interpretation, in turn, started to resort more frequently to concepts and techniques such as balancing, proportionality, and reasonableness.At the same time as these philosophical, theoretical, and practical developments, there was a significant institutional rise of the Judiciary Branch. The phenomenon is worldwide and is also, temporally and historically, associated with the end of World War II. Since that time, the world has realized that the existence of a strong and independent Judiciary is an important component in the preservation of democratic institutions and fundamental rights. This is accompanied by a kind of disillusionment with majoritarian politics and the inability of parliaments to generate consensus on certain controversial issues. The reference to New Constitutionalism is, ultimately, descriptive of this new reality, marked by the expansion of the role of the Constitution, the ascent of the Judiciary, and a less formalistic and positivistic legal interpretation. But the idea of new constitutionalism, in endorsing these transformations, also has a normative dimension. It is therefore not only a way of describing contemporary constitutional law, but also of wishing it so. A legal system that leaves its traditional comfort zone, which is one of conserving relevant political achievements, and begins to embody a promotional function, thus becomes an instrument of social progress.
4.3