The Camel’s Dilemma – Critical Reflections on the “Political Nature” of Constitutional Courts

Francesco Saitto

Sapienza University, Rome

A prologue

Over the years, the German Federal Constitutional Court (FCC) has acquired a pivotal role in Germany and then in the European political order. The final judgement by the FCC in the “Quantitative Easing saga” confirmed the political relevance of the FCC’s role. However, Voßkuhle and Huber (see Die Zeit and the FAZ) clarified that the judgment had been a legally mandatory consequence of the jurisdictional nature of the FCC: due to its classification as a jurisdictional constitutional organ, the FCC cannot justify the circumvention of the binding nature of the Constitution, being “responsible for ensuring adherence to the Basic Law” (see the FCC’s website at Court’s Duties). It means that, although the Court’s judgements may have “also political effects”, this does not justify categorising it as a “political body” (see the FCC’s website at Court’s Duties).

A Kelsenian perspective

Such mindset allows distinguishing between a political nature in a “static” and in a “dynamic sense”. This distinction may help clarifying to what extent a jurisdictional body may produce political effects, without being, from a constitutional perspective, a “political body”. Such evaluation is consistent with a Kelsenian approach. According to Kelsen, the function of a constitutional court should be considered both jurisdictional and political. However, the constitutional court does not have a static political nature, like, for instance, the President in the Weimar Constitution. It is true that the Court is defined as a “negative legislator”. Kelsen, however, affirmed that it cannot be considered as “a camel squashed by the burden of politics” just because of its power to strike down the laws: compared to the legislative power, who is bound by the Constitution only from a procedural point of view and in exceptional cases by general principles and guidelines, the constitutional court has a jurisdictional nature, as far as its prerogatives are integrally established by the Constitution.

In the Germanic area, this debate reflected the controversial transition towards a clear monism of the form of government and the transformation of the liberal Rechsstaat into a constitutional state. Carl Schmitt opposed this evolution, by endorsing the political nature of the Guardian of the Constitution in his book Der Hüter der Verfassung. To this end, he offered a deceptive idea of neutrality, not by chance recalling the unpolitical conception of the Emperor’s prerogatives.

Constitutional Courts and Constitutional adjudication in Austria and Germany

According to the Austrian Constitution of 1920, the VfGH has a wide range of competences, which constitute a specific constitutional jurisdiction. In Austria, the Constitution is evidently considered a binding legal rule. The VfGH shares its jurisdictional prerogatives with two other apex Courts – without a real hierarchy and with a clear separation of competences – namely the Oberster Gerichtshof and the Verwaltungsgerichtshof.

By contrast, in Germany, during the 1920s, the power to judicially invalidate a statute was highly discussed and the legal nature of the Constitution was still a matter of controversy. The Constitution did not explicitly contain the power to strike down federal statutes and a complex political debate took place among legal scholars. With the Basic Law (1949), everything changed. The power to strike down the laws was expressly conferred to a special court: the Bundesverfassungsgericht. The Basic Law stressed the jurisdictional nature of the FCC according to Article 92 of the Basic Law. Moreover, a peculiar relationship is established between the FCC and the judges who belong to other jurisdictions (Article 95 BL). From this point of view, not only Article 100 BL but also the growing importance of individual constitutional complaints should be taken into account.

During the 1950s, however, the “nature” of the German “Hüter der Verfassung”, as defined by Leibholz in his introduction to the Status-Denkschrift (Status Memorandum), was still a legal dilemma. Leibholz and other judges fought for the FCC to be acknowledged as a “constitutional organ”, in order to distinguish the FCC from other judges of the judicial branch. Such acknowledgement would have strengthened the independence of the FCC and fortified its jurisdictional foundations. The Basic Law was undisputedly considered a legally binding document.

“Indeterminate contents” and Constitutional courts

Once accepted the binding legal relevance of the Constitution and acknowledged the jurisdictional role of the Constitutional Court, a static approach does not seem useful to fully understand the political relevance of Constitutional courts. However, at the same time, the risk of a political drift has not disappeared and, therefore, according to Kelsen, from a dynamic perspective, another element must be considered. In the “Staatsrechtslehrertagung” of 1928, he explained that the Constitution should contain the least number of “vague dispositions” as possible. If too many “indeterminate contents” are entrenched, the Constitutional court runs the risk of substituting its own decisions for those of the political branch.

This point seems to be even today a real challenge for contemporary systems of constitutional adjudication. For instance, it is interesting to note that Robert Alexy wrote that the FCC developed a working synthesis of the theories of Smend and Kelsen, successfully merging procedural and substantive elements of the judicial review of legislation (Staatsrechtslehrertagung 2001). The case law of the Verfassungsgerichtshof as well testifies that its political relevance has continuously increased.

An Italian perspective

When the Italian Constitution entered into force (1948), the issue of the static nature of the Constitutional Court used to be highly controversial. The Italian Constitution does not regulate the ICC in the Title that determines the judicial branch (Articles 101 ff.); rather, it classifies it among the “Constitutional guarantees” (Articles 134 ff.). Peculiar attention was devoted to interpreting Article 28 of the Law n. 87 of 11 March 1953, which states that “the power of judicial review of the Constitutional Court on laws or acts having the force of law excludes any assessment of political nature and any control on the use of Parliament’s discretion.” Finally, the Court itself expressly, even if not always without uncertainties, underlined its structural diversity from the judicial branch (i.e. judgment no. 13/1960). Against this background, legal scholars mainly focused their attention on the procedural rules that the ICC should have followed in deciding whether a statute was or was not unconstitutional. Substantively aiming to shape the ICC as a jurisdictional body, such approach considered not the “static nature”, but the functions of the Court.

From a dynamic point of view, among other things, a specific circumstance contributed to limit the debate on the political relevance of the decisions of the ICC, at least in the first years. Differently from the FCC, the ICC decided that it had the power to determine whether legislation entered into force before the Republican Constitution was compatible with the new constitutional principles (judgment no. 1/1956). That decision decreased the level of politicisation, since the Court would have struck down statutes not approved by the Republican Parliament.

However, the political relevance of ICC’s decisions soon increased. Looking at the number of constitutional rights, values, and principles that the Italian Constitution incorporates, Leopoldo Elia wrote that the ICC was “a Kelsenian judge in a non-Kelsenian Constitution”. Carlo Mezzanotte highlighted the distance from the Kelsenian approach, theorising an unsolvable dichotomy between “legal legality” and “constitutional legality”.

Conclusions

Constitutional courts have a problematic status. They have to ensure that the Constitution is fully respected. They do not share, however, a static political nature and should take the other branches and their constitutional prerogatives into account. In Germany, where the Urteilsverfassungsbeschwerde provides the BVerfG with the power to control whether judges apply the law in a constitutionally consistent way, this is particularly true with regard not only to the legislative and executive branches, but also to the other courts. In Austria, along a different path, the debate on the role and the competences of the VfGH is still under way. The VfGH is clearly trying to reshape its role. This can be seen having in mind the recent developments in its relationship with the executive and legislative branches, and with the other Courts. In Italy, the ICC is greatly improving its argumentative techniques and has inaugurated new kinds of decisions, trying to establish a more intense dialogue between the judicial and political branches. However, the Italian constitutional process still suffers from some procedural deficiencies and is characterised by the absence of any form of individual constitutional complaints.

In conclusion, it should be highlighted how decisive procedural rules are, in particular those related to the access to the court, the effects of the different kinds of judgments and the argumentative techniques. These rules should be necessarily taken into account to understand the role of a constitutional court in a constitutional system. However, analysing the growing political relevance of the constitutional courts in Europe, the question may arise up to which point the camel can withstand the weight of politics.

Francesco Saitto is Assistant Professor at Sapienza University, Rome.

Suggested citation: Francesco Saitto, ‘The Camel’s Dilemma – Critical Reflections on the “Political Nature” of Constitutional Courts’ IACL-AIDC Blog (13 October 2020) https://blog-iacl-aidc.org/100th-anniversary-of-the-austrian-constitutional-court/2020/10/13/the-camels-dilemma-critical-reflections-on-the-political-nature-of-constitutional-courts