Author Interview: New Challenges to Constitutional Adjudication in Europe

Zoltán Szente & Fruzsina Gárdos-Orosz

New Challenges to Constitutional Adjudication in Europe

Professor Zoltán Szente and Dr Fruzsina Gárdos-Orosz talk to us about their recently published edited collection New Challenges to Constitutional Adjudication in Europe - A Comparative Perspective (Routledge, 2018). Zoltán Szente is a research chair at the Department for the Study of Constitutionalism and the Rule of Law at the Hungarian Academy of Social Sciences. Fruzsina Gárdos-Orosz is a senior research fellow at the Department for the Study of Constitutionalism and the Rule of Law at the Hungarian Academy of Social Sciences.

Tell us a little bit about the book

In the past few years, constitutional courts have been presented with new challenges. The world financial crisis, the new wave of terrorism, mass migration and other country-specific problems have had wide-ranging effects on the old and embedded constitutional standards and judicial constructions. This book examines how, if at all, these unprecedented social, economic and political problems have affected constitutional review in Europe. As the courts’ responses must conform with EU law and in some cases international law, analysis extends to the related jurisprudence of the European Court of Justice and the European Court of Human Rights. The collection adopts a common analytical structure to examine how the relevant challenges have been addressed in ten country-specific case studies (Croatia, France, Germany, Greece, Hungary, Italy, Poland, Portugal, Spain, and the United Kingdom). Alongside these, constitutional experts frame the research within the theoretical understanding of the constitutional difficulties of the day in Europe. Finally, a comparative chapter examines the effects of multilevel constitutionalism and identifies general European trends.

What inspired you to take up this project?

We have been exploring the institutional and operational characteristics of the constitutional courts and their interpretative practices for a long time. Since we had a lot of information about the changing constitutional case law in relation to some very recent global challenges in various European countries, we wanted to prepare a systematic comparative study on the mechanisms and outcomes of such jurisprudential changes.

Whose work was influential on you throughout the course of the project?

Although both global challenges and constitutional changes belong to the field of study of the mainstream academic literature, our problem setting, i.e. how these challenges have affected the constitutional jurisprudence of the European constitutional courts and the supranational courts, is a new topic which has not yet been discussed in a systematic way.

What challenges did you face in writing the book?

The biggest challenge we had to address was the issue of comparability, that is, how to compare the jurisprudential changes in the various countries. Their judicial structures and systems of constitutional adjudication differ from each other. Among them, there are old and well-established democracies and post-communist countries with moderate traditions of constitutional democracy. They have diverse legal cultures. The high courts of the ten examined countries may have to face different social problems, or even the same challenges may occur in different ways. However, we thought that analysing the structure of argumentation, and the preferred methods of constitutional interpretation, the ways and the extent of judicial responses to the global challenges may be evaluated in the changeability/stability dimension of constitutional jurisprudence.

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

We hope that we have succeeded in working out an analytical framework for identifying and instantiating the major contemporary trends of European constitutional adjudication as far as national and supranational courts respond to the global challenges like financial crisis, terrorism or mass migration. We have classified the examined countries into three groups on the basis of our evaluation scale of continuity/change in crisis-led jurisprudence. Another outcome of this research was the identification of the major judicial strategies and tools in constitutional case law coping with the effects of crisis situations. Finally, we have tried to explain the diversity of judicial responses by the national constitutional courts and the European courts. We have found that it is unlikely that a comprehensive theory can be developed that can give a general explanation of the different constitutional courts’ strategies and judicial behavioural patterns in relation to the pressures put on them, and which could reliably predict how the jurisprudence of the various constitutional courts will change in the future. We have not found any strong correlation between certain common features of the constitutional systems under review or their challenges (as independent variables), and the nature of the constitutional replies given to such challenges by the constitutional courts (as dependent variables).

Because how the constitutional courts cope with challenges is not a closed process, our findings offer only an early insight into the very recent developments and trends. Maybe the most important lesson of our research is that courts are not static institutions and their functioning and achievement depend more on the social environment and the political context than has been believed so far.

What’s next?

Although we are only in the phase of research design, we would like to continue the study of constitutional interpretation. While this research project focused on constitutional jurisprudence in a specific subject area, the next one might concentrate on a more general problem of proportionality in constitutional argumentation.

To find out more or to purchase New Challenges to Constitutional Adjudication in Europe - A Comparative Perspective click here.