Policy Studies Journal. Vol 19. No 1. Fall 1990,81-95

The Birth and Development of Abstract Review:Constitutional Courts and Policymaking inWestern Europe

Alec Stone

Consutuuonal review has exploded into prominence m Westem EuropeIn the 1970s, Greece, Portugal, Spain, and Sweden jomed Austna, the EuropeanCommunity, France, West G^inany, and Italy as poliues with effecUve reviewmechanisms Yet before 1950, the power of European courts to control theconsutuuonality of legislauon was nearly unknown ComparaUve politicalscienusts have all but ignored this developmrat wd consutuuonal cotuts gener-ally (Sigelman & Gadbois, 1983). The French case, where no major book orarticle on the Constitutional Council has yet been produced by native sociaiscientists, is a telling, if extraordinary, example But in all European countnes,academic discourse on law and courts is the pnvileged dcnnain of law professors,the vast majonty of whom are exCTcised exclusively by tradiuonal. junsprudenualconcems. In this discourse, there is a fierce resistance to the nouon thatconsutuU(»ial courts are pohucal actors at all; a radical dissociauon between legaland policymaking processes is propagated; and the impact of courts on macro-poliucs IS obscured or altogethra^ ignored

This paper is an overview and assessment of the establishment andsubsequent development of abstract review in Europe, focusing on the lnteracuonbetween consutuuonal courts, govemments, and parliaments in the making ofpublic policy In Part 1,1 examine the creauon of consutuuonal junsdicuons setapart from the ordinary and admmistrauve court systems in Austna, Germany,France, and Spam. This creaucm had the parucular advantage of allowing for theconstitutional review of legislauon by special judges while preserving the maintenets of European separauon of powers doctrines, tenets which had long en-shnned an uncompromising hosulity to judicial review In Part 2, I descnbeaspects of the suucture, mand^e, and acuvity of European courts which exerciseabstract review—in Austna, France, West Germany, and Spain. AbsD-^t reviewdiffers from Amencan judicial review in that it is not <kpendent on, or incidentalto, concrete ltugauon or controversy involving a statute "Hie abstract reviewprocess results in a decision on the prima facie consutuuonality of a legislauvetext, a concrete tort is not a requisite c(HidiUon, the process is a ptirely exegeucalexercise In Part 3, I examine the impact of abstract review on legislauveprocesses, focusing on the cases we know the most about—^France and GermanyIn both of these countnes, policymakmg has been transformed, and in remarkablysimilar ways

Policy Studies Journal, 19 1

Origins

The development of judicial review in Europe consututes an extraordi-nary departure from an established consUtuUonal orthodoxy long thought to beutterly resistant to fundamental change. In civil law systems, statutes tra<htionallyare conceived and treated as concrete expressions of the general will, or of statesovereignty, sovereignty to which the work of the judiciary and of legal scienceIS to be an obedient, if at umes creauve, servant In this orthodoxy, theconsutuuonal document is not necessanly considered supenor to statute. Histon-cally, basic laws not only failed to provide judges with the power to review theconsutuuonality of legislauon, they placed no limits on the substanuve content oflegislauon (including m the areas of public liberties and fundamental rights)Even more important, consututions could be amended or even abrogated byordinary legislauve processes

Partly as a consequence, the role and funcuon of the judiciary in theclassic European pohuco-legal system were ngidly circumscribed. The judge'srole was a subservient and bureaucrauc one he was required to venfy theexistence and applicability of statutory norms to a case at hand, but he couldlnvesugate the work ofthe legislature no further. To recognize a judge-made lawin this system was to diagnose pathology that is, lawmakers had promulgatedeither an unclear law or one in conflict with established legal regimes, precipitat-ing judicial interpretauon; or the judge had simply, and lUegiUmately, over-stepped consutuuonal bounds Judicial review was all but unthinkable. From1780 in Germanic states and from 1791 in France, judicial interpretauon ofstatutes was explicitly prohibited by consutuuons, and penalties were prescribedin the penal codes for any transgression

It IS worth noting that dunng the latter half of the 19th century public lawcame to be taught as a separate branch of the law in conunental countnes, anddoctnne began to evolve independently. From this ume onward, legal scholarshipproved increasingly hosule to the i^ohibiuon of judicial review, and by the 1920san important lntemauonal doctnnal movement made the achievement of judicialreview the central concem ofthe public law field (Duguit, 1923; Fnednch, 1963,pp 262-263; Haunou 1929, Neumann, 1964, chap. 2) This movement largelyfailed, and for two reasons First, pohucal authonues in control of the stateconsistently and overwhelmingly reiterated their opposiUon to a grant of lnterpre-uve powers to judges, an opposiuon which became all the more resolute when theywere told that judicial review m the United States had led to a "govemment ofjudges" (Lambert, 1922). Second, judges were consu^med by the lnternalizationof their bureaucrauc role, and by their lack of independence from politicalauthorities.

Consututional courts replete with at least potenual review authonty hadexisted at vanous umes in the federal systems of Germanic states, Switzerland,

82

Symposium on Judicial Review in Comparative Perspective Stone

and Austria between 1848 and 1945 (Deener, 1952). But the mostmnovauve pre-WWII expenment m consutuuonal review occurred in Austria, dunng its short-lived first republic (1920-1934) at the lnsugauon of Hans Kelsen, an extraordinar-ily mfluenual law professor and legal theonst who had been asked to draft whatbecame the Consutuuon of 1920 (Eisenmann, 1986, ong. 1928) Kelsen, likemany of his French and German peers, argued that if a consutuuon was to meananything at all, it had to be considered superior to statute, and that this hierarchyhad to be defen<kd if the rule of law (or rechtsstaat) was to be assured (Kelsen,1928). But Kelsen also undersUx)d \hax judicial review would not likely be ac-ceptable, and he searched instead for another means by which the constitutioncould be defended. The result was the creaucm of the Austrian consutuuonalcourt, the first example in history of a special junsdiction whose exclusivepurpose IS to decide constituuonal controversies The court possessed wide-ranging powers of abstract and concrete review Cursed by the turbulent umesinto which It was bom, the insutuuon was subject to penodic, vimlent attacks bynght-wmg pohucal parties and their press organs, and its review powers werefinally all but rescinded by govemment decree in 1933 (Gulick, 1948, pp. 785-186, 877-878, & 1075-1077) The republic was engulfed shorUy thereafter byNazism

The Austrian precedent is considered, in Cappelletu's terms (1986),"seminal for Westem Europe," and the Kelsenian court is today recognized as theprototype of the "European" model of "consutuuonal" (because it is not fonnally"judicial") review, in contrast to the Amencan model (Favoreu, 1986). But thepohucal environments in which post-WWII courts find themselves differ funda-mentally from tho^ of their predecessors. Most important is the central placeacccffded to consutuuons—and by extension to the consutuuonal courts—asmsutuuonal bulwarks against a recun^nce of authontananism The drafting ofthe Federal Republic's Basic Law and the decision in 1945 to revive andmodemize the Austrian consutuuon of 1920-1929 were above all reacuons to theNazi experience. Much the same can be said of the drafung of the SpanishConstituUon of 1978 In all three cases, the founders explicitly gave to consutu-uonal courts the burden of {Hotecung c iuz^s from abuses by public authonuesIn Germany, an extensive bill of nghts compnses the first 18 arucles ofthe BasicLaw, repudiaung tradiuonal theones that the State necessanly presupposes and isresponsible for the existence of individual nghts, in Spain, "by far the longestsecuon of the Consutuuon deals with fundamental nghts and the obhgauon of thestate to uphold and guarantee these rights" (Dcmaghy & Newton, 1987, p 13), inAustna, the situation is more complicated since there is no charts of nghts m theconsutuuon [»'(^r. but theconsutuuon does require the court to protect nghts andfreedoms, and the court has made use of a number of texts which it has elevatedto consutuuonal status to achieve that end (Ohhnger, 1982, pp 347-351)Furthermore, the desire permanently to decentralize German and Austnan state

83

Policy Studies Journal, 19 1

power led to the adoption of federal structures, which in tum virtually required theexistence of a consutuuonal court (Dicey, 1965, chap. 3). The dominant issueconfrtHiUng the Spanish framers was that of regional autcmomy, and they alsorelied heavily on the consutuuotial court as an instrument of supervision overwhat IS a quasi-federal system

The French case is exceptional. The 1958 Consutuuon does not containa bill of nghts, and the Constituuonal Council was not created m order to protectfundamental nghts and liberties. Moreover, federalism is absent The fact that theFrench Council is acuvely involved in consutuuonal review is due to judicialacuvism, and to the poliucizauon of its offices by politicians. Created by Gaultiststo ensure that parliament would not overstep its consUtuUonally prescnbedlimitauons, the Council's early years were uneventful and it was wholly subser-vient to the execuUve. In 1971, however, the Council annulled its first piece ofgovernmental legislauon and in the process incorporated an expansive bill ofnghts into the consutuuon, which includes the 1789 Declarauon ofthe Rights ofMan, the preamble to the 1946 Constitution, and the unnamed "fundamentalpnnciples recognized by the laws of the republic." The Council's current role,then, has virtually no relauon to the fhuners' intenuons (Keeler & Stone, 1987)

Structure and Activity

There is significant vanauon m the consutuuonal mandate and acuvityof the European courts which exercise abstract review authonty As Table 1shows, a consutuuonal court may possess abstract review powers alone, or mcombinauon with 39 powers of concrete review. Further, there exist two modesof abstract review—the a posteriori (Austna, Portugal, Spam, West Gwmany),and the a priori (France, Spain unul 1985, Portugal). In the former, laws arereferred to the consutuuonal court after promulgation; in the latter, laws arereferred after final adopuon by parliament, but before promulgauon In all cases,abstract review is initiated by poliucians, who refer legislauon directly to thecourL Courts can not refuse to rule, and govemments and legislative majonuescan not avoid having their legislauon examined. Abstract review thereforefunctions to extend what would otherwise be a concluded legislative process—referrals in effect require the court \o undertake a final "reading" of a disputed billor law.

The highly parUsan nature of this process places consutuuonal courts mdelicate situauons, and the possibility of explosive judicial-political confronta-uon might appear to be virtually permanent. However,/or every European courtexcepting the French, abstract review processes do not constitute a major sourceof caseload or of pubhc perceptions about their role in the political systemWhatever impact abstract review might have on debates and controversies abouta court's lnsututional legitimacy is counterbalanced by rouune lower profile

84

Symposium on Judicial Review in Comparative Perspective Stone

Structure and Mandate of European Courts Which Exercise Abstract Review*

FrBTKc(1958) W Germany (1951) 4uslrla(192e/1945) Spain(1980)Ccni KJSiuan and recnutmcnt

N umber of Members 9 16

AppointingAuthoritiea

Length (rf term

Age limit

Requisite

Piesidciit (3) Bundenag (8)Pres Nu. A u (3) Bundennt (8)Pres Senate (3)

9yeai8

Nore

None

ConsumtKmal review suchonty

Attached to courtsystems

Abstract Review-a pnon-a postenon

Concrete Review

No

YesNo

No

12ve«ni

40 year mm68 year max

6/16 musi be federaljudges,oiheis must bequalified to beGeiman judges

Yes

NoYes

Yes

14

Federal Govt (8)NaU<»iali«t (3)Bundesrai (3)

Until 70 of age

70 year msx

12

Congress (4)Senate (4)Govt (2)Judiciary (2)

9 years

None

S/14 must be judges AU must befuncbonanes, or judges, lawy^s orlaw professors, law professocsothers must be with at least 15lawyer* oc years expenence

scientists

Yes

AboLshed (i98S)Yes

Yes

Yes

N o

Yes

owCT to r^cr ctMisUtutional cratioversies to the court possessed by

Politidans(abstract review)

Ombudsman(i^atract and concrete review)Judiciary(conOBte review)Individuals(concrete review)

PresidentPres Nat AssPres Senate60depuues60 senators

No

No

Fed Govt.Lander Govts1^ of Bundestag

Yes

Yes

Fed Govt.Lander Govts1/3 Nationalrat1/3 lowR housesof lander

Yes

Yes

Pnme MmPres Pariiament50 dignities50senatcraExecutives auton

omous regionsYes

Yes

Yes

*A complete list would mctiide Portugal, whose constitutional court was established in 1983

85

Pohcy Studies Journal, 19.1

tasks. That is, in counuies other than France, what consutuuonal courts do mostof the ume is not poliucally (in a pohuco-parusan sense of the term) salient;pohucal parues are not involved directly in these processes, and they do notacuvely quesuon and debate the legiumacy of the work being perfonned

Staustics show the extent to which abstract review consututes only asmall fracuon of total acuvity outside of France. The German court, for example,receives 99% of all of its cases via direct appeal by individuals — who, as inAustna and Spam where similar mechanisms exist, must demonsu:ate that theirnghts have already been violated Since 1951, individuals alone have filed onaverage over 1,500 individual complaints per year (more than 3,300 were filed in1987) seeking concrete review, while referrals of legislauon by poliuciansseeking abstract review average less than 3 per year.

In Austna, concrete review of cases originaung in the administraUvecourt system compnses well over 90% ofthe Vienna court's caseload. The courthas dealt with over 1,O(X) such cases per year dunng the 1980s, and its docket ischronically backlogged (there are some 2,0(X) cases pending presently) Thecourt, which also receives approximately 25 individual referrals each year, ismouvated above all else by its desire or responsibility to harmonize the legalorder, and not by poliUcally-mitiated reviews Abstract review is exceedingly rarein Austria, and, indeed, is politically insignificant In 1975, the nght of referralwas granted to one-third ofthe depuues in the federal and state lower houses—thatIS, to the minonty party Whether due to the consensual nature of Ausuianpoliucs, to a belief that referrals are not altogether legitimate, or to both, the courthas received only five referrals to date, resulung in only one ruhng of unconsu-tuuonahty. Inconsequence, the legislauve process has no/been significantly alteredby the existence of such review

The work of the Spanish court, like that of its Gennan counterpart, isdominated by individual referrals (90% of all cases which reach the court). Thesereferrals (amnaros) may not attack a law directly, but instead are requests that thecourt defend against alleged administrauve mfnngement those fundamentalnghts enumerated in arucles 14and30of theconstituuon. From 1981, when thecourt began its work, through 1985, it has handed down 422 decisions on nearly4J0OO individual referrals. Moreover, the court has clearly signalled that itconsiders the protecuon of individual nghts to be its top pnority As tn Germany,this IS largely due to the court's desire to contribute to the stability of a democraticregime created in the wake of fascist rule And, as in Germany, it would bepoliucally dangerous for any major pany in Spain to attack the court on issuesconcerning mdividual nghts. Abstract review referrals for a postenon controlhave averaged 8 per year, while the court received a total of 13 peuuons for a prioricontrol unul 1985. In 1985, the a pnon power was rescinded because it wasconsidered to be an illegitimate affront to parliamentary sovereignty

The French ConsUtuUonal Council exercises a pnon abstract reviewexclusively, and solely upon referral by poliucal authorities Once promulgated.

86

Symposium on Judicial Review m Comparative Perspective Stone

laws are immune from scruuny by the Council or by any other junsdicUonFurther, not only is the Council detached from the greater judicial system (anymfluence it may exercise upon ordinary or admmistrauve courts is neithersystemauc nor formal), it is also cut off from direct popular contact with theciuz^ry. Pohtical scienusts (including myselO, comparauvists, and non-Frenchlegal specialists have consistently conceptualized the Council as something otherthan a cotirt, and as an insutuuon which fulfills more a legislative than a judicialfuncuon Unable to claim that it performs a funcuon of harmonizing legaldecision or administrative acuvity with the exigencies of the consutuuon, andbereft of astable consutuency, the Council may be said to possess relauvely fewerresources with which to counter cmicisms of its acuvuics These cnucisms occurwith greater frequency and are much more public and vitnolic than those directedat other European courts At the same ume, the Council's roie has vastlyexpanded: from 1974, when the power of referral was granted to any 60 deputiesor senators, through 1987, the Council received 191 referrals-in the 1958-1973penod. It received a total of 9!

The French court has also been heavily criucized for its "political"composiuon As Table 1 shows, whereas in the German, Austnan, and Spanishcases, minimmn levels of judicial experuse are requisite condiuons for appointment,there are no such standards m France Of the 41 members who have served on theCouncil from 1958 to 1988,59% were selected from the ranks of parliamentanansand/or ministers While in Germany, the tendency has been toward greater"jundicizauon" of the selecuon process (that is, the number of members of thecourt with previous careers on the bench or tenure on law faculties has increasedover ume), such has not been the case in France In 1968, the 9-member Councilcontained 6 (67%) former professional politicians, increasing to 7 (78%) in 1983,and to 8 (89%) in 1986 It is important to note that the Council's junspnidencehas become more dense, sophisucated, and attendant to French judicial normsduring the past two decades. In any event, the jundicizauon of consutuuonalcourts does not imply that the recruitment process is apoliucal On the contrary,in both Germany and Austna, formalized negouations among the major poliucalparues determine which party will fill vacancies on the court (allocauons areroughly im)poruonate to parliamentary strength), in Spam as well, although it istoo early to draw firm conclusions, the appointment process is largely a processof bargaining among pohucal parues

The Juridicization of Policymaking

The development of abstract constitutional review in France and Ger-many has transformed the customs and conduct of poliucians and policymakersIndeed, policymaking can be described as jundicized to the extent that a consu-tuuonal coun's decisions, the pedagogical authority of its past junspnidence, and

Pohcy Studies Journal, 19 1

the threat of future censure alter legislauve outcomes. When a consutuuonal courtrules on the consutuuonality of legislabve provisions this influence is direct butnot always negaUve The court may have an mduwt infiuence to the extent thatgovernments and their parliamentary majonues sacnfice policy preferences inorder to avoid consutuuonal censure. This indirect impact also might be said toconsutute a court's legislauve behavior.

The jundicizauon of policymaking processes in France and Germanycan be explained by fotir interrelated structural and behavioral factors: (a) themodes of consutuuonal review exercised by the respecuve consutuuonal courtsover legislauon; (b) the use by poliucians of the courts' offices for pohucal ends,(c) judicial acuvism and the attendant development by courts of creative tech-niques of controlling legislation; and (d) the strict apphcauon of decisions bylegislators. The study of jundicizauon thus focuses empuical attenuon on thelnteracuon between cotu'ts and legislauve institutions in the making of publicpolicy Space limitauons preclude close analysis of parucular legisl^uive pro-cesses and decisions I have therefore sought to generalize from my own research(Stone, 1989a, 1989b, 1989c) and that of Chnstine Landfned (cited below), workbased on lndepth case studies of the impact of consutuuonal courts on policyoutput.

Mode of Control

In his pathbreaktng, now classic, essay on conceptualizing the U.SSupreme Court as a "nauonal policymaker," Dahl argued that "what is cnucal isthe extent to which a court can or does make policy decisions by going outsideestablished 'legal' cntena found in precedent, statute, and consuuiuon** (Dahl,1957). CreaUve judicial interpretauon will have policy impact in any pohucalsystem. But Dahl's focus is too limited for our purposes, reflecung stnctly therealiues of the Amencan judicial review mechanism and a specifically Amencanseparauon of powers tradiuon Abstract control is typically jusufied as providingfor a more complete, potentially systemauc, and therefore efficacious defense ofthe supremacy of the consutuuon withm a hierarchy of judicial norms (Weber,1987, pp 50-57) Abstract review is of interest to policy studies because itrequires or enables constitutional courts to intervene m and alter legislativeprocesses and outcomes This intervenuon is virtually immediate* in France, billsmust be referred to the Council within 15 days after their adopuon in parliament,and may not be promulgated unul a decision has been reached by the Council; inGermany, poliucians have one month from the date of promulgauon to referlegislauon Thus, it should not be surpnsing that the subsequent decision isviewed by poliucians as the true final stage of the legislauve process.

Symposium on Judicial Review in Comparative Perspective Stone

Juridicizing Legislative Politics

The remarkable development of abstract consutuuonal conu^ol in Franceand Germany is a result of, and a response to, the exploitauon of the courts bypoliucians for parusan poliucal ends. In France, successive opposiuons in the1980s correctly viewed peuuons to the Council, or the mere threat of peuuon, tobe theu" most effecuve means to obstruct or enforce changes in legislationproposed by the govemment and its parliamentary majonty. Because govem-ments can not prevent such peuuons, Uiey are obliged either to work on theassumpuon that the opposiuon will refer important projects to constituuonaljudges or to risk court censure, embarrassment, and lost ume Since 1981, suchmajor reforms as the laws on decentralization (1982), press pluralism (1984),audiovisual commumcauons (1986), and the Chirac government's penal codereforms (1986), were subject to massive autolimitauon processes, as majonuessacnficed important policy objectives due to threats of referral and fear of censureIn West Germany, govemments and their supporters are apparently even morewilling to compromise with the opposiUon, so nsk-averse have they become inconsutuUtHial matters, and in consequence policy-making is "overloaded withlegal arguments and considerauons" (Landfned, 1989) as the "opposiuon in theBundestag [works] to attain its political goalsby judicial means" (Lanfried, 1985,p 541) The laws on codeterminauon (1976) and on militar>' service forconscienuous objectors (1978) are just two important reforms which weresubstantially altered by the jundicized process Consututional debate is thereforenot limited to official judicial intervenuon, but may occur dunng all stages of thelegislauve process.

In jundicized debates, the consututional text is a site of parusan conflictFor the opposition, threats of referrals are useful weapons m the pursuance of itspolicy posiuons—but they will only be credible threats if junspnidence is takenseriously. Accordingly, oppositions in both countnes have come to employoutside consutuuonal specialists and court watchers to develop consutuuonalarguments for jundicized debate and to wnte petitions For the gov^nment andIts maprity, the increased tendency for parliamentary debates to be jundicizedposes even greater technical, pracucal, and pohucal problems They are forcedto address a mulutude of often conu-adictory claims of consututional obhgauonor enpinmentemanaung from opposiuon ranks, their own ranks, and from specialexperts The opposiuon can proliferate consutuuonal arguments with impunity,but only the govemment can be punished for misunderstanding consututionalpnnciples

Judicial Activism

Consutuuonal courts are intervening in legislauve processes at anincreasmgrate,asstatisucsshow In France, in the 1958-1980period.theCouncil

89

Pohcy Studies Journal, 19 1

examined 45 laws referred to it by poliucians; in the 1981-1987 penod. thenumber more than doubled—to91. In the 1974-1980 penod, an average of 6.1%of the bills adopted by parliament were referred; since 1981, the percentage is13 8%, with a high of 24% in 1986. In the 1980s, therefore, nearly one in sevenlaws adopted by the French parliament was subjected to constituuonal review, aremarkably large fracuon since a majonty of laws are only of the narrowesttechnical interest and take up pracUcally none of the ume and resources of theaverage parliamentanan Indeed, Council lntervenUon in the legislauve processcan be said to be systemauc all budgets since 1974 have been scruunized by theCouncil as has virtually evray tnajor piece of legislauon since 1981.

In West Germany, the intervenuon is relauvely limited: 71 laws werereferred to the Consutuuonal Court between 1951 and 1981; in the 1981-1987penod, 23 laws wwe referred Several points should be made about the Gennanstausucs. First, m terms of the legislauve process in the Bundestag, parusanbattles over legislauon occur—if they are to occur—at the committee stage,accounung for the fact that nearly 9 of every 10 laws are adopted by unanimity.The approximate 3 laws per year which are referred are those on which the parueswere not able to achieve pnor consensus The impact of the court can thereforenot be assessed or measured by examining referrals and decisions alone. Theresearcher must be willing to wade through committee debates in searches forautolimitauon Second, the power of the Lander govemments to refer federallegistauon has been used without reference to problems of federahsm Parues mopposiuon at the federal level but making up the govemments of Lander have usedthe referral in service of the nauonal party, in what are essenually nauonalconflicts Thus, the SDP used its control of state govemments to refer federallegislauon on rearmament (1950s) and social welfare pohcy (1961), and CDU-CSU Lander govemments did the same, after 1969, to refer to the Court the SDP-FDP legislation on abortion (1974), and the Ostpolitik u-eaties with East Germany(1973) Moreover, as in France since the first alternance in 1981, the number ofreferrals is highest after nauonal elecuons yielding an altemauon in power, thatIS, durmg a new government's so-called honeymoon penod, and when reformspuits are highest (Von Beyme, 1983, p. 186) Thus, in 1970-1971,1976-1977,1983-1984, and 1987 the number of referrals jump significantly—one to five ormore per year

These figures measure only the vohuon of poliucians to use consutu-uonal courts as a means of obtaining their pohucal goals, and not "judicialacuvism." However, there is a structured complicity between poliucians inopposiuon and consututional courts. Referrals to courts act as a kind ofjunspmdenual transmission belt" the more peuuons the court receives, the moreopportunity they have to elaborate junspmdenual techniques of control; thiselaborauon, in turn, provides opposiuons with a steady supply of issues, expand-ing the grounds of judicial debate in parliament and in future petitions In

90

Symposium on Judicial Review in Comparative Perspective Stone

addiuon, consutuuonal principles are most effecuvely enshrined when legislauvechoices are invalidated (or rewntten by the court)—a more £u:ceptable rawmeasure of acuvism Since 1981, substanuallymore than 50% of the lawsreferredto tbs French Council were judged to be unconsutuuonal, in whole or in part, asadopted, up from 24% in the 1958-1974 penod. In West Germany, where concretecontrol also exists, judicial lnvahdauon rose dramaucally in the 1980s, in the1951-1980 penod, 85 federal laws were judged to be in whole or in partunconsutuuonal, since 1981, the number is 94

Just as important, consutuuonal courts have developed a host of tech-niques of controlling the legislator oth^ than through declarauons of unconsu-tuU(»iality. The most important of these is the declarauon of "stnct reserves ofmterjM^tauon"—that is, a declarauon "that one parucular interpretauon ofthe lawistheonlyconsmuuonalone" (Landfned, 1985,pp 531-532)—and the acceptanceof the imnciple of a reform but not of the means chosen by the legislator. These'*weap<Mis of limited warfare against consututionality" (Cappelletu & Cohen,1979, p. 94) were iniually developed as means of judicial self-restraint. In bothcountries, the pracucal result has been to give posiuve lawmaking authonty toconsutuuonal judges because lawmakers have responded simply by copying theterms ofthe courts' decisions directly into subsequent laws on the same legislauvesubject.

X^astly, consutuuonal judges in both counu-ies have aroused conuoversyin both pohucal and academic milieux by "going outside of established Uegal'cntena found in precedent, statute, and consutuuon " In France, as noted above,the Council has willfully expanded its field of reference by incorporaung into theconsutuuon an ever-expanding bill of nghts In 1986, a number of govemmentministers and high parliamentary officials called the Council a "deviauon," and"a new kind of legislator" exCTCising "discreuonary power over parliament," andcalled for a codificaUon of constitutional obh^tions to eliminate "arbitrary"mhngs The Gennan court, for its part, has been accused of "drawing conclusionsfrom the basic law which one can hardly relate to the text of the consutution"(Landfned, 1989) That judges are creauvely building consutuuonal law isundeniable, if a natural response to the fact that many of the problems they areasked to solve are highly complex socially and politically, and do not fall into neatconsutuU(»ially-fixed categones

"Overdone Scrupulousness"' and Corrective Revisions

The macropolitical effect of the evolving "jundicizauon of policy-making processes" has been to close off reform routes th^ would otherwise beopen to reform-minded govemments Said differently, because these courts havenever reversed themselves, because poliucians perceive the effects of judicialreview as binding upon them forever, and because lawmakers choose to mcorpo-

91

Policy Studies Journal, 19 1

rate consutuuonal court jurisprudence directly into legal regimes, more and morepohucal issues are no longer open to legislauve acuvity, and the web of consu-tuuonal obhgauon and enjomment b^omes more and more "close-meshed." Thesituauon has led some, including Landfried, to argue that the "jundicizauon ofparliament [ts] dangerous for democracy,** and that abstract control mechanisms"should be abohshed" (Landfried. 1989, Landfned, 1985, p. 541). It is perhapsinevitable that normaUve debate attends any discussion of jundicizauon, for it isthere that a complex set of poliucal. academic, and ideological commitmentsintersect in the concrete world of policymaking

At umes. abstract review Itself IS put on tnal, as in France from 1981 to1987 when a succession of ministo-s and parliamentanans from both the Left andthe Right decned what they view as a dangerous development toward a "govem-ment of judges" and publicly threatened the Council with curtailing its powersThe case of Spam, where review has at times paralyzed the govemment since theLeft came to power in 1983, provides another dramauc example (Bon & Modeme.1987) Unul 1985. the Spanish court possessed a pnon review authonty overorganic laws and those laws governing the status of the autonomous regionsUpon coming to power, the Socialist-Workers embarked on a number of wide-ranging reforms of both legislauve and consutuuonal regimes, and these requiredextensive organic legislation In the three-year penod of 1983-1985, the opposi-uon refened 6 laws (of a total of 27 which could have been referred) to the courtaccording to the rules goveming a pnon review, 3 of which were judged to be inwhole or m part unconsutuuonal. As senous, these referrals delayed the reformsfor ludicrous penods of ume In France, the Council is required to mle within amaximum delay of one month, and in Germany referrals do not suspend the law'seffect unless a negauve decision has been rendered. The Spanish referralssuspended promulgauon, but worse for the government, m 5 of these 6 cases thecourt took over one year to render a judgment! Two main arguments—^both ofwhich have been heard m France and West Germany—were most widely made forthis suppression First, a pnon conu-ol was considered—by the goveming party,the major press, and significantly by the scholarly community—as manifestly"pohucal," because its effect was to implicate the court directly m day to daypohucs Second, it was judged that the use ofthe a pnon procedure was being usedpnmanly as a means of parliamentary obstmcuon, as parliamentary pohucs byother methods

Conclusion

From the perspecuve developed here, the constituuonal pohucs ofabstract review are legislauve pohucs by another name As a descnpuon offunction, consutuuonal courts exercising pohucally-iniuated abstract review canbe conceptualized profitably as third legislauve chambers whose behavior is

92

Symposium on Judicial Review in Comparative Perspective Stone

nothing more or less than the impact—direct and indirect—of consutuuonatreview on legislauve outcomes This is not to imply that courts exerciselegislauve powers identical to those of govemments and parliaments, or thatjudges behave as card-carrying members of pohucal parues It is to assert thatabstract review requires these courts to parucipfUe in policymakmg processes, andto the extent that legislauve outcomes are substanuvely altered by such review, itsfimcuon IS easily and profitably assimilated into a legislauve one Some mayprotest that this confuses behavior with the effects of consutuuonal junspmdenceon policy output If this is a confusion, tt is willful and, I believe, necessary. Studyof jundicizauon has the advantage of focusing empirical attenuon on how abstractreview actually functions in poliucal systems, and on how these courts are shapedby and in tum shape their pohucal environments It is thus a profitable approachfor pohucal scienusts, especially those whose pnmary interests he beyond thestudy of public law, courts, and judicial processes more narrowly conceivedNevCTtheless, courts, unlike legislators, produce junspmdence, and that aspect oftheir acUvity, judged to be central by academic lawyers, is admittedly deemphasizedhere, with certain negaUve effects.

Sull, It IS crucial to note that when consutuuonal judges are engaged mabstract review, their decision-making processes are closer to legislauve decision-making processes than when they are applying a code, or even the consutuuon, todecide disputes ansing from concrete hugauon That is, in abstract reviewprocesses, the lawmaking function of these courts is far more important than isdispute-resoluuon Moreover, the "dispute" at hand is pnmanly parusan-poluical,rather than judicial Blair reports that the German court readily understands thisand IS thus "far more cauuous" when engaging m abstract review than for otheracuvities (Blair, 1978) The French Council, on the other hand, can never engagein anything but abstract interpretauon, and thus it is m a much more vulnerablelnsutuuonal posiuon than are other European consUtutional courts The implicitassumpuon here—bwne out, I believe in empu-ical studies—is that pohucally-miuated, abstract review is inherently more destabilizing than is concrete review,precisely because it poses the "countermajontanan difficulty" unambiguously,from the moment it is lniuated

TheeminentGemianjunst, Carl Schmitt, long opposed the estabhshmentof an organ rq)lete with the power of constituuonal review on the grounds that itwould lead either to the "judiciahzauon of politics" or to a "poliucization ofjusuce" (Schmitt, 1958) Of course, from a policymaking perspecuve, it led toboth In all cases, whether in Spam, France, Germany, or Austria, abstract reviewexists only to the extent that poliucians seek to alter legislauve outcomes, byhaving their pohcy choices raufied or the govemment's and parliamentarymajonty's choices watered down or vetoed If politicians ceased to use referralsas pohucal weapons, abstract review would disappear, and the countermajontanandifficulty would no longer be posed

93

Policy Studies Journal, 19 1

References

B(Mi, P , & Modeme, F (198S) Qiromque [Chronicle] In Annuatre international de lusticeconstitutionnelle 7985 [lntemauonal annual of constituuonal jusUce 1985] (pp 339-367)Pans/Aix-en-Pfx>vence Economica/PUAM

Cappelletti.M (1986) R^jport general [General Report] In L. Favoieu and J A Jolowtcz (Eds ).Le controle jurutictionnel des lots [Judicial Review] ( j ^ 301-314) Pans/Aix-en-ProvenceEconORiica/PUAM

Ca{^)elIetU, M ,& Cohen W (Eds) (1979) The modem systems of judicial review Cemtparattveconstitutional law New Yoiic Bobbs-Memll

Dahl, R (t9S7) E>ecision-makmg in a democracy Hie Supreme Courtis a naticmal policy-makerJournal of Public Uw, 6 (2), 279-280

Deener, D (1952) Judicial review m modem consututional systems American Political ScienceReview, 46 (4), 1079-1099

Dicey,A V (1965) Iniroduction to the study of the law and the Constitution {XOiliitA) LondonMacMillan

D<Miaghy, P J.&NewtOT. M T (1987) Spam A Guide to Political and Economic InstitutionsCambndge, MA Cambndge Umversity Press

Duguit, L (1923) Traite due droit constituionne [TreaUse on C<HisUtuU<mal Law] Pans SireyEisenmann, C (1986) ha justice constituttonnelle et la haute cour constitutionnelle d'Autriche

[CtMisbtuUonalJusUce and the High Constitutional Court of Austna] Pans /Aix-en-ProvenceBconomica/PUAM (Ongmal work pubbshed m 1928)

Pavoreu,L (1986) LesCoursconstitutionnelles[Co(\s\iia\ioa.ii^CoaT\a\ Pans Pres ses umvenitauesde France

Fnednch,C J (1963) The philosophy oflawtn historical perspective (2nded) Chicago ChicagoUmversity Press

GuIick, C (1948) Austria between Habsburg and Hitler Berkeley University of CabfomiaHaunou, M (1929) Precis due drou constituiionnel [Presis of ConsUtuUonal Law] Pans SireyKeeler, J T S,&Stone, A (1987) Judicial-poUucalconfrffliUUon m Mitterrand's France InS

Hofimann, G Ross, & S MAzAchsT (^At), The Mitterrand experiment {pp 161-181) NewYork Oxford

Kelsen,H (1928) LagaruitiejundictionneldelaconstimuonfConsututionaljustice] Revueduedrott public, 15, 197-257

Kommers, D P (1976) Judicial polUics tn West Germany Beveiiy Hills SageLambert, E (1922) Le gouvernemenl desjuges et la lutte contre la legislation sociale auxEtats-

unis [The govemment of judges and the struggle agamst sociai legislauon in the United States]Pans Giard

Landfned,C (1985) TiiemipactoftheGermanConsutuUonalCounonpoliUcsandpoticy-outputsGovernment and Opposition, 20 , 522-541

Landfned, C (1989) LegislaUon and judicial review in the Federal Republic of Germany In CLandfned (Ed ), Constitutional review and legislation an international comparisonBadenBaden Ncmios

Neumann, F (1964) The Democratic and the authoritaruin state New York Free PressOhlinger, T (1982) Objet et portee de la protecuon des droits fondamentaux en Autndie [Object

and scope of the protecu<H) of fundamoital nghts m Austna] In L Favoreu (Ed ), Cowsconstitutionnelles europeennes et droits fondamentaux [European consutuutxial courts andfundamental nghts] (pp 335-381) Pans/Aix-en-Provence Economica/PUAM

Schmitt, C (1958) Das Reichsgencht als huter der Verfassung [The Federal Court as a guardianofthe Consutuucxi] In VerfassungsrechtltcheAirfsatze [Essays on cmsUtuUonatlaw] (pp 63-lOO) Berlm Dundcer and Humboldt

Sigelman, L , & Gadbois, G (1983) Contemporary comparauve poliucs An inventory and

94

Symposium on Judicial Review in Comparative Perspective Stone

assessment Comparative Political Studies. 16 (3), 293-295Stone,A (1991) Thebirthofjudicial politics inFrance The Constitutional Council in comparative

perspective Oxford UniversityStone, A (1989b) In the shadow of the Consutuuonal Council The 'jundicization' of the

legislauve process in France West European Politics, 12 (2), 12-34Stone,A (1989c) Legal constraints on policy-making The Constiiuucmal Council and the Council

of State In P Godt, (Ed ), Pohcy making inFrance From De Gaulle to Mitterrand (pp 28-41) London Pmter

Travaux preparatoires de la Consutuuon due 4 oaobie 1958 Avis et debats due Comite consultatifconstituiionnel [Preparatory work for the Consutuuon of October 4, 1958 Opimons anddebates(rftheConsututi(sialConsultaUveC(muniitee] (1960) Pans DocumentaUonfrancaise

VonBeyme.K (1983) The political system ofthe Federal Republic of Germany Aldershot, UKGower

Weber, A (1987) Le Controle jundtcUonnel de la consutuuonnalite des lois dans les pays d'Europeoccidenule [Judicial Review m Western Europe] In Annuaire international de justiceconstituttonnetle [International Annual of Consututional Jusuce] (pp 39-79) Pans/Aix-en-Provence Economica/PUAM

95