
Contents
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A. Conceptual and Methodological Premises A. Conceptual and Methodological Premises
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1. Introduction 1. Introduction
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2. The Point of Departure: The Justiciable Constitution 2. The Point of Departure: The Justiciable Constitution
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3. On the ‘Deconstruction’ of the Current Concept 3. On the ‘Deconstruction’ of the Current Concept
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4. The Time Frame 4. The Time Frame
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5. The Perspective of the European Legal Space 5. The Perspective of the European Legal Space
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B. Approaches to Constitutional Adjudication in Europe: Parallel Developments until 1918 B. Approaches to Constitutional Adjudication in Europe: Parallel Developments until 1918
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1. Judicial Review of Legislation 1. Judicial Review of Legislation
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a) A Lasting Issue a) A Lasting Issue
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b) The Monarchical ‘Difficulty’ b) The Monarchical ‘Difficulty’
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c) The National ‘Difficulty’ c) The National ‘Difficulty’
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d) A Vital Question: The Constitution in the Scandinavian Countries d) A Vital Question: The Constitution in the Scandinavian Countries
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e) Portugal’s ‘Sonderweg’: Diffuse Judicial Review in the 1911 Constitution e) Portugal’s ‘Sonderweg’: Diffuse Judicial Review in the 1911 Constitution
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2. Constitutional Disputes 2. Constitutional Disputes
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a) Constitutional Disputes between Governmental Bodies a) Constitutional Disputes between Governmental Bodies
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b) Federal Disputes b) Federal Disputes
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3. Fundamental Rights Adjudication 3. Fundamental Rights Adjudication
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4. General Appraisal until 1918: Fragments 4. General Appraisal until 1918: Fragments
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C. Constitutional Adjudication as an Evolutionary European Achievement: Converging Developments since 1918 C. Constitutional Adjudication as an Evolutionary European Achievement: Converging Developments since 1918
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1. The Interwar Period: Between Continuity and Rupture (1918–1939) 1. The Interwar Period: Between Continuity and Rupture (1918–1939)
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a) The Long Shadow of the Nineteenth Century: Lines of Continuity a) The Long Shadow of the Nineteenth Century: Lines of Continuity
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i. Continuity in Stable Constitutionalism i. Continuity in Stable Constitutionalism
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ii. Continuity also in the New Constitutionalism ii. Continuity also in the New Constitutionalism
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b) The Case of the Weimar Republic, Between Continuity and Rupture (1919–1933) b) The Case of the Weimar Republic, Between Continuity and Rupture (1919–1933)
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c) The Kelsenian Moment c) The Kelsenian Moment
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i. ‘Vienna the Capital’: The Constitutional Court (1920–1933) i. ‘Vienna the Capital’: The Constitutional Court (1920–1933)
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ii. Brno: The Czechoslovak Constitutional Court (1920–1938) ii. Brno: The Czechoslovak Constitutional Court (1920–1938)
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iii. Madrid: The Tribunal de Garantías Constitucionales (1931–1939) iii. Madrid: The Tribunal de Garantías Constitucionales (1931–1939)
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iv. Liechtenstein (1925–) iv. Liechtenstein (1925–)
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d) Balance of the Interwar Period d) Balance of the Interwar Period
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2. The Steady Expansion of Constitutional Courts in Western Europe (1945–1989) 2. The Steady Expansion of Constitutional Courts in Western Europe (1945–1989)
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a) The Post-War Period: The Restoration and New Creation of Constitutions a) The Post-War Period: The Restoration and New Creation of Constitutions
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i. Constitutional Restoration: The Austrian Constitutional Court i. Constitutional Restoration: The Austrian Constitutional Court
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ii. Karlsruhe as Capital: The Bundesverfassungsgericht ii. Karlsruhe as Capital: The Bundesverfassungsgericht
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iii. The Corte costituzionale iii. The Corte costituzionale
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b) Transitional Years (1956–1974): First Steps in the Transformation of the French Conseil constitutionnel b) Transitional Years (1956–1974): First Steps in the Transformation of the French Conseil constitutionnel
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c) Constitutional Restoration in Southern Europe (1974–1978) c) Constitutional Restoration in Southern Europe (1974–1978)
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i. Greece i. Greece
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ii. Spain ii. Spain
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iii. Portugal iii. Portugal
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d) Constitutional Courts by way of Constitutional Amendment: Belgium, Luxembourg, Andorra d) Constitutional Courts by way of Constitutional Amendment: Belgium, Luxembourg, Andorra
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e) Constitutional Justice without Limits? Constitutional Interpretation as the Constitutional Courts’ Primary Task e) Constitutional Justice without Limits? Constitutional Interpretation as the Constitutional Courts’ Primary Task
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3. Constitutional Justice without Borders (1989–2009) 3. Constitutional Justice without Borders (1989–2009)
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a) The Constitutional Courts of the European Political Turn a) The Constitutional Courts of the European Political Turn
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i. Poland i. Poland
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ii. Hungary ii. Hungary
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iii. The Czech Republic iii. The Czech Republic
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iv. 1989: A Difficult Test for Constitutional Jurisdiction iv. 1989: A Difficult Test for Constitutional Jurisdiction
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b) Supranational Constitutional Courts? The ECtHR and ECJ b) Supranational Constitutional Courts? The ECtHR and ECJ
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i. The European Court of Human Rights i. The European Court of Human Rights
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ii. The Court of Justice of the European Union ii. The Court of Justice of the European Union
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iii. The Multi-Level Cooperation (Verbund) of European Constitutional Courts iii. The Multi-Level Cooperation (Verbund) of European Constitutional Courts
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4. 1918–2009: The Century of Constitutional Courts 4. 1918–2009: The Century of Constitutional Courts
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D. In Conclusion: The Evolutionary Nature of Constitutional Adjudication in Europe D. In Conclusion: The Evolutionary Nature of Constitutional Adjudication in Europe
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1 The Evolution of Constitutional Adjudication in Europe
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Published:May 2023
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Abstract
The chapter outlines the evolution of constitutional adjudication in Europe over a period spawning from 1815 until 2009, considered from the perspective of the European legal space. It aims to present an overall concept of this evolution, in which developments described as purely national in earlier times can now be seen as European. The year 1918 marks the watershed in this long evolution. The long nineteenth century shows a variety of scattered and largely insignificant institutions (judicial review of legislation, constitutional conflicts, individual complaints) related to the judicial guarantee of mostly monarchical and substantively poor constitutions. Reversely, the first afterwar period witnessed the emergence of a consistent notion of the normative—now republican—constitution in Europe that is consequently accompanied by the first examples (Austria, Czechoslovakia, Spain) of a characteristic system of judicial review, embodied in singular constitutional courts. Nevertheless, it is only in the time after 1945 when these first experiments take root. The success of the German and Italian Courts leads to the gradual but unfailing spread of the model to the rest of Europe. Parallel to this, the notion of constitutional interpretation becomes the defining feature of constitutional adjudication. The end of this evolution is signalled by the emergence of a complex European judicial space, following the transfer of constitutional responsibilities to the EU Court of Justice and the European Court of Human Rights (judicial dialogue).
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