The judicial systems worldwide were created to be based on the rule of law. This is a principle which supports the authority of law as the unique way of regulating the behaviour of individuals, without infringing on their fundamental rights and freedoms (Carothers, 2006).

Whilst the monopoly of law in society targeted the standardisation of social behaviour, it was therefore important to compound set up a hierarchy of juridical norms. People started to lay the foundation of written Fundamental Acts in the United States of America, Poland and France in the eighteenth century. Two centuries later, Hans Kelsen, the author of the theory of pure law, set up a hierarchy of norms with the constitutional norms on the very top of it. Designing them in the form of a pyramid, he devised the constitutional rights as supreme norms from which any other legal norms (Kelsen, 1992).

Before having knowledge of which legal norm is more important to society, the need of a governing body developed. Its goal is to guarantee the supremacy of the Fundamental Law. As a progressive perspective has its own significance in expressing how constitutional review appeared, the case of USSCt, Madison v. Marbury,1803 became a landmark and symbolises the beginning of constitutional justice not only in the USA, but worldwide, with Switzerland, Norway and Greece later following the American model (Wolfe,1994).  

Briefly, the case is about the intention of the president John Adams to name, among others, William Marbury as Justice of the Peace. Because the next day Adam’s term was set to expire, the newly-named Secretary of State, James Madison, whose task was to approve the nomination, refused to do it. In these circumstances, Marbury requested a writ of mandamus (a writ or order that is issued from a court of superior jurisdiction that commands an inferior tribunal, corporation, or individual to perform, or refrain from performing, a particular act, the performance or omission of which is required by law as an obligation) from the Supreme Court to compel Madison to endorse the commission, an application which was finally denied, and which established the Supreme Court’s position of arbiter of constitutionality.

Despite of the significant influence the USA had on constitutional review methods in Europe, the two constitutional justice models, American and European, are now very dissimilar (Bakker, 1995)

In the United States of America, the constitutional review can be made by any ordinary judge as they have the authority to assess whether a  norm is constitutional or not. This system is a decentralised one, as any courthouse may verify the conformity of an ordinary law with the Constitution, while the Supreme Court has the authority to control the decisions of the lower courts and to solve the most complex and most important litigations in a definitive manner. The latter’s area of responsibility extends not only to constitutional issues, but to legal matters as well. Its decisions have the power of a judicial precedent that any lower court must respect. However, the American Constitution does not mention the Supreme Courts’ power to affirm the unconstitutionality of a law or regulation. This responsibility has been assumed by the Supreme Court since USSCt, Marbury v. Madison, 1803. 

Meanwhile, the European constitutional review model proposes a specific body with the special responsibility of checking the compatibility of a law with the Fundamental Law. This system, as opposed to the American one, is a centralised one. For example, whether we are talking about the Constitutional Court in Romania, the Constitutional Courthouse in Germany, or the Constitutional Council in France, they all describe the judicial institution in the position of guaranteeing the supremacy of the Constitution. Also, the Fundamental Acts stipulate how, when and to what juridical acts the constitutional review can be made. In Europe, the ordinary courts handle civil and criminal matters and can also refer the matters of unconstitutionality to the delegated body (see the cases of Romania, France).

Furthermore, in the European model there are three ways in which constitutional justice may be reached (Sadurski, 2005):

1. The abstract method is the type of review initiated by elected officials which refer a law for review in the absence of an actual judicial case. In this situation, a law goes under constitutional review before being enforced, but after being adopted. The primary consequence of using the abstract review is prevention of harmful effects on rights owners and this is why it is also called ‘preventive review’.

2. The concrete method is the type of review which involves a concrete case wherein the judge refers a constitutional question to the qualified law court. The constitutional court is bound to answer it in a reasonable time. The ordinary judge is bound by the constitutional court’s decision towards the constitutional issue in question and must apply it in the respective litigation.

3. The constitutional complaint is based on the right of individuals to raise a certain constitutional issue before an ordinary court in the course of a lawsuit, as long as that respective issue affects the litigator. When conditions verify, it is the duty of the trial judge to forward the constitutional matter to the qualified judicial body.

Although the three types of procedure are fairly heterogeneous, they coexist and, most of the time, they go together. For instance, after a litigator states a question before a law court, the judge refers the question to the constitutional court, so the concrete method and the constitutional complaint method intertwine. The only difference between the two is the actor who raises the constitutional question – if it is the judge himself, the system is that of a concrete method, whereas if the litigator raises the question, the system is the constitutional complaint one.

The American review model is similar to the European ‘concrete method’, but with several, considerable particularities. Following the principle ‘the judge makes the law’, established in the Anglo-Saxon law system, any court has the power to void a law as unconstitutional if it contravenes with the provisions of the Fundamental Law. On the contrary, in Europe, a judge holds only the authority to interpret the law, but not to create it, hence he is not allowed to decide upon the accordance of a law with the Constitution.

To conclude, while considering the distinct aspects of the two dissimilar types of judicial review, one cannot make a hierarchy of constitutional review systems by importance or effectiveness. Both European and American judicial systems represent effects of institutional, political and cultural development throughout the centuries within the framework of permanent volubility of not only extern, but also domestic forces. May it be abstract or concrete method, they both have proved the capacity of moulding adequate legal structures to guarantee the supremacy of Fundamental Law.


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