Joelle Grogan, University of Oxford
Constitutional Review in Europe: A Comparative Analysis, Maartje de Visser (European and National Constitutional Law Series, Hart Publishing, 2014)
Constitutional discourse lies at the heart of every state’s legal system. In Europe, it is the subject of even more intense debate with the rapid process of integration in the European Union, and the apparent incursion of EU regulatory norms into sacred national constitutional space. What is always assumed, but not examined, is the fact that this is a shared experience across the EU. Each Member State grapples with the realisation of its own constitutional identity, in its domestic courts and in the EU. In her new book “Constitutional Review in Europe: a Comparative Analysis”, Maartje de Visser aims to address two questions: who (should) uphold(s) the constitution, and how is constitutional review organised. Drawing on sources from eleven representative Member States of the EU (Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland and the United Kingdom), this book is a veritable tour de force as it is a tour d’Europe.
There is an inherent hazard in comparative analysis, especially one which aims to describe the constitutional frameworks of such a diverse range of states, that the analysis will be piecemeal and the narrative of the book will simply be a list of states and their associated institutions. Evaluative considerations would either require lengthy argument beyond the scope of the book, or fall to the accusation that identified distinctions are superficial, or a whole host of justifying social, historic, and cultural norms were ignored. The author firmly acknowledges and responds to all of these concerns. Dividing the veritable behemoth of comparative constitutional review into manageable sections of the representative elements, she adroitly addresses the most important practical and theoretical aspects of constitutional review.
Covering the role of non-adjudicatory actors, the rise and purposes of constitutional adjudication, sources of constitutional review, access to the courts, the composition of the constitutional bench, and the interplay between constitutional courts and other actors; this work gives excellent scope to discover the many aspects of constitutional review. In addition to the eleven representative states, the Court of Justice of the EU also features, as de Visser has explicitly adopted the convention of European scholars of labelling the Court as ‘constitutional’. Leaving aside the normative and political challenges of that assessment, it is a wise choice: the judgments and actions of the Court have a wide ranging impact on constitutional judgments of national courts.
Within each chapter, the author presents some preliminary examples from states, followed by short sections of comparative analysis. The choice of the legal systems considered is not driven by the need to represent all states, but rather by the particular thematic question asked. So, for example, discussion of the avoidance of competence collisions between state bodies is only considered from French and Belgian perspectives; whereas the identification of the sources of standards for constitutional review merits the consideration of the Constitutional Courts of all eleven states. The carefully constructed structure of the book is a necessary feature, considering the complexity of its ambitious project. De Visser handles the material deftly, however, never losing the interest or engagement. Reading like a judicial thriller at times, de Visser engages with the most politically divisive cases to come before the Constitutional Courts to demarcate the expanding (or reducing) boundaries of judicial competence.
One surprise to be discovered is the extent to which the development of constitutional adjudication across Europe has been a process of trial and error (no pun intended). For example, Spain endorsed a priori constitutional review of legislative proposals for organic laws and statutes of autonomous communities for a brief period at the beginning of the 1980s, and found that the mechanism was used to obstruct the legislative agenda by the opposition, and so narrowed its scope; conversely, France had more restrictive standing procedures, and found that only institutions controlled by the same political party could oppose (often its own) legislation, and so a ‘véritable revolution constitutionnelle’ opened up of access to the opposition in the 1970s. In another example, while both Germany and Hungary sought to escape their authoritarian pasts, Germany has for decades endorsed a model of strong constitutional adjudication (imitated by many other states), whereas Hungary has recently acted (2012) to restrict the powers of the constitutional court. By contrasting these systems, de Visser shows how systems oscillate, change and evolve in the constant aim of answering the same questions: who should uphold the constitution, and how should constitutional review be organised?
An important realisation for the constitutional scholar, is not necessarily that all constitutional regimes are different, but that some aspects of constitutional review which we might consider an essential element in one familiar system are not present in another jurisdiction. One example is the Plaumann test of direct and individual concern, engaged to identify access to the European Court of Justice, which does not seem as restrictive when contrasted with the denial of any access to potential plaintiffs in other Courts. In this way, de Visser challenges assumptions made about constitutional adjudicatory frameworks. While this sometimes does leave the reader with the question, ‘yes, but what about […]?’ – this is no serious fault of the book, it encourages the reader to delve deeper into the constitutional discourse of other states. The inspiration of new avenues of research is always something to be lauded in an academic text. Progress is not alone made by answering questions, but also by posing new ones.
One question for the author is whether she succeeds in her initial challenge of presenting a purely descriptive work. De Visser does not intend to put forward a ‘best practice’ or model of constitutional review, aiming instead to identify the ‘pertinent normative questions or concerns’, – but not to answer them. There is always a difficult line to tread, between description and normative assessment. One difficulty in viewing aspects of a legal system in isolation, only with reference to a concomitant conception in another state, is that we lose the cultural, social, and historical factors which led to their development. The reader may be left to wonder to what extent the questions of who (should) uphold(s) the constitution, and how is constitutional review organised, are distinct from each other. It may be assumed that the ‘who’ determines the ‘how’, and the normative ‘should’ is perhaps stronger than the author would have intended it to be. At times, the narrative voice seems to have difficulty maintaining a tone of non-evaluative neutrality. It is difficult to separate the divisive constitutional questions posed, without evaluating the judgment of the court. This is equally an issue for constitutional courts across States, as it is for de Visser, who cannot employ ‘deference rhetoric’ (though, certainly, she can examine it).
The interplay between constitutional actors in the wider scope of constitutional review is a running theme of the book, and the role of non-judicial actors in upholding the constitution is the subject of the first chapter of the book. Giving such prominence to non-judicial actors is an interesting choice by de Visser, as there is often an assumption, in a non-UK setting, that Constitutional Courts (if they are present) are the de jure and de facto bastions of constitutional review. Councils and Heads of State, the Parliament, academics, the People, and even the media are considered for their role in upholding the constitution. This highlights an important element often missing in academic discourse: the Constitutional Court [and academia] does not operate in a vacuum.
One final concern is that this book might be too general for a specialist, or too special for a generalist. Neither of these propositions is true, however: any lawyer, scholar or student of European law, Constitutional law or legal theory (broadly defined) could easily find much to engage and intrigue them in this volume. Ultimately this book challenges the reader to assess their own understanding of the nature and function of regimes of constitutional adjudication. Comparative without cultural assumptions or apologies is one of the strengths of this book, in addition to the diverse, but well-chosen, representative cases of the book.
Comparative analysis of constitutional review from a neutral perspective encompassing eleven states and the EU, is a highly ambitious project, one that de Visser has achieved in accomplishing with great skill and eloquence. As the first volume in the series European and National Constitutional Law, we may look forward eagerly to the next volume, and hope that it will prove as engaging, diverse, and insightful as this book is. For any practitioner, academic or scholar of constitutional law, it is a highly recommended read.