Legisprudence Limitations on Constitutional Amendments? Reflections on The Czech Constitutional Court’s Declaration of Unconstitutional Constitutional Act
Abstract Can a constitutional norm be unconstitutional? This idea seems, at first sight as a self-contradiction. Unconstitutionality is commonly referred to those ordinary laws, inferior to the constitution, which violate it. Constitutional norms, in contrast, carry an equal normative status as the constitution itself and other constitutional provisions. The question of unconstitutional constitutional norms recently arose in the Czech Republic. On 10 September 2009, the Czech Constitutional Court declared Constitutional Act no 195/2009 Coll, on Shortening the Fifth Term of Office of the Chamber of Deputies to be unconstitutional. The Czech Constitutional Court held that the constitutional act was an individual, specific decision and retroactive, thus violating the unamendability provision (Art 9(2)) in the Constitution, which prohibits amendments to the essential requirement for a democratic state governed by the rule of law. This article analyses the Czech Constitutional Court’s decision in a broader comparative and theoretical perspective and focuses, mainly, on four issues: first, the Czech Constitutional Court’s authority to substantively review constitutional norms; second, the appropriate standard of review when exercising judicial review of constitutional norms; third, the ‘individual, specific’ character of the constitutional act; and fourth, its alleged retroactive application. The article claims that while the Czech Constitutional Court was generally correct in claiming an authority to substantively review even constitutional norms, this was not the appropriate case in which to annul a constitutional act.
Conventions of Unamendability: Covert Constitutional Unamendability in (Two) Politically Enforced Constitutions
Legal scholarship on the unamendability of constitutional provisions regularly tends to focus on legal systems that operate a constitutional court or some other form of (strong) judicial review of legislation on the basis of a codified constitution. Legal systems such as the United Kingdom and The Netherlands, where the constitutionality of legislation is a matter for the political branches and not for the courts, tend to be somewhat ignored. They do not fit well with existing perceptions of constitutional unamendability and arguably fall well outside the categories of either explicit or implicit constitutional unamendability. We argue however, that these ‘politically enforced constitutions’ nonetheless contain mechanisms of unamendability, be it of an extremely informal nature. These operate in the form of judicial disobedience. The doctrine of unconstitutional constitutional amendments thus becomes relevant to a broader range of constitutional systems, such as the UK and The Netherlands. However, this type of unamendability requires a more subtle approach. It does not emerge from constitutional provisions, whether explicit or not, but rather takes the form of a constitutional convention of unamendability. The question whether parts of the constitution should be regarded as unamendable thus cannot be solely couched in the all-or-nothing terminology of legal rules. Instead, we argue that conventions of unamendability, due to their principle-based character, may be subject to changing circumstances and exceptions. Using existing literature on constitutional conventions as a model, we try to build a framework of analysis for the concept of constitutional unamendability in politically enforced constitutions.
Wigmore's Treasure Box: Comparative Law in the Era of Information
This article revisits the work of a canonical but quixotic figure in early American comparative law, John Henry Wigmore, as a lens through which to imagine what comparative law's role might be in the era of globalization. Wigmore's "pictorial method", compared here to the "treasure boxes" of Ming and Ch'ing Dynasty Chinese emperors, in which precious objects of different scales and eras were appreciated aesthetically side by side, presents a challenge to the many "modernist" approaches to comparative law in existence today. An exploration of the intellectual history of comparative law through the disjuncture that Wigmore's work engenders a treatment of comparative legal theories as paradigmatic artifacts of modernist knowledge practices and offers a perspective on what might be missing from that tradition and what might be its contribution in an era of information overload.