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Three Constitutional Courts: A Comparison*

Published online by Cambridge University Press:  02 September 2013

Taylor Cole
Taylor Cole
Affiliation:
Duke University
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Extract

Two years ago, when an astute critic made a half-century appraisal of comparative politics in the United States, he reminded us that the American Political Science Association was founded in 1903 as an outgrowth of moves to establish a National Conference on Comparative Legislation. During the more than half-century that followed, the writings in comparative government and politics have reflected the influences which have made themselves felt in the discipline as a whole. The attention given by Charles E. Merriam after World War I to “informal government,” “underlying processes and relations,” and “social bases of political cohesion” is fully appreciated now by those who are projecting comparative studies of political socialization. In the 1930s, Carl J. Friedrich's writings pointed up the need for more adequate conceptualization when combined with appropriate appreciation of empirical research. Mention should also be made of the earlier works of Herman Finer. In their respective ways, albeit in varying degrees, all of these writers recognized the need for an increased emphasis upon the informal and extra-legal factors affecting the political process, and for more concern with generalization and theory.

Type
Research Article
Information
American Political Science Review , Volume 53 , Issue 4 , December 1959 , pp. 963 - 984
Copyright
Copyright © American Political Science Association 1959

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References

1 Neumann, Sigmund, “Comparative Politics: A Half-Century Appraisal,” Journal of Politics, Vol. 19, pp. 369–90 (1957)CrossRefGoogle Scholar.

2 Note particularly his Making of Citizens (Chicago, 1931)Google Scholar, with the subtitle, “A Comparative Study of Methods of Civic Training,” in which Merriam sought to summarize and provide a central interpretation for eight country studies in a series on civic training.

3 See the introductory chapter of his Constitutional Government and Politics (Boston, 1937)Google Scholar, subsequently published in revisions under the title of Constitutional Government and Democracy.

4 Esp., Theory and Practice of Modern Government (2 vols., London, 1932)Google Scholar.

5 E.g., Macridis, Roy C., The Study of Comparative Government (New York, 1955)Google Scholar.

6 Over 100 articles, and formal and informal papers, have resulted from the work of the Committee. For an explanation of its evolving rationale, see Almond, Gabriel A., “A Comparative Study of Interest Groups and the Political Process,” this Review, Vol. 52, pp. 270–82 (1958)Google Scholar, and Pye, Lucian W., “Political Modernization and Research on the Political Socialization Process” (mimeo, July, 1959)Google Scholar. The major collective and interpretive effort of this Committee to date is the forthcoming, volume, The Politics of the Underdeveloped Areas, which deals with the characteristics and classification of the political systems and the process of political development in the new countries of Africa, South America, South Asia, and the Middle East, by Gabriel A. Almond, James S. Coleman, Lucian W. Pye, George O. Blanksten, Dankwart A. Rustow, and Myron Wiener.

7 LaPalombara, Joseph, “The Utility and Limitations of Interest Group Theory in Non-American Field Situations” (mimeographed ms. of paper to appear in a forthcoming issue of the Journal of Politics), p. 6Google Scholar.

8 Note the current program of the American Society for Public Administration. On the literature, see, for example, Presthus, Robert V., “Behavior and Bureaucracy in Many Cultures,” Public Administration Review, Vol. 19, pp. 25–35 (1959)CrossRefGoogle Scholar.

9 (London, 1957).

10 (Pittsburgh, 1958).

11 (Urbana, 1959)

12 Friedrich, C. J., “The Political Theory of the New Democratic Constitutions,” Review of Politics, Vol. 12, pp. 217–18 (1950)CrossRefGoogle Scholar.

13 Deener, David, “Judicial Review in Modem Constitutional Systems,” this Review, Vol. 46, pp. 1079–83 (1952)Google Scholar.

14 Treves, Giuseppino, “Judicial Review of Legislation in Italy,” Journal of Public Law, Vol. 7, p. 345 (1958)Google Scholar.

15 Even in Germany, there is considerable evidence for the view expressed by Rudolf Katz, Vice President of the Federal Constitutional Court, that there was no necessary causal relationship between the original Allied demands and the final German action. See comments and literature cited in the author's “The West German Federal Constitutional Court: An Evaluation after Six Years,” Journal of Politics, Vol. 20, pp. 283–84 (1958)Google Scholar, and “The Bundesverfassungsgericht, 1956–1958: An American Appraisal,” Jahrbuch des Öffentlichen Rechts, Vol. 8, pp. 29–47 (1959)Google Scholar.

16 In West Germany, by the Federal President upon the request and with the consent of the Court; in Italy and Austria, by the Courts acting directly.

17 Of the present 20 justices on the German Federal Constitutional Court, seven are professors (who retain their professional status on a part-time basis); and of the 15 justices in Italy at the end of 1958, some 10 held the title of professor. The President and Vice President, as well as other members of the Austrian Constitutional Court today, are professors in Vienna and other universities. The Constitutional Council of the Fifth French Republic (which can hardly be designated as a “constitutional court”) contains no professor of law for special reasons. See Hoffmann, Stanley H., “The French Constitution of 1958: I. The Final Text and Its Prospects,” this Review, Vol. 53, p. 341Google Scholar, n. 37 (1959).

18 See Berichte und Informationen, Dec. 6, 1957, and Die Wochen-Presse, Dec. 29, 1956 and Jan. 19, 1957; also Secher, Herbert P., “Coalition Government: The Case of the Second Austrian Republic,” this Review, Vol. 52, p. 799 (1958)Google Scholar.

19 One of the several reasons for this delay was the hesitancy of parliament to set up a body which would restrict parliament's powers. See Adams, John Clarke and Barile, Paolo, “The Italian Constitutional Court in Its First Two Years of Activity,” Buffalo Law Review, Vol. 7, pp. 250–265 (1957–1958)Google Scholar. This difficulty has reminded these two authors of the legendary story of Bertoldo, who was sentenced to be hanged and then was entrusted with the responsibility of finding an appropriate tree. In Bertoldo's case there were explainable delays.

20 Note the account in Farrelly, David G., “The Italian Constitutional Court,” Italian Quarterly, Vol. 1, pp. 53–56 (1957)Google Scholar.

21 All three differentiate between “incidental” proceedings, arising out of a pending trial, and “principal” proceedings, i.e., those instituted by a governmental organ.

22 Note the provocative comparisons in Spiro, Herbert J., Government by Constitution (New York, 1959)Google Scholar, ch. 22.

23 An expression used by Kirchheimer, Otto, “The Waning of Opposition in Parliamentary Regimes,” Social Research, Vol. 24, pp. 127–56 (1957)Google Scholar; cf. Gulick, Charles A., “Austria's Socialists in the Trend toward a Two-Party System: An Interpretation of Postwar Elections,” Western Political Quarterly, Vol. 11, pp. 539–62 (1958)CrossRefGoogle Scholar.

24 West Germany: Art. 3; Austria: Art. 7; Italy: Art. 3. In the following discussion, I am heavily indebted to Mr. W. R. Dallmayr for his assistance.

25 Though a number of nuisance and facetious complaints are submitted, the Court in West Germany has based an increasing percentage of its important decisions on selections from the 4,800 complaints which had been made prior to December, 1958. An illustration of the facetious complaint was one which contended that the refusal of police to extend the time during which “bars” might be kept open violated the constitutionally guaranteed right of freedom of assembly.

26 Against individual decrees and acts of the administration, but not against laws, ordinances, or court rulings.

27 1 Entscheidungen des Bundesverfassungsgerichts (hereafter cited as B.V.G.E.) 52; cf. Leibholz, Gerhard, Die Gleichheit vor dent Gezetz (2d ed., Berlin and Munich, 1959), pp. 1–12Google Scholar.

28 6 B.V.G.E. 389.

29 1 BvR 205/58.

30 Secs. 1628 and 1629, paragraph 1. These provisions had not been altered by the Equal Protection Law of June 18, 1957. See Leyser, J., “‘Equality of the Spouses’ Under the New German Law,” American Journal of Comparative Law, Vol. 7, pp. 276–87 (1958)CrossRefGoogle Scholar.

31 We cannot avoid quoting from an editorial in an American newspaper which commented on this decision: “Thus from Karlsruhe comes the news that father no longer has the last word. It is triumph for the species. Of course, at this point, the German wife has only acquired a sort of deadlock. There is no last word. Give her time, however, and we may be sure that she not only will have deprived mere man of the last word but will, as has her American counterpart, have appropriated it, herself.” Durham Sun, July 5, 1959, p. 3Google Scholar.

32 Decision of March 29, 1958; G 1, 2, 3, 5, 29, 30/58. The Federal Constitutional Court in West Germany had in 1957 invalidated somewhat comparable provisions of the Income Tax Law of 1951, but, while expressing some doubts as to the compatibility of these statutory provisions with Art. 3 of the Basic Law, the West German Court had based its decision on the grounds of violation of Art. 6, paragraph 1, of the Basic Law. 6 B.V.G.E. 55.

33 Raccolta Ufficiale delle Sentenze e Ordinanze della Corte Costituzionale (hereafter cited as R.U.), No. 3, Vol. 2, 1957, p. 21, at 27Google Scholar.

34 R. U., No. 53, Vol. 6, p. 68 (1958); also cited in Treves, “Judicial Review of Legislation in Italy,” loc. cit., p. 351.

35 3 B.V.G.E. 225.

36 Such words and phrases as “supra-positive basic norms,” “natural justice,” “fundamental postulates of justice,” “norms of objective ethics,” etc., have been used in cases. Cf. Rommen, Heinrich, “Natural Law in Decisions of the Federal Supreme Court and of the Constitutional Courts in Germany,” Natural Law Forum, Vol. 4, pp. 1–25 (1959)Google Scholar; Dietze, Gottfried, “Unconstitutional Constitutional Norms? Constitutional Development in Postwar Germany,” Virginia Law Review, Vol. 42, pp. 1–22 (1956)CrossRefGoogle Scholar.

37 Cf. the author's “The West German Federal Constitutional Court: An Evaluation after Six Years,” loc. cit., pp. 300–304, and the literature there cited.

38 Sammlung der Erkenntnisse und wichtigsten Beschluesse des VGH (hereafter cited as Slg.), No. 2455.

39 For pertinent comments by the three Presidents of the Court during the period since 1946, note Adamovich, Ludwig, “Probleme der Verfassungsgerichtsbarkeit,” Juristische Blätter, Vol. 72, p. 73 (1950)Google Scholar, and “Die Verfassungsmässige Funktion des Richters,” Osterreichische Juristenzeitung, Vol. 9, p. 410 (1954)Google Scholar; Zigeuner, Gustav, “Zehn Jahre Verfassungsgerichtshof in der Zweiten Republik,” Juristische Blätter, Vol. 78, pp. 631–32 (1956)Google Scholar; and the somewhat more natural-law oriented position of the present President, Walter Antoniolli, “Gleichheit vor dem Gesetz,” ibid., Vol. 78, pp. 611 ff. (1956).

40 See Constitution, Arts. 44 and 140.

41 At this point, as Professor Felix Ermacora has said, “the Constitutional Court is … the guardian of the Constitution and also the guarantor of the implementation of the requirements of direct democracy.” “Die Bedeutung der Überprüfung von Bundesverfassungsgesetzen durch den Österreichischen Verfassungsgerichtshof,” Juristische Blätter, Vol. 75, p. 539 (1953)Google Scholar.

42 6 B.V.G.E. 309.

43 2 BvF 3/58 and 2 BvF 6/58. See also 2 BvG 1/58 of July 30, 1958.

44 Note the decision of June 16,1959, in which the Court held a Federal Law concerning the Payment of Compensation Claims of 1956 to be incompatible with Article 120 of the Basic Law in that it required the states to bear expenditures which represented obligations of the Federal Government (2 BvF 5/56); and the decision of July 14, 1959, in which the Court held that the 1957 Federal Law for the Establishment of a Foundation called “Prussian Cultural Property” and the Transfer of Assets of the former Land Prussia was not in violation of Article 135 of the Basic Law. 2 BvF 1/58.

45 Slg., Nos. 2217 (1951), 2319 (1952), 2546 (1953), and 2721 (1954).

46 Note Slg., No. 2087 (1951), where the Court criticized the Federation for using the powers granted in Art. 12, Sec. 1 (under which the Bund lays down the “basic principles” and the province retains the power of execution) in such a way as to infringe upon the competences of the province by providing detailed regulation of the subject matter in question. For earlier post-war cases, see Baeck, Paul L., “Postwar Judicial Review of Legislative Acts: Austria,” Tulane Law Review, Vol. 26, pp. 76–77 (1951–1952)Google Scholar.

47 Slg., No. 2092 (1951).

48 Slg., No. 2264 (1952). See the criticisms of this decision in Spanner, Hans, “Die Prüfung von Gezetzen und Verordnungen durch den Verfassungsgerichtshof in der Zeit von 1950–1952,” Österreichische Zeitschrift für Öffentliches Recht, Vol. 6, pp. 181–82 (1954)Google Scholar.

49 Slg., No. 2500 (1953). See also H. P. Secher, “Representative Democracy or Chamber State” (mimeographed paper delivered at the 1959 Annual Meeting of the Midwest Conference of Political Scientists), pp. 9–10.

50 Slg., No. 2721 (1954).

51 Slg., No. 3118 (1956).

52 For references to certain of these cases, including ones involving hunting, real estate transactions, area planning, etc., see Ermacora, Felix, “Die Entwicklung des Österreichischen Verfaesungsrechts seit dem Jahre 1951,” Jahrbuch des Öffentlichen Rechts, Vol. 6, p. 339 (1957)Google Scholar, and Der Verfassungsgerichtshof (Vienna, 1957), pp. 145–46Google Scholar. Note, particularly, a decision of June 28, 1958 (G 32/58) in which the Court declared unconstitutional a federal law of 1957 levying import duties on certain products.

53 Adams and Barile, loc. cit., p. 258.

54 The Sicilian Statute was converted by the Constituent Assembly, under pressure of time, into a Constitutional Law of Feb. 26, 1948, No. 2.

55 R.U., No. 38, Vol. 2, p. 375.

56 E.g., a decision of January 24, 1958. R.U., No. 7, Vol. 5, p. 61 (1958).

57 Note the discussion by di Ruffia, P. Biscaretti, “The First Two Years of Functioning of the Italian Constitutional Court,” Il Politico, Vol. 23, pp. 477 ff. (1958)Google Scholar.

58 5 B.V.G.E. 71.

59 7 B.V.G.E. 282.

60 8 B.V.G.E. 274.

61 Note the comments of President Azzariti at the beginning of the second year of activity of the Court, in R.U., Vol. 3, pp. 13–14 (1957). The Italian Court has held that both the law of delegation and the authorized act are subject to its review. R.U., No. 3, Vol. 2, p. 21 (1957). Cf. Cassandra, Giovanni, “The Constitutional Court of Italy,” American Journal of Comparative Law, Vol. 8, pp. 4–5, n. 8 (1959)Google Scholar; Sciascia, Gaetano, “Die Rechtsprechung des Verfassungsgerichtshofs der Italienischen Republik,” Jahrbuch des Öffentlichen Rechts, Vol. 6, pp. 7–9 (1957)Google Scholar.

62 R.U., No. 47, Vol. 2, p. 507 (1957).

63 293 U.S. 388 (1935) and 295 U.S. 495 (1935); Adams and Barile, loc. cit., p. 259.

64 E.g., Slg., Nos. 2109 (1951), 2276 (1952), 2462 (1953), and 2664 (1954).

65 3 B.V.G.E. 58.

66 3 B.V.G.E. 288.

67 6 B.V.G.E. 132.

68 2 B.V.G.E. 1.

69 5 B.V.G.E. 85.

70 Since the Constitution was silent on this point, there was doubt as to whether the Court has the power to pass upon the constitutionality of “anterior legislation,” but the Court in its first decision laid all questions at rest as to its jurisdiction. R.U., No. 1, Vol. 1, p. 25 (1956). See Farrelly, David G. and Chan, Stanley H., “Italy's Constitutional Court: Procedural Aspects,” American Journal of Comparative Law, Vol. 6, p. 326 (1957)CrossRefGoogle Scholar.

71 R.U., No. 2, Vol. 1, p. 41 (1956).

72 R.U., No. 45, Vol. 2, p. 491 (1957); cf. R.U., Nos, 13 and 14, Vol. 5, pp. 101–107 (1958).

73 R.U., No. 36, Vol. 5, p. 231 (1958).

74 StGBl., Nos. 4 and 6.

75 For example, in 1953, in the decision which declared governmental proclamation unnecessary, the Court abrogated a National Socialist Law of November 5, 1935 on Exchanges, Vocational Guidance, and Procurement of Apprentices, which had been extended to Austria after the Nazi Anschluss, as reflecting “typical National Socialist ideas” and as “being incompatible with … true democracy.” Slg., No. 2620 (1953). The plaintiff had, moreover, been deprived of certain rights guaranteed under Article 12 of the Basic Law of 1867 and under Article 83, paragraph 2, of the Constitution.

76 Löwenstein, Karl, “The Bonn Constitution and the European Defence Community Treaties, A Study in Judicial Frustration,” Yale Law Journal, Vol. 64, pp. 805–39 (1955)CrossRefGoogle Scholar.

77 See Juristische Blätter, Vol. 79, pp. 263–65, and 287–89 (1957)Google Scholar.

78 8 B.V.G.E. 1, of June 11, 1958.

79 Cherokee Nation v. Georgia, 5 Peters 1 (1831), and Worcester v. Georgia, 6 Peters 515 (1832).

80 Dietze, Gottfried, “America and Europe—Decline and Emergence of Judicial Review,” Virginia Law Reveiw, Vol. 44, p. 1272 (1958)Google Scholar.

81 Cf. Krieger, Leonard, The German Idea of Freedom (Boston, 1957), p. 468Google Scholar.

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