demand for abill of rightsin the UK produced the 1998Human Rights
Act, (and as soon as pressure fordevolutionhad resulted in the establishment
of a parliament in Scotland, where the legal system has differences to that in the
rest of the UK), the ultimate court of appeal, the Law Lords (in the House of
Lords) began to adopt the role of a constitutional court, though not in name.
There is considerable professional literature on constitutional courts, both in
political science and public law, and much of the debate is highly technical.
The important questions concern how the court receives its instructions.
There are two basic routes. In one instance, some actors, usually a mix of
parliamentarians and leaders of the executive, may be entitled to send new
legislation to the court before it goes into operation for ana prioriruling on
whether it is compatible with the constitution. Alternatively, real litigants
before ordinary courts may be allowed to challenge the constitutionality of
legislation pertaining to their case in a concrete manner. Very different
answers, and very different developing constitutional theories, tend to stem
from these different modes. Some courts have only one route or the other,
some have both; and there are alternative mechanisms for ‘seizing’ the court
with issues, resulting in yet further different traditions of constitutional inter-
pretation.
Constitutional courts have become both more numerous and, collectively
and individually, much more powerful in the last 30 years or so, especially in
Europe. They depend to some extent on the political acceptability of their
decisions to other state actors, and rather more on public legitimacy. Increas-
ingly, they are vitally important political actors in their own rights, sometimes
rivalling parliaments, because of thechilling effectof their decisions, and
leading to a judicialization of politics.
Constitutional Law
Constitutional law refers to the part of a legal system and legal tradition which
is directly concerned with interpreting and applying the fundamental rules that
define and delimit the powers, rights and duties of governments, other organs
of the state, and the citizens. In some cases constitutional law is based on the
interpretation of a fixed, binding and usually written formalconstitution.
The constitution of the USA is the most important example of this, because it
is highly concrete and absolutely binding, and because it provides for an
agency, the Supreme Court, empowered to rule on the constitutionality of
the way in which any other element, even the president, has behaved.
However, the US constitution is relatively short (even with its 26 Amend-
ments), the clauses often opaque, and is, in any case, more than 200 years old.
Precisely because of these factors there is a huge body of constitutional law
interpreting and expanding the original document, mainly based on decisions
Constitutional Law