Giurisdizione costituzionale e indirizzo politico

Constitutional Adjudication and Policy-making

Abstract

Constitutional adjudication and policy-making - Judicial review of legislation has planted its roots in European continental constitutionalism mostly since World War 2 as an essential part of the transition to liberal democracy. The function of safeguarding the supremacy of entrenched constitutions, when necessary also against the encroachment of individual fundamental rights and systemic values by parliamentary legislation, is expressly attributed to ad hoc specialised constitutional courts. Such courts are established as judicial institutions and are regulated by judicial procedure and yet the exercise of their function as part of the system of checks and balances entails a significant impact on traditional understanding of separation of powers. Constitutional adjudication is highly conditioned by European Constitutional culture and gives evidence to structural forms of non-majoritarian constitutional democracy. Although occasionally pathological, tension between political policy-making institutions and constitutional courts is to be regarded as physiological and consistent with the need to preserve the balance within the system.

Keywords: Constitutional adjudication; European constitutional culture; Judicial safeguarding of constitutional supremacy; Non-majoritarian constitutional democracy; Policy making under the rule of law.