Why Europe rejected American judicial review: and why it may not matter.

• Author: Sweet, Alec Stone

In 1803, when Marbury v. Madison (1) was rendered, the French were busy completing the destruction of independent judicial authority. That process began in 1789, the year the U.S. Constitution entered into force. The French law of August 16-24, 1790, which remains in application today, prohibited judicial review of legislative and administrative acts, as did the country's first written constitution, completed in 1791. (2) By 1804, a new legal system had emerged. It was constructed on the principle--a corollary of legislative sovereignty--that courts must not participate in the lawmaking function. The judge was instead imagined as a virtual "slave of the legislature" or, more precisely, a slave of the code system of law. (3) The codes are statutes that, in their idealized form, purport to regulate society both permanently and comprehensively, thereby reducing judicial discretion to nil. Through mimesis and war, the code system and the prohibition of judicial review spread across Europe. Although the nineteenth century saw near continuous regime change, and old states disappeared or were absorbed into new ones, a relatively stable constitutional orthodoxy nonetheless prevailed. In this orthodoxy, constitutions could be revised at the discretion of the lawmaker; separation of powers doctrines subjugated judicial to legislative authority; and constraints on the lawmaker's authority, such as rights, either did not exist or could not be enforced by courts.

In 1903, the leading Public Law scholars in France were busy mounting what would become a noisy campaign to import judicial review. The movement would span three republics and as many generations of scholars. In the end, it failed. The major political parties, invoking the specter of an American-style "Government of Judges," consistently blocked proposals to authorize judicial review. They did so in the name of democracy, that is, to secure the General Will: the sovereignty of the People as expressed through Parliament. (4)

In 2003, after a polite nod to Westminster, parliamentary sovereignty can be pronounced dead. It was killed off during the second half of the twentieth century in successive waves of constitution-making that followed a world war, the overthrow of military dictatorship in Southern Europe, and the collapse of Communist regimes in Central and Eastern Europe. All European constitutions written after World War II establish enforceable, substantive constraints on government, including constraints on legislative and executive authority, in the form of human rights, the scope and content of which go far beyond the American Bill of Rights. With very few exceptions, all such constitutions provide for "constitutional review" by a "constitutional court." Unlike an American-style supreme court, the European constitutional court is a specialized jurisdiction, detached from the judiciary. Its purpose is to ensure the normative superiority of the constitutional law. Such bodies have been established in Austria (reestablished in 1945), Italy (1948), Germany (1949), France (1958), Portugal (1976), Spain (1978), and Belgium (1985). After 1989, the institution spread to the post-Communist democracies of the Baltics, the Czech Republic, Hungary, Poland, Rumania, Russia, Slovakia, Slovenia, and in still other states of the former USSR and Yugoslavia. (5)

In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. (6) I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite important formal, institutional distinctions, there is increasing convergence in how the two systems of review actually operate.

1. PROHIBITION AND ITS DISCONTENTS

   One enduring legacy of the French Revolution is the prohibition of judicial review. (7) The purpose of the prohibition is to seal off the "political function" (lawmaking) from the "judicial function" (dispute resolution), thereby securing the supremacy of statute within the legal order.

   >From the first moments of the Revolution, the Rousseauian identification of legislation with the General Will and legislators with popular sovereignty was constitutionally enshrined, (8) producing a separation of powers doctrine that rigidly circumscribed judicial authority. During this period, parliamentarians thought the judiciary a corrupt and reactionary enemy of social reform and decried the "confusion of powers" entailed by judicial review (i.e., judicial and lawmaking functions are alleged to be indistinguishable). Not surprisingly, the Parlements, judicial institutions that exercised a form of review over royal acts under the Ancien Regime, were an early casualty; for all practical purposes, they were abolished by the Assembly in a decree of 1789. (9) Following Rousseau, statutes were to be the only legitimate source of law, and the codes were to be written in the most simple and nontechnical language possible. In this way, politics would be made transparent, the legitimacy of the new social compact assured, and the multitude of intermediate institutions and social practices separating the People from the State, and obscuring that fundamental relationship, could be cleared away. The legislature considered legal science to be one of the more mystifying of these institutions, and it was hoped and expected that lawyers, and their penchant for doctrinal commentaries and formalist discourse, would gradually obsolesce and disappear. (10) Judges could then proceed in a straightforward manner, as civil servants applying the codes. (11)

   To make a convoluted story too simple, the new separation of powers doctrines favored the development of specialized jurisdictions detached from the judiciary. France's two supreme courts began just this way. The Constitution of 1795 established the Tribunal de cassation to protect lawmakers from judicial usurpation, conferring on it the power to void judgments "that contain any manifest contradiction with statutes." Although originally part of the legislature, Cassation gradually evolved into a supreme appellate jurisdiction and was later explicitly attached to the judiciary. Civil judges were also enjoined from reviewing the legality of administrative acts, although a system of review gradually developed within the administration itself, without express constitutional authorization. Today, the administrative courts operate as an autonomous "judicial" system under the supervision of a specialized section of the Conseil d'etat.

   Constitutional review mechanisms were periodically proposed, and some were in fact established. In 1793, the Abbe Sieyes failed to force a vote in the Chambre des deputees on his scheme to create a Grand jury ("to protect citizens against the oppression of the legislative body and the executive") (12); but he later succeeded in vesting abstract review powers in what became the Senate of Napoleon's First Empire. Bonaparte's Senate never annulled a legislative or executive act, but the Emperor did use it to overturn judicial decisions he did not like, as well as "to fill gaps in the constitution." (13) Although the Senate disappeared in 1815, it was revived by Napoleon III for the Second Empire, if to no noticeable effect. The Fourth Republic (1946-58) had its Constitutional Committee, a bizarre body composed of parliamentarians who never actually reviewed a legislative act. (14) Finally, for the Fifth Republic (1958-), General De Gaulle and his agents established a quasi-Bonapartist institution, (15) the Constitutional Council, as a means of ensuring executive control over the legislature. The Council now operates on a radically different basis, mainly to review the constitutionality of legislation that has been proposed by the executive and adopted by parliament, before it has entered into force. As discussed at length in Part III, pre-enforcement constitutional review--which Europeans call abstract review--is today found across the Continent. In France, the various constitutional review mechanisms established after 1789 have always been of an abstract nature. The logic, again, flows from separation of powers (legislative sovereignty): once a statute has entered into force, its legal validity may not be challenged.

   >From the perspective of French separation of powers orthodoxies, the judicial function can only be a negligible one. As Merryman writes: "Legislative positivism, the dogma of the separation of powers, the ideology of codification, the attitude toward interpretation of statutes ... all these tend to diminish the judge and to glorify the legislator." (16) But appearances can deceive. In the rest of this section, I describe and evaluate what I will show to be a "relatively"--and meaningfully--"autonomous" French legal tradition. The French use the term le Droit to describe the complex relationship between legal institutions, jurisprudence, and legal scholarship, with an emphasis on the latter. The community of legal scholars is also called la Doctrine. I will use both these terms. By relative autonomy, I mean the extent to which le Droit, and especially the legal discourse propagated by la Doctrine, does not conform to the classical model described above, evolving, instead, its own internally derived set of moral and professional standards of conduct. (17)

   A wide range of judicial activities may provide evidence of autonomy, each likely flowing from one common source: the deeply held philosophical attachment to the notion of the law as a holistic system, with its own internal...