Constitutional courts and parliamentary democracy

Abstract

The article assesses the creation and subsequent evolution of systems of constitutional justice in West Europe, in light of delegation theory. The author argues that constitutional judges are better conceptualised as trustees, exercising fiduciary responsibilities, than as agents, who operate in the shadow of principals. The zone of discretion that organises the activities of constitutional courts is unusually large, in some contexts close to unlimited. The author then surveys why, and to what extent, constitutional adjudication has transformed the nature of parliamentary governance, focusing on the cases of France, Germany, Italy, and Spain. Notwithstanding important variation, certain trends are both pan-European and irreversible: traditional separation of powers doctrines are steadily eroding; legislators and administrators are being placed under the authority of an expansive, continuously evolving constitutional law; and the judiciary's participation in law making processes is becoming more overt and assertive.