Table of Contents

Rights-Based Constitutional Review

Rights-Based Constitutional Review

Constitutional Courts in a Changing Landscape

Studies in Comparative Law and Legal Culture series

Edited by John Bell and Marie-Luce Paris

Constitutional review has become an essential feature of modern liberal democratic constitutionalism. In particular, constitutional review in the context of rights litigation has proved to be most challenging for the courts. By offering in-depth analyses on changes affecting constitutional design and constitutional adjudication, while also engaging with general theories of comparative constitutionalism, this book seeks to provide a heightened understanding of the constitutional and political responses to the issue of adaptability and endurance of rights-based constitutional review. Providing structured analyses the editors combine studies of common law and civil law jurisdictions, centralized and decentralized systems of constitutional review, and large and small jurisdictions.

Chapter 7: Spain

Agustín Ruiz Robledo

Subjects: law - academic, comparative law, constitutional and administrative law


In Chapter 7 (‘The Spanish experience of rights-based review or how constitutional case law has been more principled than legislation in defence of fundamental rights’), Robledo explains that Spanish constitutional review derives from the Kelsenian model. The Constitutional Court was established as a powerful court endowed with wide-ranging powers aimed at ensuring the normative force of the Constitution, the adjudication of conflicts between territorial powers of the State, and the guarantee of the fundamental rights of the citizens. Robledo then explores the causes and effects of the somehow degeneration of this seemingly perfect model of constitutionalism. A range of anomalies have indeed affected the work of the Constitutional Court in recent years such as those related to the politicization of the appointment process of constitutional judges or the issue of delays in constitutional justice. The Spanish experience seems to suggest that the endurance of a constitutional review system is dependent on a variety of parameters others than those related to its design. Robledo argues that technical solutions—such as the abandonment of constitutional remedies or even, in the most extreme case, the demise of the Constitutional Court—do not appear as reasonable options in order to restore a fully working constitutionalism. The way forward rather lies in a change of political culture ‘meaning that political parties should internalize constitutional mandates and act with constitutional loyalty’.

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