Constitutional Courts in a Changing Landscape
- Studies in Comparative Law and Legal Culture series
Edited by John Bell and Marie-Luce Paris
Chapter 7: Spain
AbstractIn 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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