Edited by Tom Ginsburg and Rosalind Dixon
Chapter 15: The Rise of Specialized Constitutional Courts
Víctor Ferreres Comella 1 WHAT ARE SPECIALIZED CONSTITUTIONAL COURTS? SOME CONCEPTUAL CLARIFICATIONS An increasing number of countries have decided to establish special courts to deal with constitutional matters. They are often called ‘constitutional courts’ (or ‘constitutional tribunals’). This expression, however, can be used in different ways. Strictly speaking, ‘constitutional courts’ are special institutions that are separate from the rest of the judiciary. This is the standard way of using the expression in the literature (Fromont, 1996; Rousseau, 1998; Stone Sweet, 2000; Schwartz, 2000; Olivetti and Groppi, 2003; Sadurski, 2002, 2005; Ginsburg, 2003; Ferreres Comella, 2009). Constitutional courts, so conceived, are especially widespread in Europe. Out of the 27 states that make up the European Union, for example, 18 have created such bodies (Austria, Belgium, Bulgaria, Czech Republic, France, Germany, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania, Slovakia, Slovenia and Spain). Postcommunist Europe is strongly associated with constitutional courts too. We also find them in other regions in the world – in Latin America, Africa and Asia (for a comprehensive view, see Ramos, 2006). It is possible, however, to use this expression in a broader sense, to also encompass institutions that are specialized in constitutional law even if they are not organically detached from the rest of the judiciary. In some Latin American countries (Costa Rica, El Salvador, Honduras, Nicaragua, Paraguay, Venezuela), for example, a special chamber within the regular supreme court has been set up to deal with constitutional issues (Frosini and Pegoraro, 2009; Brewer-Carías, 2009). In...
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