Edited by Tom Ginsburg and Rosalind Dixon
Chapter 16: The Interplay of Constitutional and Ordinary Jurisdiction
Frank I. Michelman I INTRODUCTION ‘Constitutional’ jurisdiction is the power of a court (or similar body) to pronounce on the compatibility of questioned laws and acts with constitutional requirements, with some measure of decisive effect on legal outcomes. ‘Ordinary’ jurisdiction, by contrast, is the usual power of a court to construe and apply non-constitutional law. Countries vary in forms and degrees of commitment (if any) to the institutional segregation of constitutional from ordinary jurisdiction. These variations have been widely discussed and ably treated, in Chapter 15 of this volume and elsewhere (including Cappelletti 1989, at 132–49; Favoreu 1990a; Favoreu 1990b; Ferreres Comella 2009; Stone Sweet 2000, at 32–8; Tushnet 2006; and, for the views of the celebrated inventor of the ‘European’ model of separated jurisdictions, Kelsen 1942). The special mission of this chapter is to consider jurisdictional division in relation to what may seem a distinct question of constitutional design, that of the scope of application of substantive constitutional guarantees. We recall some basic terminology. ‘Ordinary law’ is law that is not of constitutional stature and hence may be subject to control by constitutional law. ‘Ordinary courts’ are those courts that are generally empowered to interpret, apply, and (with regard to common and perhaps customary law) develop ordinary law. A system of ordinary courts may be unified, with all cases entering the system potentially subject to review by a single top court (Canada, for example), or it may be multi-peaked, with separate divisions for (say) civil, criminal, and...
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