Constitutional Courts and Democratic Values: A European Perspective »

Víctor Ferreres Comella is professor of Constitutional Law at Pompeu Fabra University (Barcelona). He is currently teaching Constitutional Law and European Community Law at the Spanish Escuela Judicial (Judicial School), where young judges are trained.

In this book, Víctor Ferreres Comella contrasts the European “centralized” constitutional court model, in which one court system is used to adjudicate constitutional questions, with a decentralized model, such as that of the United States, in which courts deal with both constitutional and nonconstitutional questions.

Comella’s systematic exploration of the reasons for and against the creation of constitutional courts is rich in detail and offers an ambitious theory to justify the European preference for them. Based on extensive research on eighteen European countries, Comella finds that centralized review fits well with the civil law tradition and structures of ordinary adjudication in those countries. Comella concludes that—while the decentralized model works for the United States—there is more than one way to preserve democratic values and that these values are best preserved in the parliamentary democracies of Europe through constitutional courts.

Acknowledgments ix

Introduction xiii

Part I The Triumph Of An Idea

1 The Rise of Constitutional Courts 3

2 Historical Background: The Principle of Separation of Powers 10

3 A Traditional Justification: Legal Certainty 20

Part II Exploring The Advantages Of Constitutional Courts

4 The Justification of Constitutional Review: The Sketch of an Argument 29

5 The Special Nature of Constitutional Discourse 36

6 The Structure of the Constitutional Conversation 55

7 Overcoming Judicial Timidity 71

8 The Democratic Objection to Constitutional Review 86

9 Democratic Checks on Courts 98

Part III Constitutional Courts Under Pressure

10 Decentralizing Tendencies in the System 111

11 The Impact of the European Court of Justice 122

12 The Impact of the European Court of Human Rights 139

Afterword 155

Notes 159

Index 223