Constitutional Courts as Positive Legislators

INTRODUCTION

With respect to constitutional fundamental rights review by the judiciary, the Netherlands has always been a bit of a stranger in Europe. Comparatists usually describe the way judicial review of statutes in Europe is shaped as different from the American system, where the Supreme Court has basically empowered itself to review the constitutionality of statutory laws. The authority to strike down legislation in the New World is therefore exercised by the judiciary at large, and it is the highest appellate court that ultimately decides on the matter. By contrast, the European tradition is closely connected to the existence of Kelsenian constitutional courts specialized in reviewing the constitutionality of statutes and executive action. Such courts notably exist in, for instance, Germany, Italy, Austria, Spain, and Belgium but also in the relatively younger liberal democracies like Poland and the Czech Republic. Constitutional courts almost by definition engage in a critical dialogue with the national legislature. When Hans Kelsen famously described constitutional courts as negative legislators, he was referring to their power to annul acts of the legislature.

It is at this point that the Dutch differ from most of their European neighbors. Their legal system does not involve concentrated review by a specialized constitutional court. This is largely because judicial review of primary legislation is traditionally prohibited pursuant to Article 120 of the Dutch Constitution. It is clear from the outset that this ban on judicial review reduces the need for a specialized court.