Kelsen versus Schmitt and the Role of the Sub-National Entities and Minorities in the Appointment of Constitutional Judges in Continental Systems
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Antoni Abat Ninet
Abstract
In composed and decentralised states, sub-national entities and (ethnic, linguistic, racial) minorities ought to play a determinant role in the process of appointment of constitutional courts justices to obtain a balanced representation in the guardian of the constitution. The necessary appearance of constitutional justice independence can be at stake without a proportionated participation of minorities and sub-national entities in the court. It is not enough to introduce a symbolic presence. The first section of this essay analyses the transcendence and political-legal significance that the system of appointment of constitutional court judges has and its relation to the separation of powers (horizontal and vertical). The second section is a return to the roots, ie the system of appointment the Austrian Constitution of 1920, even that first constitutional court was created in 1919, and Kelsen’s theory on federalism. The third section carries out an analysis from a comparative constitutional law perspective by using as an analytical basis the reports on the composition of the Constitutional Courts of the European Commission for Democracy through Law. The paper ends with a reflection on Schmitt considerations on the Guardians of Constitutions.
© 2020 Walter de Gruyter GmbH, Berlin/Boston
Articles in the same Issue
- Frontmatter
- Introduction: Constitutional Courts in a 100-Years Perspective and a Proposal for a Hybrid Model of Judicial Review
- Constitutional Courts as Majoritarian Instruments
- ʻJudicial Activismʼ in Europe: Not a Neat and Clean Fit
- Constitutional Review Complaint as an Evolution of the Kelsenian Model
- Mexican Supreme Court at Crossroads: Three Acts of Constitutional Politics
- Idiosyncratic Constitutional Review in Cyprus: (Re-)Design, Survival and Kelsen
- The Relationship Between a Kelsenian Constitutional Court and an Entrenched National Ideology: Lessons from Thailand and Indonesia
- Kelsen versus Schmitt and the Role of the Sub-National Entities and Minorities in the Appointment of Constitutional Judges in Continental Systems
Articles in the same Issue
- Frontmatter
- Introduction: Constitutional Courts in a 100-Years Perspective and a Proposal for a Hybrid Model of Judicial Review
- Constitutional Courts as Majoritarian Instruments
- ʻJudicial Activismʼ in Europe: Not a Neat and Clean Fit
- Constitutional Review Complaint as an Evolution of the Kelsenian Model
- Mexican Supreme Court at Crossroads: Three Acts of Constitutional Politics
- Idiosyncratic Constitutional Review in Cyprus: (Re-)Design, Survival and Kelsen
- The Relationship Between a Kelsenian Constitutional Court and an Entrenched National Ideology: Lessons from Thailand and Indonesia
- Kelsen versus Schmitt and the Role of the Sub-National Entities and Minorities in the Appointment of Constitutional Judges in Continental Systems
