The diffuse system of judicial review

• Author: Allan R. Brewer-Carías
• Profession: Emeritus Professor of Law, Central University of Venezuela Fellow, Trinity College, and Simón Bolívar Professor, University of Cambridge, UK (1985-1986)
• Pages: 193-254

193

JUDICIAL REVIEW IN COMPARATIVE LAW

PART FOUR

THE DIFFUSE SYSTEM OF JUDICIAL REVIEW

I. GENERAL FEATURES

The diffuse system of judicial review empowers all the judges and courts of a

given country to act as a constitutional judge, in the sense that when applying the

law, they a re allowed to judge its constitutionality and therefore, not to apply a law

in the concrete process when they consider it unconstitution al an d vo id, gi ving

priority to the constitution .

1. The Logic of the System

From a logical and rati onal point of view, this general power of all judges

and courts to a ct as constitutional judges is the obvious consequence of the principle

of the supremacy of the constitution. If the constitution is the supreme law of the

land, in cases of conflict between a law and the constitution, the latter must prevail,

and it is the duty of the judiciary to say which law is applicable in a particular case.

As Justice William Paterson stated in Vanhorne󰜚s Lessee v. Dorrance (179 5) al most

two hundred years a go:

«If a legis lative act oppugns a constitutional principle the former must give

way and be rejected on the score of repugnance. I hold it to a position equally

clear and sound, that, in such case, it will be the duty of the court to adhere to

the constitution, and to declare the act null and void».1

Or as it was definitively stated by Chief Justice Marshall in Marbury v. Madison

(1803):

«Those who apply the rule to particular cases, must of necessity expo und and

interpret that rule... so, if a law be in opposition to the constitution... the court must

determine which of these conflicting rules governs the case: This is the very essence

of judicial duty. If then, the courts are to regard the constitution, and the constitution

is superior to any ordinary act of the legislature, the constitution, and not such

ordinary act, must govern the case to which they both apply».2

Thus, supremacy of the constitution and judicial review as the power of all

judges to defend the constitution and to control the constitutionality of legislation

are essential ly linked. That is why regardin g t he co nstitutions and laws of the

1Vanhorne󰜚s Lessec v. Dorrance, 2 Dallas 304 (1795). See the text in S.I. KUTLER (ed.), The Supreme Court

and the Constitution. Readings in American Constitutional History, NY 1984, p. 8.

2Marbury v. Ma dison, 1 Cranch 137 (1803). See the text in S.I. KUTLER (ed.), op. cit., p. 29.

194

ALLAN R. BREWER󰜔CARÍAS

federal states it was expressly established in the well-kn own «supremacy clause» of

Article VI, Section 2, of the American constitution, which states:

«This constitution, and the laws of the United states which shall be made in

Pursuance ther eof; and all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme law of the l and; and the

Judges in every state shall be bound thereby, anything in the constitution or

laws of the state to the contrary notwithstanding».

This supremacy clause was extended to federal laws in Marbury v. Madison

through a logical and rational interpretation and application of the principle of the

supremacy of the cons titution, and has been expressly est ablished in a general

sense, as a positive rule in other countries.

In this sense, for instance, since 1910 Article 215 of the Colombian constitution

established:

«In all cases of inco mpatibility between the co nstitution and the law, the

constitutional dispositions will preferably be a pplied».3

In a similar sense, since 1897 the Venezuelan Civil Procedural Cod has also

established in Article 20 that:

«Whe n a law in for ce whose a pplicat ion is requ ired, col lides wi th any

constitutional disposition, the courts will preferably apply the latter».4

2. The Compatibility of the System with all Legal Systems

Ther efore , the dif fuse sy stem of j udicia l revie w of cons tituti onali ty of

legislation is not a system peculiar to the common law system of law, incompatible

with the civil or Roman law tradition, at all. On the contrary, it has existed since the

last century in most L atin American countries, all of them being part of the Roman

law family of legal systems.

This is the case of Mexico, Argentina and Brazil, which followed the American

model and is also the case of Colombia an d Venezuela, in w hich a mixed sy stem of

judicial review is followed.

It has also exist ed in Eu rope in countries with a Civil la w tr adition, like

Switzerland and Greece. In Switzerland, the diffuse system of judicial review was first

established in the 1874 constitution, even though in a limited way. Also in a limited

manner, the Swiss sy stem curren tly allow s the courts to decide on constitutional

grounds, upon the applicability of legislative acts of the cantons but not of federal

laws.5 In Greece, where a mixed system is also adopted, the 1975 constitution entrusts

all courts with the power to apply no legal dispositions whose contents they consider

to be contrar y to the constitution.6 In particular, Article 95 establishes:

3See in J. ORTEGA TORRES (ed.), Constitución Política de Colombia, Bogotá 1985, p. 130. The origin of this

norm can be traced up to the Legislative act, Nº 3, Art. 40, 1910.

4The text is the one of the 1985 Civil Procedural Code. With similar words it was adopted in article

10 of the 1897 and 1904 Codes, and article 7 of the 1916 Code.

5H. FIX󰜔ZAMUDIO,Los t ribunales constitucionales y los derechos humanos, México 1980, p p. 17, 84; A.

JIMÉNEZ BLANCO, «El Tribunal Federal suizo», Boletín de Jurisprudencia Constitucional, Cortes Gene ra-

les, 6 Madrid 1981, p. 477.

6Art. 93, H. FIX󰜔ZAMUDIO,op. cit., p. 162; L. FAVOREU,Le contrôle juridictionnel des lois et sa légitimité,

Développements récents en Euro pe occidenta le. Asso ciation Int ernationale des Scien ces Juridiq ues,

Colloque d󰜚Uppsala, 1984 (mimeo), p. 14. Also published in L. FAVOREU and J.A. JOLOWICZ (ed.), Le

contrôle juridictionnel des lois. Légitimité, effectivité et développements récents, Paris 1986, pp. 17󰜔68.

195

JUDICIAL REVIEW IN COMPARATIVE LAW

«Art. 95. The courts shall be bound not to apply laws, the contents of which

are contrary to the constitution».

Therefore, the diffuse system of judicial review exists a nd has functioned in

legal systems with a common law tradition as well as th ose wi th a Roman law

tradition. Thus, we do not agree with what Professors Mauro Cappelletti and John

Clarke Adams said, in the sense that a fundamental incompatibility exists between

the diffuse system of judicial review and the legal systems based on Roman law7 or

as Professor Cappelletti said elsewhere, when referring to th e sole experience of

Italy and West Germany prior to the creation of constitutional court, in the sense

that those countries «fully revealed the unsuitability of the decentralized method

for civil law countries».8

In our opinion the arguments in favor of the concentrated system of judicial

review ca nnot be settled on the grounds of unsuitabili ty or suitability with a

particular system of law, but with the par ticular constitutional system adopted

regardin g the suprema cy of the cons titution. If th e principle o f constitutional

supremacy is adopted, the logical and necessary consequence is the powers of the

courts to decide which norm is to be applied when a contradiction exists between

a pa rticular law an d the c onstitut ion, bei ng obli ged to g ive pri ority to the

constitution as their very duty, regardless of the particular common law or Roman

law system of the given country.

Another question rel ates to th e pr actical legal effects of the adoption of a

diffuse system of judicial revie w. In the absen ce of any kind of judic ial r eview

system in Europe before the 1920󰜚s and with the traditional framework of separation

of power based on the sovereignty of the legislator and of the law, and the distrust

of the courts to control legislative action, the criticisms of the diffuse systems of

judicial review from the European side of the Atlantic are a s old as the existence of

the European model itself. For example, Hans Kelsen, the creator of the Austrian

model in Europe referred to the problems raised by the diffuse system for justifying

the «centr alization of th e p ower to examine th e r egularity of ge neral norms» ,

stressing «the absence of unity in the solutions» a nd «the legal uncertainty « that

results when a «court abstains from applying a regulation and even a law as irregu-

lar, while another court does the contrary».9 In this same sense, Professors Mauro

Cappelletti and John Clarke Adams stressed that the diffuse systems of judicia l

review «can lead to grave uncertainty and confusion, as one court may d ecide to

enforce a Statute that another court will find invalid».10

But these problems exist in both common law a nd Roman law systems tha t

followed the diffuse sy stem of judicial review, and are not essentially peculiar to the

countries with Roman law systems that have adopted it, as Professors Cappelletti and

Adams seemed to demonstrate, basing their a rguments on the corrective effects that

7M. CAPPEL LETTI and J.C. ADAMS, «Ju dicial Review of Legisl ation: Europea n Ant ecedents and

Adaptations», Harvard Law Review, 79 (6), 1966, p. 1215.

8M. CAPPELLETTI,Judicial Review in the Contemporary World, Indiannapolis 1971, p. 59. In similar sense

M. FROMONT considered that it is «difficult to admit» the diffuse system of judicial revue in countries

with a roman law tradition. See «Preface» in J.C. BÉGUIN,Le contrôle de la constitutionalité des lois en

Republique Federale d󰜚Allemagne , Paris 1982, p. 218.

9H. KELSEN, «La guarantie juridictionnelle de la constitution (La Justice constitutionnelle)», Revue du

droit public et de la science politique en France et à l󰜚étranger, 1928, p. 218.

10 Loc. cit., p. 1215.