Precedents in Constitutional Courts Sergey A Belov Ph

Precedents in Constitutional Courts Sergey A. Belov, Ph. D, Associate Professor of Constitutional Law, Dean of the Law faculty St. Petersburg State University 3 February, 2021

1. 2. 3. 4. 5. About the research Why precedents in constitutional courts? Constitutional courts and legal traditions Case-study Some conclusions foto

About the research The research is about Ø Ø methodology of precedents in constitutional courts – how to take out a ratio decidendi from preceding decisions within specific constitutional cases, how to ground deviation, etc. comparative study of practice in the world-scale

Why precedents in constitutional courts? Two traditions of judicial legislative review: § US model since Marbury v. Madison 5 US 137 (1803) § European (Kelsenian) model since 1919 (Austria) – 1920 (Czechoslovakia) Kelsen’s explanations of a separate constitutional court: (Kelsen H. Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution // The Journal of Politics. Vol. 4. No 2 (May, 1942). Р. 183– 200) …lack of stare decisis does not provide normative effect of legislative review decisions in civil law countries => Constitutional courts appear in civil law countries

Constitutional courts and legal traditions In the civil law legal systems constitutional courts were met with hostility: hostility − by the legislature – as encroaching on the power to establish, change and revoke of legal norms − by other courts – as encroaching on the power to interpret legal norms …because the constitutional courts unlike other courts in the civil law tradition has normative powers, though the constitutional courts vary in their powers, sometimes hearing concrete cases

Constitutional courts and legal traditions (2) In the civil law tradition ü both “external” (‘precedential’ binding effect of constitutional court decision for other state authorities) and “internal” (binding effect of previous judgments for the constitutional court itself in subsequent cases) precedents are relevant ü jurisprudence constante (binding force of a series of decisions, forming a line) prevails over stare decisis (binding effect of one particular decision)

Constitutional courts and legal traditions (3) pro contra precedents in constitutional courts • legal certainty in • resistance of tradition interpretation of • lack of methodology of constitutional norms, precedential law • consistency of practice • predictability of outcome in a case hearing by court

Casestudy o o o Western Europe (Germany, Spain, Italy, Portugal): jurisprudence constante dominate Eastern and Central Europe (Czech Republic, Slovakia, Hungary, Slovenia, Poland): recognizing the need of coherence in practice, but still not fulfill both jurisprudence constante and stare decisis Asia (Turkey, Egypt, Korea, Indonesia): no binding effect (but in Korea) Latin America (Mexico, Colombia, Peru): sliding to stare decisis Africa (to be done)

Some conclusions a) although constitutional courts appeared in legal environment where precedent was not recognized, their practice confirms that consistency of practice is a requisite of judiciary; b) consistency in practice is provided rather with jurisprudence constante than with stare decisis which is alien to the civil law tradition; c) in this regard convergence of legal traditions is exaggerated.

Thank you for your attention! Please do not hesitate to contact me s. a. belov@spbu. ru