Constitutional courts versus supreme courts

Constitutional courts exist in most of the civil law countries of Westem Europe, and in almost all the new democracies in Eastem Europe; even France has developed its Conseil Constitutionnel into a genuine constitutional jurisdiction. While their emergence may be regarded as one of the most successful improvements on traditional European concepts of democracy and the rule of law, it has inevitably given rise to questions about the distribution of power at the supreme judicial level. As constitutional law has come to permeate the entire structure of the legal system, it has become impossible to maintain a firm delimitation between the functions of the constitutional court and those of ordinary courts. This article looks at various conflicts arising between the higher courts of Germany, Italy, Poland, and France, and concludes that, in both positive and negative lawmaking, certain tensions are bound to exist as a necessary component of centralized judicial review.