The Camel’s Dilemma. Critical Reflections on the Political Nature of Constitutional Courts

Abstract

This essay deals with the issue of the “nature” of constitutional courts. It proposes a distinction between a “dynamic” and a “static” nature, hinging upon the Kelsenian image of the camel and the necessity to maintain an integrated qualitative and quantitative approach when analysing the Verfassungsgerichtsbarkeit. The roots of the European model of judicial review of legislation since the end of the 19^th century will be examined. Hence, the essay takes into consideration, on the one hand, the efforts of those legal scholars who aimed to include constitutional courts in the judicial sphere and, on the other, of those who have opposed such endeavours, considering a centralised constitutional court substantively a political body. Against this backdrop, the establishment of the Verfassungsgerichtsbarkeit in Austria and the debate on the richterliches Prüfungsrecht in Germany are taken into account. Then, shifting to the post-World War II era, a comparison between the German Federal Constitutional Court and the Italian Constitutional Court is undertaken, in order to analyse differences and similarities between two centralised models of constitutional adjudication in bridging law and politics.