The Role of Constitutional Courts in the Transition to Democracy

Abstract

The transition to democracy has been the matrix of three generations of European constitutional courts. Their power to review laws in abstracto has been the basis of the activism of these courts and their self-conscious relationship with the legislature. The third generation, the post-Communist constitutional courts, are distinguished by the fact that they were born into the global constitutional movement, which has determined their rapid reception of international standards and legal solutions and strong mutual cooperation. The article focuses on the inevitable problems of such transition - retroactive criminal legislation, lustration and compensation of victims - elucidating the grounds of the decision by the Hungarian Constitutional Court to weigh legal certainty against substantive justice. Third-generation constitutional courts typically returned to the Kelsenian model of abstract norm control but developed cooperation with the legislature, and turned their role of `negative legislator' into pronouncing positive rules, especially in Hungary. The Hungarian Constitutional Court has also managed to extend constitutional interpretation to the ordinary courts by reviewing the `living law', that is the law as applied by the courts. Finally, the article points to the importance of access by citizens to the constitutional court for popular acceptance of the new constitutional order.