The Void Ab Initio Theory in Comparative Perspective: J Marshall, H Kelsen, and Beyond

Abstract

Abstract The void ab initio theory is traditionally associated with the retroactive effect of the unconstitutionality of a statute, in diffused systems of judicial review; as opposed to the prospective effect of unconstitutionality, in Austria, the archetype of centralized judicial review. The paper argues that the void ab initio theory goes far beyond the time-factor of judicial review, having two complementary aspects: 1) The void ab initio theory is tied to a robust theory of negative liberty; and substantive criminal law is its privileged field of application. The void ab initio theory goes back to Marbury v Madison (1803). 2) The void ab initio theory was strongly criticized by Kelsen, whose criticism is accurate, when the theory is unduly extended to the unconstitutionality of laws curtailing positive rights of the welfare state, eg, salaries and pensions, as happened recently in Greece. The act which abolishes the unconstitutional statute retroactively, has ‘the character of a legislative act.’ Indeed, the void ab initio theory in the field of positive social rights encroaches on legislative competence. The paper cocludes that the void ab initio theory is a strong expression of the ethos of legality; The void ab initio is most adequate for (cases involving) legal sanctions, on legal grounds, over adjudicative facts.