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[1] There are a few premises underlying this discourse on the relationship between constitutional law and European human-rights law which I should reveal before we explore the relationship itself. I start with a functionalistic designation of the general legal process as being no more (and no less!) than a conflict-resolution process. From this perspective, the most important of my starting premises is what I consider to be an empirical fact, that is to say that the constitutional courts now produce jurisprudence(2) overtly and explicitly transcending the Enlightenment's illusion of complete separation between the competencies of the legislative and judicial branches of power.
[2] In other words, it is a fact that constitutional courts today produce law.
[3] This corpus of law, derived from continuous judicial review of the activities of all three branches of power, in so far as human rights are concerned, has much in common with the procedures and the substance of the case-law fashioned by the European Court of Human Rights (hereinafter ECHR).(3) [4] The big picture is such that a constitutional complaint - such as a Spanish amparo or a German Verfassungsbeschwerde - entails procedures and legal consequences at the national level which are clearly analogous to the procedures and legal consequences by an "application" or "requête" at the international level, e.g. before the European Court of Human Rights. A violation of human rights is alleged, and the court produces an inter partes decision which, in the end, inevitably has at least a de facto erga omnes effect.
[5] My second premise is that, epistemologically speaking, the wording of the national constitution is merely the tip of a vast legal-hermeneutic iceberg. This iceberg, if I may be excused the mixed metaphor here, is in most cases simply a variant of the heritage of our Judaeo-Christian civilisation. Below the tip of the iceberg, but still above the water-line, are situated the layers of age-old ingredients of our common legal discourse, of legally articulated principles, doctrines and rules. Below the water-line of social consciousness, there is a less articulable morality of duty and aspiration, there are different hierarchies of values and there are different individual and social levels of moral development.(4) There is Durkheim's "collective conscience" as well as Karl Jung's dangerous(5) "collective unconscious".
[6] The judges of constitutional courts, individually and collectively, epitomise particular ethical standards built into their general world-view, as well as purely cognitive intelligence concerning the historical, civilisational, cultural and semantic connotations of the constitution's specific words, idioms, phrases, contexts, etc. Typically, if we speak of the constitutional principle of separation of church and state being applied to the question whether the state may or may not finance certain activities of schools, this entails a whole range of legal alternatives and values being balanced against one another. It is unlikely that a constitutional court will be able to find a specific legal rule helping it to decide such a case. The whole history of the relations between church and state is in issue. This history may in turn be quite dissimilar in, say, France and Greece when compared with Bavaria, for example.
It is in this cultural environment that constitutional court judges carry out their own balancing of values, rule on the divergences of constitutional principles and, especially when reasoning in accordance with the principle of equality before the law (discrimination), decide basically what is in their view reasonable and rational. Clearly, the level of attained moral and broad cognitive development, i.e. the wisdom of these judges, is decisive.
[7] While all of this is happening, the above-the-water part at least of the hermeneutic iceberg is accumulating new layers of legal discernment, sensitivity, perspicacity and so forth.(6) In terms of systems analysis, one could also say that the legal systems in Europe have developed many return (negative) feedback loops. European legal systems are acquiring the capacity to store and recall their legal encounters with social reality, to learn from them, and to modify their own functioning. In a very definite sense, the legal systems are enhancing their own self-awareness and their ability to assimilate past experiences. These feedback loops reach from the top of the legal pyramid down to each of its lower hierarchical layers - and vice versa. Through constitutional (judicial) review, however, the negative feedback loops (which traditionally existed only in the ordinary system of appeals within the judicial branch itself) have in the meantime penetrated into the legislative and executive (administrative) branches.
[8] Previously immune to constitutional rectification ("negative feedback"), these two branches may now be in the initial state of shock. In accordance with the general imperative of the rule of law, however, both the executive and the legislative branches are fast learning that they too are and must be constrained by the constitution, i.e. by the social contract that is binding on all. Quite specifically, for example, it is becoming clear through the judgments of the constitutional courts that the constitution binds even "the people" themselves. A referendum introducing a choice of racial discrimination would be clearly unconstitutional. The outcome of this complex and complicated process is the authentic and functional supremacy of the national constitution as a social, political and legal Magna Carta Libertatum.
[9] In a sense, this is what human rights - politically and otherwise - are all about. That is to say, even in substantive terms, constitutional and human rights do largely coincide.
Of course, the interpretation of the constitution is entrusted to a specialised court. In Kelsen's traditional pyramid of legal acts, the constitution is the queen bee of the legal system, the cloud-hidden tip of the abstract and deductive logical pyramid with which all subordinate legal acts must be logically concordant. In this tradition, therefore, the specific sentences of the constitution only rarely formed the major legal premises of judgments delivered by the courts. In Kelsen's view and according to his model of deductive rationality, what mattered was an abstract logical concordance between higher and lower legal acts. Because we now appreciate that law as a science of conflict resolution feeds inductively (empirically) on the specific controversies it is expected to resolve, we also realise that this concordance could never have remained purely abstract.
[10] Only when the citizen-plaintiff alleges a concrete, new and different breach of a particular constitutional (or human) right do the abstract principles of the constitution (or the Convention) emerge in a new light. Once again, they become the immediate basis of constitutional litigation. Through constitutional review of individual complaints practically all the aspects of the legal system may be tested and (dis)confirmed. Case-law, a by-product of this empirical process, now represents the lion's share of modern constitutional law.
* * * [11] Mutatis mutandis, it is again an empirical fact that Europe has had in Strasbourg, for the last forty years, its own constitutional court. Of course, here the external legal features have been international rather than national - with all the dissimilarities that entails. The quintessence of the constitutional and human rights in question, however, is the same. I take this big picture as a Weberian "ideal type" and as a starting premise, a fait accompli. For what is interesting here are not the technical details and the hesitations one might harbour concerning the across-the-board comparison between national constitutional law and international human-rights law in Europe, but the historical evolution - and I do not think that in terms of legal history this is an overstatement - whereby we judges and professors of law all speak a certain Moliéresque "prose", without perhaps being fully aware that we are in the process of "deconstructing" the Enlightenment's idea of law.(7) [12] As I have said, that idea required strict separation and division of labour between abstract legislative jurisdiction and the mere concretisation of abstract legislative acts by the judicial branch.(8) It required a separation between the "abstract" and the "concrete" which is untenable both practically and, in particular, philosophically.(9) In other words, the constitutional courts are no longer simply mouthpieces of the law. The same goes for the European Court of Human Rights.(10) [13] The vitality of the law derives from its direct and empirical contact with the conflicts it is charged with resolving. The European Court of Human Rights and the national constitutional courts translate the empirical reality of these conflicts (in which the State is the defendant) into the legal "reality" of their own interpretation of the Convention or the Constitution. In doing so, these courts create and recreate their particular legal systems' virtual reality. The technical legal aspects of the (in)compatibilities between the national and the international systems are best dealt with by means of an analytical or case-by-case approach.(11) [14] But these (in)compatibilities also have a broader synthetical aspect. From this wider perspective, it has now become impossible to maintain the view that the European Court's jurisprudence is simply a separate virtual reality, which happens to be above and beyond the systems being continuously fashioned by the national constitutional courts. In today's language, we also speak of "harmonisation". The European Court in Strasbourg has been determining minimum legal standards in the field of human rights - in other words, it has been responsible for this harmonisation process over the last forty-two years.(12) Of course, the European Court's judgments have never had the direct and dramatic consequences of constitutional-review judgments in terms of erga omnes effect and unconstitutionality.
[15] Consequently, the process of determining the categorical imperatives of human rights in Europe was incremental. The reasons for this become patent if we study the travaux préparatoires for the remedies available to the European Court of Human Rights (today's Article 41).(13) There we discern a great concern with the signatory States' sovereignty and the rejection of the idea that the European Court of Human Rights' judgments might have a directly binding and erga omnes effect. On a substantive level, the so-called "margins of appreciation" are the inverse of the constitutional standards of what is "fundamental".(14) The European Court of Human Rights perceived itself as an international court and has therefore been much more cautious, perhaps too cautious, in explaining and imposing the European Bill of Human Rights.
[16] Nevertheless, there is now a corpus of accumulated ECHR jurisprudence, a veritable legal system unto itself. This system is being continuously transposed into domestic legislation in the member States of the Council of Europe. The signatories of the Convention, of course, have different ways of assimilating these minimum human-rights standards into their own legal systems. One of the best ways, in my opinion, is via the State's constitutional court.
[17] Constitutional courts continuously scan their legal systems for incompatibilities with the constitution and with superordinate international provisions. Application of the European Court's minimum (quasi-constitutional) standards is therefore part of their skilled modus operandi.
[18] Moreover, a State with an independent constitutional court aware of the ECHR's human-rights jurisprudence is much less likely to be condemned for a violation of the Convention, especially if the constitution provides for an individual constitutional complaint - amparo, Verfassungsbeschwerde or whatever it might be called. Individual constitutional complaints of this kind authorise the constitutional court of the State in question to examine the human-rights complaint before it ever reaches Strasbourg. Judicial review of individual constitutional complaints, one after another, continues to lead to the growth and further internal differentiation of the State's own constitutional law. In the meantime, this constitutional development is continuously being harmonised - on an analytical case-by-case basis - with the jurisprudence of the European Court of Human Rights.
[19] In other words, the existence of a constitutional complaint in a State's legal system seems to me to provide the happiest medium for interaction between national constitutional law and the law of the European Court of Human Rights.
