The Kelsen model of constitutional jurisdiction as the theoretical basis of the European system of constitutional justice
Authors: Bichkov Іgor 
Published: June 2020

The article is devoted to the study of the content of the model of constitutional jurisdiction proposed by H. Kelsen, which at one time actually became the theoretical basis of the modern European system of constitutional justice. It is stated that the model formulated by a well-known Austrian law theorist not only envisaged instrumental-institutional proposals for the creation of a new public authority, but also embodied the definite concept of common sense of law defined by Kelsen, which was based on the ideas of a hierarchical legal system acts of the Constitution as the law of the highest legal force. It is substantiated that the model proposed by H. Kelsen substantially outstripped the existing legal reality and was used almost in its purest form by most European countries, and in particular was directly reflected in the domestic model of constitutional jurisdiction.

It is noted that, according to Kelsen's concept in a number of papers, in particular in the Judicial Review of Legislation: A Comparative Study of the Austrian and American Constitutions, the constitutionality of legislation can be ensured in two separate ways, both of which were enshrined in the Austrian Constitution of 1920: the responsibility of the body that issued the unconstitutional norm and the non-application of the unconstitutional norm. Non-application of a constitutional rule could be achieved by giving law enforcement authorities the power to review the constitutionality of a rule they must apply in a particular case and refuse to apply it in that particular case, if there is reason to consider such a rule unconstitutional. A similar mechanism has actually been introduced in the United States. The fact that a law enforcement authority recognizes a general rule as unconstitutional and does not apply it in a particular case meant that that authority was empowered to revoke the general rule for a particular case, and only for a specific case, since the general rule as such (normative act) remains applicable and may be applied in other specific cases. The disadvantage of this fuse is that different law enforcement agencies may have differing views on the constitutionality of a law, whereby one authority can apply it as it considers constitutional, while another authority will refuse to apply it because it will see signs of unconstitutionality. The lack of unanimity in deciding whether a law is constitutional, that is, whether a constitution is violated, carries great danger for the authority of the constitution.

In most European countries, it is stated that H. Kelsen's concept was used almost in its purest form, with one exception: the powers to directly protect constitutional rights and freedoms were given to a separate judicial authority. The extension of the appropriate model of judicial constitutional control and the formation of constitutional courts fell in the second half of the twentieth century, when the need to prevent the return of Nazism caused a qualitatively new level of attention to the phenomenon of constitutional justice. The formation of new post-war constitutional-democratic regimes in Germany, Italy, Austria, and later in Spain and Greece, provided for the creation of a mechanism by conferring on the constitutional courts powers to protect constitutional rights and freedoms from usurpation of public power.