The influence of the constitutional jurisdictions on the basic laws

Author:Valentina Barbateanu
Position:Ph.D. candidate, Faculty of Law, 'Nicolae Titulescu' University
Valentina B?rbeanu
LESIJ NO. XIX, VOL. 2/2012
Valentina B;RB;XEANU
This paper intends to reveal the role played by the constitutional courts or other bodies
entitled to perform the constitutional review of normative acts in enhancing the significance of the
National Basic Laws and in developing their content. The research will try to show that the case-law
created by the constitutional jurisdictions can shape the perception of the society on the Basic Law,
offering a different perspective over its meaning. This is the effect o f the interpretation of the Basic
Law provisions, which is an inherent part of the constitutional jurisdictions’ activity.
Keywords: basic Law, supremacy, constitutional review, constitutional courts, amending of
the Constitution
1. Introduction
Constitutional jurisdictions are entitled to perform the constitutional review of normative acts.
In order to do that, the constitutional judge has to evaluate the wording of the contested legal
provision and, in the same time, the significance of the constitutional rules co mprised in the Basic
Laws which serve as benchmarks for the comparison. So, the interpretation of the Constitution is an
inherent operation of the constitutional review. It has the potential to enhance its significance and to
offer the efficiency required by the supreme character of the Basic Law. Due to the legal binding
force of this interpretation, the content of the Basic Law is sometimes expanded and magnified. The
constitutional jurisdictions case-law is taken into consideration especially by the legislative bodies
that have the legitimacy to amend the Constitutions. The paper will study how different constitutional
jurisdictions are involved in the process of supplementing the provisions of the national Basic Laws,
with a special look to France, Germany, Italy and Spain. The comparative study includes Romania,
as well, and analyzes to what extent the Constitutional Court has the possibility to improve the
Romanian Basic Law and to make its provisions more protective for the citizens, for their
fundamental rights and liberties.
The present study has been inspired by the recent idea that the traditional concept of “negative
legislator” established by Hans Kelsen regarding the impossibility of constitutional jurisdictions to
modify the reviewed normative act has to be reconsidered. This affirmation is proved by the
increasing activism of various Constitutional courts. One of the most incis ive study has been
accomplished by Christian Behrendt1. It has been drafted from the point of view of the reviewed
normative acts which can be supplemented this way. The present study tries to highlight the
influence of the constitutional case-law on the Basic Law itself.
Ph.D. candidate, Faculty of Law, “Nicolae Titulescu” University (e-ma il:
1 Christian Behrendt, Le juge constitutionnel, un legislateur-cadre positif – Une analyse comparative en droit
francais, belge et allemand, (Bruxelles, Editura Bruylant, Paris, L.G.D.J.), 2006.

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