Between Facts and Norms - Contributions to a ... - Blogs Unpad

243Judiciary and Legislature"fact situation" is missing. 6 To this Kelsen could only reply that theobject of review is not the content of the problematic law but theconstitutionality of the act of its adoption: "The fact-situation thatis to be subsumed under the constitutional norm in decisions aboutthe constitutionality of a legal statute is not the norm . .. but theproduction of the norm."7 Naturally, this argument would haveteeth only if one could read judicial review as a whole in proceduralistterms, as we will presently see. But then Kelsen's decisive argumentagain lies at the level of legal policy:Since precisely in the most important cases of constitutional violation theparliament and the executive branch (Regierung) are the disputingparties, to decide the dispute it makes sense to call upon a third authoritythat stands apart from this conflict and is not itself involved in any way inthe exercise of power, which the constitution essentially divides upbetween parliament and the executive. That this third authority therebyreceives a certain power of its own is unavoidable. However, it makes ahuge difference whether one grants an agency only that power given withthe function of constitutional review, or whether one further strengthensthe power of one of the chief bearers of power through the transfer ofsuch review.8However one thinks this function of interpreting the constitutionalityof legislation should be appropriately institutionalized, constitutionaljurisdiction increases the clarity of law and safeguardsthe coherence of the legal order.The constitutional court, and other courts, will in any case enterinto a discourse of basic rights when it is a matter not of reviewingparliamentary statutes after their adoption but simply of decidinghard cases. Whether the issue involves an individual case in whichseveral basic rights collide, or whether in the light of one basic rightordinary statutes collide with other such rights, in quite a few casesand at every level of adjudication principles come into play that callfor a "constructive" interpretation as proposed by Dworkin. To besure, the Constitutional Court is concerned only with cases ofcollision; its rulings almost always deal with hard cases and subsequentlybecome important precedents. Hence, the problem of the"indeterminacy of law" already discussed above accumulates andintensifies in constitutional jurisdiction, as it tends to do in highercourts anyway. The Federal Constitutional Court has dealt with this