European Constitutional Courts and Transitions to Democracy (Book Review)

The American Journal of Comparative Law, Volume 69, Issue 4, December 2021, Pages 885–889

7 Pages Posted: 17 Oct 2022

See all articles by Catarina Santos Botelho

Catarina Santos Botelho

Porto Faculty of Law, Universidade Católica Portuguesa

Date Written: December 2021

Abstract

The book European Constitutional Courts and Transitions to Democracy reflects upon the role of constitutional justice in the transitions from authoritarian regimes to democratic systems and makes a call to refine the lens of transitional studies. Francesco Biagi is undoubtedly right when he asserts that “defeating the dogma of parliamentary supremacy was by no means an easy task.” The setting up of constitutional courts after World War II derived from the failure of the legislative branch to defend people’s rights, the absence of effective constitutional justice systems, and the lack of trust in the ordinary courts, which had been too deferential to the previous authoritarian regime.

On the road to full democratization and fundamental rights enforcement, constitutional courts were able to “reduce the high degree of uncertainty” that characterized the outcome of transition to democracy processes. By ensuring the most challenging and complex part of the transition – the substantive transition – the rich experience of the three generations of constitutional courts can provide insights and lessons to other states aiming at a successful democratic transition.

Approaching the topic of transitions with admirable vision, Biagi expresses valid normative concerns on the notion of democratic transition being overly based on formal elements, such as the approval of a new constitution or a major constitutional amendment. Biagi sophisticatedly argues for a concept of substantive transition, which encompasses elements of law in action. The approval of a new constitution is not alone sufficient to determine the effective transformation from an authoritarian to a democratic system.

Keywords: constitutional courts; authoritarian regimes; democratic transitions; transitional justice; full democratization; fundamental rights enforcement

Suggested Citation

Santos Botelho, Catarina, European Constitutional Courts and Transitions to Democracy (Book Review) (December 2021). The American Journal of Comparative Law, Volume 69, Issue 4, December 2021, Pages 885–889, Available at SSRN: https://ssrn.com/abstract=4230757 or http://dx.doi.org/10.2139/ssrn.4230757

Catarina Santos Botelho (Contact Author)

Porto Faculty of Law, Universidade Católica Portuguesa ( email )

Rua Diogo Botelho, 1327
Porto, 4169-05
Portugal

HOME PAGE: http://catarinasantosbotelho.com

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