Constitutional Courts and Supreme Courts: A Difficult Relationship

In countries with a specialized constitutional jurisdiction, the smooth functioning of the separation of powers between a constitutional court and the supreme courts in the administrative, criminal, civil and other jurisdictions cannot be taken for granted. The expanding reach of constitutional law and especially of the fundamental rights provisions of contemporary constitutions render close cooperation between the former and the latter both more necessary and more complex. A comparative survey shows that this central institutional relationship has evolved very differently in the four major constitutional democracies of Germany, Italy, Spain and France. While in Germany a hegemonic position of the Constitutional Court was swiftly established and has largely been accepted by the supreme courts of the other jurisdictions, in Spain the relationship between the Constitutional Court and the Supreme Court has taken a confrontational turn which has severely impaired the former’s authority. These widely diverging experiences show that constitutional and statutory regulation alone is not sufficient to produce a stable and productive relationship if it is not backed up by mutual respect and understanding which can only result from a permanent dialogue between the courts.