Wojciech Włoch

The problem of guarantee of the constitutionality of legislation in the light of Hans Kelsen’s pure theory of law

Overall, from the perspective of H. Kelsen’s pure theory of law the constitutional guarantee means “ensuring the conformity of the state’s actions with the law.” A particularly important issue is the compliance of legislature with the constitution, as in view of the classic form of the doctrine of division of powers, it is the legislative power that occupies a distinctive position in that system. The issue of constitutional guarantee arises from the assertion that if the norms of the constitution outrank the norms of the “common law” they cannot be altered by them (“expressly or tacitly”). Pure theory of law demonstrates that the very structure of modern rationalised and specialised law causes that this problem is, in a sense, rooted directly in the meaning of the constitution in modern legal systems. According to H. Kelsen it is possible to distinguish three models of guarantee of compliance of law with the constitution (constitutional guarantees): model 1: the constitution does not contain any definition as to who should control the constitutionality of law, whilst in practice there are bodies that the constitution authorises to enforce the law; model 2: the constitution does not define an entity authorised to control the constitutionality of law and,moreover, it excludes such a possibility in the case of bodies applying the law, thus the legislative body itself is entitled to decide whether the law passed by it is constitutional; model 3: the constitution may appoint an organ other than the lawmaker and empower it to review the constitutionality of law, i.e. authorise to control the adoption of acts that are incompatible with the constitution. None of the above models fully secures the provisions of the constitution, however, model 3 reduces the shortcomings of models 1 and 2, namely it diminishes the uncertainty or illusory nature of constitutional guarantee of legislative acts. Model 3, which provides for a different organ examining the constitutionality of law than the lawmaker, “gives priority” to the legislative procedure governed by the Constitution. It is to prevent the emergence of “alternative legislation” (the consequence of model 2), i.e. the primacy of political power over the constitution, imposing its “alternative legal order” that is not based on “supreme law” but on pure political will. The guarantee of constitutionality of acts expressed by means of model 3 refers mainly to the legislative procedure specified in the constitution. Hans Kelsen postulates the restraint of the control body in matters of interpretation of fundamental constitutional principles such as justice, freedom or equality. Model 3 postulates a balance between the legislature and the control body: the basic criterion for the legislator may rest in political validity or effectiveness, while for the controlling body such a criterion consists in compliance with higher law, as far as it can be accurately interpreted. This excludes the dominance of any of the said bodies.