Judicial review vs. political control: The erosion of a dichotomous category (And the progressive scope of latter)

Abstract

This article criticizes the prevailing dichotomy “political/jurisdictional”, used to classify systems of judicial review; it recalls that in each system of judicial review, alongside jurisdictional characteristics, there are “political” forms of control of the law, and functions granted to constitutional courts that are not typical of the scope of jurisdiction; above all, it emphasizes that the notion itself of jurisdiction is not clear-cut. Often, constitutional courts have connections with politics, they can act without impulse of parties and grant opinions and advise to political bodies. Additionally, the possibility of self-regulation, establishing the typology of judgments, or deciding on the temporal effects of the judgements, as well as the latitude of their discretion interpreting the Constitution and the law, gives them a freedom that is not so different from that of political bodies. It is then necessary to rethink the dichotomy.