Ordinary judges and the constitutional court in the Spanish system of constitutional control: a proposal for diffuse-oriented control

Abstract

This article proposes a reform of the Spanish system of constitutional review, based on an analysis of some current assumptions. There are already certain elements of diffuse review, which have been analyzed by legal scholars, and which seem to make it unfeasible to consider our system as truly concentrated. Furthermore, the context of European review, which is much more diffuse in nature, creates inconsistencies in a constitutional review that seeks to remain essentially concentrated. Furthermore, the most recent studies highlight that compliant interpretation, which is undoubtedly an unavoidable mission of the ordinary judiciary, is fundamentally an inseparable part of constitutional review, given its inapplicability of rules that may derive from a legal provision. For all these reasons, it seems more coherent to carry out a constitutional and legal reform that would allow judges to disapply any unconstitutional law, implementing a type of “directed diffuse control”, while maintaining the Constitutional Court’s oversight function through the question of unconstitutionality in certain cases, and in the context of other incidental avenues for oversight and dialogue between courts.