DEVELOPMENTS IN THE CONSTITUTIONAL REVIEW. CONSTITUTIONAL COURT BETWEEN THE STATUS OF NEGATIVE LEGISLATOR AND THE STATUS OF POSITIVE CO-LEGISLATOR

Marieta Safta ()
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Marieta Safta: Bucharest University of Economic Studies, Law Department; first assistant magistrate to the Constitutional Court of Romania

Perspectives of Law and Public Administration, 2012, vol. 1, issue 1, 1-20

Abstract: The study wants to emphasize that Constitutional Courts belonging to the European model depart from their traditional role as ”negative legislator” – which refers to the effect of their acts consisting in removal from the legal system of those rules contrary to the Basic Law -, becoming, to a certain extent, a ”positive legislator”. Official interpreters of the Constitution, Constitutional Courts assume, sometimes, a role of co-legislators, creating provisions they deduct from the Constitution - when controlling the absence of legislation or legislative omissions -, and revealing the content of constitutional and even infraconstitutional rules accordingly with the Constitution in their case-law, whose effects are nothing but specific forms of „impulse” or „coercion” of the legislator to proceed in a certain sense, and whose continuous development guides the evolution of the entire legal system. Case – law selected presents ways in which the Constitutional Court of Romania is associated to law-making activity. Without minimizing in any way its traditional role as "negative legislator", the study refers mainly to acts and situations that give expression to the creative role of the Constitutional Court of Romania.

Keywords: constitutional review; negative legislator; positive legislator; constitutional loyalty; rule of law; effects of the decisions of the Constitutional Court (search for similar items in EconPapers)
JEL-codes: K10 (search for similar items in EconPapers)
Date: 2012
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