the tools and techniques of judicial creativity and precedent

As Mauro Cappelletti has observed, 4 the main reasons lie in the profound differences in the political and constitutional culture on both sides of the Atlantic Ocean.

It is not necessary in this article to discuss why the European countries were unable or unwilling to adopt the United States model of judicial review.

2 Even France, traditionally reluctant to accept any form of judicial review of legislation, has developed its Conseil Constitutionnel into a genuine constitutional jurisdiction. Constitutional courts also exist in almost all the new democracies in Eastern Europe, with the exception of Estonia. 1 Today, constitutional courts exist in most of the countries of Western Europe that have civil law legal systems, with the Netherlands and the Nordic countries the major exceptions. While this system emerged more than a century after the United States’ system of diffused review, it has developed-particularly in Europe-into a widely accepted version of constitutional protection and control. It concentrates the power of constitutional review within a single judicial body, typically called a constitutional court, and it situates that court outside the traditional structure of the judicial branch. The centralized Kelsenian system of judicial review is built on two basic assumptions.

1 The Kelsenian model: Parallel supreme jurisdictions 1.1 The model

The tools and techniques of judicial creativity and precedent