Michelman, Frank I. --- "The Interplay of Constitutional and Ordinary Jurisdiction" [2011] ELECD 376; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 16

Section Title: The Interplay of Constitutional and Ordinary Jurisdiction

Author(s): Michelman, Frank I.

Number of pages: 20

Extract:

16. The interplay of constitutional and ordinary
jurisdiction
Frank I. Michelman



I INTRODUCTION

`Constitutional' jurisdiction is the power of a court (or similar body) to pronounce on the
compatibility of questioned laws and acts with constitutional requirements, with some
measure of decisive effect on legal outcomes. `Ordinary' jurisdiction, by contrast, is the usual
power of a court to construe and apply non-constitutional law. Countries vary in forms and
degrees of commitment (if any) to the institutional segregation of constitutional from ordi-
nary jurisdiction. These variations have been widely discussed and ably treated, in Chapter
15 of this volume and elsewhere (including Cappelletti 1989, at 132­49; Favoreu 1990a;
Favoreu 1990b; Ferreres Comella 2009; Stone Sweet 2000, at 32­8; Tushnet 2006; and, for
the views of the celebrated inventor of the `European' model of separated jurisdictions,
Kelsen 1942). The special mission of this chapter is to consider jurisdictional division in rela-
tion to what may seem a distinct question of constitutional design, that of the scope of appli-
cation of substantive constitutional guarantees.
We recall some basic terminology. `Ordinary law' is law that is not of constitutional
stature and hence may be subject to control by constitutional law. `Ordinary courts' are those
courts that are generally empowered to interpret, apply, and (with regard to common and
perhaps customary law) develop ordinary law. A system of ordinary courts may be unified,
with all cases entering the system potentially subject to review by a single top court (Canada,
for example), or ...