Institutional Design of Judicial Review: Kelsen before the Bulgarian Constitutional Court

When drafting the Austrian constitution in 1920, Hans Kelsen broke European legal ground. He entrenched the instrument of judicial review of legislation in the constitutional text, thus departing from the era of 'old constitutionalism’ by subjecting the legislator to adjudicative control. In addition to that, he pioneered the institutional design of judicial review by entrusting the power to exercise such review to a centralised tribunal created specifically for this purpose. This tribunal became the (allegedly) first constitutional court. Subsequently, many jurisdictions opted for Kelsen’s centralised design as opposed to that of dispersed review, which had been the dominant model of judicial review of legislation since the 1803 Marbury v Madison decision of the US Supreme Court. While before World War II there were only six specialised constitutional courts, 96 such tribunals exist in the world today. 

Most of these courts, however, significantly differ from Kelsen’s archetype for two main reasons. Firstly, they have the power to invalidate legislation based on fundamental rights whilst Kelsen rejected the idea of rights-based review. And secondly, individuals can invoke their jurisdiction directly or indirectly whereas only political bodies had standing before Kelsen’s court. I argue that the Bulgarian Constitutional Court, created after the fall of communism in 1991, closely resembles Kelsen’s initial idea of constitutional jurisdiction by virtue of its design and its jurisprudence. As such, it stands in contrast to other constitutional courts in Central and Eastern Europe which produced significant bodies of rights-based review cases before the recent episode of democratic backsliding in the region. 

My presentation will consist of three parts. The first one will deal with the question of why and how Kelsen reimagined the institutional design of judicial review, and examine the democratic challenges which he addressed by closing down the individual access to the court and rejecting the rights-based review of legislation. The second part will look at how the human rights movement after World War II contributed to the opening of constitutional courts to individuals through the adoption of enforceable catalogues of constitutional rights. Finally, I will consider if and why Bulgaria’s constitutional experience after 1991 is different in this regard, as well as some of the negative effects of this ‘exceptionalism’ on the national system for human rights protection.