ABSTRACT
This chapter explores H. Kelsen’s proposed model in light of a comparative study of the approaches taken by different legal systems. It analyzes relationship between different constitutional practices and doctrines, and the problems they can generate, and legal theory about the precise status of an unconstitutional statute. Kelsen’s opposition to a justiciable bill of rights is linked to his general view of the constitutional court as a ‘negative legislator’. The most immediately obvious difference between Kelsen’s view of the role of a constitutional court and many European systems involves the adjudication of abstract moral rights. Most European constitutional courts have the power to enforce a bill of rights, as in the American model. The Constitutional Court had the power to annul unconstitutional statutes, with the annulment taking effect from the date of judgment forward. The mode of reasoning and decision-making of the constitutional court remains legal, because it responds to specific legal norms rather than general principles like a legislature.
