18

I thought of this due to Roe V. Wade being recently overturned. From my understanding, (and if I am mistaken, then just take this as a hypothetical) it is not clear to everyone whether the constitution allows states to limit the right to abortions. So when Roe V. Wade was originally ruled on, the judges had to use their best logic and assumptions to determine what the ruling should be.

If there was a way for supreme court judges to resolve ambiguities, by forcing congress to vote on whether states can limit the right to abortions, then after however the law was voted, the judges could just rule in accordance to that new law. This obviously does not make the ruling set in stone. Just like any law, the law could later be repealed, or a new law in the future can modify that previous law. Similarly, the state supreme court could send a bill to the state legislature to resolve an ambiguous law.

I realise that this is not the case in America. However, are there any political entities (countries, states, counties, ...) where the court can require their respective legislative to vote on a law in order to clear ambiguities?

14
  • Note that Congress can easily clear any purported ambiguity (by enacting an amendment to the constitution) and the SCOTUS just settled on a new interpretation (they don't seem to be bothered by any ambiguity). So if congress fails to pass an amendment to counter the court's interpretation, it means it is OK with it. I am not sure why you think this is the problem or what the procedure you envision would achieve. Force a few hypocritical moderate politicians to go on record one way or the other?
    – Relaxed
    Jun 26 at 16:57
  • 2
    The bottom line is that there isn't a strong majority in the Senate or House of Representative that is ready to act to protect abortion rights. Otherwise it easily could do it through a regular Act of Congress and, if that is thwarted by the courts, an amendment to the constitution.
    – Relaxed
    Jun 26 at 17:00
  • 1
    @Relaxed: Amending the American constitution is extremely hard and not within Congress's authority. The most Congress can do is propose amendments. You seemed to recognize the difficulty when you posted your answer, so it's not clear why you would call it easy in a comment. Jun 27 at 12:10
  • I'm not sure if it could be implemented as such, but I'm very amused by the "clarify or else" feel to such an approach. Might the senate be considered "in contempt of the court" for failing to write new documents?
    – Cort Ammon
    Jun 27 at 13:34
  • 1
    @Relaxed , "I am not sure why you think this is the problem", I'm not asking this question as a way to propose an alternative. Letting judges resolve ambiguity is the method that the US does. I assume there are many merits to that. However, I can imagine in some countries the supreme leader can resolve ambiguities. For my curiosity, I wanted to know if there is a place where the legislature can resolve ambiguities. As per other answers, in Germany that is the case.
    – HanMah
    Jun 27 at 13:45

7 Answers 7

29

there was a way for supreme court judges to resolve ambiguities

The Bundesverfassungsgericht (Federal Constitutional Court), through a Verfassungsbeschwerde (constitutional complaint), can determine that an existing law is not clear enough or is not complete and require the legislature to make changes.

In the quoted case below, the law contains measures up to 2030. Since the complainant is young, the court cannot determine if the complaint is justified due to the lack of detail of what will happen after 2030.

The legislature (Gesetzgeber, Bundestag) is required add these details to the law by the 2022-12-31.

The complaint is considered partially successful since not all aspects have been taken into account when the law was written.


2021-04-29: Bundesverfassungsgericht - Presse - Verfassungsbeschwerden gegen das Klimaschutzgesetz teilweise erfolgreich
Mit heute veröffentlichtem Beschluss hat der Erste Senat des Bundesverfassungsgerichts entschieden, dass die Regelungen des Klimaschutzgesetzes vom 12. Dezember 2019 (Klimaschutzgesetz ) über die nationalen Klimaschutzziele und die bis zum Jahr 2030 zulässigen Jahresemissionsmengen insofern mit Grundrechten unvereinbar sind, als hinreichende Maßgaben für die weitere Emissionsreduktion ab dem Jahr 2031 fehlen. Im Übrigen wurden die Verfassungsbeschwerden zurückgewiesen.

With a decision published today, the First Senate of the Federal Constitutional Court ruled that the provisions of the Climate Protection Act of December 12, 2019 (Climate Protection Act ) on national climate protection targets and the annual emission levels permitted up to 2030 are incompatible with fundamental rights insofar as they are sufficient standards for the further emission reduction from the year 2031 is missing. Otherwise, the constitutional complaints were dismissed.

...
Der Gesetzgeber ist verpflichtet, die Fortschreibung der Minderungsziele der Treibhausgasemissionen für Zeiträume nach 2030 bis zum 31. Dezember 2022 näher zu regeln.

The legislature is obliged to regulate the updating of the reduction targets for greenhouse gas emissions for periods after 2030 in more detail by the December 31, 2022.


Sources:

6
  • 2
    How does it work in practice? The legislature has to update the target or else? The court steps in and sets targets?
    – Relaxed
    Jun 26 at 16:53
  • 3
    @Relaxed I have no idea what happens if the legislature doesn't act by the specified date. The would probably declare that portion of the law void. Jun 26 at 17:23
  • @Relaxed in real life? Nothing really happens. German politicians have a lot of practice in dancing around the supreme court (as seen in the entire data-retention-laws debacle, where the court stuck down a law and they passed it again with minimal changes even though the court said that the very idea is unconstitutional, then they went to the EU to bypass tha court)
    – Hobbamok
    Jun 27 at 10:29
  • @Relaxed In practice there are often no consequences. I believe we had this problem with some specifics of election laws. The court can make parts of the law void, but often that would only make things worse. The problem is that by constitution only the parliament(s) can create new laws and its members cannot be compelled to vote in any way other than their personal choice.
    – mlk
    Jun 27 at 10:30
  • @mlk Which decision do you mean? Hopefully not the one from 2021-07-20 (Bundesverfassungsgericht - Presse - Eilantrag zum Bundeswahlgesetzänderungsgesetz abgelehnt): The admissible application for an interim order is unfounded. Jun 27 at 11:04
8

Courts everywhere “force” legislatures to legislate by declining to act to fill in gaps left by outdated laws or striking down statutes that are deemed defective. Other parts of the government are then under pressure to replace the missing parts with something else or possibly change the constitution to counter the court's decisions.

The Bundesverfassungsgericht case mentioned in another answer is just one flavor of that, procedures for constitutional reviews exist in many countries. Quality standards for the law (being effective, etc.) also exist in many countries.

The peculiarity of the US is not that the court lacks levers to push the legislators (in fact, in other contexts, a decision like Dobbs v. Jackson Women's Health Organization might do just that), it is that the constitution is effectively very hard to amend and that the legislature at the federal level is, from my perspective as an outsider, highly dysfunctional.

1
  • 1
    I'd note that other highly-federalized nations are also constantly struggling with some of their provinces making laws that go against the federal government's wishes. Quebec's constant squabbles with Ottawa would be a prime example. Also see: politics.stackexchange.com/questions/25759/… Jun 27 at 1:49
4

No. That would go against the very purpose of courts of law.

First, it would break the principle of separation of power between legislators (and I'm not saying "law makers" for the reason #2 below) and law appliers (courts). Neither of them are to tell the other how to do their job (except that legislation can define the courts' procedure). Courts may recommend to make changes to the legislation but certainly not force.

Second, there is no need. Don't forget that court decisions make part of the law of the land — case law, which is as much law as the legislation. Telling how ambiguities in the legislation are to be resolved (and making it law) is one of the primary functions of courts. (Of course, any subsequent legislation can cancel any previous law — including case law).

5
  • 7
    Your second paragraph applies to common-law jurisdictions, but not in civil-law jurisdictions, where judges decide whether the conditions of the codified law have been fulfilled. If they cannot make heads or tail of what was intended by the lawmakers, a higher court can tell the lawmakers to do their job correctly and correct ambiguities. Jun 26 at 6:37
  • 6
    This is only the case in common law countries - other legal systems do not allow judges to make law.
    – Dale M
    Jun 26 at 7:23
  • 1
    "legislature makers": do you mean legislators? "Legislature" is a generic term for a Parliament or Congress, so "legislature maker" doesn't make much sense in this context. Jun 26 at 16:14
  • @SteveMelnikoff Yes, thanks. Corrected.
    – Greendrake
    Jun 26 at 17:05
  • As a historical footnote, in the British Commonwealth, historically, the highest level of appellate review was with Law Lords housed administratively in the House of Lords which was part of parliament, although this organ of the House of Lords did not operate as a legislative body in the way that the House of Lords as a whole did. But, this did create at least an informal legislative-judicial path of dialog in interpreting laws.
    – ohwilleke
    Jun 28 at 8:54
3

The Constitutional Court of Latvia reviews cases where a law may be incompatible with the Satversme (constitution). The court has the power to declare laws or government decrees void, in full or in part, when they're unconstitutional. It's also possible for the court to require the Saeima (parliament) to adopt laws that bring some aspect of legislation in line with constitutional requirements.

There is a recent, and ongoing, case (2019‑33‑01) that demonstrates the situation.

Satversme defines marriage as being between a man and woman, so there's an effective constitutional ban on same-sex marriage. The Satversme also states that family rights are protected. Labor Law states that a newborn child's father has the right to 10 days of leave. The case in question revolves around a same-sex couple, two women, one of whom gave birth to a child. The relationship between the two women is not legally recognized, and the birth mother's partner did not get 10 days of leave because the law explicitly limits that to fathers.

The couple sued on the grounds that they're a family and that denying the 10 days of leave to a same-sex couple is discrimination against a same-sex family. The Constitutional Court's ruling, in short, was that families other than married couples are possible, that the plaintiffs are a family, and that current laws are discriminatory in denying certain social protection to some families based on their sexual orientation. The court concluded that the legislature has an obligation to guarantee protection of same-sex couples:

Līdz ar to Satversmes tiesa secināja, ka Satversmes 110. panta pirmais teikums prasa, lai likumdevējs nodrošina ikvienas ģimenes, tai skaitā arī viendzimuma partneru ģimenes, juridisko aizsardzību un sociālās un ekonomiskās aizsardzības un atbalsta pasākumus.

Therefore the Constitutional Court concludes that the first sentence of Satversme article 110 requires the legislature to guarantee the legal protection, and measures of social and economic protection and support, of all families, including families with partners of the same sex.

(link to full ruling)

The consequences are still ongoing because the court had set out a deadline of June 1, 2022, almost a month ago. One clause of the Labor Law has become void per the Constitutional Court's ruling but the Parliament has still not adopted a law as the ruling requires, nor has it in fact voted on the law (the reasons being irrelevant to this question). It is not clear what the judiciary can currently do to force the parliament to act but, in the absence of a new law, lower courts have been instructed to rule directly on the basis of constitution as interpreted by the ruling in this case. There's been at least one case now where a court declared a same-sex couple to be a family, directly citing this ruling as the basis.

2
  • This isn't really related to my question. In many countries the court can determine if a law is legal or not. The judges would review all of the existing laws and through legal logic determine whether that law is legal or not. However, legal logic may not be enough to reach an obvious conclusion due to ambiguities in the law. In such a case, in the USA, the judges would use their best deduction to reach a result. I was asking if there was a place (as per answers here there are) where the judge can resolve the ambiguities by forcing the legislature to vote on a law that would resolve the issue.
    – HanMah
    Jun 27 at 13:39
  • 1
    @HanMah I would think this falls under what you asked, because the court's ruling is twofold: a clause in existing law is unconstitutional, and (the relevant part for your question) the legislature has to pass a new law to resolve the issue (incomplete and discriminatory definition of 'family') that the court found. So the court obliged the legislature to draft and pass a law clarifying the legal concept of 'family' and to grant certain rights.
    – DUman
    Jun 27 at 14:22
2

From my understanding, (and if I am mistaken, then just take this as a hypothetical) it is not clear to everyone whether the constitution allows states to limit the right to abortions. So when Roe V. Wade was originally ruled on, the judges had to use their best logic and assumptions to determine what the ruling should be.

If there was a way for supreme court judges to resolve ambiguities, by forcing congress to vote on whether states can limit the right to abortions, then after however the law was voted, the judges could just rule in accordance to that new law. This obviously does not make the ruling set in stone. Just like any law, the law could later be repealed, or a new law in the future can modify that previous law.

It is worth clarifying, in addition to the helpful answers, that the premise of this question as applied to the ruling of the U.S. Supreme Court in Roe v. Wade did not present the question that the question believes that it did.

Everyone who participated in drafting all parts of the U.S. Constitution that were pertinent to Roe v. Wade were long dead in 1973 when it was decided.

Questions of constitutional interpretation are fundamentally different from questions of statutory interpretation, in which the source of the law is an institution, like Congress or Parliament or a City Council that continues to operate and function as a living institution that is around to be asked.

In contrast, the whole point of a constitution is to tell legislative bodies what they can and cannot do from a perspective outside those legislative institutions, based upon a legal text adopted in a process that is closed and over with. New amendments can be drafted to a U.S. Constitution by a very challenging process, but those amendments aren't legislation and aren't the product of an ongoing living and continuing political institution.

So, in cases of constitutional interpretation, it wouldn't make sense to ask for a legislative interpretation, even if courts were authorized to certify these kinds of questions to legislatures.

There are a small class of cases where courts can direct legislatures to pass legislation. For example, such directions are frequently the end result of litigation alleging that state constitutional minimum standards for providing public education on an equitable basis are not met by an existing school funding system. Or, a state legislature could be directed to "try again" to prepare congressional or state legislative redistricting maps following a census.

But, in all of the cases where this can be done in U.S. law, it does not involve clarification or interpretation of legislation. Instead, it involves situations where the legislature has failed to carry out its constitutional duties correctly, but in which there is no one right answer for how it should do so.

In U.S. law, federal courts can, however, present a "certified question" to a state supreme court (or the equivalent court by another name) regarding an interpretation of state law where there are no controlling state supreme court precedents, often, when there is a possible split of authority in lower courts on an issue. Certified questions can pertain to state constitutions, state statutes, state law regulations, or state case law, or more than one of these things. This is because federal courts generally are not supposed to answer open questions of first impression about state law. In cases where a federal court asks a state supreme court about state common law precedent interpretation, this is quite similar to asking the "legislative body" that is the source of the law what it means.

Likewise, while federal courts cannot issue advisory opinions, it isn't uncommon for a state courts to be granted the authority in a state constitution to answer inquiries from a state legislature regarding the meaning of an existing or proposed law. But, it is always the court that answer than, not the legislative body.

0

We have a Constitutional Tribunal (Trybunał Konstytucyjny). If someone uses up all of the appeal options, gets a verdict by Supreme Court or The Supreme Administrative Court, and believes that the verdict is unjust because law is not consistent with the constitution, he can appeal to the Constitution Tribunal.

There are many ways that a law may be appealed to the Constitutional Tribunal. It is not relevant if Tribunal issued the verdict about the law as a result of appeal by a person whose trail was supposedly unjust, or by the decree of the President that Tribunal should investigate said law, or any other way. If the tribunal finds some part of the law to be in conflict with our Constitution, it can declare the law void and order the legislative power on how to fix it, or remove it outright instructing legislators what exactly made the law break constitution and forbidding them making similarly faulty law again.

In case of a trial of a person that ended with the Constitutional Tribunal verdict, it gets complicated but, in great oversimplification, it's like the faulty law was never there in the first place, and the treasury or local government (depending on who issued a faulty law) are responsible for the monetary damages.

Specifically, requirement for a law to be clear and unambiguous is often treated as a natural understanding of article 45 of Constitution, that grants everybody right to a fair trial. We didn't have enough verdicts of the Tribunal to see any pattern in that regard - usually these were just about the law being simply bad. But it is not impossible.

0

In the UK laws can be declared incompatible with the UK's human rights legislation. While it doesn't force parliament to reconsider the law it sends a clear signal that they really should go and have another look at the law.

Looking at the Wikipedia list it seems the majority of the times the law goes and gets amended in some manner, but not always.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.