Summary

Conflicts between different constitutional authorities are ubiquitous. The tense relationship between the judiciary and the legislator – often expressed through the debates surrounding judicial review – is a particularly prominent example thereof. This tension poses a significant challenge to the existing democratic framework by calling into question the functioning of the separation of powers. It is the task of constitutional design to mitigate the risk of conflicts occurring between different authorities, or to solve them if they arise.

A promising approach towards the conflict between law and politics perceives their collisions as competence conflicts. When competences are understood as legal principles, competence conflicts are open to a rational solution grounded in legal theory: namely the proportional exercise of competences. As a competence-sensitive test, proportionality is capable of determining and clearly delimiting appropriate spheres of discretion for the involved authorities. Via this mechanism, a harmonisation between law and politics can be achieved, for each realm retains a reasonable, justifiable margin of discretion which is respected by its counterpart. 

Biography

Barbara Zeller obtained her law degree from the University of Graz, where she is currently pursuing her PhD in legal philosophy and constitutional theory. Her main research interests include the relationship between national constitutional law and non-national law, the evolving role of constitutional adjudication, as well as legal norm theory.