Constitutional Courts in Transition Processes: Legitimacy and Democratization
University of Sydney - Faculty of Law
August 30, 2011
Sydney Law School Research Paper No. 11/53
In this conference paper I will clarify the notion of legitimacy which lends itself to the analysis of constitutional courts’ legitimacy, by identifying three dichotomies: sociological and normative, formal and meta-constitutional, input and output legitimacy. I then discuss the main aspects of input legitimacy (related to constitutional courts’ pedigree) and output legitimacy (related to the outcomes of their case-law), and identify two additional, CEE-specific grounds of courts’ legitimacy: the force of emulation and Europeanization (distinguishing between legitimacy acquired from the membership of their states in the European Convention of Human Rights system and in the European Union). I then reflect upon the relevance of ‘transition' to legitimacy of activist constitutional review. In the last part I will try to tie these topics together.
Number of Pages in PDF File: 23
Keywords: constitutional courts, constitutional review, Central and Eastern Europe, transitional justice, European Union, European Convention of Human Rights
JEL Classification: K10, K30, K33Accepted Paper Series
Date posted: August 30, 2011
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