The Procedural Democratic Legitimacy of Constitutional Courts
University of Oxford
January 17, 2012
Edinburgh School of Law Research Paper No. 2012/01
This research focuses on the democratic role of courts, and presents an original conceptual framework for an examination thereof. The core thesis of this paper is to provide a new answer to the question – how can courts (in particular constitutional courts) be democratically legitimate? – by considering how a constitutional court can be procedurally democratically legitimate. There are two dimensions of procedural democratic legitimacy: intrinsic and instrumental. The intrinsic is a measure of the democratic credentials of the constitutional court as a discrete decision-making authority, whereas the instrumental is concerned with the ways in which the constitutional court contributes to the democratic functioning of the polity. Finally, the conceptual framework is put to the test by examining the constitutional court of the democratically complex and contested EU polity: the Court of Justice of the European Union.
Number of Pages in PDF File: 67
Keywords: Constitutional Courts, Constitutional Theory, Democratic Theory, Legitimacy, the Court of Justice of the European Union, Democratic Deficit
Date posted: January 17, 2012 ; Last revised: February 11, 2015