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The Procedural Democratic Legitimacy of Constitutional Courts

67 Pages Posted: 17 Jan 2012 Last revised: 11 Feb 2015

Ross Carrick

University of Oxford

Date Written: January 17, 2012

Abstract

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.

Keywords: Constitutional Courts, Constitutional Theory, Democratic Theory, Legitimacy, the Court of Justice of the European Union, Democratic Deficit

Suggested Citation

Carrick, Ross, The Procedural Democratic Legitimacy of Constitutional Courts (January 17, 2012). Edinburgh School of Law Research Paper No. 2012/01. Available at SSRN: https://ssrn.com/abstract=1986857 or http://dx.doi.org/10.2139/ssrn.1986857

Ross Carrick (Contact Author)

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

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