Constitutional courts decide on many political issues in contemporary democracies. In doing so, they formulate conceptions of constitutional concepts. In many cases, the formulated conceptions coincide with those of political representatives. This gives the impression that constitutional courts are influenced by political representations and the appearance of illegitimate influence of political representation on constitutional adjudication. The chapter discusses the politicization of the constitutional judiciary and the judicialization of political issues to determine (1) whether political representation determines constitutional adjudication and (2) whether there are cases in which the influence of political representation on constitutional adjudication is justified. The initial discussions lead us to argue for (3) a piecemeal approach to the legitimacy of constitutional adjudication and (4) in favor of the strategy of dialogization that relies on the virtue of judicial candor to increase the likelihood of popular legitimacy of constitutional adjudication.

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Can Political Representation Legitimately Determine Constitutional Adjudication? Judicialization, Politicization, and Judicial Candor

  • Bojan Spaić

摘要

Constitutional courts decide on many political issues in contemporary democracies. In doing so, they formulate conceptions of constitutional concepts. In many cases, the formulated conceptions coincide with those of political representatives. This gives the impression that constitutional courts are influenced by political representations and the appearance of illegitimate influence of political representation on constitutional adjudication. The chapter discusses the politicization of the constitutional judiciary and the judicialization of political issues to determine (1) whether political representation determines constitutional adjudication and (2) whether there are cases in which the influence of political representation on constitutional adjudication is justified. The initial discussions lead us to argue for (3) a piecemeal approach to the legitimacy of constitutional adjudication and (4) in favor of the strategy of dialogization that relies on the virtue of judicial candor to increase the likelihood of popular legitimacy of constitutional adjudication.