Constitutional Courts and Legislatures: Institutional Terms of Engagement

Mattias Kumm

EconStor Open Access Articles and Book Chapters, 2017, vol. 1, issue 1, 55-66

Abstract: The debate about the legitimacy of judicial review has arguably been misframed. The question is not whether judicial review can be justified, but how judicial institutions need to be designed and how the relationship between the judicial and the legislative branches must be structured in order for it to be legitimate. After briefly describing the point of judicial review and introducing a normative standard for its legitimate institutionalization, the article analyzes a number of variables that, taken together, determine whether or not such standard is met. A third part briefly illustrates the usefulness of the established framework by analyzing and assessing the institutionalization of judicial review in the US and in the UK. As will become clear, both are problematic outlier cases: In the US the institutional position of the Supreme Court is too strong in its relationship the legislature, effectively enabling juristocracy. In the UK the position of the courts is too weak, effectively enabling electoral authoritarianism.

Keywords: judicial review; democratic legitimacy; authorial and editorial role of citizens; institutional design; strong and weak review; United States and United Kingdom; justiça constitucional; legitimidade democrática; função autoral e editorial dos cidadãos; arquitetura institucional; controlo judicial forte e débil; Estados Unidos e Reino Unido (search for similar items in EconPapers)
Date: 2017
References: View complete reference list from CitEc
Citations: View citations in EconPapers (1)

Downloads: (external link)
https://www.econstor.eu/bitstream/10419/228524/1/F ... ional-courts-and.pdf (application/pdf)

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:zbw:espost:228524

DOI: 10.34632/catolicalawreview.2017.1975

Access Statistics for this article

More articles in EconStor Open Access Articles and Book Chapters from ZBW - Leibniz Information Centre for Economics Contact information at EDIRC.
Bibliographic data for series maintained by ZBW - Leibniz Information Centre for Economics ().