Constitutional Courts and Judicial Law-Making: Why Democratic Legitimacy Matters

Abstract

Law-making, understood as the process of making, amending or abrogating laws, is traditionally conceived as the domain of the legislative power and not that of the judiciary, even though courts certainly make law inasmuch as they create and enact their own judgments. But even the making of laws may fall into different spheres of power, depending on whether we conceptualise legislation from an organisational or functional viewpoint. Firstly, this article distinguishes six different types of judicial law-making by constitutional courts from a comparative perspective. Secondly, it critically assesses the significance of judicial input both in the pre- and post-enactment phase of legislation vis-a-vis the democratic legitimacy of constitutional courts. The argument here is that constitutional courts, as organisational structures, can hardly ever claim the same democratic legitimacy as is usual for other bodies involved in law-making processes. Thirdly, the article addresses the question of whether constitutional courts are able to compensate for this deficit through their function as protectors of the constitution, and whether this democratic function legitimises all types of judicial law-making.