Constitutional Courts and Politics in the European Legal Space

Abstract

Abstract Due to the particular role constitutional courts play—on a national level but also specifically within the multi-level cooperation of the European legal space—their relationship to politics is complex and multifaceted. The contribution reflects on various aspects and factors determining the relations between constitutional courts and politics from a comparative perspective, including notably the recruitment, status and professional ethics of justices, institutionalized and informal contacts between the actors on both sides, the public’s influence, and the political dimension of constitutional jurisprudence. Its objective in doing so is to map the specific role of the constitutional courts in the European legal space and to identify common challenges. Despite considerable differences between different national States, constitutional courts generally act as a sort of ‘structural opposition’ against the (national) legislature and government because they enforce the protection of minority rights against the democratic majority. Within the process of European integration, constitutional courts additionally fulfil a specific task, namely, to safeguard—where necessary—the conditions and limits of their state’s integration into the European Union. Overall, the idea of constitutional adjudication has expanded throughout the European legal space, and Europeanization has contributed to a noticeable enlargement of the powers of the third branch. Constitutional courts have in that course partially emancipated themselves from politics. However, their success has given rise to backlash and—partly exaggerated—criticism, which pose new challenges in the relationship between constitutional courts and politics.