Constitutional Courts

Abstract

Constitutional Courts (CCs) are specialized courts with jurisdiction over constitutional matters. In contrast to the American system of judicial review, CCs based on Kelsen's Austrian model are the result of constitutional design. The rise of CCs began after WW II and gained momentum in recent processes of constitutional transition. The rules for the selection of judges seek to reconcile democratic legitimacy and safeguards for independence. CCs' jurisdiction typically includes judicial review of legislation and adjudication of constitutional disputes. Individuals may have access in human rights cases. Democratic theory questions the legitimacy of CCs but they appear to be a workable model to reconcile majority rule with safeguards against its abuse if the power of CCs is constrained by ‘judicial restraint.’ In sociology of law CCs are so distinct from other courts that sociolegal findings about judicial behavior are not necessarily applicable. Despite the politicized appointment process institutional interest forces, CCs to prove their independence. To a certain extent they have given up the ideal-typical judicial style of decision making for a political one (e.g., by being active rather than reactive, broad construction of open-textured constitutional texts and flexible forms of judicial decision-making).