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James L Gibson - One of the best experts on this subject based on the ideXlab platform.
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reassessing the institutional legitimacy of the south african Constitutional Court new evidence revised theory
Politikon, 2016Co-Authors: James L GibsonAbstract:ABSTRACTOutside South Africa, the South African Constitutional Court is one of the most esteemed high Courts in the world. Inside the country, however, empirical evidence suggests that the Court has been unable to build much of a store of popular legitimacy. Some scholars have suggested that the shortfall of legitimacy is of little consequence because the Court has been able to maintain its independence, largely through the largess of the government. My purpose here is to reconsider both the empirical evidence on the Court’s support and the theoretical position that judicial independence can be effectively guaranteed by the government. I find that confidence in the Constitutional Court has indeed grown since its first decade of operation. However, confidence is not the same thing as legitimacy, even if sustained confidence may evolve into institutional legitimacy, so my evidence cannot be taken to suggest that the Court has developed a “reservoir of goodwill” among the South African people. I conclude by ...
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defenders of democracy legitimacy popular acceptance and the south african Constitutional Court
The Journal of Politics, 2003Co-Authors: James L Gibson, Gregory A CaldeiraAbstract:The question of how Courts in newly emerging democracies are able to act in a “counter-majoritarian” fashion is of burning theoretical and practical importance. Consequently, we investigate the relationship between the legitimacy of the South African Constitutional Court and its success at generating acquiescence to its decisions even when they are unpopular. Based on a national survey, we begin by describing the institutional loyalty the Court enjoys among its constituents. We next consider the consequences of legitimacy by determining whether people are willing to acquiesce to an adverse Court decision on a civil liberties dispute. Our central hypothesis—that legitimate institutions are capable of generating acceptance of decisions, even when citizens find the policy highly disagreeable—receives only conditional support. What little legitimacy the Constitutional Court has acquired does not readily translate into acquiescence to its decisions. The apparent inability of the Court to perform the role of a ...
Niels Petersen - One of the best experts on this subject based on the ideXlab platform.
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balancing and judicial self empowerment a case study on the rise of balancing in the jurisprudence of the german federal Constitutional Court
Global Constitutionalism, 2015Co-Authors: Niels PetersenAbstract:Many critics of the proportionality principle argue that balancing is an instrument of judicial self-empowerment. This contribution argues that the relationship between balancing and judicial power is more complex. Balancing does not necessarily create judicial power, but it presupposes it. This argument is confirmed through a case study of the German Federal Constitutional Court. The analysis shows that the German Constitutional Court was very reluctant to base decisions, in which it overturned legislation, on balancing in the first two and a half decades of its jurisprudence. However, in the late 1970s, once the Court had strengthened its own institutional position, it increasingly relied on balancing when declaring laws as incompatible with the constitution. Then, balancing developed into the predominant argumentation framework of Constitutional review that it is today in the Court’s jurisprudence.
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The German Constitutional Court and legislative capture
International Journal of Constitutional Law, 2014Co-Authors: Niels PetersenAbstract:Political decision-making is often influenced through the lobbying of strong interest groups. This is not per se a problem for democracy. It becomes a problem if political decisions are primarily motivated by the intention to grant certain interest groups a favor. This contribution deals with the question whether Constitutional Courts can play a role in curing this pathology of the political process. It has a normative and a reconstructive dimension. The normative part makes a case that Constitutional Courts should police interest group capture. However, the direct control of legislative motivation is an impossible task. For this reason, Constitutional Courts should recur to second-order criteria, which focus on the rationality of the legislation. If legislation lacks a tight means-end fit or is inconsistent, this is an indication that the legislature has pursued not only public-regarding aims. The reconstructive part analyzes the jurisprudence of the German Constitutional Court. In several judgments, the German Constitutional Court made allusions to a potential capture of the legislature. However, it never relied on legislative motivation to justify its decisions. Instead, it performed a rationality review and found that the legislation in question was either inconsistent or disproportionate. The contribution thus offers a new perspective on the traditional doctrines of proportionality and inconsistency. Even though these doctrines allow prima facie for a rationality review of the legislature, they can also be used to flush out illicit legislative motivations.
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proportionality and the incommensurability challenge in the jurisprudence of the south african Constitutional Court
South African Journal on Human Rights, 2014Co-Authors: Niels PetersenAbstract:The proportionality test is a central doctrine of the individual rights jurisprudence of the South African Constitutional Court. However, one core part of the proportionality test, the balancing of competing interests, is often severely criticised because it is supposed to lack rational standards of comparison. Therefore, many critics of balancing claim that Courts make policy decisions by second-guessing legislative value-decisions. This article analyses how the Constitutional Court deals with this critique. It makes a detailed analysis of the case law and finds that the Court, in fact, rarely balances when it overturns a piece of legislation. When correcting the legislature, the Court usually bases its judgment on other arguments, such as over-breadth, less-restrictive-means, or lack of consistency. However, the Court balances when it confirms legislation, or when it corrects common law rules. In both cases, the Court does not come into conflict with the political branch so that balancing does not pose any legitimacy issues. In sum, the Court is rather concerned with holding the legislature accountable to take decisions that represent all groups of the society than with determining the resolution of deep value conflicts.
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proportionality and the incommensurability challenge some lessons from the south african Constitutional Court
2013Co-Authors: Niels PetersenAbstract:This paper analyzes the application of the proportionality test by the South African Constitutional Court. In contrast to other Courts, like the Canadian Supreme Court or the German Constitutional Court, the South African Court has not adopted a structured proportionality test with separate steps. Instead, proportionality only consists of a global balancing test. The Court thus seems to be particularly susceptible to the critique that is voiced in the legal literature against the rationality of balancing. Many critics of balancing claim that Courts make policy decisions by second-guessing legislative value-decisions. However, a close analysis of the case law of the South African Constitutional Court reveals a more nuanced picture. In practice, the Court rarely balances when it finds that a law is incompatible with the constitution. Instead, it often bases its judgments on rationality arguments. In sum, the Court is rather concerned with holding the legislature accountable to take decisions that represent all groups of the society than with determining the resolution of deep value conflicts.
Gregory A Caldeira - One of the best experts on this subject based on the ideXlab platform.
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defenders of democracy legitimacy popular acceptance and the south african Constitutional Court
The Journal of Politics, 2003Co-Authors: James L Gibson, Gregory A CaldeiraAbstract:The question of how Courts in newly emerging democracies are able to act in a “counter-majoritarian” fashion is of burning theoretical and practical importance. Consequently, we investigate the relationship between the legitimacy of the South African Constitutional Court and its success at generating acquiescence to its decisions even when they are unpopular. Based on a national survey, we begin by describing the institutional loyalty the Court enjoys among its constituents. We next consider the consequences of legitimacy by determining whether people are willing to acquiesce to an adverse Court decision on a civil liberties dispute. Our central hypothesis—that legitimate institutions are capable of generating acceptance of decisions, even when citizens find the policy highly disagreeable—receives only conditional support. What little legitimacy the Constitutional Court has acquired does not readily translate into acquiescence to its decisions. The apparent inability of the Court to perform the role of a ...
Tom Ginsburg - One of the best experts on this subject based on the ideXlab platform.
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the south african Constitutional Court and socio economic rights as insurance swaps
Constitutional Court Review, 2013Co-Authors: Rosalind Dixon, Tom GinsburgAbstract:The political origins of various civil and political rights have been clearly theorized by Tom Ginsburg and others in work on the "insurance-based" function of judicial review in new democracies. To date, however, there has been relatively little work on the political origins of socioeconomic or second generation rights, such as rights to housing or health-care. The essay attempts to fill this gap, by expanding existing insurance-based theories to account for the potential insurance swap-based function of such rights for left-wing parties to Constitutional negotiations, when making concessions on the scope of a property rights clause. Such an account, the essay suggests, fits closely with the actual drafting of ss. 25-29 of the 1996 South African Constitution, and thus also has potential implications for the interpretation of such provisions by the South African Constitutional Court. From an originalist perspective, at least, it suggests that in cases involving a potential conflict between property and other socioeconomic rights, Courts should attempt to balance the two sets of rights in as context-sensitive a way as possible, and in other cases, to attempt to preserve scope for such an approach, by reasoning narrowly, or avoiding broad statements in favor of either a highly deferential or expansive approach to the definition of such rights. This also accords surprisingly well, the essay suggests, with the actual approach of the South African Constitutional Court in various cases decided in the 2010 Term on socioeconomic rights, such as Musjid, Abhali, Gudwana, as well as in many earlier cases.
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The Constitutional Court and the Judicialization of Korean Politics
Public Law in East Asia, 2009Co-Authors: Tom GinsburgAbstract:The Constitutional Court of Korea recently celebrated its 20th anniversary, and has become one of the most respected institutions in Korean society. It is also one of the most important Constitutional Courts in the world. This book chapter describes the Court and some of its important cases, while tracing the sources of its success.
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The Constitutional Court of Korea in Comparative Perspective
2007Co-Authors: Tom GinsburgAbstract:Since its creation in the Constitutional agreement of 1988, the Korean Constitutional Court has emerged as the most active and vigorous Constitutional Court in Asia. The Court has played an important role in disciplining Korean politics and encouraging the formation of a vigorous civil society. After providing several examples, the paper considers the broader normative issue surrounding governance by Constitutional Courts. The success of the Court has come in a period when political institutions more broadly are suffering declining legitimacy. Korea thus raises questions about the legitimacy of judicialized governance.
Robert Zbiral - One of the best experts on this subject based on the ideXlab platform.
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czech Constitutional Court judgment of 31 january 2012 pl us 5 12 a legal revolution or negligible episode Court of justice decision proclaimed ultra vires
Common Market Law Review, 2012Co-Authors: Robert ZbiralAbstract:Text analyzes (one could say criticizes) the judgment of the Czech Constitutional Court "Slovak Pensions no. 17", which for the first time declared Court of Justice judgment ultra vires. Author explores in detail background, reasons for and consequences of the decision.
