2009 | 4(93) | 11-23
Article title

LEGITIMACY OF CONSTITUTIONAL COURTS AND THE LEGISLATIVE POWER (Legitymizacja sadow konstytucyjnych wobec wladzy ustawodawczej)

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The status of constitutional courts within the system of government, as well as the scope of their powers and activities have always been the subject of interest and discussion in the jurisprudence. Moreover, legitimacy of constitutional courts has become an issue of particular importance. As a consequence, a question arises as to whether there are some special reasons for us to intensify examination of the issue of constitutional courts' legitimacy. In the author's opinion, existence of such reasons can be demonstrated, and examination of them could result in some important observations concerning legitimacy of constitutional courts in their present form. The first reason for interest in legitimacy of constitutional courts is an increased questioning of its theoretical foundations. This crisis originates in the modernistic influence of the model of constitutional courts, linked to three categories of interrelated alterations, including: (1) changes in the approach to law interpretation; (2) changes in the approach to knowledge as a point of reference as concerns the review of constitutionality of law; (3) redefinition of the perception of political neutrality of judges. The next reason for interest in legitimacy of constitutional courts is growing judicial activism, especially politicization of the judges involved in decisions relating to governance, which are not unequivocally regulated by the existing legal provisions. These two above-mentioned circumstances have impact on the ways in which legitimacy of the constitutional courts is mostly ensured. The first one deprives this legitimacy of its theoretical basis. The second one points out an urgent need for democratic legitimacy of constitutional courts, perceptible in modern democratic transformations. Among the possible way to achieve it, is the concept of 'counter-democracy' which confers on the constitutional courts the role of an institution 'organizing citizens' mistrust'.
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  • Wlodzimierz Gromski, Uniwersytet Wroclawski, Wydzial Prawa, Administracji i Ekonomii, ul. Uniwersytecka 22/26, 50-145 Wroclaw, Poland
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