2009 | 4(93) | 129-144
Article title

INTERNAL LEGITIMACY OF A CONSTITUTIONAL COURT (Wewnetrzna legitymacja sadu konstytucyjnego)

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The purpose of the article is to present the problem of legitimacy of a constitutional court not from the point of view of its powers and status within the system of government (an external perspective) but from the point of view of its actual composition (an internal perspective). The notion of internal legitimacy is meant by the author as a sum of the Tribunal's authority, knowledge, qualifications and experience of its judges, as well as the rules and principles used for their election. In the recent years, a lively discussion takes place in the world's literature on philosophy of law and constitutional law concerning the procedures for nomination and election of constitutional judges as well as the models for shaping the composition of organs exercising the review of constitutionality of laws. The author presents a current review of this problem on the basis of the US and German literature, focused in particular on the opinions criticizing an actual practice of nomination the judges to the US Supreme Court and to 'Bundesverfassungsgericht'. According to the author, the solutions adopted in the Constitution of the Republic of Poland and in the Constitutional Tribunal Act are unsatisfactory in the context of the need to create an internal legitimacy of an organ responsible for review of the constitutionality of laws. This concerns both the model of selection of candidates and the procedure for election of the judges of the Constitutional Tribunal, as well as substantive requirements applied to them. To address each of these problems the author uses, on the one hand, the method of 'veil of ignorance' proposed by John Rawls and, on the other hand, the theory of hard cases developed by Ronald Dworkin. In the conclusion, he states that, firstly, more requirements should be added for candidates for a position of a judge of constitutional court, to complement the one that they should 'be distinguished by their knowledge of law'; secondly, the circle of subjects entitled to nominate candidates should be broader than a group of Deputies or the Presidium of the Sejm; thirdly, the resolution concerning the election of the judges of the Tribunal should be adopted by a qualified majority of votes of Deputies. This is the only way in which internal legitimacy of an organ responsible for the review of constitutionality of laws may be created, since in such case the model of law application and interpretation differs considerably from the traditional court model.
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  • Jerzy Zajadlo, Uniwersytet Gdanski, Wydzial Prawa i Administracji, ul. J. Bazynskiego 6, 80-953 Gdansk, Poland
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