New Perspectives from Legal and Political Theory
Constitutional Courts and Their Power of Interpretation
Judicial power is a complex phenomenon. It is not the same as formal competence. Instead, judicial power only becomes apparent in decisions by supreme courts regarding the meaning of the constitution. In this sense, judicial power is defined more precisely as the power of interpretation. When analysing it, we must distinguish between three interdependent levels: the level of the interpreted constitution, the level of the interpreting court and the level of the interpretation. This is the only way to explain why the power of interpretation is not necessarily absolute and how each level is characterised by special preconditions and limitations.
Judicial Power constitutes a central challenge for constitutionalism (Geiger 1995, c. 1007). The judiciary practices its powers through a constitutional court as soon as its decisions bind the actions of other political institutions or actors. Still, it is known that constitutional courts themselves cannot forcefully obtain obedience. Worldwide, the decisions of constitutional courts are nonetheless adhered to in most cases. But why do governments and legislators adhere to them? And why do constitutional courts expect that political institutions will do it? The question is what motivates governments and legislators on the one hand and what motivates constitutional courts on the other hand? The answer is: power.
Political institutions follow the constitutional rulings when they have recognised the power of the judiciary. And constitutional courts demand obedience from political institutions when they can expect the recognition of their power. Power...
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