New Perspectives from Legal and Political Theory
What is ‘Politicisation’ of Constitutional Courts? Towards a Decision-oriented Concept
Michael Hein and Stefan Ewert
‘Politicisation’ is one of the most frequently used keywords in public discourse and scientific research on constitutional courts. However, whereas the concept of judicialisation, which is equally important in this field of research, has been the subject of considerable discussion in political and legal theory, a distinct definition of the term politicisation is lacking in many studies. In light of this, we address the question of how politicisation of constitutional courts can adequately be understood. To this end, we examine the theoretical conceptions of the relationship between politics, law and constitutional adjudication that underlie the different understandings of politicisation. Based on our findings, we develop a decision-oriented concept of politicisation, which is not only suitable for many theoretical approaches, but can also be detected in numerous empirical studies.
‘Politicisation’ is one of the most frequently used keywords in public discourse and scientific research on constitutional courts. On many occasions, these courts are publicly blamed for taking political rather than legal decisions, for illegitimately overstepping the bounds of constitutional law, for intervening in the politics of the day and for exceeding their competencies to the disadvantage of parliament and government. However, in political and legal research on constitutional courts, politicisation also features as one of the central analytical terms used. It can be found in numerous studies that deal with political influences on or political consequences of constitutional adjudication (instead of others, see Alivizatos 1995; Stone Sweet 2000; Grimm...
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