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4 Cambridge J. Int'l & Comp. L. 423 (2015)
Constitutional Courts and Judicial Law-Making: Why Democratic Legitimacy Matters

handle is hein.journals/cajoincla4 and id is 435 raw text is: Constitutional Courts and Judicial Law-Making: Why Democratic Legitimacy Matters Anna Gamper* Abstract Law-making, understood as the process of making, amending or abrogating laws, is traditionally conceived as the domain of the legislative power and not that of the judiciary, even though courts certainly make law inasmuch as they create and enact their own judgments. But even the making of laws may fall into different spheres of power, depending on whether we conceptualise legislation from an organisational or functional viewpoint. Firstly, this article distinguishes six different types of judicial law-making by constitutional courts from a comparative perspective. Secondly, it critically assesses the significance of judicial input both in the pre- and post-enactment phase of legislation vis-h-vis the democratic legitimacy of constitutional courts. The argument here is that constitutional courts, as organisational structures, can hardly ever claim the same democratic legitimacy as is usual for other bodies involved in law-making processes. Thirdly, the article addresses the question of whether constitutional courts are able to compensate for this deficit through their function as protectors of the constitution, and whether this democratic function legitimises all types of judicial law-making. Keywords Constitutional Courts, Negative Legislation, Positive Legislation, Interpretation, Separation of Powers, Judicial Review, Democracy A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, (...) the Constitution ought to be preferred to the statute. (...) Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.1 Professor, Department of Public Law, State and Administrative Theory, University of Innsbruck (Austria). Many thanks go to Teresa Sanader for her valuable help in editing the footnotes. 1 Alexander Hamilton, The Federalist Papers (McLean's 1788) No 78.

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