Chapter

The Politics of Judging

Alec Stone Sweet

in Governing with Judges

Published in print February 2000 | ISBN: 9780198297710
Published online April 2004 | e-ISBN: 9780191601095 | DOI: http://dx.doi.org/10.1093/0198297718.003.0005
The Politics of Judging

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The theme of the need to reconceptualize traditional models of legitimation such as separation of powers doctrines is brought into focus. The question of the democratic legitimacy of review is most commonly addressed by grafting Kelsenian constitutional theory onto the classical distinctions between the judicial and the legislative functions. However, this model is found to be theoretically incoherent and empirically inaccurate. An alternative perspective is advanced, arguing that the legitimacy of constitutional review is a product of the participatory nature of constitutional adjudication, driven by strategic interaction that is necessarily pursued through normative argument.

Keywords: Negative legislator; Kelsenian model; legitimacy; New constitutionalism; separation of powers

Chapter.  10230 words.  Illustrated.

Subjects: Comparative Politics

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