Research Project

Legitimacy through Judicial Critique: Procedural Criteria for the Legitimate Scope of Federal Constitutional Court Decisions

The jurisprudence of the German Federal Constitutional Court (Bundesverfassungsgericht) has profoundly shaped the political order of the Federal Republic of Germany. Still, German constitutional scholarship has paid only limited attention on the democratic legitimacy of constitutional, primarily at the level of the institution and its constitutional function. A theoretically grounded framework for assessing the legitimacy of individual judicial decisions remains absent. This dissertation wants to address that gap in research. It brings together the German debates on democratic legitimacy and the functional limits of constitutional adjudication with recent developments in international Comparative Political Process Theory in order to develop an operationalizable framework for legitimacy-based judicial critique. Its aim is to identify the limits of constitutional adjudication while, at the same time, providing a more precise account of the functional role of constitutional courts within the democratic constitutional order established by the Basic Law (Grundgesetz). The project proceeds from the premise that the democratic legitimacy of constitutional adjudication derives not only from institutional arrangements but also from the function that individual decisions perform within the democratic process. The resulting analytical framework will be applied to selected decisions from the recent case law of the Federal Constitutional Court and seeks to contribute to an output-/decision-centred theory of the democratic legitimacy of constitutional adjudication.