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Governing with JudgesConstitutional Politics in Europe$
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Alec Stone Sweet

Print publication date: 2000

Print ISBN-13: 9780198297710

Published to Oxford Scholarship Online: April 2004

DOI: 10.1093/0198297718.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 14 May 2021

The Politics of Judging

The Politics of Judging

(p.127) 5 The Politics of Judging
Governing with Judges

Alec Stone Sweet

Oxford University Press

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

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