Consociational Democracy, Unique Legitimacy: Procedural and Instrumental Accounts of Constitutional Adjudication in Consociations

The role of constitutional courts in consociational democracies has become an emerging topic in the literature on consociationalism, following the field’s decades-long focus on parties, legislatures and executives. As most of these works have been dedicated to the role constitutional courts in the dynamics of these regimes, little attention has been paid to questions asked about other constitutional courts, like their perceptions of legitimacy, counter-majoritarian character, or sources quoted in their decisions. Investigating consociations from the perspective of constitutionalism is particularly challenging due to the tension between the fundamental logics of the two concepts: while consociationalism is based on the dynamic cooperation and compromise between political elites, adherence to certain principles which are not subjects of political contestation is a fundamental element of constitutionalism. This paper focuses on the legitimacy of constitutional courts in consociations, building on the empirical results of my ongoing PhD dissertation project which deals with these institutions from the normative angle of constitutionalism. On the one hand, the ‘input legitimacy of these constitutional courts is analysed considering both the peculiarities of their design as well as their institutional environment. On the other hand, by addressing the ‘output’ legitimacy of these courts, judicial decisions linked to the power-sharing settlements of Belgium, Bosnia and Herzegovina and Northern Ireland are analysed with a particular emphasis on how the respective bodies balance between textual and normative readings of their constitutions. On a normative level, I argue that the necessity of constitutional review in these regimes can be best understood through the analytical framework of Thomas Christiano’s democratic theory, with its particular emphasis on special, outstanding groups labelled as ‘persistent minorities’. From an empirical perspective, the case record of these courts primarily demonstrates their primary willingness to interpret constitutions through the framework agreements including them, implying a functional approach to legitimisation. The procedural analysis in the paper contributes to the literature of judicial legitimacy by analysing its possible approaches in the context of democracies with inherent peculiarities; however, the instrumental analysis also ask if constitutional courts can have a role in the way leading to a more open, non-consociational future. Therefore, I aim to present my paper in Panel 5) ('Courts in non-democratic and transitional systems').