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The Authority of Constitutional Courts between Genesis, Legal Validity, and De Facto Acceptance

Oliver W. Lembcke
Friedrich-Schiller Universität Jena
Oliver W. Lembcke
Friedrich-Schiller Universität Jena
Gary S. Schaal
Helmut-Schmidt-University/University of the Armed Forces Hamburg
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Abstract

The work of constitutional courts is subject to its own peculiar preconditions. Since these courts can rely on "neither purse nor sword" to bring about respect for their decisions on the part of their addressees, they require peculiar sources of de facto authority, over which they have only partial control. One important factor in moving from merely intended authority to actual authority, and thus in generating acceptance for judicial decisions, is found in the genesis of constitutional courts, which has both symbolic and instrumental aspects. "Genesis" refers here not merely to the process of implementing the acts of an institution, but also to the establishment of authority through the imposition of a peculiar self-reflexive (autological) temporal and historical order, as well as to moments of authoritative self-inauguration (e.g., Marbury v. Madison 1803; 1952 status report of the German Constitutional Court, published in 1957). The paper will analyse the connections between the genesis, the claimed authority, and the de facto authority (or de facto acceptance) of constitutional courts, by adopting a comparative perspective. Among other things, it will draw on and discuss empirical indicators of de facto acceptance of adjudication in general as well as of specific decisions. Special attention will be paid to constitutional adjudication in the recently established democracies in Central and Eastern Europe.