Rethinking Democracy Through Constitutional Adjudication

This paper contributes to understanding how the phenomenon of constitutional adjudication can facilitate beyond-disciplinary thinking about democracy. Constitutional courts (including supreme courts in non-centralised judicial review systems and inter- or supranational courts to the extent these claim constitutional status) have conventionally been discussed in legal scholarship as countermajoritarian institutions limiting democracy, the latter understood in a sheer majoritarian manner with (free and fair) elections as not only a necessary, but also sufficient institution for democracy’s realization. Mainstream political science scholarship questioned the countermajoritarian character of constitutional courts with the help of the attitudinal model that conceived of judicial decision making as a sum total of ideological attitudes of individual judges. This scholarship nevertheless aligned with outputs from legal studies on the minimalist conception of democracy. The conception of democracy used by some scholars publishing in globally visible fora began to be pluralized only in the 1990s and early 2000s, partly due to the globalization of scholarly communication that prompted greater attention to existing and newly emerging constitutional courts in non-Western settings. Empirical evidence collected mainly by socio-legal scholars and qualitative political scientists unsettled oversimplified associations between majority rule and constitutional review. Nevertheless, disciplinary gaps persist, marked by the rising critique of overt ‘activism’ of constitutional courts seen as undermining the ‘will of the People’ and contributing to a global trend of autocratization. Using selected data from a pilot coding exercise of scholarly resources on constitutional adjudication and democracy amidst the global concerns of deterioration of the latter between 2010—2024, this paper shows how, when alternative readings of the purpose and practice of constitutional adjudication are accounted for, greater plurality of conceptions of democracy comes to the fore. Moreover, this plurality transcends disciplinary divides, as it builds on scholarship embedded more or less rigorously in several disciplines. As such, it contrasts the mainstream accounts which tend to be skewed by the minimalist readings spearheaded by a few highly cited political scientists. These findings bear lessons for the spaces, methods and identities of knowledge generation. Space-wise, the skewing of the literature towards certain (especially large and ‘Global North’) jurisdictions reduces the diversity of conceptions of democracy. Methods-wise, quantitative methods tend to be less accommodating towards the plurality of conceptions of democracy than more interpretive research. Important exceptions, such as the Varieties of Democracy project, have only partially overcome this tendency, as the ‘liberal democracy’ index of the V-Dem tends to overshadow the use of the other ‘varieties’. With respect to identities, scholars more exposed to the dilemmas of small and underrepresented jurisdictions, notably those with legacies of authoritarian—including colonial—regimes, tend to be more attentive towards richer conceptions of democracy. The same authoritarian legacy can nevertheless trigger a deeper rift among scholars due to the use of eviscerated conceptions of ‘democracy’ in authoritarian academic spaces. Ultimately, the findings show the value of studying constitutional adjudication beyond disciplinary confines in preventing ‘democracy’ to become a concept ‘owned’ by a select few.