The purpose of this panel is to bring together studies engaging with how constitutional courts (including supreme courts in non-centralized constitutional review systems) engage with the very concept of democracy in their decision making and/or broader forms of extrajudicial communication. Existing scholarship has highlighted the importance of political concepts including those frequently manifested as constitutional values in decision making (e.g. Jakab et al., Robertson, Steuer), for the quality of judicial decision making and even the societal impact of courts. Most of this scholarship, however, has been centred on Europe, and has not fully explored the diverse methodologies (including qualitative, quantitative methods, reflexive methods or conceptual studies) that could contribute to understanding constitutional courts’ engagement with democracy as a concept.
This panel proposes to remedy the gap by inviting conceptual and empirical work (the latter both in the form of individual and comparative studies) testing existing approaches to the study of the invocations of democracy by constitutional courts in new cases, revising these or proposing new methodological alternatives for empirical research. Such an endeavour requires some degree of clarity on the approach to study conceptions of democracy, without prejudice to inductive studies that aim to keep the range of conceptions open depending on the empirical data available. While countless conceptions exist (Gagnon), existing scholarship has often clustered some of these into main types, such as minimalist, middle-ranged and maximalist (Merkel) conceptions, or by identifying a set of ‘varieties of democracy’ (V-Dem Institute). Such prior conceptualizations, seldom developed in dialogue with scholars on law, courts and judicial politics, may be juxtaposed against the practice of referencing to democracy by constitutional judges and by stakeholders surrounding constitutional courts (such as litigants or amici curiae).
Contributions from scholars of different levels of academic seniority as well as with a variety of disciplinary backgrounds are particularly welcome, with particular regard to generally understudied constitutional courts in smaller jurisdictions and jurisdictions featured less frequently in international scholarship. Particularly promising may also be comparisons between jurisdictions studied often (e.g. because of the greater accessibility of case law and scholarship in English) and more neglected cases.