The Constitutional Court – an Infallible Authority?

Pandemic control measures, headscarf bans for elementary school students, and the ban on assisted suicide testify to the fact that constitutional courts deal with highly sensitive social conflicts. Laura Pavlidis, a researcher at the WU Institute for Austrian and European Public Law, examines the legitimacy of the constitutional court’s interpretive power.

Constitutional courts judge facts and legal provisions based on a country’s constitution, and are responsible for ensuring that the constitution is upheld. There is a certain amount of leeway inherent in interpreting the constitution. Especially in the constitutional review of laws, constitutional courts can become the focus of political controversies.

Every legal process must end at some point – in constitutional matters, typically at the constitutional court. This does not make constitutional courts perfect, however. The finality of their decisions does not mean that they are infallible. This makes the question of the legitimacy of constitutional authority all the more crucial – as currently illustrated by the dispute over a possible change in the US Supreme Court’s decision on abortion law.

Constitutional court research investigates the power of constitutional courts as deriving from superior knowledge. This attribution is based on constitutional qualification requirements to be fulfilled by candidates for office. The Austrian constitution also has such requirements. Like any form of state power, constitutional authority requires a functional justification.

The Justification of Authority

What, exactly, needs to be justified, and to whom? To justify constitutional jurisdiction, it helps to lay it out in terms of its manifestations, formats, acts, and elements. We can inquire into the justification of the institution itself or an individual decision, for example. However, justification potential can also be found in somewhat more unusual places, like in the court’s decision-making style, discussion culture, or public relations. In addition, various subjects of justification can be considered – for example, the parties to the constitutional court proceedings, the public, or the government.

The concept of justification is based on how justices are appointed and their impartiality. However, this is not enough. If constitutional court authority is also based on superior knowledge, it should additionally legitimize itself by informing the public and reducing this superiority, according to Laura Pavlidis’ central thesis. This would shift the justifications of constitutional court decisions back to center stage, through which the constitutional court speaks to the subjects of its authority. The maxim should be communicating the reasons behind court decisions, not just the bare authoritative handing-down of constitutional jurisdiction. It may seem paradoxical, but it is perhaps the crux of justifiable power: By relinquishing some of its own power, it also builds itself up.

Legitimation Potential

According to this concept of justification, a discursive decision-making style which makes the leeway in decision-making visible and an open discussion culture within the institution have the effect of promoting legitimacy. Diversifying the recruitment of constitutional law staff, who among other things act as dialog partners for the members of the constitutional court, could also contribute to critical discourse. Quality and knowledge management, as well as public relations work, can convey constitutional law knowledge by presenting important constitutional court topics to the media and the public in easily understandable ways.

For example, the exchange with schools initiated by the Austrian Constitutional Court through the project “Verfassung macht Schule” (Constitution goes to school) is an excellent example of how to promote legitimacy, as is the touring exhibition “Verfassungsgerichtshof auf Tour” (Constitutional Court on tour), held for the 100th anniversary of the Austrian Federal Constitution. A constitutional court can develop all of these legitimation potentials itself; legislative changes are not required for this.

A constitutional court that allows society to share in its knowledge and seeks to persuade through the quality of its decisions serves the people best.