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Ernst-Wolfgang Böckenförde, Mirjam Künkler, and Tine Stein

Print publication date: 2017

Print ISBN-13: 9780198714965

Published to Oxford Scholarship Online: March 2017

DOI: 10.1093/acprof:oso/9780198714965.001.0001

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Constitutional Jurisdiction

Constitutional Jurisdiction

Structure, Organization, and Legitimation [1999]*

(p.186) VIII Constitutional Jurisdiction
Constitutional and Political Theory

Mirjam Künkler

Tine Stein

Oxford University Press

In the judicial sphere, constitutional courts have been the rising stars since World War II. Although all constitutional courts have the same purpose—to guarantee the rule of law itself—there is a wide range of different models with regard to their structure, organization, and legitimation. As a former judge of the constitutional bench in Germany, Böckenförde is able to categorize these models and their specific challenges with great clarity. How can one prevent the guardian of the constitution (Carl Schmitt’s ‘Hüter der Verfassung’) from becoming the master of the people? This is the risk provided by any constitutional court, as no institution is above them. In presenting the main types of recruitment and legitimation of judges in different constitutional democracies, Böckenförde shows that, ultimately, the judges themselves need to be aware of their responsibility not to seek political ends by means of constitutional interpretation.

Keywords:   Constitutional courts, constitutional jurisdiction, guardians of the constitution, Carl Schmitt, Hüter der Verfassung, constitutional adjudication

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