The Influence of Scholarly Discourses on Socio-Legal Change: The Case of (Withering?) Resilience of Constitutional Courts

Legal scholarship, while rarely presented under the traditional heading of ‘science’, may nevertheless influentially shape legal regulation and its application as the main manifestation of anthropocentric world ordering as well as challenges thereto. Constitutional scholarly, focusing on the foundational elements of legal systems, have nevertheless been understudied in the literature. This study contributes to the understanding of (socio-)legal knowledge production pertaining to a central institution in authoritative interpretation of the principles political communities are governed by: constitutional courts and constitutional judgeship, with particular emphasis on the rise of concerns over global autocratization undermining more democratic futures since 2010. The paper proposes a framework to address this question via systematic coding of scholarly resources of the scholarship on constitutional court agency, focusing on the potential and limits of constitutional courts’- and judges’ resilience. In developing the framework for data collection and analysis, the study points to the value of scrutinizing the scholarly conceptualization of democracy, indicating how competing conceptions of democracy have a bearing on the understanding of the constitutional courts’ resilience vis-à-vis autocratization. This impact may appear both in terms of normative (in)appropriateness of judicial action and empirical evidence for its presence or absence. The study discusses the potential and limits of the coding process and presents examples of particular scholarly standpoints on constitutional court resilience. While such standpoints might not affect judicial agency, given the linkages between scholarly and judicial discourses, including through judges who are scholars themselves, or legal education, any disempowering effects that scholarship suppressing or denying the relevance of judicial agency might have on judges before they decide require serious attention. Ultimately, the study raises the normative question of scholarly responsibility for self-fulfilling prophecies of eroding constitutional court resilience vis-à-vis autocratization and generating ‘constitutional knowledge’ in the anthropocene.