Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court

Abstract

The question of how courts in newly emerging democracies are able to act in a “counter-majoritarian” fashion is of burning theoretical and practical importance. Consequently, we investigate the relationship between the legitimacy of the South African Constitutional Court and its success at generating acquiescence to its decisions even when they are unpopular. Based on a national survey, we begin by describing the institutional loyalty the Court enjoys among its constituents. We next consider the consequences of legitimacy by determining whether people are willing to acquiesce to an adverse Court decision on a civil liberties dispute. Our central hypothesis—that legitimate institutions are capable of generating acceptance of decisions, even when citizens find the policy highly disagreeable—receives only conditional support. What little legitimacy the Constitutional Court has acquired does not readily translate into acquiescence to its decisions. The apparent inability of the Court to perform the role of a “veto player” in South African politics has important consequences for that country's efforts to consolidate its democratic transition.

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