Descriptive Legitimacy of Constitutional Courts and Reasons for Distrust – Notes from Serbia

John Hart Ely was of opinion that there is no “risk of destruction” of the US Supreme Court due to public animosity to its decisions, because this simply “isn’t the way it works, and the justices know it”. With that thought, this paper will go back to the concept of sociological (descriptive) legitimacy of constitutional courts, which has been scantly discussed in theory in comparison to the normative and moral legitimacy.
It will explore how the theories of descriptive judicial legitimacy can be applied to one of the third wave democracies, which adopted Kelsenian model of constitutional review, using Serbia as a case study.
Finally, this paper will point out three factors which may negatively affect the legitimacy of the Serbian Constitutional Court and give reasons for public distrust: lack of transparency of judicial decision-making, untimely delivering of judgements and weak doctrinal justification of its decisions.