Abstract
The quality of the lawmaking process—a key legisprudential concern—is becoming an increasingly relevant factor in the judicial review of statutes. Yet, legislative deliberation in parliament, while being a central part of this process, plays a rather marginal role in such a “procedural turn”. Courts may well look at parliamentary debates as an interpretative aid, but are not expected to assess them; and it is only very exceptionally that the quality of these debates has been used as an argument to uphold or to void a statute. Indeed, there are strong institutional reasons not to have judges questioning the deliberative performance of elected legislators. In a legal culture of justification, however, judicial indifference to the quality of legislative deliberation is somewhat of a puzzle, for it sends a discouraging message to both MPs and their constituencies—“it does not really matter whether or not, or how well or badly, bills are debated”. More significantly, it seems to imply that plenary and committee sittings in parliament are not a proper source of legislative justification or have no bearing on the interpretation of basic rights or the permissibility of statutory interferences with them. In constitutional democracies, this (mis)conception might even weaken the legitimacy of judicial review—if laws that were duly considered by the legislature are struck down or, conversely, if courts are too deferential to decisions that have not been debated. Thus, a judicial focus on parliamentary debates could be, after all, less eccentric than first appears. In that connection, this chapter explores what room there could be for arguments based on the quality of legislative deliberation within the judicial review of statutes, and discusses some of the difficulties that appraising this quality involves. Both issues prove critical to legisprudence as a theory which claims to take both (elected) lawmakers and constitutional rights seriously.
I thank all participants in the International Conference on Legisprudence (Zaragoza, 2018) for constructive comments and criticism. The elaboration of this paper was supported by the Ramón y Cajal Research Fund and the project DER2014-55400-R (Spanish Ministry of Economy), as well as by the Legal Sociology Lab of the University of Zaragoza (Research Group Strategy of the Government of Aragon, 2017/2019).
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
- 2.
Sable Communications v. FCC, 492 U.S. 115 (1989) at 133 (Scalia J., concurring). The entire quote reads: “I do not understand the Court to suggest that such data must have been before Congress in order for the law to be valid. Even though ‘[n]o Congressman or Senator purported to present a considered judgment’ on infeasibility (…) the law would be valid if infeasibility was true. Neither due process nor the First Amendment requires legislation to be supported by committee reports, floor debates, or even consideration, but only by a vote”—as Coenen (2009, p. 2864 n. 179) notes, “no other member of the Court signed on to this disclaimer”. Scalia has used even harsher words to criticize the interpretive use of legislative intent and history: “I, frankly, don’t care what the legislators’ purpose is beyond that which is embodied in the duly enacted text. (…) So our delegates to Congress are not meticulous? No, we have to assume the contrary. That is the assumption of democracy (…). Since we can’t know what’s in the minds of 436 legislators (counting the President), all we can know is that they voted for a text (…). In fact, it does not matter whether they were fall-down drunk when they voted for it. So long as they voted for it, that text is the law” (Scalia and Manning 2012, p. 1613). In this vein, albeit more nuancedly, Canadian Justice Abella has written: “the degree of legislative time, consultation and effort cannot act as a justificatory shield to guard against constitutional scrutiny. What is of utmost relevance is the resulting legislative choice”, whereas “the deliberative policy route” followed is not sufficient to demonstrate constitutional compliance (l’ampleur des débats, des consultations et des efforts qui ont pu précéder l’adoption d’une mesure législative ne saurait immuniser celle-ci contre le contrôle de sa constitutionnalité. L’élément le plus important est le choix législatif qui en résulte. Ni le processus de délibération suivi (…) ne suffisent pour démontrer le respect des exigences de la Constitution) (Attorney General of Quebec v. A, 2013 SCC 5, para 363, Abella J., dissenting; cf. also Authorson v. Canada, 2003 SCC 39, para 37). The German Federal Constitutional Court has stated that “pursuant to the constitution, the lawmaker owes only a valid law”, but also pointed out that this view only holds “in principle”, since the protection of basic rights may eventually require “compensatory” procedural checks in order to make sure that legislative choices have been sufficiently and openly justified (BVerfG, Judgment of 14 February 2012, BvL 4/10, Professorenbesoldung, para 163 ff.).
- 3.
Wilson v First County Trust [2003] UKHL 40, para 67 (Nicholls); here, “quality of the reasons” means substantive quality, i.e. cogency of argumentation in terms of content.
- 4.
R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, para 51 (Nicholls).
- 5.
R (Countryside Alliance) v Attorney General [2007] UKHL 52, paras 1, 8, 45, 47 (Bingham); see also para 157 (Brown).
- 6.
The court agreed that “the lawmaker” was “guided by considerations about supplies and [industrial] structure policy, and about agrarian and social policy” (and not by influences emanating from pressure and interest groups), since “such considerations were repeatedly adduced in the deliberations of the committees participating in the lawmaking process” (BVerfGE 39, 210, 227–28, Mühlenstrukturgesetz). Cf. BVerfGE 50, 290, 334–35 (Mitbestimmung).
- 7.
Sable Communications of California v. FCC, 492 U.S. 115 (1989) at 129–131.
- 8.
Sauvé v. Canada, 2002 SCC 68, para 21 (McLachlin C.J) and para 164–165 (Gonthier J., dissenting). Cf. also Attorney General of Quebec v. A, 2013 SCC 5, para 109 (LeBel J.) and para 363 (Abella J., dissenting).
- 9.
Shelby County v. Holder, 12-96 (570 U.S., 2013) at 36–37 (Ginsburg J., dissenting). Cf. also United States v. Morrison, 529 U.S. 598 (2000) at 630 ff. (Souter J., dissenting); or, for Germany, Justice Schluckebier’s dissent to Vorratsdatenspeicherung (BVerfG 1 BvR 256/08, Judgment of 2 March 2010, para 322–324).
- 10.
“There is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality (…). It cannot be said that there was any substantive debate by members of the legislature” (Hirst v. UK, ECtHR 6 December 2005, para 79; cf. the separate opinions by Wildhaber and others and by Tulkens and Zagrebelsky). See also Alajos Kiss v. Hungary, ECtHR 20 May 2010, para 41, where the court uses the same argument unanimously.
- 11.
Animal Defenders International v. UK, ECtHR [GC] 22 April 2013, para 108.
- 12.
Sukhovetskyy v. Ukraine, ECtHR 28 March 2006, para 65. See also Animal Defenders International v. UK, ECtHR 22 April 2013, para 114 (the Act was enacted “with cross-party support and without any dissenting vote”, being “the culmination of an exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition”), as well as Judge Bratza’s concurring opinion, para 12. In the same vein, Evans v. UK, ECtHR [GC] 10 April 2007, paras 60 and 86 (the law “was the culmination of an exceptionally detailed examination of the social, ethical and legal implications of developments in the field”); but see para 33 (the relevant provisions “did not prove controversial during its passage through Parliament”).
- 13.
Friend v. UK and Countryside Alliance and others v. UK, ECtHR 24 November 2009, para 50 i.f.
- 14.
Murphy v. Ireland, ECtHR 3 December 2003, para 73.
- 15.
Maurice v. France, ECtHR [GC] 6 October 2005, para 121.
- 16.
National Union of Rail, Maritime, and Transport workers v. UK, ECtHR 8 September 2014, para 89.
- 17.
Shindler v. UK, ECtHR 9 Sepember 2013, para 117.
- 18.
- 19.
With appellants importantly contributing to this extension. See Kavanagh (2014, p. 460): in a number of cases, “barristers have argued that, when deciding whether a legislative measure is proportionate” the courts should consider “the fact that the human rights implications (…) were not appreciated during parliamentary debate”. Also Nussberger (2017, p. 176) notes that process and debate review is mostly conducted by the ECtHR when the parties justifiably ask the Court to do so. Yet parties’ allegations do not determine the review outcome. For example, in Lindheim v. Norway, ECtHR 22 October 2012, “the Government recalled the Court’s deference to democratic processes”, claiming that the controversial provision “had been the subject of at least eleven proposed amendments”, and that “there had been heated debate for many years among the leading political parties”, with “all but one of the parties represented in Parliament” finding “a middle ground” of which the provision “was one important part”; in the Government’s submission, “this significant political compromise should be taken into account by the Court” as “an example of democratic deliberation” (para 118). The ECtHR, however, found no evidence that “any specific assessment was made of whether” the provision achieved a “fair balance” between the interests at stake (para 128).
- 20.
United States v. Lopez, 514 U S 549 (1995) at 614 (Souter J., dissenting)—yet referring to legislative deliberation writ large, not particularly to parliamentary debates.
- 21.
Thus Lücke (2001, p. 26), who defended the position that MPs are subject to a constitutional duty to deliberate. Cf. also Appleby and Olijnk (2017, pp. 980 and 978), arguing that, “as responsible constitutional agents, parliamentarians have an obligation to consider the constitutionality of proposed legislation as part of a holistic deliberation about the legislation”—though such an obligation would be “imperfect in many respects”.
- 22.
Hirst v. UK, ECtHR 6 December 2005, joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens; Judges Tulkens and Zagrebelsky’s concurring opinion was a bit softer: “we note that the discussion about proportionality has led the Court to evaluate (…) the parliamentary debate (…). This is an area in which two sources of legitimacy meet, the Court on the one hand and the national parliament on the other. This is a difficult and slippery terrain for the Court in view of the nature of its role”.
- 23.
In this vein, yet with regard to the review of the congressional record, see e.g. Board of Trustees of the University of Alabama v. Garret 531 U.S. 356 (2001) at 376–377 (Breyer J., dissenting).
- 24.
BVerfG 2 BvE 2/09, Judgment of 10 June 2014, para 100 (Volksversammlung).
- 25.
Wilson v First County Trust [2003] UKHL 40, para 64 (Nicholls).
- 26.
The rejection of debate review is compatible with a range of situations where courts feel legitimized to seek certain reasons in parliamentary speeches. For instance, when the Spanish Constitutional Court (TC) checks whether an urgency law issued by the government (a “decree-law”) actually responds to a pressing need or a social emergency, ministers’ explanations in congress are always a valid piece of evidence, even if only as to the existence of an emergency and the connection of the law with it—a proper control can hardly be said to occur, however; see e.g. the dissenting opinion of Judge Asúa et al. to the Judgment of 24 September 2015 (STC 199/2015).
- 27.
“It is not our place to judge the quality of the care and deliberation that went into this or any other law. A law enacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate. Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility” (King v. Burwell, 14-114 [576 U.S. 2015] at 19, Scalia, J., dissenting).
- 28.
See further Chap. 7 in this volume.
- 29.
Forst (2014, p. 155) defines democracy as “a political practice of argumentation and reason-giving among free and equal citizens, a practice in which individual and collective perspectives and positions are subject to change through deliberation and in which only those norms, rules, or decisions that result from some form of reason-based agreement among the citizens are accepted as legitimate”.
- 30.
See also Devins and Fisher (2015). On the dispute between representative and deliberative accounts of legislatures, see e.g. Gargarella (2014, pp. 42–43): “even assuming a rosy picture of how legislatures work, the representative system remains profoundly unattractive from a democratic perspective; (…) our present legislatures are structurally incapable of representing the multiplicity of views and voices existing in contemporary societies. As a consequence, we—meaning those who are convinced about the merits of having an inclusive, deliberative democracy—have few reasons to celebrate the changes that are seemingly taking place in contemporary constitutionalism. To be more precise: there is nothing particularly exciting in the fact of having contemporary constitutionalism slowly moving away from its traditional picture of pure judicial dominance and towards a different one, where legislatures prevail”.
- 31.
“In a culture of justification (…) authority serves only as a starting point for the constitutional analysis, (…) a necessary but not a sufficient condition for legitimacy and legality. Rather, the crucial component in the legitimacy and legality of governmental action is that it is justified in terms of its ‘cogency’ and its capacity for ‘persuasion’, that is, in terms of its rationality and reasonableness” (Cohen-Eliya and Porat 2011, p. 475).
- 32.
- 33.
- 34.
Cf. Fullilove v. Klutznick, 448 U.S. 448 (1980) at 550–51 (Stevens J., dissenting): “it is true that there was a brief discussion on the floor of the House, as well as in the Senate, (…) but only a handful of legislators spoke, and there was virtually no debate”; this “perfunctory consideration” falls short for “an unprecedented policy decision of profound constitutional importance”; “although it is traditional for judges to accord the same presumption of regularity to the legislative process no matter how obvious it may be that a busy Congress has acted precipitately, I see no reason why the character of their procedures may not be considered relevant” to the judicial decision on the constitutionality of the legislative product”. With regard to the interpretation of laws, cf. e.g. Rosen (2017, p. 138): “our doctrine of statutory interpretation should be informed by what really goes on in legislative assemblies, rather than by abstract idealised accounts of legislation”; “our choice of interpretive approach should not be based on wholesale accounts of the value of legislation, but on an individual evaluation of statutes and the circumstances of their enactment”.
- 35.
“The occasion for deference is the court’s acceptance that its judgement is more likely to be correct if it relies on some other authority’s assessment of some relevant matter. It is about relative institutional competence. In respect of any question, it might seem that the court is competent or not. How could deference be a matter of degree? The answer lies in the confidence the court can place in the competence of the other body. (…) the degree of deference means the extent to which the court will demand that the authority puts procedural resources into answering the relevant questions reliably, and exposes that process to judicial scrutiny. To defer is not simply to accept another person’s assessment, it is to accept that the other person’s assessment is sufficiently reliable” (Rivers 2006, pp. 206–207). Cf. Ross (2014) and King (2008).
- 36.
Challenging juristic commonplaces about the legislative process, Cohen (1956, p. 396) stressed that “all is not force and symbolic sham, and that reason does and can play a significant role” in lawmaking; as long as people “at times respond” to it, rational argument “ought to be employed in the legislative forum if for no other reason than that it is sometimes effective”; moreover, we ideally conceive of a legislative body “as a representative deliberative assembly”, whereby “the fact that in practice the ideal has not been realized is no reason why the deviations from the ideal must be accepted”; a “courtroom lawyer would undoubtedly be shocked at the suggestion that the practice of law ought to be geared to the standard set by the shysters and ambulance-chasers, merely because shysterism and ambulance-chasing persist. There should be no difference with respect to those who view the legislative process in practice in the darkest possible light”. Cf. also Luce (1922, p. 316), arguing that “the common charge that nearly all of debate is a waste of time, useless garrulity, vain mouthing, is based on a complete misconception of both the purpose and the nature of legislative argument.”
- 37.
- 38.
Here I borrow from the German BVerfG, which once controlled a broad decisional leeway granted to the legislature by pushing for evidence that “the parliamentary majority took responsibility” not only for the result enacted but also “for its justification”, with MPs’ contributions on the floor being considered a valid benchmark (BVerfGE 79, 311, 345, Staatsverschuldung).
- 39.
Though Alexy’s theory focuses on constitutional adjudication by courts—and only marginally addresses democratic legislation—, his strategy to legitimize the judicial review of statutes includes the claim that an adequate notion of democracy comprises “not only decision but also argument”, which makes democracy deliberative; “deliberative democracy is an attempt to institutionalize discourse as far as possible as a means of public decision making. For this reason, the connection between the people and the parliament must not only be determined by decisions expressed in elections and votes but also by argument”, i.e. “representation of the people by the parliament is, at the same time, volitional or decisional as well as argumentative or discursive”, which “shows that representation and argumentation are not incompatible (Alexy 2005, p. 579).
- 40.
- 41.
Whether judicial candor is always desirable, or not, is another question: cf. e.g. Idleman (2005).
- 42.
Corte Constitucional de Colombia, Judgments C-872/2002; C-222/1997; C-1147/2003; for an overview of Columbian constitutional case law on the so-called “legislative acts”, see Durango (2012).
- 43.
Lord Browne-Wilkinson, quoted in Joseph (2010, p. 591).
- 44.
As Hooper (2015, p. 371) observes, “perceived attempts by the British courts to evaluate parliamentary proceedings are treated with hostility. However, it is not entirely clear that courts avoid such evaluation of parliamentary activity in the context of human rights adjudication”.
- 45.
Last, but not least, making debate quality a regular review criteria would prevent judges from assessing it only when this reinforces their own ideological positions, as it sometimes happens with process review writ large. For example, when the US Supreme Court struck down the federal marriage law denying equal benefits to same-sex couples, an eminent adversary of the judicial use of legislative history discredited the majority opinion for “concealing from the reader” the reasons put forward by the Act’s defenders during legislative deliberations, and for not even troubling “to paraphrase or describe them” (United States v. Windsor, 12-307 [570 U.S. 2014] at 2707, Scalia, J., dissenting).
- 46.
See for instance Kavanagh (2014, p. 455 ff.), defending parliamentary engagement with human rights as a deference-increasing factor; this would be the “halfway house”—adopted by the UK courts—between evaluating the sufficiency of the reasons advanced during the course of debates, and eschewing all reference to debates and simply presuming that legislation is the product of detailed deliberation without inquiring whether such deliberation has taken place as a matter of fact. Cf. below Sect. 9.5.
- 47.
As for national courts, this is only natural, for in most jurisdictions such assessments are rare—as noted in Sect. 9.1 it is in the ECtHR’s case law where we find most instances of the argument from debate quality.
- 48.
See particularly Gerards (2017).
- 49.
- 50.
- 51.
According to Sathanapally (2017, p. 55), debate quality is not a reason for “restraint in itself, but within judicial restraint on institutional grounds”, leading “to amplify (or, alternatively, mute) the respect” that courts give to legislatures.
- 52.
Cf. e.g. Chung (2016) or Masterman (2017, p. 265). However, procedural review is sometimes used as a substitute for material analysis, in which case parliamentary deliberation becomes a “decisive factor to conclude that a fair balance has been struck” (Popelier and van de Heyning 2017, p. 19, referring to Animal Defenders and Shindler). Also in this vein, see Saul (2016), referring to Parrillo v. Italy as “an example in which reference to parliamentary process appears to consume the rest of the substantive analysis”. Only in exceptional scenarios the review of the process of legislative justification replaces that of the legislative outcome. The autonomy of process review is of no concern now; cf. e.g. Arnardóttir (2017, pp. 10–11), Popelier and van de Heyning (2017), or Gerards (2017).
- 53.
Thus, debate review renders a “compensatory” function that is typical for process-oriented judicial doctrines. In general, procedural review may compensate for the impossibility to review the end contents of a law, i.e. the outcomes or results of the lawmaking process, or for the low intensity of review that courts, in the absence of further yardsticks, apply to these results. Furthermore, when courts perform a proportionality analysis, a procedural scrutiny provides a counterweight to their limited capacity or readiness to assess the content of legislative premises (e.g. diagnoses and prognoses) in very complex regulatory scenarios (Oliver-Lalana 2016, pp. 277–278).
- 54.
See right below the model by Lazarus and Simonsen (2015, p. 389 n. 25 and 396 ff.), which draws on the notion of “meaningful engagement” developed by the South African Constitutional Court.
- 55.
For instance, Brems (2017, p. 38) defends that “both the democratic concern with proper deliberation and the procedural fairness focus on accuracy can be integrated into the expectation of substantive debate”. In the US context, Tushnet (2009) suggests another evaluative option as regards parliamentary construction of constitutional norms: “congressional performance is adequate, and congressional capacity to engage in good constitutional analysis is demonstrated” when lawmakers referring to constitutional questions speak “in constitutionalist terms”, i.e. “connect their constitutional concerns and analyses to some broader ideas about constitutionalism, the separation of powers, and the rule of law, make reference to relevant constitutional provisions, and the like. The criterion, that is, is whether those participants who deal with constitutional questions appear to be thinking about those questions in the right way, with the Constitution and constitutionalism in mind”; cf. also Tushnet (2001), as well as Evans and Evans (2006). Further criteria can be found which lean e.g. on evidentiary law (Chung 2016), or on doctrines about the judicial review of administrative lawmaking (Reicherzer 2006). Cross-party or qualifiedly majoritarian support in parliament (cf. Borowski 2013; and above note 12), or whether bills have been importantly modified as a consequence of debates (BVerfGE 50, 292—Mitbestimmung) could also be added to the list. Sharp-eyed readers will surely miss criteria pertaining to the dialectical quality of deliberation: on this, see Atienza’s piece in this volume (Chap. 8) as well as Oliver-Lalana (2018, p. 56 ff. and 60 ff.).
- 56.
Popelier and van de Heyning (2017, pp. 17–18 and 12–13) reproach the ECtHR for being “ambiguous as to the relationship of procedural rationality review with the margin of appreciation. In Sukhovetskyy [see above note 12] the Court stated that, ‘the extent of the State’s margin of appreciation depends on the quality of the decision-making process’. If procedural rationality review is part of the proportionality test, however, it should work the other way around: the Court first determines that the margin of appreciation is broad (…) and then turns to procedural rationality review. In this way, the Court introduces procedural rationality review as a tool for scrutiny, securing respect for fundamental rights when wide deference is granted to the national authorities. However, in Animal Defenders (…), the margin of appreciation was narrow and still the Court turned to procedural rationality review”.
- 57.
Animal Defenders International v. UK, ECtHR [GC] 22 April 2013, joint dissenting opinion of Ziemele, Sajo, Kalaydjiyeva, Vučininć and de Gaetano. On the strategic use of process-oriented arguments in judicial review see e.g. Ross (2014, p. 2028 ff.), and above note 45.
- 58.
Also in this critical line, Popelier and van de Heyning (2013, p. 243) challenge the ECtHR’s thesis that “the extent of the State’s margin of appreciation depends on the quality of the decision-making process”, and plead for using this criterion “not determine the margin of appreciation” but “as a tool for scrutiny in case of a broad margin of appreciation” (cf. also note 56). For Gerards (2017, p. 159), the ECtHR should apply process review “more consistently” and draw “clearer consequences from procedural findings”.
- 59.
The same applies to the judicial use of legislative materials: “What further complicates this enquiry – and perhaps even compels it – is the fact that the engagement with parliamentary materials by courts does not follow any form of pattern, whether real or imagined. In fact, this unsystematic treatment is the core of potential problems. (…) there has been no attempt by any court or by parliamentarians to reach a constitutional settlement about the proper scope of this practice” (Hooper 2015, p. 364).
- 60.
“A ‘bric-a-brac’ approach is typical for the Court’s argumentative style and (…) it is hardly to be expected that the Court would suddenly start relying on a highly structured and dogmatic argumentative approach that would clearly stipulate in which types of cases it will rely on procedural arguments and which value it will attach to such arguments” (Gerards 2017, p. 159). To be sure, the ECtHR cannot be fully equated with national constitutional or supreme courts (think e.g. of the importance of the principle of subsidiarity or of the variety of legal traditions under this jurisdiction); yet, divergences between the ECtHR and national courts do not imply very different ways of dealing with proportionality (see Popelier and van de Heyning 2013).
- 61.
The only way out of the activation problem would probably be to review the legislative method including deliberation by default, using process and debate quality as a baseline standard.
- 62.
That statutes can be passed without any proper deliberation by MPs also raises doubts of method in our context, such as whether a complete absence of debate should count against lawmakers; whether a good pre-parliamentary process might “heal” this deficit; whether courts should assess eventual justifications for it (e.g. on grounds of urgency or efficiency), etc. But for present purposes I confine myself to scenarios where the extent or “corpus” of deliberations is rich enough for a qualitative inspection by judges—as is likely to happen with socially salient pieces of legislation restricting fundamental rights.
- 63.
For the ECtHR’s case law, see Saul (2016, pp. 745–746), stressing the need to overcome “holistic accounts” (that put parliamentary, judicial, and administrative processes on a level) and to study instead “how the Court engages with the particularities of each type of domestic authority”.
- 64.
- 65.
This might be a reply to Popelier and van de Heyning’s (2017, p. 21) doubt as to whether the ECtHR does wrong in “prioritizing parliamentary debate over evidence-seeking”. Consider further that, as long as the role of debate review is limited—as a modulator of due deference or of the intensity of scrutiny of specific legislative premises—, the risk of under protecting rights diminishes.
- 66.
As regards an international human rights judiciary, subsidiarity would be the third main reason for deference. Of course, the democratic value of laws (as regards transparency, authenticity, inclusiveness or pluralism) may also be inferred from legislative works and documents.
- 67.
The same goes for process review writ large: while it focuses on the “how” of justification, i.e. on the justification as a process (how were reasons produced?), not as a product (what reasons were adduced?), I think that a clear-cut contradistinction is hard to sustain in practice (Oliver-Lalana 2016, 2017). By this I do not mean that process review is normally “mixed”, “substance-flavoured” (Brems 2017, p. 35), “semi-substantive” (Coenen 2009), or “semi-procedural” (Bar-Siman-Tov (2012), but that the very “procedural” side of the review has substantive implications. Moreover, as noted earlier, it is somehow counterintuitive that courts inspecting legislative debates can totally refrain from even contemplating the cogency of arguments.
- 68.
Contrast e.g. Sathanapally (2017), Lazarus and Simonsen (2015) or Fredman (2015) with Kavanagh (2014). The quality criteria identified in Sect. 9.4 mostly focus on procedural aspects, but include hybrid yardsticks such as the “thoroughness” of the consideration given by MPs to human rights issues (Saul 2016).
- 69.
Commenting on different variants of institutionalism in judicial review, King (2008, p. 435) observes: “perhaps the greatest need in this field is for the refinement of the principles and factors of restraint that have so far been proposed. It is necessary that we unpack such ideas if they are to serve as guiding standards. If they remain so vague, it is not clear that we have in fact lessened the problem of excessive judicial discretion. The more concrete they are, the better we can structure judicial discretion and direct argument to the crucial issues”. See further Afonso da Silva (2012, p. 250 ff.) or Araiza (2013, p. 878 ff.).
- 70.
Rivers (2006, 2008), Arnardóttir (2017), Sathanapally (2017), Kavanagh (2014), Chung (2016). As Saul (2016) notes, reference to elements of parliamentary process as a source of information can occur at all four steps: while it is typically with balancing proper that judges have “the greatest room to determine what is relevant and it is here that a parliamentary process (or elements therein) can most readily and clearly be valued in its own right”, judicial “reference to elements of parliamentary process” may serve in other ways too, e.g. to help courts “understand the pressing social need” for an interference.
- 71.
“The basic principle for inclusion of a consideration [of parliamentary engagement with the issue at hand] in the [judicial] evaluation appears to be something like the following: the consideration should have the potential to support or detract from the strength of the state’s reasons that its limitation has achieved a fair balance (…). Within this context of fleshing out the balancing exercise for a particular case, assessment of the quality of parliamentary process could feature. The rationale could be that there are steps that can be taken within a parliamentary process that can add to or detract from the strength of the reasons provided by the state. Following this logic, the sort of activities within a process that could be relevant should flow from the types of reasons that are given for the limitation” (Saul 2016, p. 1091).
- 72.
See for example Araiza (2013), claiming that the more legal the issue, the less deference is due. Cf. also Rivers (2008, pp. 186–187; cf. 2006 and 2014), King (2008), Roach (2015, p. 410), Klatt (2016), Bickenbach (2014); or Chan (2013). I wonder whether the formal principle of democracy, conveniently strengthened by intensive and inclusive parliamentary deliberations, might even substantiate some sort of legislative prerogative as to the construction of fundamental rights, so that courts must defer more to the lawmakers’ assignment of weights to competing constitutional arguments or goods.
- 73.
See above Sect. 9.1, and also Saul (2016). Actually, one of the reasons why legislative deliberation is usually regarded as an unfeasible object of review is that ascertaining “in terms of constitutional law whether the parliamentary debate has been intensive and open enough” would provoke “permanent controversy” Meßerschmidt (2000, p. 850).
- 74.
A remarkable exception is Sathanapally (2017, p. 74), who stresses that “it is not a straightforward task to systematically assess multi-participant deliberation on even the most basic deliberative criteria”, and also considers empirical research on the quality of parliamentary deliberation.
- 75.
Cf. e.g. Masterman (2017, p. 269), holding that “a court’s assessment of the quality of the legislative process will necessarily remain impressionistic, rather than forensic”.
- 76.
Elsewhere (Oliver-Lalana 2018) I have sketched a sort of model for the evaluation of debates which comprises four qualitative layers: argumentation extent; argumentation structure (“internal” legislative justification); dialectical correctness; and plausibility (which may in turn be assessed both procedurally and substantively). On whether legislators should follow the same patterns of justification as courts (as Marcilla suggests in Chap. 8 in relation to proportionality), or should draw, rather, on legislation-specific models, cf. e.g. Evans and Evans (2006) and Appleby and Webster (2013).
- 77.
It is somehow striking that the topic of legislative deliberation in parliament remains largely unnoticed in legisprudential literature. If the current theory of legislation really wants to give the study of lawmaking its rightful place in legal studies, then it should not dispense with elected legislators’ contribution to the justification of laws. Philosophical, Waldronian-like attempts to restore the dignity of legislation, as well as conceptions of the legislature as a reasoning body capable of deliberate action (cf. Ekins 2018) should be accompanied by an empirically informed research on the actual practices of legislative argumentation. Otherwise legisprudence will end up falling into the same trap of abstractness as mainstream legal scholarship and contribute to maintaining a commonplace prejudice against flesh-and-blood legislators—which would be odd enough for legisprudence.
- 78.
As some experts have pointed out—with an eye on process review at large—, due legislative deliberation is crucial for anyone trying to evaluate the actual performance of lawmakers, so even though it “is not fully recognized” as yet, it will “certainly gather further momentum” (Meßerschmidt 2016, p. 377). In this regard, some scholars even make recommendations to state actors and lawyers involved in constitutional litigation as to how to demonstrate deliberation quality before “skeptical courts” or to defeat “unsubstantiated judicial presumptions” about the credibility of the legislative record (Ross 2014, p. 2036, 2105).
References
Afonso da Silva V (2012) Teoría de los principios, competencias para la ponderación y separación de poderes. In: Sieckmann J (ed) La teoría principialista de los derechos fundamentales. Marcial Pons, Madrid, pp 243–259
Alexy R (2005) Balancing, constitutional review, and representation. Int J Const Law 3(5):572–581
Alexy R (2007) Teoría de los derechos fundamentales. CEPC, Madrid
Alexy R (2012) Comments and responses. In: Klatt M (ed) Institutionalized reason. The jurisprudence of Robert Alexy. Oxford University Press, New York, pp 319–356
Alexy R (2014) Formal principles: some replies to critics. Int J Const Law 12(3):511–524
Appleby G, Olijnik A (2017) Parliamentary deliberation on constitutional limits. UNSW Law J 40(3):976–1007
Appleby G, Webster A (2013) Parliament’s role in constitutional interpretation. Melb Univ Law Rev 37:255–296
Araiza W (2013) Deference to congressional factfinding in rights-enforcing and rights-limiting legislation. N Y Univ Law Rev 88:878–957
Arnardóttir OM (2017) The ‘procedural turn’ under the European Convention on Human Rights and presumptions of convention compliance. Int J Const Law 15(1):9–35
Atienza M (2006) El derecho como argumentación. Ariel, Barcelona
Bar-Siman-Tov I (2012) Semiprocedural judicial review. Legisprudence 6(3):271–300
Bar-Siman-Tov I (2015) The role of courts in improving the legislative process. Theory Pract Legis 3(3):295–313
Berger E (2013) Deference determinations and stealth constitutional decision making. Iowa Law Rev 98:465–533
Bickenbach C (2014) Die Einschätzungsprärogative des Gesetzgebers. Mohr Siebeck, Tübingen
Borowski M (2013) Formelle Prinzipien und Gewichtsformel. In: Klatt M (ed) Prinzipientheorie und Theorie der Abwägung. Mohr Siebeck, Tübingen, pp 151–199
Brems E (2017) The ‘logics’ of procedural-type review by the European Court of Human Rights. In: Gerards J, Brems E (eds) Procedural review in European fundamental rights cases. Cambridge University Press, Cambridge, pp 17–39
Bryant S (2011) Dialogue, diplomacy and defiance: prisoners’ voting rights at home and in Strasbourg. Eur Hum Rights Law Rev 3:243–252
Bryde B-O (1982) Verfassungsentwicklung. Nomos, Baden-Baden
Çali B (2018) Coping with crisis: towards a variable geometry in the jurisprudence the European Court of Human Rights? Wis J Int Law 35(2):237–276
Chan C (2013) Proportionality and invariable baseline intensity of review. Leg Stud 33(1):1–21
Chung FH-C (2016) Defending due deference: probing procedural propriety in proportionality. Statute Law Rev 37(3):244–264
Coenen DT (2009) The pros and cons of politically reversible ‘semisubstantive’ constitutional rules. Fordham Law Rev 77:2835–2891
Cohen J (1956) Good man and the role of reason in legislative law. Cornell Law Rev 41(3):386–398
Cohen-Eliya M, Porat I (2011) Proportionality and the culture of justification. Am J Comp Law 59:463–490
Devins NE, Fisher L (2015) The democratic constitution, 2nd edn. Oxford University Press, New York
Durango GA (2012) Debate y producción de leyes en el congreso colombiano. Forum (Revista del Departamento de Ciencia Política de la Universidad Nacional de Colombia) 3:53–83
Dyzenhaus D (1998) Law as justification: Etienne Mureinik’s conception of legal culture. S Afr J Hum Rights 14(1):11–37
Dyzenhaus D (2015) What is ‘a democratic culture of justification’? In: Hunt M, Hooper HJ, Yowell P (eds) Parliaments and human rights. Hart, Oxford, pp 425–445
Ekins R (2018) Legislation as reasoned action. In: Webber G et al (eds) Legislated rights – securing human rights through legislation. Cambridge University Press, Cambridge, pp 86–115
Evans S, Evans C (2006) Evaluating the human rights performance of legislatures. Hum Rights Law Rev 6(3):545–569
Forst R (2014) The right to justification: elements of a constructivist theory of justice. Columbia University Press, New York
Fredman S (2015) From dialogue to deliberation: human rights adjudication and prisoners’ rights to vote. In: Hunt M, Hooper HJ, Yowell P (eds) Parliaments and human rights. Hart, Oxford, pp 447–468
Frieling T (2017) Gesetzesmaterialien und Wille des Gesetzgebers. Mohr Siebeck, Tübingen
Gargarella R (2014) ‘We the people’ outside of the constitution. Curr Leg Probl 67:1–47
Gerards J (2017) Prodedural review by the ECtHR: a typology. In: Gerards J, Brems E (eds) Procedural review in European fundamental rights cases. Cambridge University Press, Cambridge, pp 127–160
Goldfeld V (2004) Legislative due process and simple interest group politics. N Y Univ Law Rev 79:367–420
Gutmann A, Thomson D (2004) Why deliberative democracy? Princeton University Press, Princeton
Hooper HJ (2015) The use of parliamentary materials by courts in proportionality judgments. In: Hunt M, Hooper HJ, Yowell P (eds) Parliaments and human rights. Hart, Oxford, pp 363–384
Idleman SC (2005) A prudential theory of judicial candor. Tex Law Rev 73:1307–1417
Jackson V (2016) Pro-constitutional representation. William Mary Law Rev 57:1717–1788
Joseph PA (2010) Parliament’s attenuated privilege of freedom of speech. Law Q Rev 126:568–592
Kavanagh A (2014) Proportionality and parliamentary debates: exploring some forbidden territory. Oxf J Leg Stud 34(3):443–479
King JA (2008) Institutional approaches to judicial restraint. Oxf J Leg Stud 28(3):409–441
Klatt M (2016) Ponderando competencias. In Portocarrero J (ed) Ponderación y discrecionalidad. Universidad Externado, Bogotá, pp 159–219
Lazarus L, Simonsen N (2015) Judicial review and parliamentary debate. Enriching the doctrine of due deference. In: Hunt M, Hooper HJ, Yowell P (eds) Parliaments and human rights. Hart, Oxford, pp 385–403
Lenaerts K (2012) The ECJ and process-oriented review. Yearb Eur Law 31(1):3–16
Luce R (1922) The science of legislation I – Legislative procedure. Houghton Mifflin Company, Boston
Lücke J (2001) Die allgemeine Gesetzgebungsordnung. Zeitschrift für Gesetzgebung 16:1–49
Mansbridge J et al (2010) The place of self-interest and the role of power in deliberative democracy. J Polit Philos 18(1):64–100
Masterman R (2017) Process and substance in the United Kingdom and at Strasbourg: proportionality, subsidiarity, complementarity? In: Brems E, Gerards J (eds) Procedural review in European fundamental rights cases. Cambridge University Press, Cambridge, pp 242–271
Mead D (2012) Outcomes aren’t all: defending process-based review of public authority decisions under the Human Rights Act. Public Law 2012(1):63–87
Meßerschmidt K (2000) Gesetzgebungsermessen. Berlin Verlag and Nomos, Berlin
Meßerschmidt K (2016) The procedural review of legislation and the substantive review of legislation: opponents or allies? In: Meßerschmidt K, Oliver-Lalana AD (eds) Rational lawmaking under review. Springer, Cham (Switzerland), pp 373–403
Mengel H-J (1997) Gesetzgebung und Verfahren. Duncker & Humblot, Berlin
Mureinik E (1993) Reconsidering review. In: Corder H, Bennet TW (eds) Administrative law reform. Juta, Cape Town, pp 35–46
Mureinik E (1994) A bridge to where? Introducing the Interim Bill of Rights. S Afr J Hum Rights 10(1):31–48
Nourse V (2016) Misreading law, misreading democracy. Harvard University Press, Cambridge (MA)
Nussberger A (2017) Procedural review by the ECtHR: view from the court. In: Gerards J, Brems E (eds) Procedural review in European fundamental rights cases. Cambridge University Press, Cambridge, pp 161–176
Oliver-Lalana AD (2005) Über die Begründungsfähigkeit der legislativen Argumentation. In: Sieckmann J-R (ed) Verfassung und Argumentation. Nomos, Baden-Baden, pp 69–82
Oliver-Lalana AD (2013) Rational lawmaking and legislative leasoning in parliamentary debates. In: Wintgens LJ, Oliver-Lalana AD (eds) The rationality and justification of legislation. Springer, Cham, pp 135–184
Oliver-Lalana AD (2014) Normas y razones. Un estudio sobre argumentación legislativa. In: Grández P, Morales F (eds) La argumentación jurídica en el Estado constitucional. Palestra, Lima, pp 491–528
Oliver-Lalana AD (2016) On the (judicial) method to review the (legislative) method. Theory Pract Legis 4(2):135–153
Oliver-Lalana AD (2017) Zur gerichtlichen Prüfung des Verfahrens legislativer Begründung. In: Borowski M, Paulson S, Sieckmann J-R (eds) Rechtsphilosophie und Grundrechtstheorie. Robert Alexys System. Mohr Siebeck, Tübingen, pp 719–748
Oliver-Lalana AD (2018) Megliori e peggiori argomentazioni legislative: come valutare la giustificazione parlamentare delle leggi. In: Ferraro F, Zorzetto S (eds) La motivazione delle leggi. Giapichelli, Torino, pp 49–107
Oliver-Lalana AD, Meßerschmidt K (2016) On the ‘legisprudential turn’ in constitutional review: an introduction. In: Meßerschmidt K, Oliver-Lalana AD (eds) Rational lawmaking under review. Springer, Cham (Switzerland), pp 1–16
Popelier P, van de Heyning C (2013) Procedural rationality: giving teeth to the proportionality analysis. Eur Const Law Rev 9:230–262
Popelier P, van de Heyning C (2017) Subsidiarity post-Brighton: procedural rationality as answer? Leiden J Int Law 30:5–23
Raabe M (1998) Grundrechte und Erkenntnis. Nomos, Baden-Baden
Reicherzer M (2006) Authentische Gesetzgebung. Duncker & Humblot, Berlin
Rivers J (2006) Proportionality and variable intensity of review. Camb Law J 65(1):174–207
Rivers J (2008) Proportionality, discretion, and the second law of balancing. In: Pavlakos G (ed) Law, rights, and discourse. Hart, Oxford, pp 167–188
Rivers J (2014) The presumption of proportionality. Mod Law Rev 77(3):409–433
Roach K (2015) The varied roles of courts and legislatures in rights protection. In: Hunt M, Hooper HJ, Yowell P (eds) Parliaments and human rights. Hart, Oxford, pp 405–421
Rosen A (2017) Statutory interpretation and the many virtues of legislation. Oxf J Leg Stud 37(1):134–162
Ross BL (2014) The state as witness: Windsor, Shelby County, and judicial distrust of the legislative record. N Y Univ Law Rev 89:2027–2105
Sandalow T (1977) Judicial protection of minorities. Mich Law Rev 75:1162–1195
Sathanapally A (2014) Beyond disagreement. Oxford University Press, Oxford
Sathanapally A (2017) The modest promise of ‘procedural review’ in fundamental rights cases. In: Gerards J, Brems E (eds) Procedural review in European fundamental rights cases. Cambridge University Press, Cambridge, pp 40–76
Saul M (2015) The European Court of Human Rights’ margin of appreciation and the processes of national parliaments. Hum Rights Law Rev 15:745–774
Saul M (2016) Structuring evaluations of parliamentary processes by the European Court of Human Rights. Int J Hum Rights 20:1077–1096
Scalia A, Manning JF (2012) A dialogue on statutory and constitutional interpretation. George Wash Law Rev 80:1610–1619
Sieckmann J-R (2016) Principios formales. In: Portocarrero J (ed) Ponderación y discrecionalidad. Universidad Externado, Bogotá, pp 261–309
Spano R (2014) Universality or diversity of human rights? Strasbourg in the age of subsidiarity. Hum Rights Law Rev 14:487–502
Steele G (2017) Who speaks for parliament? Hansard, the courts, and legislative intent. Can Parliam Rev 2017(Spring):6–10
Tushnet M (2001) Evaluating congressional constitutional interpretation. Some criteria and two informal case studies. Duke Law J 50:1395–1425
Tushnet M (2009) Is Congress capable of conscientious, responsible constitutional interpretation? Boston Univ Law Rev 89:499–509
Webber G et al (2018) Legislated rights – securing human rights through legislation. Cambridge University Press, Cambridge
Young AL (2010) Deference, dialogue and the search for legitimacy. Oxf J Leg Stud 30(4):815–831
Young AL (2014) Will you, won’t you, will you join the deference dance? Oxf J Leg Stud 34(2):375–394
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2019 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Oliver-Lalana, A.D. (2019). Legislative Deliberation and Judicial Review: Between Respect and Disrespect for Elected Lawmakers. In: Oliver-Lalana, A. (eds) Conceptions and Misconceptions of Legislation. Legisprudence Library, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-030-12068-9_9
Download citation
DOI: https://doi.org/10.1007/978-3-030-12068-9_9
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-12067-2
Online ISBN: 978-3-030-12068-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)