Three Grounds for Tests of the Justifiability of Legislative Action: Freedom, Representative Democracy, and Rule of Law

Abstract

According to the trade-off model of the social contract, every legal rule calls for its ongoing justification. The justifiability of a legislative action or an omission to reform existing rules depends on how the legislative choice in question momentarily satisfies four principles of legisprudence. Those principles find their normative drive in individual freedom. The trade-off reinterpretation of the social contract thus provides one with the basis for a rational justification of the legislative content. After analyzing the seven conditions of justifiability put forward in this model, the author explores further two other grounds for developing a test of justifiability for legislative actions. First, he shows that even on the alternative (i.e. the proxy) model of the social contract, legislators ought to motivate their choices—when this model takes the form of representative democracy. Indeed, the standard of required justification, which this model imposes on the legislator, is set even higher than the standard usually imposed on judicial motivations. The author finally presents one of the normativist theories of the Rule of Law and demonstrates how the legislator’s duty to motivate its choices is inherent to this very requirement of a contemporary constitutional state. We thus obtain three different grounds for developing a balanced test of the justifiability of legislative choices.