Abstract
This paper explores the hypothesis of judicial passivity as a virtue of courts charged with the task of judicial review of legislation, an hypothesis increasingly relevant given the spread of a legislative model of dealing with emergencies. The definitional structure of the constitutional state is the framework within which that hypothesis is tested. If that structure is understood in Kelsenian terms, judicial passivity will be a breaching element of the same. Inversely, if it is understood in Madisonian terms it will be a coherent element, revealing the inherently paradoxical nature of the constitutional state. Either way, the endorsement of judicial passivity by reviewers of legislation necessarily involves their appeal to the method of political right.
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Notes
- 1.
On the exclusion of passivity, see the contribution by Massimo La Torre in this volume.
- 2.
- 3.
On the contemporary tendency to adopt a “legislative model” to handle emergencies, see Ferejohn and Pasquino (2004: 215).
- 4.
In the words of Martin Kriele (1994: 122–123), “the existence of a sovereign in [the Hobbesian] sense, on the one side, and of the constitutional state, on the other, are opposed and mutually excluding situations”.
- 5.
In the definition of Martin Loughlin (2003: 69), political right is that “set of [prudential] precepts and maxims enabling the state to maintain itself and flourish”, centered around a concept of sovereignty “as much concerned with capacity as with competence, with power not just authority”.
- 6.
See below, Sect. 9.3.
- 7.
See Dyzenhaus (1997: 179).
- 8.
Even if that may have involved something Kelsen himself would never consider admissible: a wide delegation of discretion in constitutional courts. On this latter aspect, see the contribution of Nogueira de Brito in this volume.
- 9.
I distinguish a “first” and “second Schmitt”, taking into account the presuppositions of the concept of state. For the first Carl Schmitt, the presupposition of the concept of state is the concept of law (the concept of the state is conceived by presupposing a principle of validity corresponding to law, being the purpose of the state the worldly realization of law: it is the very realization of law in the phenomenal world that demands an entity, the state, that is not reducible to normativity, confronting itself with law in order to realize it). Inversely, in the “second Schmitt”—the Schmitt of Der Begriff des Politischen—, the concept of the state finds its presupposition in a concept of the political centered on a friend-enemy distinction. For further developments, see Coutinho (2013).
- 10.
See Schmitt (1985: 5) [I use the George Schwab translation of Politische Theologie, as identified in the references].
- 11.
See Schmitt (1985: 13).
- 12.
See Schmitt (1985: 21).
- 13.
See Gross (2003: 1043).
- 14.
See Ferejohn and Pasquino (2004: 220).
- 15.
The “political question doctrine” has a “functional” and a “prudential” variant. The first can be understood within separation of powers even in times of normalcy. It is the second , which eventually allows the Supreme Court to hold back the application of principles in difficult political circumstances, that concerns us in this paper. On the distinction between a “prudential” and a “functional” approach to the political question doctrine, see Tribe (2000: 366 ff.).
- 16.
See Bickel (1986: 69).
- 17.
See footnote 16.
- 18.
See Bickel (1986: 112). Bickel resorts to the words originally used by judge Brandeis, for whom «the mediating techniques of “not doing” were “the most important thing we [judges] do”».
- 19.
Bickel uses this description when addressing an “absolutist position” that found its utmost representative in judge Black, who never refrained from “propagating his absolutes”, raising “a grave question of process—a question, some might say, of candor”. According to Bickel, “there would be fewer occasions for differences in result if cases coming before the Court were viewed more closely, more narrowly, in a less apocalyptic frame of mind. On the immediate merits of many cases, more discord strikes the ear than is necessarily involved. The Court has been entering upon more argument than it needs to resolve”.
- 20.
In Bickel’s words, the “Court’s sense of lack of capacity is “compounded in unequal parts of (a) the strangeness of the issue and its intractability to principled resolution; (b) the sheer momentousness of it, which tends to unbalance judicial judgment; (c) the anxiety, not so much that the judicial judgment will be ignored, as that perhaps it should but will not be; (d) finally (‘in a mature democracy’), the inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from”, see Bickel (1986: 184).
- 21.
See Bickel (1986: 1).
- 22.
See Loughlin (2003: 113).
- 23.
See Madison (1999: 295).
- 24.
See Loughlin (2010: 297).
- 25.
Lincoln’s words before the American Congress in July 1861, quoted in Kelly, Harbison and Belz (1991: 293).
- 26.
See Loughlin (2003: 113).
- 27.
The expression “rule of law project” is taken from Dyzenhaus (2006: 3) who, when reflecting on legality in a time of emergency, seeks “to find a way of coordinating the roles of the judiciary and the other branches of government, when the latter are productively engaged in the rule-of-law project”. Apparently there is nothing arguable in those words. However, the difficulty with Dyzenhaus’s thesis concerns his endorsement of Kelsen’s “identity thesis”, i.e., the identification of the state with law (with a substantive concept of law in Dyzenhaus’s case, see p. 199). Within that thesis the “rule of law project” is abstracted from its political condition, which is the state, taken in itself as the guarantee of that project. Dyzenhaus doesn’t seem to accept then that an element of confrontation with law may be in extreme circumstances inherent to the realization of law in the phenomenal world. I don’t know whether one can be so assertive.
Surprisingly though, Dyzenhaus states that it does not follow from his thesis “that all possible acts by public officials should be subject to the rule of law” and seems to endorse the Israeli Supreme Court position on ticking bomb situations. So it seems that, even for him, there are situations in which public officials may act extra-legally, but only as long as they “expect to be criminally charged (…); at trial they may try a defence of necessity”. So for Dyzenhaus, there can be after all an element of confrontation with law inherent to the realization of law, that element not concerning the state itself but its officials…
- 28.
See the contributions of La Torre, Alexander and Ribeiro in this volume.
- 29.
See Dyzenhaus (2006: 39).
- 30.
See Agamben (2003: 41–42).
- 31.
On the high risks of overreaction in times of emergency, see Gross (2003: 1038).
- 32.
See Ferejohn and Pasquino (2004: 217).
- 33.
As Nogueira de Brito explores in this volume, Schmitt’s aversion to any sort of political element in judicial decisions led him to dismiss the possibility of a constitutional court as a guardian of the constitution and the same logic would surely lead him to dismiss the possibility of a constitutional court as a guardian of state sovereignty.
- 34.
As David Dyzenhaus (2006: 35 ff.) thoroughly reports, when faced with exceptions, judges in fact have the tendency to “defer” to other branches of government while paying the said “lip service” to the rule of law.
- 35.
See references on note 2.
- 36.
See Dyzenhaus (2006: 27).
- 37.
See Gross (2003: 1046). That point is made by Gross even if the Author ultimately rejects a “normalcy-emergency” dichotomy (p. 1089).
- 38.
See Gross (2003).
- 39.
In the twentieth century, the pertinence of such methodological approach was notably defended, not only by Carl Schmitt, but by Charles Eisenmann—who referred to sovereignty as a “concept issued by doctrine” in opposition to “concepts issued by positive law”—or more recently by Olivier Beaud (1994: 12). See also Loughlin (2003).
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Coutinho, L.P. (2015). The Passive Sovereignty of the Constitutional Judge a State Theory Approach. In: Coutinho, L., La Torre, M., Smith, S. (eds) Judicial Activism. Ius Gentium: Comparative Perspectives on Law and Justice, vol 44. Springer, Cham. https://doi.org/10.1007/978-3-319-18549-1_9
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