Abstract
A theory of authority has important implications for justifying the institutions of judicial review. In this paper, I attempt to take part in the current debates about the authority of constitutional courts, with a view to showing some of the difficulties of systems of strong judicial review in constitutional democracies. On the one hand, I discuss two theses put forward by Joseph Raz, the Pre-Emptive Thesis and the Normal Justification Thesis. On the other hand, I try to explain how the authority of a constitutional court’s decision looks like in the contexts provided by Raz’s two theses, as well as how a theoretical account of legal authority might provide the basis for a normative critique of the systems of strong judicial review. In short, I hold that the Pre-Emptive Thesis does not offer a clear picture of the authority of law in general, since it does not provide a complete explanation of the argumentative character of law and the interpretive dimension of legal reasoning. Nonetheless, I think that it is able to explain the authority of constitutional courts in systems of strong judicial review, since at least some of their decisions cut off further deliberation about the validity of certain statutes and have the pre-emptive status that Raz assigns to the law in general. This is not the case, as I intend to show, in systems of weak judicial review, where the decisions of the court lack pre-emptive force and the legal issues are open to further interpretive activity by citizens and institutions. This distinction has a practical import, since even if the instrumental justification for legal authority provided by Raz’s ‘Normal Justification Thesis’ is too weak to justify the pre-emptive authority of strong judicial review, it might turn out to be enough to provide a moral justification for a system of weak judicial review.
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Notes
- 1.
The main argument from these authors, with regard to the law’s coordination function, is borrowed from Gerald Postema , who believes that ‘it is a defining feature of the law that it channels social behavior not by altering the social or natural environment of action or by manipulating the (nonrational) psychological determinants of action; rather, it relies on rules which guide actions and structure social interaction, thereby providing rational agents with reasons by which they can direct their own behavior’ (Postema 1982, 187).
- 2.
I will leave open for the moment whether this point can be extended beyond common law reasoning, as MacCormick purports to do when he ascribes an arguable character to the law and sustains that the political ideal of the Rule of Law implies, contrary to the idea of authoritative settlement, that the legal domain is the ‘locus of argumentation ’. See MacCormick (2005).
- 3.
By accepting the Pre-Emptive Thesis , one has to accept that the law is ‘settled’ only when legal authorities provide its solution. In such cases, for Raz, ‘judges are typically said to apply the law, and since it is source-based, its application involves technical, legal skills in reasoning from the sources and do not call for moral acumen ’ (Raz 2009b, 49–50). But if a legal question, on the other hand, is ‘not answered by standards deriving from legal sources’, then it ‘lacks a legal answer’ and the judge’s decision ‘rely at least partly on moral and other extra-legal considerations’ (Raz 2009b, 50).
- 4.
For a real case, see Sindell v. Abott Labs., 607 p. 2d 924, 935–38 (1980).
- 5.
Dworkin continues: ‘They might find, as the drug companies insisted, that the principle that no one is liable for harm that neither he nor anyone for whom he is responsible can be shown to have caused is so firmly embedded in precedent that (the Plaintiff) must therefore be turned away with no remedy. Or they might find, on the contrary, considerable support for a rival principle – that those who have profited from some enterprise must bear the costs of that enterprise as well, for example – that would justify the novel market-share remedy. (…) Everything depends on the best answer to the difficult question of which set or principles provides the best justification for the law in this area as a whole’ (Dworkin 2006, 144).
- 6.
The general picture of Raz’s views on interpretation can be explained thus: ‘An interpretation is an explanation of the work interpreted which highlights some of its elements and points to connections and inter-relations among its parts, and between them and other aspects of the world, so that (1) it covers adequately the significant aspects of the work interpreted, … and is not inconsistent with any aspect of the work; (2) it explains the aspects of the work it focuses on; and (3) in doing the above it elucidates what is important in the work, and accounts – to the extent that it is possible – for whatever reasons there are for paying attention to the work as a work of art of its kind. The more successful it is in meeting these criteria, and the more important the meaning it justifiably attributes to the work, the better the interpretation ’ (Raz 1995, 171).
- 7.
At this point, Greenberg stresses that on Dworkin’s account ‘there is necessarily some vagueness in the initial specification of the legal practices because which practices are relevant one is ultimately itself the outcome of interpretation ’ (Greenberg 2011, 56, note 18).
- 8.
I thank Mark Greenberg for pointing out to me in oral conversation that, because of these differences with Dworkin, the Moral Impact Theory cannot be used to support the point that I am trying to make in Sect. 3.2.4 bellow.
- 9.
One of the implications of this rapport between legal argumentation and the very idea of law, for Bertea, is that MacCormick moves toward ‘the same legal paradigm’ as Dworkin’s jurisprudence (Bertea 2008, 13ff).
- 10.
This strategy is pursued, for instance, by Matthew Kramer and Jules Coleman. In his defense of Hartian legal positivism, Kramer argues that there is no reason to think that the presence of theoretical disagreement s about the meaning of the conventional rule of recognition undermines the possibility of that law-identifying resource: ‘Legal conventions provide the opportunities for disputations concerning possible modifications to the conventions themselves. They render legitimate the questioning of their own bearings, and provide fora where such questioning can be carried on’ (Kramer 1999, 149). In a similar way, Coleman thinks that positivism is immune from the Dworkinian challenge of theoretical disagreements : ‘Dworkin cuts no ice against the conventionality thesis: there is no reason to think that a social rule cannot also be controversial in some of its applications’ (Coleman 2001, 117). By the same token, Marmor argues that Dworkinian disagreements about criteria of legality among judges are always in the margins, and almost never go all the way down to the core of the rule of recognition. According to his position, ‘there is an inherent limit to how much disagreement about criteria of legality it makes sense to attribute to judges, because the judges’ own role as institutional players is constituted by those same rules that they allegedly disagree about ’ (Marmor 2009, 162–3). A slightly different point is made by Scott Shapiro, who thinks that Dworkinian theoretical disagreements need not to be seen as concerning the ‘grounds’ of law or the fundamental criteria of legal validity, since one can easily translate them into disagreements about the interpretive methodology to be adopted in the case at hand (Shapiro 2011, 282–306). I have disputed Shapiro’s attempt to reconfigure all theoretical disagreements as meta-interpretive disagreements in Bustamante (2012, 506–7).
- 11.
In a system of ‘weak’ judicial review , on the other hand, ‘courts may scrutinize legislation for its conformity to individual rights but they may not decline to apply it (or moderate its application) simply because rights would otherwise be violated’ (Waldron 2006, 1355).
- 12.
An exclusionary reason, for Raz, is a type of second-order reason that one has to exclude other reasons that may be applicable to a certain case. A second-order reason is any reason to act for a reason or to refrain from acting for a reason. An exclusionary reason is a second-order reason to refrain from acting for some reason’ (Raz 1999, 39).
- 13.
I will leave open here whether this point can be extended beyond the central cases of judicial review . It is possible to argue, for instance, that my reasoning would imply that Raz’s model of laws as ‘exclusionary reasons ’ applies whenever a court has the power to resolve conflicts of laws, such as a conflict between a federal law and a state law in a Federation. I do not think, however, that this possibility affects the argument that I am about to put forward in Part II of this paper, since the justification of the power to resolve normative conflicts in a Federation is not as intrusive in the will of the people as the ordinary powers of judicial review are. What is at stake in conflicts between federal and state laws is not the political judgment of the states or the federal government, as compared to the court’s judgment, but rather the different claims of authority raised by the states and the federal government. In conflicts between federal and state laws, there is an unavoidable necessity of determining who is competent to decide, and the issue is not what answer to a moral controversy is best, but merely which sphere of government has authority to decide it. In spite of the initial appearance, this situation is not identical to the core cases of judicial review. In federal conflicts of laws, a court does not solve a reasonable disagreement about a rights issue and lacks final authority to settle in a final way the solution to the disagreement at stake. I would like to thank Seana Shiffrin for attracting my attention to this point.
- 14.
See supra, section 1.2.
- 15.
In Simpson’s view, ‘distinguishing does not simply involve pointing out a factual distinction between two cases; it involves further the use of this factual distinction as a justification for refusal to follow the earlier case’ (Simpson 1961, 175).
- 16.
- 17.
In defense of the settlement function of constitutional court s , Alexander and Schauer have argued that ‘just as a rule of precedent recognizes the value of settlement for settlement’s sake, so too does a constitution exist partly because the value of uniform decisions on issues as to which people have divergent substantive views and personal agendas’ (Alexander and Schauer 1997, 1376).
- 18.
Roe v. Wade , 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).
- 19.
Brazil. STF, ADPF n. 54/DF, Pleno, Rel. Min. Marco Aurélio, j. 12.04.2012.
- 20.
According to Waluchow, ‘these are moral rights about whose exact nature we are often undecided or cannot agree on in advance but whose importance has been recognized in the decision to include them within a Charter of Rights and Freedoms. Once we see Charters and judicial review in this different light, we can not only see our way clear to a better understanding of the disputes between their critics and their advocates, but we can also see why they can be very good things to have – even in a society fully committed to the ideals of democracy and subject to the endless disputes caused by our epistemic limitations ’ (Waluchow 2007, 11).
- 21.
The interpretive power to ‘read down’ statutes which conflict with statutory bills of rights is expressly stated in the United Kingdom’s Human Rights Act 1998, c 42, s 3 (1), in the New Zealand Bill of Rights Act 1990, s 6, and in the Australian State of Victoria’s Charter of Rights (s 32(1)). Not all commentators, however, would agree with my reconstruction of this interpretive power. James Allan, for instance, argues that ‘the hoped-for middle ground desired by some bill of rights proponents is elusive’, and that these Bills of Rights are not compatible with parliamentary sovereignty ‘in any substantive sense’ (Allan 2011, 110). Contrary to Allan, I think that these powers are not fully incompatible with parliamentary sovereignty and do provide an interesting middle ground as compared to the systems of strong judicial review . I am particularly convinced on this matter by Goldworthy’s and Gardbaum’s views that this interpretive power is a viable option and is not inconsistent with the essential postulate of parliamentary sovereignty. See Goldworthy (2010, 299–304) and Gardbaum (2013, 44).
- 22.
R. v Bourne [1939] 1 KB 687; [1938] 3 All ER 615, quoted in MacCormick (2007, 248).
- 23.
See Buckland and McNair (1939).
- 24.
See, for instance, Hespanha (1978, 78), where the distinction between legal development ‘by aggregation’ and by ‘substitution’ is explained.
- 25.
On a critique of Raz’s atomism , see Greenberg (2011, 49–50).
- 26.
The law-making activity by ‘aggregation’ can be contrasted with the law-making activity of legislatures. As Hespanha explains, legislatures tend to develop the law by replacing previous rules with new ones that stem from the novel legislative enactments (Hespanha 2005, 118). The clearest picture to understand the similarities between constitutional court s and legislatures is Kelsen’s image of the constitutional court as a ‘negative legislator’. The key to distinguish legislation from adjudication, for Kelsen, is that legislators tend to create general norms, whereas judges and officials that are said to ‘apply’ the law create individual norms that are valid only for the case at stake. A formal declaration of unconstitutionality , therefore, has the same effect as the creation of a new norm to derogate the previous enactment regarded as incompatible with the constitution. ‘Since the annulment of a law has the same general character as its enactment’, we can say that the former is no different in meaning from the statute itself, albeit with a ‘negative signal’. Even though the court cannot create positive laws, it certainly acts as a ‘negative legislator’ (Kelsen 1928, 224–5).
- 27.
I borrowed this quote from Marmor (2005, 317).
- 28.
- 29.
The point of DJT , as it is understood here, is to provide an alternative to NJT in the justification of political authority . But this is not the only possible way to read the relation between DJT and NJT. One can argue, for instance, that committing to the result of a given decision-procedure is morally justified precisely because a subject is more likely to better comply with the reasons that apply to herself by following the directive resultant from this procedure than by making a first-order judgment about the proper course of action to take. According to this argument, ‘where I have reason to comply with the results of a particular decision procedure, doing so will help me to conform better than I might otherwise do to the reason I have” (Hershovitz 2003, 219). Yet this reconstruction comes with a price. As Hershovitz correctly argued, this reconstruction ‘makes the normal justification thesis empty’ (Hershovitz 2003, 219), since what is doing the work here is no longer NJT, but the process-related reasons for having the hypothetical decision-procedure. Let us consider, in the following lines, an example that illustrates the deficiency of the proposed reconstruction, which is Jeremy Waldron’s attempt to apply NJT in order to explain the authority relations between officials that face the risk of issuing conflictive directives to the same subjects. In the case of relations between courts and legislatures, which is the standard example of these relations, Waldron sees the court as an agent who has a prima facie duty ‘not to disrupt’ the relation of an authority (A) and a subject (C). If the relation between A and C can be justified by NJT, the duty of another official (B) to respect the settlement of the legislature (A) arises because of the public character of A’s authority enactments, which purport to resolve issues of ‘common concern’, and the special value of social coordination according to an ‘established procedure’ that allows subjects to ‘identify answers as salient, even when there are disagreements as to what that answers should be’ (Waldron 2003, 68). In this hypothesis, B should refrain from issuing contradictory directives once she acknowledges the importance of social coordination and the value of the procedures established for the settlement of moral and political disagreements in the community. As we can see, Waldron’s argument in this paper seems to lead to the conclusion that the value of social coordination can also be justified by NJT, although the latter is applied no longer to the relation between A and C, but instead to the relations between or among officials like A, B and all other institutions who claim authority over C. Unlike Waldron, however, I tend to see the process-related reasons for social coordination that Waldron gives in the example as an independent moral argument that supplements NJT in order to show the value of the right procedures for public settlement of issues of common concern. Perhaps this independent moral argument could be something like the version of DJT that I am defending here. But if this is the case, then I think that we may use DJT to justify not only the duty of B not to disrupt the relation between A and C, but also the relation between A and C in the first place. DJT will apply directly to justify the enactments of the legislature, and this will provide a justification for the legislature more robust than NJT. I should thank Rafael Bezerra Nunes for helping me clarify my position on this point.
- 30.
According to Dworkin (2000, 191), ‘someone’s impact in politics is the difference he can make, just on his own, by voting for or choosing one decision rather than another. Someone’s influence, on the other hand, is the difference he can make not just on his own but also leading or inducing other to believe or vote or choose as he does’.
- 31.
An example of such checkerboard compromises, for Dworkin, would be a law granting the right to make an abortion for women born in even days, while denying such right to those born in odd days.
- 32.
In other words, ‘compromises are a natural part of a process that “hears the other side” and seeks to avoid dominating citizens by failing to treat the reasons that they offer equally’ (Bellamy 2007, 193).
- 33.
I am referring here, to two of the seven senses that Bellamy thinks that ‘public reasoning’ can assume. See Bellamy (2007, 179).
- 34.
As I argued in a review of Hübner Mendes’ book, ‘a court that resorts to an internal compromise to settle issues of political morality pays a high price in order to achieve the benefits of a unanimous decision. By hiding the internal disagreements and resorting to a compromise, a judge assumes the risk of establishing a priority of the views of her colleagues over the opinions of the representatives of the people, insofar as deference to the judgment of the other judges often implies, when the validity of an act is at stake, defiance to the judgment of the legislature’ (Bustamante 2015).
- 35.
Dworkin is not the only one to follow this strategy for justifying the authority of constitutional court s . Rawls, for instance, holds that constitutional courts are the most important locus of public reasoning, and Kumm describes them as a forum of ‘Socratic contestation’ that is essential for democracy . I believe, however, that these accounts share the most important features of Dworkin’s model. They justify the court’s power in a similar way and are exposed to the same objections that one may rise against Dworkin. See Rawls (1999, 231–41) and Kumm (2007).
- 36.
In the characterization of ‘weak’ judicial review adopted in this paper I am offering however, an approach that might appear to be slightly broader than Waldron’s. It might be possible to include, under this category, also the legal systems which allow the courts to engage in judicial review to protect the procedural aspects of constitutional democracy with a view to reinforcing representation and promoting participation of excluded minorities, but not to promote a direct application of the substantive values upheld by the judges of the court or replace a ‘reasonable’ judgment of the representatives of the people by a ‘reasonable’ judgment of the court. The argument of this essay is target, primarily, to models of judicial review that endorse the idea of judicial supremacy and allows judges to give a final judgment about the most abstract and controversial judgments of political morality. On the possibility of judicial review to promote representation and procedural democracy, see Ely (1980).
- 37.
In the U.S. legal system, for instance, many people think this is the actual way in which constitutional decisions operate. The holding of Cooper v. Aaron, 358 U.S. 1 (1958) is considered a paradigmatic statement of this principle, for the court argued that it follows from the principle of judicial supremacy (as stated in Marbury v. Madison) that the interpretation settled by the Supreme Court is also part of the ‘supreme law of the land’. For a critical discussion of this principle, see Tushnet (2000).
- 38.
The ‘core cases’, for Waldron, are those in which the following four assumptions are satisfied: one can find ‘(i) democratic institutions in reasonably good working order, including a representative legislature elected on the basis of universal adult suffrage; (ii) a set of judicial institutions, again in reasonably good order, set up on a non-representative basis to hear individual lawsuits, settle disputes, and uphold the rule of law ; (iii) a commitment on the part of most members of the society and most of its officials to the idea of individual and minority rights; and (iv) persisting, substantial, and good faith disagreement about rights (i.e., about what the commitment to rights actually amounts to and what its implications are) among the members of the society who are committed to the idea of rights’. See Waldron (2006, 1360).
- 39.
Waldron’s own words are particularly illuminating in this point: ‘I am tired of hearing opponents of judicial review denigrated as being rights-skeptics. The best response is to erect the case against judicial review on the ground of a strong and pervasive commitment to rights’ (Waldron 2006, 1366).
- 40.
I will leave open the question of how the legal system can satisfy this requirement, since there are many different institutional arrangements that equally comply with this moral exigency. Even without an express provision attributing an overriding power to the legislators, a legal system that has an amendment rule that does not require more than an ordinary majority vote would still be compatible with this requirement (Gardbaum 2013, 40, note 65). I believe that this can be the case even for a legal system with a stronger decision rule, which requires more than an ordinary majority while not imposing too difficult a burden on the legislature. Brazil’s constitution, for instance, can be amended by a supermajority of 3/5 of the members of the Senate and the Chamber of Deputies, which needs to be confirmed in two sessions in each house. Given the frequency of amendments in the last 25 years (almost 90 amendments) this does not prove to be a very heavy burden. It is much probable, therefore, that the argument against strong judicial review places a much more serious challenge to the U.S. Supreme Court than to the Brazilian Supremo Tribunal Federal. Nonetheless, there is one point that seems to distance Brazil from the ‘pure form’ of ‘weak judicial review’. The Brazilian Federal Supreme Court is also empowered to strike down constitutional amendments whenever its members believe that such amendment has the ‘tendency to abolish’ the principles stated in article 60 § 4th of the Constitution. These principles include the protection of all of the ‘Fundamental Legal Rights’ and the general clauses of the ‘Republican Government’, the ‘Federation’ and the ‘Separation of Power s ’. The vagueness of these clauses and the extent of this normative power make the judicial review of constitutional amendments a threat to the mechanism of institutional dialogue that the ‘weak’ forms of judicial review intend to promote.
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Acknowledgments
This chapter has benefited from critical inputs from several contributors, with whom I am deeply indebted for the helpful criticisms and suggestions. I am grateful to Stephen Gardbaum, Mark Greenberg, Seana Shiffrin, Georgios Pavlakos and the participants of the UCLA Legal Theory Workshop, where its first draft was presented in the Fall of 2014; to Enrique Cáceres, Imer Flores, Verónica Rodriguez-Blanco, Carlos Montemayor, Jorge L. Fabra and the participants of the III Jornadas Internacionales de Filosofía del Derecho of the Autonomous University of México in 2014; to Ronaldo Porto Macedo Júnior, who kindly hosted and supervised me on a 1-year postdoctoral fellowship at the University of São Paulo in 2015, where I had a chance to improve this chapter in many aspects; to Rafael Bezerra and the wonderful undergraduate students who participated in my reading group on Legal Philosophy at the University of São Paulo in 2015; to my colleagues Bernardo Fernandes, Fabrício Polido, Mariah Brochado, Marcelo Cattoni, Leandro Zanitelli and Andityas Moura at the Law School of the Federal University of Minas Gerais; and, last but not least, to my research students Igor Enríquez, Ana Luísa de Navarro Moreira, João Vítor Martins, Christina Brina, Lucas Paulino, Adriano Borges and Franklin Marques Dutra, at the UFMG, who have always been my most important interlocutors. The annual postdoctoral fellowship at the University of São Paulo, where part of the research that led to this paper was undertaken, was generously funded by FAPESP (São Paulo Research Foundation, Grant 2014-9810-4), but the research received funding also from FAPEMIG (Minas Gerais Research Foundation, Grant PPM-00178-14) and from the CNPq (Brazilian Council of Scientific and Technological Development, Grant 484975/2013-7). To these agencies, which are among the most important entities that support science and philosophy in my home country, I am deeply grateful.
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Bustamante, T. (2016). On the Difficulty to Ground the Authority of Constitutional Courts: Can Strong Judicial Review Be Morally Justified?. In: Bustamante, T., Gonçalves Fernandes, B. (eds) Democratizing Constitutional Law. Law and Philosophy Library, vol 113. Springer, Cham. https://doi.org/10.1007/978-3-319-28371-5_3
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DOI: https://doi.org/10.1007/978-3-319-28371-5_3
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