Abstract
Political deliberation is a classic component of collective decision-making. Participants of genuine deliberation are willing to argue and open to transform their positions in the light of persuasive arguments. Constitutional theory has borrowed this notion in its effort to reconstruct a justificatory discourse for judicial review of legislation. Constitutional courts were ascribed the pivotal role of implementing fundamental rights in most contemporary democracies and called for a more sophisticated picture of democratic politics. One influential defence has claimed that courts are not only insulated from electoral competition in order to guarantee the pre-conditions of majoritarian politics, but are deliberative forums of a distinctive kind: they are better located for public reason-giving. This belief has remained, from the normative point of view, largely under-elaborated. This article briefly describes how a constitutional court has been conceived in that light, diagnoses the incompleteness of that approach and points to additional elements that are necessary for that theoretical path.
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Notes
- 1.
Despite the crucial differences between “constitutional courts” and “supreme courts”, I will use the former expression as encompassing the latter one. For the purposes of this paper, what matters is their basic commonality: the power to overrule legislation on the basis of the constitution.
This commonplace will be diagnosed and thoroughly described later in the paper.
- 2.
Another expression of Bickel (1961, 18).
- 3.
Kumm, for example, rejects this generalization by showing how the “rational human rights paradigm”, employed by several European courts, avoids this legalistic trap (2007).
- 4.
This is not his only hypothesis for allowing maximalism to supplant minimalism (Sunstein 2001, 57).
- 5.
They are considering the US Supreme Court, and the German, Italian and Spanish constitutional courts. They also examine the French Constitutional Council, but it does not fit these patterns because a system of parliamentary sovereignty brings variables that impede such stable categorization.
- 6.
Some extracts give an idea of the variety of definitions of external deliberation: “The Court rarely tries to speak with one voice, apparently preferring to let conflict and disagreement ferment.” (Ferejohn and Pasquino 2002, 36); “part of the wider public process of deciding what the Constitution requires of us as citizens and potential political actors.” Or later: “It may lead citizens and politicians to take or to refrain from actions of various sorts, or perhaps to respect the Court and its decisions. There is, however, no singular focus on a particular course of action that politicians or citizens must take.” Finally: “to engage in open external dialogue about constitutional norms with outside actors.” (Ferejohn and Pasquino 2004, 1697–8) “Its aim is to convince those who are not in the room.” (Ferejohn 2008, 209)
- 7.
“There are various ways in which a court may play a role in external deliberation.” (Ferejohn and Pasquino 2004, 1698)
- 8.
- 9.
One classic example is the House of Lords (Paterson 1982).
- 10.
Shapiro points to the distinction: “Some commentators try to capture this aspect of deliberation by reference to reason-giving, as when courts are said to be more deliberative institutions than legislatures on the grounds that they supply published reasons for their decisions. But significant though reason-giving is to legitimacy (particularly in the unelected institutions in a democracy), it does not capture the essence of deliberation.” (2002, 197)
References
Alexy, R. 2007. Thirteen replies. In Law, rights and discourse, ed. G. Pavlakos. Oxford: Hart Publishing.
Barak, A. 2006. The judge in a democracy. Princeton: Princeton University Press.
Bickel, A. 1961. Foreword: The passive virtues. Harvard Law Review 75: 40.
Dworkin, R. 1985. A matter of principle. Cambridge: Harvard University Press.
Dworkin, R. 1986. Law’s empire. Cambridge: Harvard University Press.
Dworkin, R. 1990. Equality, democracy and constitution: We the people in court. Alberta Law Review 28: 2.
Dworkin, R. 1995. Constitutionalism and democracy. European Journal of Philosophy 3(1): 2.
Dworkin, R. 1996. Freedom’s law. A moral reading of the American constitution. Cambridge, MA: Harvard University Press.
Dworkin, R. 1998. The partnership conception of democracy. California Law Review 86: 453.
Ferejohn, J. 2008. The Citizen’s assembly model. In Designing deliberative democracy: The British Columbia Citizens’ assembly, ed. M. Warren and H. Pearse. Cambridge: Cambridge University Press.
Ferejohn, J., and P. Pasquino. 2002. Constitutional courts as deliberative institutions: Towards an institutional theory of constitutional justice. In Constitutional justice, east and west, ed. W. Sadurski. The Hague: Kluwer Law International.
Ferejohn, J., and P. Pasquino. 2004. Constitutional adjudication: Lessons from Europe. Texas Law Review 82: 1671.
Glendon, M.A. 1993. Rights talk: The impoverishment of political discourse. New York: Free Press.
Habermas, J. 1996. Between facts and norms: Contributions to a discourse theory of law and democracy. Trans. W. Rehg. Cambridge, MA: MIT Press.
Kumm, M. 2007. Institutionalising Socratic contestation: The rationalist human rights paradigm, legitimate authority and the point of review. European Journal of Legal Studies 1(2): 1.
Mendes, C.H. 2009. Not the last word, but dialogue: Deliberative separation of powers II. Legisprudence 3(2): 191.
Michelman, F. 1986. Foreword: Traces of self-government. Harvard Law Review 100: 4.
Nino, C.S. 1996. The constitution of deliberative democracy. New Haven: Yale University Press.
Paterson, A. 1982. The law lords. London: Macmillan Press.
Rawls, J. 1971. A theory of justice. Cambridge: Harvard University Press.
Rawls, J. 1997a. The idea of public reason. In Deliberative democracy: Essays on reason and politics, ed. J. Bohman and W. Rehg. Cambridge, MA: MIT Press.
Rawls, J. 1997b. The idea of public reason revisited. The University of Chicago Law Review 64: 765.
Sachs, A. 2009. The strange alchemy of life and law. Oxford: Oxford University Press.
Shapiro, I. 2002. Optimal deliberation? The Journal of Political Philosophy 10(2): 196.
Sunstein, C. 1995. Incompletely theorized agreements. Harvard Law Review 108: 1733.
Sunstein, C. 2001. One case at a time: Judicial minimalism on the Supreme Court. Cambridge, MA: Harvard University Press.
Thayer, J.B. 1893. The origin and scope of the American doctrine of constitutional law. Harvard Law Review 7(3): 129.
Waldron, J. 2009. Judges as moral reasoners. International Journal of Constitutional Law 7: 1.
Zurn, C. 2007. Deliberative democracy and the institutions of judicial review. Cambridge: Cambridge University Press.
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Mendes, C.H. (2013). Political Deliberation and Constitutional Review. In: Flores, I., Himma, K. (eds) Law, Liberty, and the Rule of Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 18. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4743-2_8
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