Nicholas Barber’s paper “Self-Defence for Institutions” provides a useful tool for analysing the complex relationship between the branches of government, in particular between the most dangerous and the least dangerous ones: the legislative and the judicial.
This paper sets out to elaborate the theoretical tool proposed by Barber and to show that the elaborated tool has a better explanatory value than the original when applied to real-world circumstances. The real-world case examined in this paper is the constitutional crisis that Poland has undergone for the last five years.
The contribution analyses why and how “public reason” centered accounts of constitutional interpretation are incompatible with and must be seen to be directed against three alternative interpretative accounts. First, it is directed against accounts that that seek to uncover the true meaning of the “will of the people” that is claimed to ground legal authority (voluntarist accounts). Second it is directed against conventionalist accounts that focus on what has been or might be generally accepted either by major political actors or citizens generally (conventional legalist accounts). Third it is also directed against accounts that insist on “moral readings” of the constitution and require judges to engage in justice-seeking. The question is whether public reason accounts are superior to its competitors and if so, why.
Like many constitutional courts around the world, the European Court of Human Rights has occasionally engaged in scrutiny of the legislative aims pursued by national laws interfering with proclaimed rights – scrutiny which may be interpreted in terms of the liberal ideal of public reason. However, the Court has eschewed its authority to conduct this inquiry. First, the Court has almost always been willing to accept governments’ recitals of “legitimate goals” at face value, even if those declarations are clearly disingenuous. Second, it has applied the “necessity” requirement in a way that often makes it difficult to discern true legislative aims. Third, there is the puzzling case of “protection of morals” as a legitimate ground for the restriction of rights, which has been interpreted by the Court occasionally in a way incompatible with the ideal of public reason.
Populists claim that representatives represent the people by complying with their preferences and judgments. Elitists, by contrast, argue that representatives are bound to decide correctly. This Article argues that the populist and elitist views of representation are both false: representation indeed requires the representative to endorse the perspective of the represented. But, often endorsing the perspective of the represented requires representatives to act against the actual convictions of the represented. To look at the world 'from the perspective of the represented,' the representative’s decisions ought to satisfy the condition of justifiability-to the represented, namely, they must rest on reasoning that is accessible to the represented as she actually is. This understanding of representation implies that private reason has important role to play in democratic politics: the constituency’s basic convictions should be taken into account in the reasoning of the representatives.
This paper examines the ways in which the idea of public reason is concretized through constitutional adjudication practice, especially in cases where the rights of individuals who possess “unpopular traits” in a particular society are invoked to challenge law that purportedly reflects what the majority supports or prefers. In such cases, social cohesion, public morality, and tradition are among the justificatory reasons frequently provided by the government. Through a case study of the Constitutional Court of South Korea, the research explores whether, and why, such arguments of legislative purposes have or have not been successful in different contexts involving minorities’ rights. While the Court conducted a proportionality review in each case, divergences have been observed among decisions concerning non-citizens, women, and sexual minorities.