Legitimacy and Reasonability: Reflections on Judicial Review

Public law confronts pressure from legislatures and administrations that vow to reflect majoritarian orientations. Even formally unchallenged democratic institutions operate in a climate of popular impatience with procedural checks and balances. Hence the urgency of revisiting judicial review.
In § 1, a “counter-counter-majoritarian” defense of judicial review is outlined, based on L.R.Barroso’s attribution of a representational function to constitutional courts, on Rawls’s liberal principle of legitimacy and on H.Lindahl’s legal theory.
In § 2, ways of reconciling F.Michelman’s two views of a constitutional court’s mandate – a) remedying “shortfall of consensus” in the polity; b) remedying “occlusions of democratic agency” – are discussed.
In § 3, Rawls’s standard of “the reasonable” is shown to offer a new way of distinguishing a) legitimate ways of interpreting the meaning of constitutional provisions and b) non-legitimate ways of judicially transforming constitutional meanings.

Constitutional Conventions and the Judiciary

Analyses of constitutional conventions seldom include those conventions that concern relations between the judiciary and the other arms of government. The focus tends to be on constitutional conventions that relate to the monarch, the executive, the legislature, their relationship to each other, and the relationship between different levels of government. This paper argues that an extensive set of constitutional conventions relating to the judiciary exist, and that an analysis of them reveals three insights about the nature of constitutional conventions and the nature of the judiciary. First, the judiciary’s authority, independence and impartiality is predominantly secured by constitutional conventions. Second, the reliance on constitutional conventions explains the simultaneous strength and fragility of the judiciary. Third, it is not always or necessarily problematic for constitutional conventions to be modified or even destroyed.

The (mis)representation of constitutional courts’ decision-making: do the people have a role to play in this mythological tragedy?

In this essay, I address the way legal theorists have depicted constitutional courts’ decision-making. My goal is to throw light on problems posed by the absence of a proper role for the people in the figurative representation of constitutional argumentation. I shall categorize the depictions of constitutional courts found in legal theory as: an oracle speaking on behalf of the gods (Dworkin and Ost); a character giving the audience a cathartic relief (Sunstein); a deus ex machina unexpectedly resolving the story (Barroso); or a chorus expressing what the main characters could not say (Alexy). As I demonstrate, none of these authors devote enough attention to the fact that in a democracy the people ought to play an active role in constitutional argumentation. I conclude that this lack of figurative representation has led to exclusionary normative models in which those affected by constitutional courts’ decisions have only limited (if any) participation in the decision-making process.

Which democracy?: Questioning courts as democracy builders.

Literature on democratization poses a strong emphasis on belief in constitutional courts as building tools for democracy. More recently, however, critical views of this correlation have been presented, especially regarding democratic consolidation. Hirschl questions the construction of a “Juristocracy,” whereby the empowerment of the courts leads to a gradual shift from the legislative to the judiciary as the final instance of political decisions. Daly, on the other hand, questions the supposed efficacy of constitutional courts as tools of democracy building and consolidation, especially when qualitative evaluation is brought to the equation. Further on, underlying the defense of this tool as indispensable for a successful democratization process, there is a specific, non-neutral, paradigm of democracy, which leads to the promotion of certain tools, in detriment of others. In order to contribute to that debate, this paradigm is to be investigated, as proposed in the paper.

Separate Opinions in the Inter-American Court of Human Rights: Institutional and Individual Performances

The research is focused on the adjudicatory nature of the Inter-American Court of Human Rights and its model of deliberation. In principle, identifying a large amount of individual opinions and their argumentative use could intuitively support the conclusion that the Inter-American Court’s decision-making process is institutionally outlined by aggregating the content of separate opinions. In order to confirm or refute this perception, the importance of individual opinions is analyzed through the quantitative performance of each category of judge (ad hoc and regular), as well as each type of adjudicative activity (judgments and advisory opinions). The quantitative data is also useful to better understand the explicit assimilation of separate opinions to the core reasoning of future cases. As a result, it has been possible to identify relevant aspects applicable to the main problem of whether individual opinions really matter to the Inter-American Court’s decision-making process.

A Public Health Approach to Judicial Diversity

To reduce the burden of violence and unintentional injury WHO/Europe advocates the use of a public health approach. This requires evidence based action and multisectoral cooperation. It supports Member States by providing data on the burden and risks of injuries and violence; supporting evidence based policy making; improving capacity for prevention and services; and
facilitating the exchange of knowledge and good practice. Can this approach also be used to tackle the violence of racism and promote judicial diversity? This paper will consider the potential for use of a multi-level approach to create greater judicial diversity in Europe.