Democratic Arguments for the Justification of Judicial Review - Costas Stratilatis PhD

Описание: The aim of this paper is to present and criticize recent arguments that justify the institution of judicial review (i.e., the assignment of the power of constitutional review of legislation to judges) in terms of the idea of democracy. In particular, the three arguments I present are inspired by John Rawls’s view of the Supreme Court of the United States as an exemplar of public reason, that is, an exemplar of public discourse that offers justification of public policies and laws on the basis of a reasonable conception of political justice. Drawing on Rawls, Cristina Lafont argued that judicial review grants every citizen a fair chance to stage their constitutional concerns and create public contestation of a policy or statute. By exercising their right to legal contestation, citizens and civil society actors are able to initiate conversations with their fellow citizens and bring to public attention claims, concerns, needs, or interests that could otherwise have remained outside the limelight. Considered from this standpoint, judicial review does not negate but upholds political equality; it does not impede but enables citizens to see themselves as authors of the laws under which they live. Mattias Kumm has argued that judicial review, based as it is on the principle of proportionality, offers a structure to the idea of public reason and institutes a right to justification of laws in correspondence to the liberal-democratic principle that coercive acts should be conceivable as a collective judgment of reason about what good policy and justice require. According to Kumm, the judicial scrutiny of laws can be assimilated into a kind of Socratic contestation, and this may help address certain pathologies of modern democracies, such as thoughtlessness based on tradition, hyperbole and ideology, rent-seeking interests, and reasons relating to the good but not respecting the limits of public reason. My criticism of Lafont’s and Kumm’s arguments shall be centered around the following proposition: the approach of judicial review as an exemplar of public reasoning overestimates the ability of legal discourse to showcase fully the moralpolitical concerns or social interests that are implicated in controversies over constitutional issues. Or, inversely, these approaches underestimate the extent to which the reasoning of courts is dominated by legal technique (i.e., issues like justiciability, precedent and distinguishing, canons of interpretation, refinement and applicability of standards of review), to the detriment of direct, unshrouded discussion on the broader moral-political issues and on the social-political divisions that lie beneath certain interpretative controversies. The third argument I present is that of Alessandro Ferrara. This scholar has approached judicial review as a way of representing the long-interest of the people to be distinguished from the momentary preferences of transient majorities within the electorate –preferences which might be the result of populist impulses. My criticism of Ferrara’s argument focuses on the tenability of his sharp distinction between the people, as bearers of the constituent power, and the electorate, being understood as the living segment of the people and as always susceptible to the corrosive effects of populism.