Is it All About the Last Word? Deliberative Separation of Powers 1
The normative debate about the legitimacy of judicial review seems to be at a stage of argumentative exhaustion. Despite the sensation of fatigue and the continuous circular reproduction of the same old arguments, it is still at the forefront of constitutional theory. The bulk of this debate is invariably framed by the following question: can unelected and unaccountable judges have the last word upon the meaning of the constitution and overrule the acts of elected legislators? This article raises the question of whether this is all what democracy entails, as far as institutional design is concerned. To put it in a less rhetorical way, it investigates what else is at stake when we talk about democratic legitimacy of constitutional review and collective decision-making. By portraying a broader picture, I try to grasp how to measure the proper weight that the concern with last word should play in a theory of constitutional democracy and judicial review of legislation.
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Not the Last Word, But Dialogue – Deliberative Separation of Powers 2
Abstract:
Dialogue is a fecund and expressive image for politics. It is a sign of equality, mutual respect and reciprocity. It denotes a horizontal, non-hierarchical and autonomy-enhancing relationship. It carries a seductive value to justify the exercise of authority. This same image has also been invoked to justify the democratic legitimacy of judicial review of legislation. Despite variations, their basic claim is that the traditional concern with ‘last word’ does not give an adequate account of how the problem of judicial review should be conceived. ‘Last word’, for these theories, does not exist. This article surveys the broad range of ‘theories of dialogue’ and depicts what they add to this old debate.Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1911835
Neither Dialogue Nor Last Word – Deliberative Separation of Powers 3
Abstract:
This article is the third and last of a series that tries to understand and reconcile “theories of last word” and “theories of dialogue” with respect to the proper place of constitutional courts within democratic regimes. It claims that there is a complementarity between both approaches: the design of the separation of powers needs to decide, contextually, whether elected parliaments or constitutional courts should bear the burden of the ‘provisional’ last word upon constitutional meaning; it should not neglect, however, the fact that institutions inevitably interact and can challenge each other’s decisions over time, a datum that needs to be factored into the discussion about the legitimacy of judicial review. The article further claims that, if some sort of interaction between branches is inevitable over time, constitutional theory should elaborate on which sort is more desirable and legitimate than others. An interaction inspired by a normative ideal of dialogue and of deliberative performance, I contend, increases the epistemic capacity of the separation of powers.
This article is the third and last of a series that tries to understand and reconcile “theories of last word” and “theories of dialogue” with respect to the proper place of constitutional courts within democratic regimes. It claims that there is a complementarity between both approaches: the design of the separation of powers needs to decide, contextually, whether elected parliaments or constitutional courts should bear the burden of the ‘provisional’ last word upon constitutional meaning; it should not neglect, however, the fact that institutions inevitably interact and can challenge each other’s decisions over time, a datum that needs to be factored into the discussion about the legitimacy of judicial review. The article further claims that, if some sort of interaction between branches is inevitable over time, constitutional theory should elaborate on which sort is more desirable and legitimate than others. An interaction inspired by a normative ideal of dialogue and of deliberative performance, I contend, increases the epistemic capacity of the separation of powers.
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1911852
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