The Ongoing Search for Legitimacy: Can a ‘Pragmatic yet Principled’ Deliberative Model Justify the Authority of Constitutional Courts?
| DOI | http://doi.org/10.1111/1468-2230.12120 |
| Published date | 01 March 2015 |
| Date | 01 March 2015 |
REVIEW ARTICLE
The Ongoing Search for Legitimacy: Can a ‘Pragmatic yet
Principled’ Deliberative Model Justify the Authority of
Constitutional Courts?
Thomas Bustamante*
Conrado Hübner Mendes,Constitutional Courts and Deliberative Democracy,
Oxford: Oxford University Press, 2013, 273 pp, hb £50.00.
INTRODUCING THE GENERAL ARGUMENT
Although most western democracies, including legal systems of the common law
tradition, adopt some form of judicial review of legislation, the recent literature
of legal and political philosophy reveals a growing mistrust of constitutional
courts and some serious doubts about their legitimacy for resolving persistent
disagreements about the rights and principles enshrined in the Bill of Rights.
Jeremy Waldron is probably the first name to cross one’s mind when one
thinks of critics of judicial review. He accepts Mangabeira Unger’s view that one
of the ‘dirty little secrets’ of contemporary jurisprudence is its ‘discomfort with
democracy’.1According to Waldron, ‘by privileging majority voting among a
small number of unelected and unaccountable judges’, the practice of judicial
review ‘disenfranchises ordinary citizens and brushes aside cherished principles of
representation and political equality in the final resolution about rights.’2
Nonetheless, this scepticism towards judicial review is not unchallenged.
There are at least three plausible responses to these objections, which are based
on different images of constitutional courts. The first conceives the court as a
‘custodian’ of public deliberation, which merely supervises the legislative process
with a view to assessing whether it was undertaken under proper deliberative
circumstances.3The second portrays the court as a ‘forum of principle’4or a
privileged locus of ‘public reasons’ that is regarded as indispensable for a ‘political
*Law Faculty, Federal University of Minas Gerais (Universidade Federal de Minas Gerais), Brazil.
1 J. Waldron, Law and Disagreement (Oxford: OUP, 1999) 8.
2 J. Waldron, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346, esp
1353.
3 This view is attributed, among others, to Habermas, Zurn, Nino and Sunstein. See J. Habermas,
Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (New York:
Blackwell, W. Rehg trans, 1996) ch 6; C. Zurn, Deliberative Democracy and the Institutions of Judicial
Review (Cambridge: CUP, 2007); C. Santiago Nino, The Constitution of Deliberative Democracy (New
Haven, CT: Yale University Press 1996); C. Sunstein, One Case at a Time: Judicial Minimalism on
the Supreme Court (Cambridge, MA: Harvard University Press, 2001).
4 R. Dworkin, A Matter of Principle (Cambridge, MA: Belknap, 1985) 71.
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(2) MLR 372–393
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conception of justice’ which establishes the ‘priority of the right over the good’.5
This priority is sustained by devices such as Dworkin’s distinction between
‘principles’ and ‘policies’,6which provides a conceptual framework for fixing the
boundaries between ‘constitutional reasoning’, where the courts have a say, and
‘ordinary politics’, where decisions are reached exclusively by the legislature on
the basis of majority voting or political compromises.7The third is a ‘dialogic’
account which portrays people, legislatures, executives and the courts in constant
conversation about the meaning of constitutional provisions,8so that the image
of the constitutional court is that of an ‘interlocutor’ in a ‘long term conversation
with the legislator and the broader public sphere’ (3). According to this view,
there are no final answers in constitutional arguments.
Conrado Hübner Mendes’ book, Constitutional Courts and Deliberative Democ-
racy (CCDD), is an attempt to specify and further elaborate these answers, which
are not regarded as entirely satisfactory for providing a proper justification for the
legitimacy of constitutional courts. These images would be inaccurate because
they ignore how judges internally behave and ‘disregard whether they have
simply bargained or aggregated individual positions to reach a common ground’
(87). The best way to conceive the constitutional court would be as a
‘deliberator’. This latter image ‘grasps an internal aspect of courts that the others
would overlook’ (3). It rightfully acknowledges that if constitutional courts are
to be justified in working democracies, their authority cannot derive solely from
what they are expected to do or from the role that they are assigned to play in
constitutional politics. Hübner Mendes incorporates other elements into this
model, since the concept and the ‘achievements’ (or ‘promises’) of political
deliberation are developed and deployed as a conceptual apparatus for assessing
the ‘deliberative performance’ of the courts.
Deliberation is a purposeful collective activity whose value lies both in its
instrumental role and in some intrinsic qualities of deliberative decisions. The
instrumental value, it is argued, points to four types of ‘deliberative achieve-
ments’: the epistemic promise, which promotes clarity about the issues at stake and
helps arriving at the truth or the best answer to a practical problem; the
communitarian promise, which encourages consensus and deepens ‘a sense of
community’ among deliberators; the psychological promise, which fosters a feeling
of ‘being respected’ and a commitment to comply with a decision despite the
disagreements; and the educative promise, which holds that deliberation would
‘educate deliberators both about the respective subjective matter and about the
deliberative skills themselves’ (22–23).
5 J. Rawls, Political Liberalism (expanded edition) (New York: Columbia Univ Press, 2005) 176.
6 According to Dworkin, ‘arguments of policy justify a political decision by showing that the decision
advances or protects some collective goal or the community as a whole’, whereas arguments of
principle ‘justify a political decision by showing that the decision respects or secures some individual
or group right’. R. Dworkin, Taking Rights Seriously (Cambridge, MA: Belknap, 2nd printing, 1978)
82.
7 R. Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA:
Belknap, 1996) 344.
8 M. Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative
Constitutional Law (Princeton, NJ: Princeton University Press, 2008) 18–42.
Thomas Bustamante
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. 373(2015) 78(2) MLR 372–393
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