Conclusion: On the Circumstances of Judicial Review and the Strong Systems of Judicial Review

If correct, my argument in the second part allows me to hold, amongst other things, the following theses about the authority of constitutional courts.

1) There are no intrinsic moral reasons for the authority of constitutional courts.

2) The claim to legitimate authority that constitutional courts stake is instrumental in the same way as Raz’s Normal Justification Thesis is. This requires a sup­porter of the authority of the constitutional courts to specify all the relevant set of conditions that provide the kind of indirect justification for the authority of constitutional courts.

3) The instrumental justification available to justify the legitimacy of judicial review, as we have seen in Dworkin’s argument of the ‘forum of principle’, is too weak to provide a justification of the systems of strong judicial review - where the court has final authority to quash a legislative provision - but might be potent enough to offer a sound argument in support of a weak system of judi­cial review.

I would like to discuss, in this concluding section, some of the consequences of the second and the third theses above.

With regard to thesis 2, if the argument for constitutional courts is conditional, as I believe it to be, then ‘institutional rules’ that regulate the process of deliberation in the court and the ‘efficacy’ of the court’s decisions must be adjusted to fit the condi­tions which define the adequate circumstances of judicial review.

One of the most important challenges for a theory of the authority of the institu­tions of judicial review, therefore, is to specify the conditions that make the circum­stances of judicial review. Nonetheless, I do not intend to do this in the remaining paragraphs of this conclusion. My ambition in this final section is more humble, for I merely want to show that in a well-working democracy, which takes both rights and democracy seriously, one of the conditions that make the ‘circumstances of judicial review’ is that the institutional environment of the state provides room for a legislative override of the court’s final decisions about not only the contents of our rights, but in particular about the validity of the enactments of the legislature^[63]

There should be little room, in a community of citizens committed to a respectful protection of human rights, for an exclusionary power of a constitutional court to strike down a statute on the ground that it violates a particular provision of the Bill of Rights. By giving the courts final authority to annul a legislative enactment, the traditional systems of strong judicial review do not take disagreement seriously and show little respect for political equality and the autonomy of the people.

The traditional argument that justifies the powers of constitutional courts on the assumption that they are privileged ‘forums of public reasoning’ seems insufficient for granting to the courts a power to settle with final authority the controversies about our rights. Even though this instrumental justification may be good enough to support the conclusion that constitutional courts can play an important role in delib­erative democracies, it does not suffice to ground the view that the courts should have authority to settle matters with the final authority that they currently have in the vast majority of the states that embraced the practice of judicial review.

Political decisions about the contents of rights take place, as a rule, in the context of reasonable disagreement among the decision participants, in which more often than not there are different and mutually exclusively decisions that are equally acceptable from the point of view of the general principles embodied in the Bill of Rights.

Whatever might be the circumstances that justify judicial review in a particular legal system, I am convinced that one of these circumstances will be that under normal circumstances no constitutional court should have the power to quash, in an irreversible way, the validity of a law that is formally enacted by the legislative assemblies.

This brings us to the thesis 3 in the scheme that I presented in the beginning of this concluding section. If we consider the systems of weak judicial review, where the courts lack pre-emptive authority to settle the disagreements that we have over a rights issue, then the instrumental justification available for the authority of con­stitutional courts might be successful. Without its power to pronounce exclusionary directives that replace the rules enacted by the legislature, constitutional courts would look like the ‘central cases’ of legal authority, which can be explained according to the pictures developed by Dworkin in his model of Law as Integrity.

The decisions of constitutional courts, when they issue a Declaration of Incompatibility with a Bill of Rights, as the U.K. courts may do, would engender a post-interpretive deliberation about the matter at stake, and no longer could be described as peremptory or pre-emptive in Raz’s sense.

Under these conditions, the people’s right to their share of power to decide by themselves the controversies over their rights is entirely preserved, and the instru­mentalist justification of the authority of constitutional courts offered by Ronald Dworkin becomes an attractive way to support the authority of constitutional courts.

These considerations call out for a new type of normative justification for the very existence of constitutional courts, which does not include the principle of judi­cial supremacy.

The commonwealth model does not only (.) provide a new form of judicial review. It also provides a new justification of judicial review. For once shorn of judicial supremacy, the task of defending a judicial role in rights protection is a different - and easier - one. A model of constitutionalism that provides for judicial rights review of legislation but gives the legal power of the final word to ordinary majority vote in the legislature is normatively, and not only practically, different from one that does not. Indeed, even if it turns out (as certain critiques maintain) that there is little or no practical difference between the power of courts under certain instantiations of the new model and judicial supremacy, there is still a normative difference between them. Despite the current fairly strong political presumption against use of the legislative override in Canada, there is still a straightforward sense in which exercises of judicial review are more democratically legitimate than in the United States because of the existence of the override power (Gardbaum 2013, 36).

It makes a big difference, even if Parliament decides not to use the power of override, whether the courts lack a final authority on a particular matter about fun­damental legal rights. The efficacy of the court’s pronouncements would no longer depend merely on authoritative settlement, but also on the soundness of the reasons that the court is able to provide. Once a court is deprived of the final authority to settle a rights issue in a definitive way, the other powers of the state are also involved as participants in the interpretation of the Bill of Rights. The eventual tension between democracy and constitutionalism is nuanced, and citizens regain control of their own moral code.

One of the most important challenges for constitutional theorists (and legisla­tors) of this Century is thus to provide the philosophical arguments required to sup­port (and to design institutions needed to enhance) the principles that underlie the new systems of weak judicial review, whether these systems are located in the com­mon law world or not.

Acknowledgments This chapter has benefited from critical inputs from several contributors, with whom I am deeply indebted for the helpful criticisms and suggestions. I am grateful to Stephen Gardbaum, Mark Greenberg, Seana Shiffrin, Georgios Pavlakos and the participants of the UCLA Legal Theory Workshop, where its first draft was presented in the Fall of 2014; to Enrique Caceres, Imer Flores, Veronica Rodriguez-Blanco, Carlos Montemayor, Jorge L. Fabra and the participants of the III Jornadas Internacionales de Filosofia del Derecho of the Autonomous University of Mexico in 2014; to Ronaldo Porto Macedo Junior, who kindly hosted and supervised me on a 1-year postdoctoral fellowship at the University of Sao Paulo in 2015, where I had a chance to improve this chapter in many aspects; to Rafael Bezerra and the wonderful undergraduate students who participated in my reading group on Legal Philosophy at the University of Sao Paulo in 2015; to my colleagues Bernardo Fernandes, Fabricio Polido, Mariah Brochado, Marcelo Cattoni, Leandro Zanitelli and Andityas Moura at the Law School of the Federal University of Minas Gerais; and, last but not least, to my research students Igor Enriquez, Ana Luisa de Navarro Moreira, Joao Vitor Martins, Christina Brina, Lucas Paulino, Adriano Borges and Franklin Marques Dutra, at the UFMG, who have always been my most important interlocutors. The annual postdoctoral fellowship at the University of Sao Paulo, where part of the research that led to this paper was undertaken, was generously funded by FAPESP (Sao Paulo Research Foundation, Grant 2014-9810-4), but the research received funding also from FAPEMIG (Minas Gerais Research Foundation, Grant PPM-00178-14) and from the CNPq (Brazilian Council of Scientific and Technological Development, Grant 484975/2013-7). To these agencies, which are among the most important entities that support science and philosophy in my home country, I am deeply grateful.