Introduction

A theory of authority has important implications for justifying the institutions of judicial review. In this paper, I attempt to take part in the current debates about the authority of constitutional courts, with a view to showing some of the difficulties of systems of strong judicial review in constitutional democracies.

On the one hand, I discuss two theses put forward by Joseph Raz, the Pre­Emptive Thesis and the Normal Justification Thesis. On the other hand, I try to explain how the authority of a constitutional court’s decision looks like in the con­texts provided by Raz’s two theses, as well as how a theoretical account of legal authority might provide the basis for a normative critique of the systems of strong judicial review.

In short, I hold that the Pre-Emptive Thesis does not offer a clear picture of the authority of law in general, since it does not provide a complete explanation of the argumentative character of law and the interpretive dimension of legal reasoning. Nonetheless, I think that it is able to explain the authority of constitutional courts in systems of strong judicial review, since at least some of their decisions cut off fur­ther deliberation about the validity of certain statutes and have the pre-emptive status that Raz assigns to the law in general. This is not the case, as I intend to show, in systems of weak judicial review, where the decisions of the court lack pre­emptive force and the legal issues are open to further interpretive activity by citi­zens and institutions. This distinction has a practical import, since even if the instrumental justification for legal authority provided by Raz’s ‘Normal Justification Thesis’ is too weak to justify the pre-emptive authority of strong judicial review, it might turn out to be enough to provide a moral justification for a system of weak judicial review.

I expect to be able to demonstrate, in the final section, that the authority of a constitutional court only can be justified in an instrumental way, and that this justi­fication fails to provide a solid basis for strong judicial review.

My argument will take the following steps. In the second part of the essay, I consider the ‘nature’ of the authority of constitutional courts. I begin with an analy­sis, in Sect. 3.2.1, of Raz’s understanding of legal authority. This analysis is fol­lowed, in Sect. 3.2.2, by an appreciation of Greenberg’s criticism against the ‘Standard Picture’ of jurisprudence, of which Raz is probably the most important exponent, and a short overview of Dworkin’s interpretive theory of law. Section 3.2.3 explores, in the same direction as the previous one, the relations between legal argu­mentation and the character of law, with a view to providing general guidelines for choosing between the conceptions of legal authority presented in Sects. 3.2.1 and 3.2.2. Section 3.2.4, at last, considers the authority of constitutional courts and the varieties of explanations available to understand the decisions that strike down a particular statute on the basis of its unconstitutionality. These explanations are important here because I will hold that any explanation available for the nature of the authority of constitutional courts has significant implications for the legitimacy of these institutions. In the third part, on the other hand, I focus on the justification of legal authority and on the important task of providing the grounds for the legitimacy of judicial review. While the first section of this part (3.3.1) assesses Raz’s Normal Justification Thesis, the second section (3.3.2) comments on the procedural theories that criticize this thesis and attempts to provide an egalitarian justification of ‘demo­cratic authority’. The third section (3.3.3), in turn, deals with the difficulties that arise when one takes up the task of constructing a moral justification for the author­ity of constitutional courts. This is followed by Sect. 3.3.4, which deals with the specific moral burdens that fall upon the strong systems of judicial review. The last section (3.3.5), finally, provides the only ground that I believe to be helpful to justify the practice of judicial review, which can be found in one of the arguments pre­sented by Dworkin in his defense of judicial review. Along with Waldron, I argue that Dworkin has a good argument, but that it is at pains to vindicate a system of strong judicial review. The authority of judicial review, as I maintain in the conclud­ing section, is much easier to justify in a system of weak courts that lack final authority to decide about the validity of a legislative provision.

3.2