The Justification of Authority and the Burdens of Constitutional Courts

I have left aside until now one of the main problems that I wish to address in this essay, which is the moral justification of the authority of constitutional courts. It is now time to take up this issue.

3.3.1 The Normal Justification Thesis

According to Raz, the main argument to provide a moral justification for an author­ity is to show that by following the directives of the authority a person is more likely to comply with the dependent reasons which apply to her than if she refused to fol­low the commands of the authority and decided to figure out by herself on which reason she should act (Raz 1986, 71). Authorities, therefore, exercise a ‘mediating role’ between their subjects and the independent reasons that they have to act in a certain way. One has legitimate authority over a person when such person is likely to be better-off by following the reasoning of the authority than her own reasoning on the matter at stake.

Raz calls this conception the ‘service conception’ of authority, for he thinks that the authority acts in service of her subjects by helping them to act on the right rea­sons. Under the Service Conception, ‘authorities have the power to tell us what to do because we benefit, in some sense, from their having such power’ (Shapiro 2002, 431).

This mediating role of authoritative directives explains, for Raz, why they are a special type of ‘second-order’ reasons for action. Though they pre-empt most of the reasons on which they are based, ‘directives and rules derive their force from the considerations which justify them’ (Raz 1986, 59). In other words, ‘it is the truth or the soundness of the decisions which counts ultimately. Truth and soundness pro­vide the argument for the legitimacy of authority’ (Raz 1989,778).^[50] Authorities are legitimate only to the extent that they facilitate the subjects to comply with the right reasons that are already available to them. On the NJT, the power arrangements and institutions in a given society are justified only instrumentally, in such a way that ‘one structure of government is more legitimate than another when one is more likely to track the balance of dependent reasons than another’ (Shapiro 2002, 432). Even democracy, for Raz, is justified only in instrumental terms, i.e. ‘if it leads, by and large, to good government’ (Marmor 2005, 317).

It is this purely instrumental character of the NJT, as Raz’s critics correctly point out, that makes it a problematic justification of the authority of law.

By advocating this indirect justification of authority, Raz ends up assuming a heavy burden for his theory of the moral legitimacy of the state and the legal institu­tions. The legitimacy of an authority becomes entirely dependent upon the exis­tence of a larger set of values and conditions, which must be properly specified if they are to acquire any binding status in a given society. As Leslie Green has argued, this indirect justification requires a ‘specification of why a particular indirect strat­egy is the optimal one’. Hence, ‘whether or not authority can be justified morally is thus a complex matter which cannot be decided in advance without considering the precise sort of indirect argument offered’ (Green 1988, 58).

Green’s point about the conditional character of these indirect justifications helps me reinforce my view that the NJT attracts for itself a heavy burden which makes it at best insufficient for justifying the authority of ‘the state’ or ‘the law in general’.

The idea that we can base the legitimacy of the state or the legal system ‘on the prospect that individual’s compliance with morally important reasons would be improved as a result of their acceptance of authority’, as Raz seems to believe, is problematic because it ignores the ‘moral significance of disagreement among citi­zens about the proper organization of their political communities’ (Christiano 2004, 279). Part of the point of politics, as Christiano explains, is precisely to create orga­nizations to ‘make decisions when there are serious disagreements regarding the matters to be decided’ (Christiano 2004, 280). The NJT seems to be unaware of this fact and attracts for itself not only the duty to specify the values that justify an authoritative legal pronouncement, but also the charge of describing the whole set of circumstances in which the authority is justified by these values.

A much easier task can be done, on the other hand, by the theories that intend to justify the authority of the law on the authority of democracy, as I intend to show in the next section.

While Raz’s theory of legitimacy presupposes a ‘division between rulers and subjects - a division between the duty-bound and the binders -’, the ideal of a democratic government is grounded on a view of political action as a form of ‘col­lective action’, i.e. as ‘the action of the community through various procedures and decision functions that operate on the preferences or views of its members’ (Hershovitz 2003, 210). Democracy does not see an authority as having a ‘right to rule’ upon the others; on the contrary, the main source of political legitimacy are the procedures by means of which ‘we are binding ourselves through acts of legislation’ (Hershovitz 2003, 210).

3.3.2 The Democratic Justification Thesis

I will consider from now on an alternative to NJT, which attempts to justify the authority of law on ‘process-related reasons’. Such reasons are reasons for decisions that should stand ‘independently of considerations about the appropriate outcome’ of the decision-process (Waldron 2006, 1372). By appealing to these reasons, one can associate the authority of law with the authority of democracy, as well as with the claim that the directive of an authority is justified because it is the product of a process which is accepted as fair and shows respect for the different values, inter­ests and opinions of the citizens that participate in the making of the decision.

This perspective assumes that democratic decisions can acquire a binding status and morally obligate independently of their contents. The authority of the law is justified because it is the product of a democratic settlement. Democratic proce­dures legitimate an authority ‘because they represent power-arrangements that are fair’ and empower citizens to have ‘an equal ability to exert control over their life and the life of the community’ (Shapiro 2002, 432). The value of democratic author­ity, contrary to NJT, is no longer based on its instrumental features, but rather on its intrinsic value that stems from its respect for the autonomy and the political equality of the participants in the decision-process. ‘Rather than violating one’s autonomy, heeding rules that one believes to be mistaken can be an affirmation of the value of autonomy in general. It shows respect for the rational faculties of others, recognizes the fairness of accepting burdens in cooperative ventures, and supports the equality in distribution of power through society’ (Shapiro 2002,432).

One of the most successful attempts to provide, contrary to the NJT, a procedural and democratic justification of the authority of law is offered by Jeremy Waldron, who claims that legislation has a special dignity, which is grounded in the special achievement that it represents for permitting ‘concerted, co-operative, co-ordinated, or collective action in the circumstances of modern life’ (Waldron 1999, 101).

Democratic legislation passed under the circumstances of politics is worthy of respect because of the ‘achievement’ that it represents, which enables ‘action-in- concert in the face of disagreement.’ It claims authority as law ‘because it is a respectful achievement - because it is achieved in a way that is respectful of the persons whose action-in-concert it represents’ (Waldron 1999, 108-9). Under the circumstances of politics, on Waldron’s view, the principle of majority-decision acquires a special importance insofar as it shows equal consideration for the indi­viduals who participate in the voting and decision-processes to overcome their dis­agreements about the key controversial matters in a constitutional democracy. This is done in two particular ways: (1) by respecting their ‘differences of opinion about justice and the common good’, and (2) by embodying the principle of ‘respect for each person in the process by which we settle on a view to be adopted as ours even in the face of disagreement’ (Waldron 1999, 109).

The method of majority-decision, moreover, ‘gives equal weight to each per­son’s view’ in the process by which one view is settled as the group’s. It embodies the principle of equality and establishes thereby a fair method of decision-making (Waldron 1999, 114).

This justification of the authority of legislation is thus grounded in the fact that procedural fairness is intrinsically valuable, rather than merely instrumental. In the realm of political actions the requirement of fairness deserves a special status because it is a requirement of the idea of ‘respect for people’s right to personal autonomy’, according to which ‘people should create, as far as possible, their own lives through successive decisions and choices of their own’ (Marmor 2005, 319). The value of respect for people’s autonomy, as Marmor suggests, ‘requires a politi­cal structure in which everybody has a fair chance to participate, and this is what democratic decision procedure aims to achieve’ (Marmor 2005, 319). The point, in short, is that democratic authority is intrinsically valuable because respect for peo­ple’s autonomy entails a right to ‘an equal participation in the political decision process’, which can only be observed by processes of public deliberation followed by majority decisions among citizens with equal status in the political community.^[51]

In the context of disagreement or different interests and different judgment about our political alternatives, with regard to social justice and moral rights, democratic decisions are open and publicly discussed, in the deliberative stage, and fairly obtained by majority-voting, in the decision stage. They acquire an i ntrinsic moral value that is lacking in any instrumental justification of the authority of legal enact­ments. As Christiano has argued, ‘the facts of diversity, fallibility, disagreement, cognitive bias and the interests that we have in publicity provide the key to the final stretch of the argument for democracy’, which can be summarized thus:

When there is disagreement about justice and the common good, the uniquely best way to take everyone’s judgment seriously, so that equality is publicly embodied, is to give each person an equal say in how the society ought to be organized. And this in turn is the way publicly to realize equal advancement of interests. Therefore the principle of the public realization of equality supports democracy as the uniquely best realization of equality under the circumstances of disagreement and fallibility (Christiano 2004, 276).

Democracy, under this perspective, is the only way to overcome our disagree­ment with equal respect and consideration, the ‘uniquely just solution’ to political conflict, and the only decision-process that may legitimate the outcomes ‘even when they are unjust in the eyes of some’ (Christiano 2004, 277).

This provides a justification of legal authority more robust as compared to the Normal Justification Thesis. Let us call it the Democratic Justification Thesis (DJT). This thesis can be asserted thus: an institution has intrinsically legitimate authority over a person, independently of the existence of any instrumental reason to that effect, when the directives of this institution are the outcome of a public and fair decision-process in which such person has a right to an equal participation. The Democratic Justification Thesis provides, thus, the most powerful justification available for the authority of a legal institution.^[52]

3.3.3 On the Difficulty to Ground the Authority of Constitutional Courts

I have described in this essay two different views about the nature of authority and two alternative views about the moral justification of authoritative directives.

With regard to the nature of authority, the first view that I summarized above was the mainstream position elaborated by Raz, which can be labelled ‘Pre-Emptive’ because it claims that the judgment of an authority is both content-independent and exclusionary, in the sense that the reasons that the authority provides are not simply added to the dependent reasons that a person may have, but rather replace these dependent reasons because they are assumed to reflect the outcome of their appro­priate balancing.

The second view, in turn, acknowledges MacCormick’s argumentative or ‘argu­able’ character of law. This view is defended by legal philosophers that, on the one hand, move apart the ‘Standard Picture’ of legal authority (as Greenberg defines it) and, on the other hand, acknowledge the interpretive and argumentative character of law.

This distinction is important for me because I am convinced that the second view is more attractive as a general description of how the legal system operates both in common law reasoning and in statutory interpretation, whereas the first view is a better description of how constitutional courts act when they strike down a statute enacted by the legislature. If we think of the ‘central cases’ of legal practice, where the ‘law in general’ is at stake, it is sensible to argue that when the taw creates a legal obligation, Dworkin’s account is more appropriate. Nonetheless, as I argued in Sect. 3.2.4, this jurisprudential account misses some important ‘peripheral cases’ that appear in constitutional adjudication, in which the decision of the constitutional court annuls a statute by pronouncing its unconstitutionality. In this particular type of authoritative legal pronouncements, the court’s decision is deconstructive and blocks further deliberation about the validity of a law pronounced by the representa­tives of the people. Raz’s pre-emptive account of legal authority provides a more accurate explanation for this particular legal setting.

I think that this poses a legitimacy problem for the authority of constitutional courts. Why is that so? The basic idea is that the pre-emptive character of legal authorities makes an authoritative pronouncement valid merely because the author­ity has pronounced it. While in the central cases (including statutory interpretation and common law cases) the law is argumentative and the subjects have a non- negligible room for constructive interpretation and for incorporating moral argu­ments as valid reasons for determining the contents of a legal provision, even after the issuance of the authoritative enactment, in the peripheral case of a pronouncement of unconstitutionality the court is simply cutting down any further deliberation. It quashes a law and leaves no room for further interpretive activity in adjudication. Hence, the very nature of the authoritative pronouncements of constitutional courts in a system of strong judicial review, where the courts are empowered to strike down a procedurally correct enactment of the legislator, imposes a heavy burden on these pronouncements, which is not at stake when we consider the central cases, where the authority of law can be explained without the peremptory force that the Pre-Emptive Thesis usually entails.

Things get even worse for judicial review when we consider no longer the nature of the authoritative pronouncements of constitutional courts, but the moral justifica­tion that is available for this kind of authority. When the law is established by an act of a democratic legislature, the Democratic Justification Thesis provides an intrinsic justification for the statutory provisions enacted through the legislative process. One needs not to consider, at least in the majority of the cases, the instrumental efficacy of a piece of legislation in order to establish the legitimacy of its enactment. The very fact that a statute presents itself as the outcome of a decision-process that is publicly conducted and respectful of the citizen’s right to an ‘equal participation’ is enough to provide a moral justification for the authority of democracy. But when we focus on constitutional courts the picture is very different. Constitutional courts, in spite of their relevance for assessing the reasonableness of the outcomes of the dem­ocratic procedures, are under a very heavy burden of proof. Even those who believe that it is possible to justify the powers of a constitutional court on the basis of the ‘very principles that underpin democracy’ (including the need to protect publicity, equality and participation in the advancement of one’s interests) sometimes recog­nize that constitutional courts have a ‘nondemocratic character’ which makes them vulnerable, at least in part, to the critic of the skeptics of judicial supremacy, who believe that there is no a priori moral justification for disenfranchising the majority of the people in the cases where there is a widespread disagreement about the rights that we have (Christiano 2008,288).

Constitutional courts are nondemocratic institutions, according to Waldron, because they are based on the aristocratic claim that the most controversial political disagreements about rights and principles in a political community should not be resolved according to the citizens’ own judgment. Politics, for Waldron, is ‘always a matter of judgment’, and the core of the democratic claim ‘has always been that the people are entitled to govern themselves by their own judgments’ (Waldron 1999, 264).

Even if there is ‘no general principled reason’ for rejecting a constitutional court with the power of judicial review of the legislation, neither there is any principled reason for accepting it as it is (Christiano 2008, 281). On balancing, any argument for a constitutional court with the powers of strong judicial review is ‘an essentially instrumental one’, as Christiano has argued in the following excerpt:

Other things being equal, the loss to public equality that results from bad court decisions is greater than the gain to public equality when the court makes a good decision. This is because the loss that arises from a court making a bad decision (say striking down demo­cratic legislation that accords with public equality) is a double loss while the gain from the

court striking down bad democratic legislation is not as great. But this implies that a consti­tutional court can be justified only if the good decisions significantly outnumber or out­weigh in importance the bad decisions (Christiano 2008, 280).

Though the courts may serve legitimate purposes while interpreting and specify­ing the rights that are abstractly stated in the constitution or equivalent legal docu­ment, their lack of democratic justification places a heavy burden on them when they strike down a particular legal statute.

This helps us understand what makes Waldron so suspicious about the idea of replacing a majority decision of the representatives of the people by a simple major­ity decision of the judges in a constitutional court. The claim that the court might stake to participate in the political process, with a view to dictating the solution to a moral disagreement in a hard case, is merely instrumental - and not a matter of ‘entitlement’ - because the court is not deciding its own faith, but rather making moral judgments in the name of the whole society.

When I argue, following Waldron and Christiano, that such claim is ‘instrumen­tal’, I mean that in a constitutional democracy one can justify the authority of the constitutional court not because it represents the members of the political commu­nity and is naturally entitled to decide on their behalf, but merely because under certain conditions its rulings may trigger a public reasoning about the fundamentals of the community and help to protect the basic rights enshrined in the Bill of Rigths.

As a rule, the authority of the constitutional court is justified under the assump­tion - not always empirically verifiable - that the court somehow serves democracy by facilitating compliance with the ‘democratic conditions’ that, in a liberal society, entail that the government must have a ‘concern for the equal status of citizens’ (Dworkin 1996, 17).

In order to establish the legitimacy of a constitutional court we need a cost­benefit analysis that is to be measured in purely instrumental terms. If we are to accept a justification for the overriding powers that constitutional courts have over democratic legislation, then we cannot rely on intrinsic justifications such as the Democratic Justification Thesis. We are only left with instrumentalist accounts such as Raz’s Normal Justification Thesis, which makes the legitimacy of the institution of judicial review entirely dependent upon the fulfillment of a detailed set of condi­tions that the defendant of judicial review must be able to specify. I will call these conditions the ‘Circumstances of Judicial Review’.

3.3.4 On the Principles Underlying Democracy and the Legitimacy of Strong Judicial Review

Before we move on to specifying some of the ‘circumstances of judicial review’ (or at least one of such circumstances), I would like to consider whether it is possible to justify the judicial review of a democratically enacted law on the basis of the ‘prin­ciples that underpin democracy’, as Christiano suggested in an excerpt quoted earlier in this essay. On the basis of Marmor’s views stated above, I assume that the authority of democracy stems from the value of ‘equal respect for people’s auton­omy’, which ‘needs to be implemented by acknowledging a right to an equal par­ticipation in the decision process’ (Marmor 2005, 330).

Does the practice of judicial review help protect this right? I think that we need at least some theoretical reflection about the general features of the right to equality in the political decision-process before we can offer a plausible answer to this ques­tion, and I will try to provide this theoretical background by focusing on Marmor’s explanation of the right under consideration. For Marmor, a political process that leads to an authoritative settlement comprises ‘two main stages: deliberation and decision’ (Marmor 2005, 331). We can assess the political power of a citizen by determining her capacity to participate in these two stages of the political process. Nevertheless, the value of political equality manifests itself in a different way in each stage of the political decision-process, as Marmor explains with the help of Dworkin’s distinction between ‘impact’ and ‘influence’ in political decisions (Dworkin 2000, 191).^[53]

At the deliberative stage, political equality is a matter of equality of influence, which is satisfied by the principle of ‘equality of opportunity of political influence’ in the public deliberations that precede the actual decision by majority voting (Marmor 2005, 333). People’s autonomy is fostered when a democracy provides an equal opportunity of influence through a wide range of principles and institutions that are regarded as ‘essential to the proper functioning of a democracy’ (Marmor 2005, 333). At the stage of authoritative decision, on the other hand, political equal­ity cannot be satisfied with the idea of equality of influence, but requires instead the concept of equality of impact. Though there may be many different institutional arrangements that equally satisfy this requirement, it is not very difficult to con­clude that, at least in the final stage of actual decision-making, the practice of judi­cial review faces a serious difficulty to ground its normative power to quash a democratically enacted law. The idea of ‘political equality’, in the stage of actual decision-making (the second stage), points only to process-related reasons about the right to p articipate in the decision-processes of the political community, and this class of reasons are not available for justifying the authority of a constitutional court.

It is this p rocedural aspect that is missing in the optimistic accounts that recog­nize in the courts a representative character in the sense of Robert Alexy. Contrary to the position defended in this essay, Alexy thinks that constitutional courts can be legitimized by a wide conception of representation, which comprises not only votes and elections, but also arguments and reasons. Alexy thinks that a ‘deliberative’ conception of democracy embodies two kinds of representation: ‘volitional’ and ‘argumentative’. Legislators are linked to their constituents by volitional and argumentative representation, whereas Constitutional Courts are accountable to the citizens exclusively by their capacity to disclose sound and correct arguments in support of their authoritative decisions, which must be effectively understood and endorsed by their audiences on the basis of the ideal of a ‘discursive constitutional­ism’ (Alexy 2005, 578-9). Alexy thinks that this is enough to conclude that the courts have an ‘argumentative representation’ to issue authoritative interpretations of constitutional rights.

The problem with this position, in my opinion, is that it underestimates the importance of the ‘decision’ stage in the political process. For a political decision to be legitimate, it is not sufficient that it is allegedly in the interest of the people, but it must also respect the people’s autonomous judgments about these reasons. In order to defend his position, Alexy would have to deny that the people, at the deci­sion stage, have the right that we have been discussing in this section, which is the right to a ‘fair distribution of the actual power to make the decision’ (Marmor 2005, 333). Marmor’s distinction between the ‘deliberation’ and the ‘decision’ stages of the political process of reaching an authoritative settlement of our major disagree­ments about our rights helps us see that the current attempts to offer a moral justifi­cation for the judicial review of the legislation are based o nly on the contribution that it can offer to increase public participation in the stage of deliberation about a particular rights issue. If constitutional courts are to be justified, it is not because they have a ‘representative’ character, but only because there might be some instru­mental justification for their existence.

Constitutional courts, in systems of strong judicial review, do not enhance the participation of citizens in the ‘decision stage’. On the contrary, they normally dis­enfranchise these citizens at this stage and claim to provide ‘exclusionary reasons’ for not acting on the democratically-enacted laws. It becomes, therefore, very dif­ficult to ground the powers of strong judicial review on the same principles that justify the authority of democracy.

3.3.5 Dworkin's Instrumental Defense of Judicial Review and the Authority of Weak Constitutional Courts

The most paradigmatic defense of judicial review, nowadays, is Dworkin’s attempt to reconcile the ideas of democracy and constitutionalism. Constitutionalism, both in the United States and in all of the places where it has found a root, is linked to the conception of government and politics that Bruce Ackerman has described as ‘dual­ist democracy’, which distinguishes two levels of decisions that may be made in a political community. On the first level one finds the genuine ‘direct’ decisions of the people concerning their fundamental laws, which are described as a ‘higher law­making,’ whereas on the second level one finds the ‘normal lawmaking’ of ordinary legislation (Ackerman 1993, 6-7). This distinction between ‘normal’ and ‘constitu­tional’ politics captures the core assumption of constitutionalism. It is on the basis of this distinction that Dworkin proposes his ‘constitutional conception of democ­racy’, which understands democracy as not necessarily linked to the principle of majority decision. The ‘constitutional’ conception of democracy, as he writes, ‘denies that it is a defining goal of democracy that collective decisions always or normally be those that a majority or plurality of citizens would favor if fully informed and rational’, and claims instead that the defining point of democracy is ‘that collective decisions (should) be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and respect’ (Dworkin 1996, 17). It is this key constitutional decision that supports the moral rights entrenched in a Bill of Rights, which are understood to express the ‘democratic conditions’ under which Government may be exercised in that political community (Dworkin 1996, 17).

One can notice here an important similarity between Dworkin and Raz. The heart of Dworkin’s argument for judicial review lies on the instrumental capacity of the institutions of judicial review to protect the democratic conditions. His advocacy of judicial review is based on the following claims: (1) the majoritarian process - the political process that leads to a legislative decision - ‘encourages compromises that may subordinate important issues of principle’ (Dworkin 1996, 30); (2) judicial review is a ‘pervasive feature’ of our political life, ‘because it forces political debate to include argument over principle, not only when a case comes to the Court but long before and long after’ (Dworkin 1985, 70); and (3) ‘individual citizens can in fact exercise moral responsibilities of citizenship better when final decisions involv­ing constitutional values are removed from ordinary politics and assigned to courts, whose decisions are meant to turn on principle, not on the weight of numbers or the balance of political influence’ (Dworkin 1996, 344).

I am not entirely convinced, however, of the plausibility of the assumptions (1) and (3) in Dworkin’s general argument in defense of judicial review. Contrary to Dworkin, I believe that a special value should be attributed to the compromises that a political community may reach about the contents of the rights that we have and the positions that they entail.

Dworkin argues that compromises about moral rights may represent a threat for the appropriate enforcement of these rights, since political majorities may subordi­nate important issues of principle by means of ‘checkerboard laws’, which are intrinsically flawed because they do not make sense under any coherent scheme of moral values (Dworkin 1986).^[54] Yet there might be good reasons to think that this conclusion is too strong. One might argue, contra Dworkin, that these views on compromise are based on bias and that he fails to recognize the moral worth of political compromises achieved under the scenario of a public reasoning to over­come our reasonable disagreements.

The danger of checkerboard compromises, which subordinate issues of princi­ple, is nearly non-existent when the procedural requirements of public deliberation are satisfied. Under the context of reasonable disagreements, which includes ‘con­flicting’ and ‘incommensurable’ positions, Richard Bellamy correctly advocates that compromises need not to be seen as ‘shoddy’ or unprincipled. On the contrary, they are often products of ‘the mutual recognition by citizens of the reasonableness of their often divergent points of view by seeking to accommodate these various perspectives within a coherent program of government’ (Bellamy 2007, 192-3). Compromises about rights are valuable because they strengthen the idea of ‘non­domination’ of any citizens and reinforce the value of the ‘rule of law’ (Bellamy 2007, 194).^[55] Rather than an illegitimate negotiation about matters of principle, compromises are more often than not a mutual agreement among autonomous citi­zens who are willing to respect each other as equally important individuals in spite of their deep disagreement about a particular moral or political issue.

Instead of attributing a moral stigma to compromises achieved under Waldron’s ‘circumstances of politics’, Bellamy thinks that compromises can be fair because the parties show ‘equal concern’ with regard to the opponent’s substantive views and observe the procedural requirement of hearing all sides before a particular posi­tion is reached. This account of political compromise shows that there is special value in compromises reached through a process of fair and decent deliberation under the context of a public reasoning. Nonetheless, it shows also that a moral decision in the name of the whole society only can be ‘principled’ if this ‘public reasoning’ is both accessible to all citizens and undertaken by the citizens them­selves, or at least by someone entitled to make a compromise in their name.^[56]

As long as a compromise about rights matters is reached under the conditions of procedural fairness and equal opportunities to influence the deliberation and to par­ticipate in the actual decision-making, there is nothing wrong in letting the people themselves discuss the terms of the agreement that is to be constructed about the contents of a given principle and the individual rights that this principle entails.

This point becomes even more important if we realize that in the ordinary busi­ness of constitutional courts the judges themselves resort to compromises in the same way as legislators and the interested parties do. The ability to reach compro­mises in court about a particular rights issue is normally described by lawyers and political scientists not as a vice, but, on the contrary, as an important judicial virtue that is widely known among the defendants of judicial review as the virtue of ‘col­legiality’. As we can read in a nice recent book about the deliberative role of the courts in a constitutional democracy, ‘collegiality pushes deliberators to find prin­cipled compromise where spontaneous agreement proves unviable’. A collegial constitutional court, therefore, is marked by ‘a spirit of accommodation, a default preference for compromising instead of concurring or dissenting, a willingness to locate points of conflict and dissolve them’. It implies ‘a pressure to deflect “in deference to one’s colleagues”’ (Hubner Mendes 2013, 131). Collegiality, to use a familiar image among the defendants of the principle of judicial supremacy, is the ‘intimacy beyond affection’ that reigns among the judges in their internal delibera­tions about the solution to a given case (Coffin 1980, quoted in Hubner Mendes 2013, 129).

There is no aprioristic reason, therefore, to prefer a compromise reached by a bunch of judges over a compromise reached by We, the People, about the contents and the interpretation of the rights that we have settled for ourselves in the Bill of Rights.^[57] Dworkin’s assumption regarding the deleterious effects of political com­promises about individual rights is not only empirically undemonstrated, but also instrumentally inefficient for granting the powers of judicial review, since the com­promises reached by the courts in constitutional adjudication are at least as worry­ing as any other compromise between majorities and minorities in the political assemblies.

Dworkin, therefore, is left with only one argument to defend his claim that judi­cial review may be justified in constitutional democracies. The only sound moral reason that he is able to provide in favor of the institution of judicial review is that judicial review is important because it forces the political community to deliberate about matters of right and principle that can be neglected in the political judgments of the majorities in a constitutional democracy. Judicial review becomes important precisely because it can ‘force political debate to include argument over principle’ and break the inertia that sometimes arises when the interested groups cannot reach a compromise by the ordinary means. More importantly, it also incites a public deliberation about a rights-claim and creates an authentic ‘forum of principle’ where citizens can expect a reasonable justification for the authoritative settlement of the fundamental controversies that they have about the contents of their rights.^[58]

As we can see, this is an argument that follows a structure similar to Raz’s Normal Justification Thesis. The constitutional court, under this view, acts in ser­vice of the general citizens, since it is in a better position to balance all the reasons of principle that are applicable to these citizens even though such reasons were not visible in the ordinary political debates. The court’s decision is relevant because it facilitates the people to comply with the reasons of principle that they have to act in a certain way. As it happens in Raz’s Normal Justification Thesis, the directives of the constitutional court ‘derive their force from the considerations which justify them’. It is because the court’s decision is based on principles that are not always considered in the political deliberations that we should accept the authority of the courts.

Even Jeremy Waldron, one of the toughest critics of judicial review, concedes that this may be a good argument for us to have a constitutional court. The court can be justified as ‘a mechanism that allows citizens to bring these issues to everyone’s attention as they arise’ (Waldron 2006, 1370). Nonetheless, as Waldron explains, this is n ot an argument for strong judicial review. Important as this alerting role of a constitutional court might be, it is ‘an argument for weak judicial review only’, and not for a ‘strong form of the practice in which the abstract question of right that has been identified is settled in the way that a court deems appropriate’ (Waldron 2006, 1370). In effect, in systems of weak judicial review, where courts lack final authority to settle the matters of a controversy about the rights that we have in the political community,^[59] courts can act as a ‘checking point’ in the system, having an ‘interpretative, alerting and informing function with respect to rights issues’ (Gardbaum 2013, 64).

The main virtue of these weak-form systems of judicial review, in my opinion, is that they neither withdraw from the people or their representatives the moral respon­sibility for the interpretation of the rights that they possess, nor impinge upon the people’s right to have their fair share of the power to participate in the making of the decision. Given that the decisions of the courts in a weak-system of judicial review are not final and stand only to the extent that they place a burden of argument on the officials that intend to exert their power to override them, the responsibility for rights is dispersed among ‘all three branches of government’ rather than centralized in the courts (Gardbaum 2013, 68). It may foster, as the legal systems that belong to the New Commonwealth Model of Constitutionalism intend to do, ‘a stronger and deeper rights consciousness in all institutions exercising public power’ (Gardbaum 2013,69).

When we focus on the decision stage of the political process, it is harder to find a moral justification for the power of the courts to quash a legislative decision in a constitutional democracy. Neither intrinsic reasons stemming from the values that underlie democracy nor instrumental justifications such as Dworkin’s argument that the court may facilitate public reasoning are capable of justifying such power under the circumstance of deep disagreement about a rights issue. While the systems of weak judicial review are premised on the principle that ‘democracy requires a rea­sonable legislative judgment to trump a reasonable judicial one,’ (Gardbaum 2013, 65) in legal systems with strong judicial review it is the other way round.^[60]

The legitimacy problem of strong judicial review becomes visible when we con­sider the fact of disagreement in the contemporary democracies of the Western world. As Waldron has shown in his famous criticism against judicial review, there are sound process-related reasons for accepting as fair a legislative decision made in the light of a profound and persisting disagreement about the rights that we have in a given society, and there seems to be no analogous moral reasons to justify its invalidation by an equally divided court.

On the one hand, an advocate of a majority decision by a legislature, when ques­tioned by a citizen defeated in a deliberation about rights, may ground her position in the theory of ‘fair elections’, in which all citizens have equal opportunities to participate in the decisions about the composition of the legislature. Furthermore, the principle of ‘majority decision’ (MD), ‘better than any other rule’, must be accepted because it is ‘neutral as between the contested outcomes, treats partici­pants equally, and gives each expressed opinion the greatest weight possible com­patible with giving equal weight to all opinions’ (Waldron 2006, 1388). That is to say: while adopting MD, we commit ourselves with the principle of political equal­ity, which provides a reasonable justification for legislative supremacy at least in the ‘core cases’ that make judicial review morally unjustified.^[61]

On the other hand, this kind of justification is not available when the power to resolve our good faith disagreements is assigned to a majority decision among a small number of judges in a constitutional court. ‘MD is appropriate for persons who have a moral claim to insist on being regarded as equals in some decision­process’, whereas constitutional judges lack any moral basis for their claim to par­ticipate because their claim is ‘functional’, rather than a matter of ‘entitlement’ (Waldron 2006, 1392). According to Waldron, the attempt to vindicate the judicial supremacy and reconstruct democracy as suspicious about the MD is described as an ‘insult’, particularly when we consider the fact that ‘judges disagree among themselves along exactly the same lines as the citizens and representatives do, and that the judges make their decisions, too, in the court-room by majority voting’ (Waldron 1999, 15).

Waldron has good arguments, therefore, to support his claim to decouple the ideas of ‘rights’ and ‘judicial supremacy’. Though there is no incoherence between democracy and constitutionalism, insofar as democracy itself presupposes and instantiates some fundamental rights, the contents of democratic rights must be determined by democratic means if they are to comply with democracy’s require­ments of fairness and equal respect for the different views upheld by the members of the political community. The critics of judicial review need not to be seen as criti­cizing the idea of rights in general. On the contrary, they are based on the people’s right to participate in the deliberation about the rights that they have in the political community.^[62]

3.4