The problem of constitutionalism and the legitimacy of its core institutions, in particular the judicial review of democratically-enacted legislation, is probably as old as the invention of the idea of a constitutional democracy in the beginning on the nineteenth century.

The debate about the democratic legitimacy of constitutional courts and the authority to interpret the constitution has been going on for quite a while, and the emblematic decision of Marbury v.

The judiciary.. has no influence over either the sword or the purse; no direction either on the strength or the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments [...].

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains specified excep­tions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights and privileges would amount to nothing (Madison et al. 1787, Paper 78, 437-438).

As we can learn from the fragment above, since the beginnings of constitutional­ism one of the central arguments to justify the authority of the courts to adjudicate on the validity of an act of parliament was its immunization from ordinary politics

T.

Universidade Federal de Minas Gerais, Avenida Joao Pinheiro, 100,

Belo Horizonte, Minas Gerais 30.130-180, Brazil

e-mail: tbustamante@ufmg.br; bernardogaf@yahoo.com.br

© Springer International Publishing Switzerland 2016 1

T. Bustamante, B.G. Fernandes (eds.), Democratizing Constitutional Law,

Law and Philosophy Library 113, DOI 10.1007/978-3-319-28371-5_1 and the special kind of impartial and uninterested judgment that they exercise. Legalistic reasoning, in itself, could assure the kind of objectivity required for reviewing the constitutionality of legislation and providing a measure of stability and mutual control among the three branches of political power.

Yet it did not take long for the critics of judicial review to realize that Hamilton’s assumption about the court’s isolation from ordinary politics is problematic from the empirical point of view, since it does not take into consideration the reasonable and good-faith disagreement that is pervasive among both the participants of the law-making procedures and the judges who sit in the court to review the decisions of the legislature.

In the face of disagreement, Hamilton’s contention that the court is protected from the contingencies of political debate and exercises a technical and unbiased judgment about the violations of the constitution, which are expected to be clear from the text of the Constitution itself, looses much of the grip that it had when the U.S. Constitution was drafted. If, in spite of our mutual effort to that effect, we can­not agree on the meaning of the Constitution, or the scope of the abstract principles and values comprised in its wording, then the judgment of the court lacks any spe­cific feature that makes it qualitatively different from that of the people or their representatives in a legislative assembly. Though this argument is presented, even today, as one of the strongest reasons for suspicion about the legitimacy of consti­tutional review, in the pages of Jeremy Waldron, Mark Tushnet, Larry Kramer and many others, it was already present in Abraham Lincoln’s “First Inaugural Address” delivered on 1861, as one can read in the following fragment, which was recently quoted by one of the most radical critics of judicial review in contemporary legal philosophy:

No foresight can anticipate, nor any document of reasonable length contain, express provi­sions for all possible questions.

From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the government must cease. There is no other alternative; for continuing the gov­ernment, its acquiescence on one side or the other... Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the major­ity principle, anarchy, or despotism in some form, is all that is left (Lincoln 1989, 221, quoted on Waldron 2000, 62).

Many of the arguments that Waldron (1999) nowadays directs against constitu­tional review, on the basis of a more modern notion of “reasonable disagreement” borrowed from Ralws’ political liberalism (Ralws 1999), were already available in the beginning of the nineteenth century, even if we concede that they lacked the philosophical refinement that they do today.

The contribution that legal philosophy and legal theory provided to this debate, however, has risen in a significant way. Legal and philosophical debates about the nature of law and legal institutions are no longer limited to the disjunctive alternative between, on the one hand, a Platonic form of natural law theory that fails to account for the social and institutional nature of law and, on the other hand, a primitive form of legal positivism that ignores the functions and the moral values of the legal sys­tem, failing to understand the sources of the normativity of law and the legitimate authority that the law claims for itself.

On the camp of legal positivism, for instance, Joseph Raz’s theory of authority offers not only a conceptual account of legal validity and of the pre-emptive char­acter of authoritative legal pronouncements, but also a normative theory of legiti­mate authority and of the moral obligation to obey the law.

A theory of law, for Raz, is also a part of a more abstract philosophical theory of authority and political legitimacy in a liberal society, the task of which is not only to expound the necessary features of legal systems. Tough it is also an account of the validity conditions for a given legal system, a jurisprudential theory of law is a normative conception to explain why legal authorities are practically important and how they can provide content-independent directives that bind citizens in a political community. As Raz has put it in his seminal work The Morality of Freedom, the famous “service conception of authority”, with the three thesis that define it (the dependence thesis, the pre-emptive thesis and the normal justification thesis), has both an “explanation of the concept of authority”, insofar as it purports to “advance our understanding of the concept by showing how authoritative action plays a spe­cial role in people’s practical reasoning”, and a normative aspect, to the extent that its three thesis “instruct people how to take binding directive, and when to acknowl­edge that they are binding” (Raz 1986,63).

A theory of the legitimacy of legal institutions like courts and legislatures, for instance, is in a significant part a theory of legal authority and the legitimacy condi­tions for the institutions that claim the right to govern the populace in our political societies.

On the camp of non positivism, on the other hand, Ronald Dworkin develops an interpretivist theory of law that is significant, among other things, because it recon­nects legal philosophy and legal practice, moral argumentation and legal reasoning, and legal and political philosophy.

In one of Dworkin’s most cited fragments, Dworkin upholds that jurisprudence is the “silent prologue to adjudication” (Dworkin 1986, 90). To offer any response to a legal problem, one must assume, or presuppose, even if unaware of this implicit assumption, a conception of legality which establishes what is to count as a “ground of law” for the interpretation that one defends. No “empirical” proposition about the content of the law, for Dworkin, can be true or false without some more general proposition about when legal propositions are grounded and what kind of reason may be accepted as a “legal” reason. As Guest explains, what Dworkin is doing with this thesis is to get rid of a “mystique” that surrounds the word “philosophy”, that assumes that it is distinct or superior from the argumentative practices that we engage in. “Dworkin says we can’t fully engage in practice without some idea - an ideally good idea - of a theoretical account of what we should or should not be doing; it wouldn’t make sense to be engaged in a practice unless we had at least some notion of what were right or wrong ways of going about it” (Guest 2013, 3).

By the same token, Dworkin sees the law as a “branch” of morality, though it is an institutionalized branch where normative propositions are true or false in a more specific context. Dworkin rejects the idea of law and morality as separate systems, and replace it for what we might call an “integrated view” where law is a depart­ment of morality that concerns what we ought to do to each others in the political community to which we belong (Dworkin 2013). This account has an important bearing on the character of legal and political philosophy, as we can read in the fol­lowing fragment:

General political philosophy treats, among many other issues, legislative rights. A theory of law treats legal rights, but it is nevertheless a political theory because it seeks a normative answer to a normative political question: Under what conditions do people acquire genuine rights and duties that are enforceable on demand in the way described? (Dworkin 2013, 406).

Dworkin would hold, contrary to an intuition that is widely accepted among legal philosophers, that there is no such thing as a meta-ethics, in the sense that arguments about the nature of morality, law, justice, liberty, democracy and a clus­ter of “interpretive” or “political” concepts, as he calls it, are not value-free descrip­tions of the concepts they purport to explain, but rather moral arguments for a conception about what these ideas should be (Dworkin 2004).

But the idea that legal philosophy is, at least in some ways, a branch of political philosophy need not be regarded as unique to the defendants of non-positivism. It may well be the case, as Waldron has recently argued, that legal philosophy is understood as political philosophy or a special case therein (Waldron 2002), even if, in the end, this philosophical inquiry gives us moral and political arguments to uphold a normative type of positivism, where the separability between law and morality and the Razian social sources thesis are defended because they are more consistent with the point or the moral values behind the law (Waldron 2001).

All these arguments, on both sides of the positivism and non-positivism divide, are invitations to expand the boundaries of jurisprudential inquiry into the direc­tion of interdisciplinary works with legal dogmatics, political theory, political sci­ence, and many other possible subjects. They allow for a newer and richer account of moral and political disagreement, which has important implications for several topics that have to do with democracy and the authority of constitutional courts, such as: the philosophical and political question of the legitimacy of constitutional courts, which will be addressed in the first part of this book, the construction of theories of institutional dialogues and proposals of new models of constitutional deliberation, that will be the focus of part two, the development of new models of constitution-making and constitutional reform, which are the subject of part three, the definition of strategies for fulfilling constitutional promises and increasing democratic participation, that are discussed in part four, and, finally, the debates about the appropriate interpretive theory for constitutional law, which is the theme of the last part of the book.

As mentioned in the previous paragraph, the book is divided in five parts. The first part, entitled “Challenging and Defending Judicial Review”, has three essays that address the ongoing debate on the moral legitimacy of constitutional courts.

Marmor’s “Randomized Judicial Review” (Chap. 2) is a follow-up from some of his critical works on the legitimacy of constitutional review (Marmor 2007a, b), but based on different argument. He basically proposes a thought-experiment, which would consist in substituting the current U.S.-style systems of judicial review for a randomized system in which the constitutional court would be replaced by a com­puter that would deliver constitutional decisions on a random basis, with no fixed criterion other than a lottery. Implausible as that hypothesis may seem at first sight, Marmor puts forward a clever philosophical argument to suggest that from the moral point of view there is little that could be said in favour of the current system of judicial review, when contrasted with the hypothetical random model. As he says, “the current system of constitutional judicial review is fraught with many arbitrary elements, to an extent that makes the system only marginally better, if at all, compared with an overtly and blatantly randomized system” (Chap. 2).

In Chap. 3, Bustamante also takes a critical stand on the moral justification of the authority of constitutional courts. His paper is divided in two parts. The first part analyses the nature of the authority of the decisions of constitutional courts, with a view to showing that the derogatory effect of the court’s decisions which annul a legislative enactment on constitutional grounds provides exclusionary reasons in the sense of the legal philosophy of Joseph Raz. The author argues, however, that this exclusionary effect is not a feature of the “law in general” or the “central” cases of law application, for in most cases, including statutory interpretation when the validity of the statute is not contested, a Dworkinian account that understands the law as always dependent upon interpretation, even when previous interpretations have already been offered, provides a better account of the practice of law. The second part, in turn, assesses two possible justifications for the authority of consti­tutional courts: Raz’s Normal Justification Thesis, which provides an instrumental account of the justification of legal authority, and a form of democratic justification offered by Waldron and Christiano, among others, that grounds the authority of law on the intrinsic value of democracy as a form of law-making procedure that protects the people’s own judgments about controversial issues of politics and public moral­ity. He argues that this Democratic Justification of legal authority is more robust than the Normal Justification Thesis, but that only the latter is available to justify the authority of constitutional courts. We would have, therefore, an imbalance between the authority of constitutional courts and legislatures. While the legislature’s enact­ments lack the exclusionary character that Raz assigns to them and can only be justified in an instrumental way, the court’s derogatory decisions have such pre­emptive power to create exclusionary reasons for action, but the only justification that is available for such power is the instrumental justification provided by the Normal Justification Thesis. This provides an argument, for the author, against the models of strong constitutional review.

In Chap. 4, in turn, Justice Barroso provides an argument for the opposite con­clusion. The analysis, however, is less abstract than that of the previous two chap­ters. He begins with a historical overview of the global ascent of judicial review after the end of World War II and of the role that constitutional courts have been playing in the establishment of many democracies throughout the world. By the same token, Barroso takes up the problem of the deficit of representative legitimacy of parliaments and the insufficiency of electoral mechanisms to establish a link between representatives and ordinary citizens in contemporary democratic states. The basic argument is that under appropriate circumstances courts can help legisla­tures overcome this democratic deficit by establishing a practice of constitutional dialogue between the courts and the legislature itself. Furthermore, courts are in a better position to represent the people in an indirect way, by their deliberative and argumentative capacity in the protection of fundamental rights that are underpro­tected by the legislature. As the author claims in the opening section of the chapter, “it may be the case, under certain circumstances, that it will be up to the Supreme Court to be responsive to unattended social demands presented as legal claims of rights”.

The second part is concerned with institutional dialogues and constitutional deliberation, and is also composed of three chapters.

In Chap. 5, Gardbaum expands the analysis of the New Commonwealth Constitutionalism that he made in an important and successful book about the attempt to institutionalize, in common law legal systems such as the United Kingdom, Canada, New Zealand and some provinces of Australia, a model of judi­cial review without judicial supremacy (Gardbaum 2013). As Gardbaum has stated in previous writings, he thinks that the models of “constitutional dialogues”, as they sometimes appear in the texts of constitutional lawyers committed to a strong sys­tem of judicial review, is not always sufficient to respond to the democratic objec­tions raised against the models of judicial supremacy. Even if the dialogue model may establish some kind of communication between courts and legislatures in the long run, or a wholesale deliberation between courts and legislatures, it is still com­patible with a system in which the judiciary retains the final word for the specific matters under discussion in the case at hand (Gardbaum 2013, 27-28). In the chap­ter, the author presses some of his previous arguments forward, and explores the “relevant meaning of judicial supremacy (that the model rejects) in light of certain potential misunderstandings and alternative senses that could be given to the term” (Chap. 5). The normative point of the inquiry is to provide further arguments to defend his claim that judicial review without judicial supremacy is easier to defend on moral grounds than the strong systems of judicial review that are predominant in most Western countries.

Gargarella, in Chap. 6, undertakes a philosophical and historical analysis of the debate that is going on in political philosophy about “dialogic constitutionalism, dialogic justice and dialogic judicial review”. Though he is sympathetic to this idea of a collaborative effort of legislatures and courts in the interpretation of the consti­tution and in the protection of rights, he is not entirely optimistic about the applica­tion of theses models as they stand, especially in the context of Latin American constitutions. There are “reasons for concern”, as he concludes, “particularly if we are not willing to modify the basic structure of the system of checks and balances on which it is usually based”, that is less open to dialogue and equal political stand­ing on constitutional matters than some defendants of the dialogue model might assume.

In Chap. 7, in turn, Fernandes offers an account that is more sympathetic to dia­logues theory and less optimistic about Waldron’s normative arguments against judicial review. The basic contention of the chapter is that even though Waldron’s battle against judicial review has some interesting insights about the shortcomings of judicial supremacy, it is based on an unrealistically charitable, if not naive, pic­ture of legislatures, which assumes in an uncritical way the legitimacy of parlia­ments. Furthermore, Waldron himself has recognized in some of his recent papers (Waldron 2006, 2010) that the majoritatian principle cannot be accepted uncondi­tionally, and that the core case against judicial review is based on a set of legitimacy conditions for the legislative political process. Nonetheless, even if Waldron is wrong about the illegitimacy of strong judicial review, his arguments provide a robust case for a model of institutional dialogues.

The Third part is also composed of three chapters, which are commonly con­cerned with the institutional alternatives for constitutional change in contemporary democracies.

Chapter 8, by Tushnet, aims to analyse two new models of constitutional change that have been recently tested in Iceland, where an attempt to make a new constitu­tion by crowd-sourcing has been made, and Brazil, where the Supreme Court adopted a practice of public hearings about controversial issues about rights and constitutional morality before they are settled by a binding decision. In the case of Iceland, Tushnet attempts to explain the reasons for the failure of the promise to achieve “higher levels of public participation than in the traditional methods of constitution-making” (Constitutional Assemblies or, in a more timid way, ordinary constitutional amendments). The failure of Iceland’s attempt, according to his argu­ment, can teach us important lessons about public participation in constitution mak­ing. Brazil’s experience, on the other hand, is still in its early days, but is based on a sound principle that purports to be a blending of “political constitutionalism”, which “gives legislatures and executive officials a large and honoured place in con­stitutional interpretation”, and the traditional forms of judicial constitutionalism. Both strategies for constitutional making, however, are presented as methods for constitutional making of interest for comparative constitutional law.

Zurn offers, in turn, in Chap. 9, a philosophical normative model for assessing institutional possibilities for democratic modes of constitutional change, in particu­lar to recent forms of constitutional experimentation. According to Zurn’s norma­tive account, six ideals should play a decisive role to ground the legitimacy of new constitutional projects: “operationalizability, structural independence, democratic co-authorship, political equality, inclusive sensitivity, and reasons-responsiveness”. These ideals, for the author, can be used to “gauge the normative worth of different mechanisms for carrying out such change. The framework is developed with refer­ence to recent constitutional developments (e.g., in Venezuela, South Africa, Colombia, Bolivia, and Iceland) highlighting distinct criteria and showing how they appear to capture the general direction of institutional innovation”.

In Chap. 10, Ramires Cleves turns to a more concrete development of protection against unlawful constitutional change in Colombia, based on the so-called “consti­tutional replacement doctrine”, which evolved by judicial construction in spite of the absence of any specific constitutional provision granting such power to the court. The core idea is that the court is entitled to protect a set of principles consid­ered part of the constitutional essence of a democratic system of government, such as the prohibition of a second re-election of the President of the Republic, in order to protect the goal of political pluralism. After introducing the doctrine of the Colombian constitutional court, which has been developed in five cases where it has been applied over the last few years, Ramirez Cleves presents some of the main objections that the doctrine has met and offers a reply to these criticisms, in order to uphold the view that the court’s doctrine constitutes a legitimate model of constitu­tional dialogues between the court and the other branches of political power.

The penultimate section, in turn, concerns the right to participation as the core of the justification for political legitimacy, and addresses the possibility of clashes between the claim to self-government, by the people, and the dominant tradition of constitutional law.

Chueiri’s Chap. 11 deals with the promise of a radical constitution, with a more ambitious conception of self-government and democratic constitutionalism. The argument is divided in three parts: the first starts with Post’s assumption that demo­cratic constitutionalism “implies a collective intervention by the people (a shared voice), which assumes the ineradicable tension between collective self-governance and the rule of law in order to establish the ongoing structure of democratic states”. In the second part, she discusses the link between constituent power, sovereignty and the Constitution, and in the third part, the relation between constitutionalism and democracy. Furthermore, the chapter constitutes and effort to deal with a dia­chronic form of constitutionalism that requires an empowerment of active citizens in a constitutional democracy to redeem the promises made by the constitution, which can only be done by radicalization of popular participation in the making of the constitutional democracy.

In Chap. 12, which closes the 4th session, Ghosh presses forward some of his earlier arguments in defence of judicial review by constitutional juries (Ghosh 2010). The theoretical framework from which he argues is Waluchow’s conception of “community’s constitutional morality” (CCM), which consists of those “true moral commitments that are tied to its constitutional law and practices” (Waluchow 2008, 77). A promising candidate for justifying the authority of the settlement of constitutional controversies in a policy, whether or not such settlement is the prod­uct of the action of a constitutional court, is a deliberative model in which these community-related constitutional values are tested and specified. One of the core assumptions of the chapter, as the author himself clarifies in the introduction to his paper, is to show that the claim to combine a commitment to CCM and a delibera­tive model of democracy can be redeemed by the institutionalization of a model of constitutional juries.

The fifth and final part, in turn, takes up the serious problem of the relations between legal theory and interpretation in democratic states, with emphasis on con­stitutional interpretation.

Waluchow and Stevens, in Chap. 13, offer a defence of Waluchow’s approach to constitutional interpretation widely known as “common law constitutionalism” (Waluchow 2007). The challenge of the chapter is to respond to the objection that the resource to common law principles in the interpretation of the written constitu­tion empowers the judges to determine the meaning of the constitution on the basis of their own subjective moral views. To counter this objection, the authors apply Strauss’ view that “any interpretation should be compatible with the current mean­ing of the words of which a constitutional text is composed” (Chap. 13). While referring to the constitution’s normative concepts, judges may use the common law approach to constitutional interpretation in order to interpret the abstract principles referred to in the constitution on the basis of the community’s own constitutional morality.

Finally, in Chap. 14, Macedo Junior offers a powerful defence of Dworkin’s interpretivism against the conventionalist view advocated by the mainstream posi­tivist accounts of the nature of law. The chapter carefully explains the methodologi­cal disagreement between Dworkin and authors such as Hart or Marmor, who use the analogy with chess to explain the character of the rules of law. On the basis of Dworkin’s analogy between law and courtesy, Macedo Junior attempts to show how the chess analogy is problematic because the law should be understood as an interpretive or “political” concept in the sense of Dworkin (1986, 2004).

The common point of all the chapters of the book is a concern with the political legitimacy of institutions in constitutional democracies. They should be of great interest not only for legal and political philosophers, but, in the same measure, to political scientists, practicing lawyers (both in constitutional law and in other more specific areas), comparative lawyers and institutional designers. The general prin­ciple on which all authors agree, with regards to the future of constitutionalism, is that the legitimacy of constitutional institutions is predicated on democracy, although they might disagree about conceptions of democracy and their adequacy to any particular legal system.