Creativity in Norm Application and Legal Adjudication: Discourse Theory on the Democratic Legitimacy of Legal Norms Developed Through Common Law Adjudication and Judicial Review

133 Pages Posted: 17 Mar 2010

See all articles by Victor Peterson

Victor Peterson

affiliation not provided to SSRN

Date Written: March 7, 2010

Abstract

This article explains, defends, and develops Jürgen Habermas' reconciliation of common law adjudication and judicial review, in which unelected judges creatively modify legal norms, with democratic legitimacy. It begins by defending Klaus Günther's discourse theory of norm application, which Habermas' theory of legal adjudication employs, against a critique that it lacks such creativity. Norms can be further specified in the course of application, which requires further justification discourses, resulting in a dialectical relation between the justification and application of norms. This dialectic is operative in an account of the separation of powers in which legal norms that have been judicially modified through common law adjudication can be democratically legitimated by being subject to legislative revision. For the development of constitutional norms through judicial review to be democratically legitimate, by contrast, courts must limit themselves to reconstructing constitutional principles that protect democratic procedures. The judicial institutionalization of the legislative function of the development of law through judicial review is democratically legitimate when courts follow the reconstructive methodology of application discourses. The development of law by courts through common law adjudication and judicial review is democratically legitimated by establishing, in these different ways, alternative connections with democratic procedures that compensate for the deficits in legitimacy resulting from their deviations from the standard model of the enactment of statutes by a popularly-elected legislature that is open to influence by reasons from the public sphere.

Keywords: Adjudication, Application, Common Law, Democratic Legitimacy, Discourse Theory, Günther, Habermas, Judicial Review, Separation of Powers

Suggested Citation

Peterson, Victor, Creativity in Norm Application and Legal Adjudication: Discourse Theory on the Democratic Legitimacy of Legal Norms Developed Through Common Law Adjudication and Judicial Review (March 7, 2010). Available at SSRN: https://ssrn.com/abstract=1570065 or http://dx.doi.org/10.2139/ssrn.1570065

Victor Peterson (Contact Author)

affiliation not provided to SSRN ( email )

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