Neither Dialogue Nor Last Word – Deliberative Separation of Powers 3
Legisprudence, Vol. 5, No. 1, pp. 1-40, 2011
31 Pages Posted: 19 Aug 2011
Date Written: June 1, 2011
This article is the third and last of a series that tries to understand and reconcile “theories of last word” and “theories of dialogue” with respect to the proper place of constitutional courts within democratic regimes. It claims that there is a complementarity between both approaches: the design of the separation of powers needs to decide, contextually, whether elected parliaments or constitutional courts should bear the burden of the ‘provisional’ last word upon constitutional meaning; it should not neglect, however, the fact that institutions inevitably interact and can challenge each other’s decisions over time, a datum that needs to be factored into the discussion about the legitimacy of judicial review. The article further claims that, if some sort of interaction between branches is inevitable over time, constitutional theory should elaborate on which sort is more desirable and legitimate than others. An interaction inspired by a normative ideal of dialogue and of deliberative performance, I contend, increases the epistemic capacity of the separation of powers.
Keywords: Democracy and Constitutionalism, Judicial Review of Legislation, Constitutional Courts, Separation of Powers, Dialogue
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