On the Difficulty to Ground the Authority of Constitutional Courts: Can Strong Judicial Review Be Morally Justified?
Bustamante, T. et alli, “Democratizing Constitutional Law” (Heidelberg: Springer, 2016).
32 Pages Posted: 11 Jun 2015 Last revised: 2 Apr 2017
Date Written: May 25, 2015
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 Pre-Emptive 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 pre-emptive 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.
Keywords: Judicial Review, Authority, Legitimacy, Justification
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