Towards A Pluralistic Conception Of Judicial Role

61 Pages Posted: 25 Mar 2020 Last revised: 15 Jun 2022

Date Written: February 20, 2020

Abstract


‘What Is The Role Of A Constitutional Court In A Democracy.’ Constitutional courts in the comparative context have taken up extraordinarily expansive roles in their respective societies without any hesitancy or apprehensions involving democratic legitimacy. They have ventured far beyond the confines of ordinary judicial review and banned political parties, canceled election results, voided constitutional amendments and invalidated political appointments, among other seemingly controversial actions. They have also stepped into the exclusive domain of the elected branches and performed roles with severe budgetary implications like regulating health care, food security, environment, foreign affairs, and monetary systems. The ‘counter-majoritarian difficulty’ fixated American constitution theory cannot explain or justify most of the commonly observed roles by constitutional courts in the comparative context. On the other hand, existing comparative scholarship has barely grappled with the issue of judicial role as a whole – instead focusing on singular and more micro questions dealing with constitutional courts. This is the gap that this paper hopes to fill. In devising a normative conception of judicial role for constitutional courts in the comparative context, this paper raises a different set of questions from those asked about reconciling judicial review with democracy in American constitutional theory. After posing questions with implications for democratic legitimacy, popular sovereignty, institutional capacity, and judicial independence, this paper shows that a normative conception of judicial role in the comparative context would be pluralistic in nature with different individual roles. These individual roles would be of varying importance and would have to be performed in a constantly changing and evolving manner. In some way this conception of judicial role requires constitutional courts in the comparative context to take a step forward in performing certain roles while taking a step back in others. Ultimately this paper asks constitutional courts to be extremely strategic and pragmatic in their judicial decision-making; paying heed to an array of considerations before their interventions. The primary aim of this paper is twofold. Firstly, to offer a template for the successful operation of constitutional courts in the comparative context. Secondly, and more modestly, to potentially raise newer questions regarding judicial role in America.

Keywords: constitutional law, constitutional theory, comparative constitutional law, judicial role, democratic erosion, judicial activism

Suggested Citation

Sethi, Amal, Towards A Pluralistic Conception Of Judicial Role (February 20, 2020). 2021, University of Missouri-Kansas City Law Review, Vol. 90, No. 1, 69-128, Available at SSRN: https://ssrn.com/abstract=3545792

Amal Sethi (Contact Author)

University of Hamburg ( email )

Rothenbaumchaussee 33
Hamburg, 20148
Germany

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