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38 | 2019

  • Fundamental legal concepts

    Temeljni pravni pojmi
  • Evidential reasoning

    Dokazno sklepanje
  • Symposium on separation of powers and constitutional review

    Revusov forum: Delitev oblasti in ustavnosodna presoja
    Edited by Donald Bello Hutt

    It is hard to say something new and relevant about the justification of judicial review of legislation, or lack thereof. The amount of literature on the topic is nothing short of overwhelming. And yet, in his Where Our Protection Lies: Separation of Powers and Constitutional Review (OUP, 2017), Dimitrios Kyritsis does precisely that. The book is an elegant account of the institution of constitutional review that improves the literature by effectively relying on central principles of political morality and institutional design.

    One promising way of achieving the legitimacy of a system of government, Kyritsis avows, hinges on realising the values underpinning the principle of separation of powers. The realisation, in turn, depends on striking a middle point between those who imagine institutional dialogue as fundamentally driven by representative institutions, and those who look at courts as the ideal embodiment of constitutionalism. Against the first group, Kyritsis argues that judicial review is a morally legitimate institutional arrangement because it can effectively control the risks in which legislatures may incur. Against the second, he claims that the protection of fundamental rights is not the exclusive province of the courts, but the responsibility of both the legislature and the judiciary.

    This summary barely scratches the surface of the arguments advanced in the book, and it may suggest that the overall project is to seek a compromise between two opposing views. This would be a mistake. Kyritsis’ is an original and powerful idea of institutional dialogue understood as a joint project of government that is inspired and justified by a well-grounded moralised constitutional theory. While concerned with the demands of justice imposed on institutions, his theory is also strongly committed to preserving the value of political legitimacy. That balance is no compromise, but rather a principled goal that Kyritsis manages to achieve. Constitutional theorists are strongly advised to read this book and to engage with its arguments.

    In that spirit, this symposium presents three critical contributions. First, Alon Harel discusses Kyritsis’ idea that one paramount duty of courts is that they owe a robust deference to the legislature. Harel champions the alternative notion of robust legislative deference, that is, deference owed by the legislature to the court. The argument is generally sympathetic to Kyritsis’ theses, but takes distance from them in this important aspect: while Kyritsis deems judicial review to be one strategy among others for checking the legislature, Harel stresses that it is the strategy by which rights are protected. Courts, in his design, have a unique and distinctive role: they convey that rights are not dependent upon the views and sentiments of contingent majorities.

    Next, Matthias Klatt juxtaposes his account of judicial review against Kyritsis’. After listing four domains where their theories show commonalities, Klatt shows where they depart and claims that the most prominent difference between them lies in the ways in which they account for the relation between the formal and the material aspects of constitutions; put differently, in the choice between a combination model or a separation model. After explaining these two models by recourse to a debate between Robert Alexy and T.R.S Allan, Klatt shows why he thinks Kyritsis can be positioned somewhere in the middle of these two options: adhering to the first, but also flirting with the second. He finishes inviting further discussion on these points.

    Finally, Donald Bello Hutt discusses what Kyritsis refers to as the democratic objection to constitutional review, that is, the idea that judicial review of legislation fails to respect a principle of political equality engrained in representative democratic procedures. Kyritsis rejects the objection assuming a concept of political representation as a rationalisation of how law-making practices happen in real life. Bello Hutt argues that this is mistaken and suggests that a better way of accounting for representation is to describe it as a regulative ideal. The move allows to show – or so the author claims – that Kyritsis should rethink his understanding of representation on pain of failing to justify his rejection of the democratic objection.

    This thought-provoking debate will be followed by a reply by professor Kyritsis in one of the forthcoming issues of Revus.

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