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Visions of constitutionalism: Institutions

Deliberative constitutionalism and judicial review

A systemic approach
Chiara Valentini

Abstract

Deliberative constitutionalism is an emerging field that combines constitutional theory – and its emphasis on legal limits to political power – with deliberative democratic theory – and its idea of political deliberation as the source of democratic legitimacy. This combination creates a new framework to address questions of legitimacy that arise in constitutional democracies. The article contributes to this growing area of research by exploring its potential to address the legitimacy of judicial review. First, the article argues that this potential lies in the integration of constitutional theory with a systemic approach to deliberative democracy and the nested idea of a deliberative system. Second, the article draws on this integration to account for the legitimacy of judicial review as an institution embedded in – and shaped by – a deliberative, representative, system.

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1 Introduction

  • 1 For an overview of this emerging paradigm, see Kong & Levy 2018a: 626; Levy, Kong, Orr, & King 2018 (...)
  • 2 Bohman 1998: 401.
  • 3 Kong & Levy 2018b: 3.
  • 4 See the works cited in notes 1, 2, 3 and Bello Hutt 2020: 69.
  • 5 See footnote 31.
  • 6 Kong & Levy 2018a: 626. As pointed out by Bello Hutt 2020, “Nowadays, deliberative constitutionalis (...)

1“Deliberative constitutionalism” (hereinafter DC) is an emerging paradigm that seeks to combine in new terms constitutionalism and deliberative democratic theory, two fields that are potentially in tension.1 Constitutionalism is traditionally concerned with legal constraints on majoritarian politics, justified by the protection of rights as the ultimate standard of legitimacy. Deliberative democratic theory has established itself as a family of views maintaining that “public deliberation” among “free and equal citizens is the core of legitimate political decision-making and self-government.”2 DC aims to bring these ideas and standards from one field into the other. Such cross-fertilization seeks to create a new framework to “redirect longstanding debates” in both fields.3 With the works of Worley, Levy, Kong and others4, DC seeks to develop a fuller account of legal institutions as key components of deliberative democratic settings and, on the other hand, of democratic deliberation as part of a constitutional order. In these terms, DC develops – and builds on - the various insights into the connection between deliberative democracy and constitutionalism provided by Habermas, Rawls, Nino, Michelman, Sunstein and others5. As such, it is establishing itself as a meta-theoretical paradigm “capable of unifying other constitutional theories about the legitimacy of public power arrangements”6.

  • 7 So far, the new literature on DC has not provided a full, systematic analysis of judicial review an (...)

2My aim is to contribute to this emerging paradigm, by exploring its potential for deepening our comprehension of judicial review, that is, the power of judges to review the constitutionality of laws produced by political representatives. In fact, the legitimacy of this power has been relatively overlooked by current literature on DC7, except for the ambition of bringing about a change of perspective on the role of courts in constitutional democratic systems.

  • 8 Kong & Levy 2018a: 634.

3Indeed, proponents of DC explicitly strive to address the legitimacy of judicial review in new terms: “instead of focusing on the question of whether judicial review is illegitimate because it frustrates the democratic will, we claim that judicial review is legitimate to the extent that it facilitates democratic deliberation, both within institutions of public power – including the courts – and within wider society.”8 Although not thoroughly developed by the DC literature, this claim sets out a new approach to judicial review, shifting attention from tensions between adjudication and democratic deliberation to their integration into a more complex structure: the former – through judicial review – becomes constitutive of the latter and vice versa, within a broader institutional and social setting.

  • 9 The idea of “deliberative system” was introduced by Mansbridge 1999: 211. For a “manifesto” of the (...)
  • 10 Mansbridge et al. 2012: 4.

4Current developments in the theory of deliberative democracy go in the same direction devising courts and adjudication among the different institutions and activities involved in democratic deliberation. I refer, here, to the “systemic turn”9 in deliberative democratic theory, which foregrounds the idea of “a set of distinguishable, differentiated, but to some degree interdependent parts, often with distributed functions and a division of labour, connected in such a way as to form a complex whole.”10

  • 11 Mansbridge et al. 2012: 22. The roots of this account are in Habermas’ idea of a “two-track” delibe (...)
  • 12 Bello Hutt 2017.
  • 13 Mansbridge 2003; Kuyper 2015; Bohman 2012; Mansbridge & Rey 2015.
  • 14 Bello Hutt 2017: 77.

5Along these lines, the theory of deliberative democracy is undergoing a change of perspective, no longer focusing on single, specific fora or moments of deliberation that present the highest of deliberative capacities. It is now becoming comprehensive, encompassing the whole range of fora and activities that together perform deliberative functions.11 This approach relies on a broad notion of deliberation, an interactive conception of legitimacy, a system-level evaluation12 and, also, a systemic account of political representation.13 Altogether, these elements point to a new “state of deliberative democracy” challenging us to reconsider the place and role of the judiciary.14 DC allows us to meet this challenge, providing a framework to bring this systemic account of deliberative democracy into constitutional theory so as to sharpen our outlook on constitutional practice and judicial review. Or so I will argue.

6My analysis will proceed as follows. In section 2, I will outline the main tenets of DC and the question of judicial review. In section 3, I will present the systemic approach to deliberative democracy. In section 4, I will bring this approach and DC together, to propose a systemic version of DC (hereinafter SDC) and address the legitimacy of judicial review as part of a deliberative, representative system. In section 5, I will briefly conclude.

2 Deliberative constitutionalism

  • 15 Kong & Levy 2018a: 625.
  • 16 Kong & Levy 2018b: 2.
  • 17 13 Kong & Levy 2018b: 1.

7DC seeks to combine in new terms insights from constitutionalism and deliberative democratic theory, allowing for a fuller view of the constitutional practice than either theory can provide alone. By this, DC aims at bringing “to the general normative claims of deliberative democratic theory a specifically institutional and legal focus”15 and, at the same time, considers how constitutions, and their legal provisions – concerning rights and the separation of powers – bear on democratic deliberation.16 It creates a framework to do so. DC is not about merely aggregating different theoretical components, but rather unifies these to produce something novel.17 It provides the analytical tools to capture how the deliberations of judicial and legislative actors, and citizens, impact on constitutional law. At the same time, it can comprehend the various roles that (constitutional) law plays in those deliberations. From such an integrated perspective, we can re-orient the debates in constitutional and deliberative democratic theory that have coalesced around different points.

  • 18 Kong & Levy 2018a: 625.

8For a long time, the “courts-legislatures axis”18 has been at the core of constitutionalist debates, concerned with the democratic legitimacy of judicial review. Political deliberation and deliberative actors have been cast as counterparts of adjudication and courts, to be constrained and/or supported by the law. Meanwhile, debates in deliberative democracy have been primarily concerned with the features and value of political deliberation, conceived as the normative core of democratic systems and the basic standard of legitimacy. Law and legal actors have been left generally in the background, as ancillary or potentially counter-deliberative.

  • 19 Worley 2009: 431, making reference to the works of Ackerman, Nino, Habermas, Sunstein, and Michelma (...)
  • 20 Freeman 2000: 417.

9DC seeks to go beyond such limited view. It aims at a deeper understanding of the connection between democratic deliberation and constitutional law and how they shape each other. In this sense, DC revives and advances the strand of constitutional theory that sought to develop “an account of deliberative democracy within the context of a liberal constitutional framework”19. DC seeks to address the many questions that are still open along this path, concerning “whether and if so how the deliberative ideal is consistent with constitutional limits on democratic decisions, such as separation of powers, a bill of rights, and judicial review.”20

10DC draws our attention to such questions and, furthermore, pursues a fuller answer to them.

  • 21 Kong & Levy 2018b: 2.
  • 22 Kong & Levy 2018b: 2.
  • 23 Kong & Levy 2018b: 7.

11On the one hand, it seeks to go beyond the traditional approach of deliberative democratic theory to constitutionalism, characterized by “generic views” that “overlooked much of what is institutionally distinctive about constitutions”21. Indeed, “to the extent that there was a body of established deliberative democratic constitutional theory it remained abstract and largely unmoored from any ‘particular legal and constitutional tradition’.”22 On the other hand, DC aims at recasting the approach of constitutionalist theories to democratic deliberation. In fact, such theories traditionally focus on principles of equality and liberty, leaving aside the questions concerning the nature of democratic deliberation and how constitutional law may “contribute to and construct – or at times frustrate – more deliberative forms of democracy.”23

  • 24 Kong & Levy 2018a: 629.
  • 25 Kong & Levy 2018b.

12The point of DC is to go beyond one-sided views of constitutional democracies, by bringing together two orders of questions.24 The first concerns the contribution of democratic deliberation to the production and application of the law, going from constitution-making to the relationship between constitutional rigidity and public deliberation. The second order of questions concerns how (constitutional) law impacts on democratic deliberation by “filtering” the preferences and interests that are the object of deliberation and/or by “telescoping,” that is, modelling public discourse.25

  • 26 Kong & Levy 2018a: 630; Levy & Orr 2016.

13This analysis, then, covers the level of first-order deliberation – democratic deliberation directly affecting the interests of citizens – and the level of second-order deliberation – deliberation about deliberation, regarding how first-order deliberation should unfold.26 By this, DC seeks to appreciate how the law acts on deliberation – to support and/or control it – and in deliberation – as part of its object/framework. This outlook on the law also applies to judicial review and the disputed questions of legitimacy that it raises.

2.1 The question of judicial review

  • 27 Friedman 2002.
  • 28 Bickel 1962.

14The judicial power to review the constitutionality of laws is extremely controversial for it instantiates the tension between the rule of law and the rule of the people internal to constitutional democracies. As such, this power has been subject to growing theoretical interest27 alongside the influence of constitutional adjudication on the evolution of contemporary legal systems. Descriptively, the analysis of constitutional law has been largely centered on what constitutional courts do and how their action impacts on legal doctrines. Normatively, this analysis has played a crucial role in assessing the actual and future developments of constitutional systems. In particular, this assessment has been affected by a fundamental concern with the so-called “counter-majoritarian difficulty”28 allegedly raised by judicial review, wherein courts, i.e. non-representative institutions, can contradict the will of legislatures, i.e. representative institutions. This difficulty makes the democratic legitimacy of judicial review controversial, raising many disputed questions. Some concern the position of courts in constitutional systems and the boundaries of their sphere of action, others pertain to how judicial review should proceed within those boundaries.

  • 29 Kong & Levy 2018a: 626.

15Proponents of DC strive to address the counter-majoritarian difficulty and these questions by drawing on “insights from deliberative democracy that can dissipate some of the force of the constitutional legitimacy dilemma.”29

  • 30 Kong & Levy 2018a: 634.

16These insights can shed light on processes and fora in which judicial review and the democratic will do not counter each other, but come together within a broader deliberative practice. By this, the attention shifts from the extent to which “judicial review frustrates the democratic will” to how far it “facilitates democratic deliberation, both within institutions of public power – including the courts – and within wider society.”30 The point is to appraise judicial review as bringing democratic deliberation within courts, and courts as fora of democratic deliberation alongside political institutions and society as a whole.

  • 31 I refer to the theories of Ely 1980, Habermas 2015, Ackerman 1991, Michelman 1987, Rawls 1993, Eisg (...)
  • 32 This strand brings together different theories, influenced also by Habermas 2015 and Rawls 1993. As (...)
  • 33  See, among many works, Dryzek 1990; Bohman 1994; Cohen 1989; Gutmann and Thompson 1996.
  • 34 A distinction by Ackerman 1991.
  • 35  See, above all, Habermas 2015, and the idea of jurisgenesis in Michelman 1987.
  • 36 Bello Hutt 2017: 81.
  • 37 Bello Hutt 2017: 81.

17As such, DC can advance an established strand of constitutional theory31 inspired by aspects of the liberal, and republican, traditions of constitutionalism.32 Following the “deliberative turn”33 within political theory, between the 1980s and 1990s, this constitutionalist strand proposed a complementary relationship between judicial review and deliberative democracy, with the former enhancing the latter. This view – call it the “judicial enhancement” view – has also been induced by dissatisfaction with “monistic” and “rights-foundationalist” solutions34 to the counter-majoritarian difficulty, which have divided constitutional theory for a long time. The former defend a majoritarian view of democracy and see judicial review as legitimate as long as it supports majoritarian political processes and decisions. The latter identify rights as the foundations of democracy and prioritize judicial review, and the judicial enforcement of rights, over majoritarian politics. Both solutions address the tension between majoritarian politics and judicial review by assigning priority to one over the other. Attempting to mediate between these extremes, the “judicial-enhancement” view has devised judicial review and the political process as both necessary and complementary elements of constitutional democracies in which rights and popular sovereignty constitute each other through democratic deliberation.35 From this, it follows a “division of labour between participatory and expert deliberative institutions”36 based on a “dualistic deliberative criterion”37 of democratic legitimacy, requiring political institutions to be deliberative representatives of the people and courts to be fora for a skilled deliberation, enhancing political deliberation.

18As such, the “judicial enhancement view” has focused on the courts-legislatures axis, leaving underexplored the broader setting in which they interact. DC ultimately seeks to illuminate this setting with ideas and standards borrowed from deliberative democratic theory. I follow this path, arguing that a particular approach, currently emerging within deliberative democratic theory – the systemic approach – can help DC to advance the “judicial-enhancement” view and elucidate the link between judicial review and deliberative democracy.

  • 38 Bello Hutt 2017: 81.
  • 39 See also Bello Hutt 2018.
  • 40 Bello Hutt 2017: 96.

19Bello Hutt has warned against this possibility, claiming that the “judicial-enhancement view” is not compatible with the systemic approach.38 First, the idea of judicial review as a form of deliberation complementing and enhancing democratic political deliberation ultimately centers on courts as deliberators of a special kind, deserving a pre-eminent position that is neither justified nor justifiable in a deliberative system.39 A system of this sort keeps together the several institutions engaged in the deliberative enterprise, challenging judicial supremacy. Second, in a democratic deliberative system, everyone should contribute to deliberation but a restricted, politically insulated, group – such as a court – should not be entitled to have the final say. Adjudication is not democratically representative and therefore should not prevail over the deliberations of representative actors.40

  • 41 As highlighted, in different terms, by Rawls 1993, Sunstein 1996, Eisguber 2001, Michelman 1987, an (...)

20These concerns are particularly salient for our purposes. The first – call it the “supremacy concern” – focuses on the tension between the authoritative dimension of judicial review and the dialogic nature of democratic deliberation. The second – call it the “representativeness concern” – focuses on the tension between the non-representative nature of courts and the constitutive role of political representation in a deliberative democratic system. Undoubtedly, the “judicial enhancement” view leaves some space for these tensions. It tends to emphasize the courts’ role on the constitutional scene, grounding their legitimacy in the enhancing impact of their authoritative, skilled decisions on democratic deliberation. And it can also tend to emphasize the courts’ non-electoral accountability and political insulation.41 Nonetheless, this view does not run against a systemic approach to deliberative democracy. Rather, this approach provides ideas and standards that enrich such a view, allowing to address the concerns about judicial supremacy and representativeness. Before expanding on these claims, let me outline in greater detail the systemic approach.

3 The systemic approach to deliberative democracy

  • 42 Mansbridge et al. 2012.

21According to the systemic approach, contemporary democracies should be analyzed and addressed as deliberative systems: “complex entities in which a wide variety of institutions, associations, and sites of contestation accomplish political work.”42 These also include informal networks, foundations, schools, and courts.

  • 43 Dryzek 2009: 1385.
  • 44 Kuyper 2016.
  • 45 Kuyper 2016: 312.
  • 46 Dryzek 2009: 1399.
  • 47 Dryzek 2009: 1382.
  • 48 Kuyper 2016: 313.
  • 49 Dryzek 2009: 1382.

22Of course, relevant systems, here, are those “broadly defined by the norms, practices, and institutions of democracy” and comprise three basic elements: first, a minimally restricted public space.43 Second, an empowered space, in which binding collective decisions are taken through the activities of courts, alongside “legislatures, political parties, cabinets, intergovernmental organizations, and so forth.”44 Third, mechanisms of transmission between those spaces, which work “bidirectionally” so that deliberation in the empowered space can shape existing interests and preferences, and vice versa.45 The different subjects that act in these spaces – especially those acting in the empowered space, including courts – must fulfill standards of legitimacy built around the idea of deliberative capacity. This is the capacity to accommodate an authentic, inclusive, and consequential deliberation.46 Deliberation is authentic if it can “induce reflection” without coercion, “connect claims to more general principles, and exhibit reciprocity.”47 It is inclusive in that a broad range of interests, ideas, and positions are permitted so that people encounter a plurality of views.48 It is consequential if it has “an impact on collective decisions or social outcomes.”49

23The various subjects and processes that populate the different spaces of the system manifest the deliberative capacity in different terms and to varying degrees. Furthermore, they may lack the deliberative capacity required to undertake legitimate actions, but they may borrow aspects of this capacity from other subjects and processes. Indeed, their legitimacy must be assessed based on their position within a system structured so as to connect its different articulations.

  • 50 Goodin 2005.
  • 51 Bohman 2007.
  • 52 Parkinson 2006.

24Looking at deliberative democracy in this way has two advantages. Descriptively, it captures the complexity of contemporary democracies and enables us to appraise the distribution of deliberative work across them without necessarily assuming the supremacy of one component over others. In this respect, deliberative democratic theory relies on ideas of “distributed deliberation,”50 “institutional differentiation,”51 and “multiple deliberative moments.”52

  • 53 Parkinson 2006.
  • 54 Kuyper 2016: 308.
  • 55 Mansbridge et al. 2012: 3.
  • 56 Owen and Smith 2015 remark that this analysis may not be enough. Indeed, it can be complemented by (...)
  • 57 Mansbridge et al. 2012: 5.
  • 58 Mansbridge et al. 2012: 22.
  • 59 Mansbridge et al. 2012: 12.

25Normatively, the idea of a deliberative system attends to the whole set of actors, processes, and sites, that perform institutional and non-institutional activities of deliberation. It calls our attention to their interdependence and how this affects their legitimacy. In these terms, this idea guides our analysis so as to appraise the deliberative capacity of each component of a system in light of its connections to other components.53 These connections work as “transmission belts” of deliberative capacity54 so that the system’s components can complement or replace one another.55 Deliberative legitimacy, thus, also depends on the position and role that a certain component has within the system in relation to other components.56 By this, the systemic stance captures a key aspect of democratic legitimacy related to the cross-fertilization of deliberative capacity.57 The different parts of a deliberative system concur in different ways, and moments, to a broader practice, but none of them, per se, exhausts such practice. They integrate each other and, in these terms, they contribute to the fulfillment of the system’s basic functions.58 An epistemic function, concerning the production of preferences and decisions informed with respect to the facts, by means of open and transparent discussions, and inclusive of all relevant considerations and reasons. An ethical function, concerning the establishment of mutual respect among members of the democratic community. A democratic function, concerning the inclusion of various concerns and claims as vital to democratic deliberation. The systemic approach, then, allows for a “nuanced application” of such functions, “modulating their relevance and weight”59 in response to the features of the system under examination.

  • 60 Vermeule 2011: 3.
  • 61 Vermeule 2011: 5.
  • 62 For this distinction, see Rey 2020.

26Vermeule defends a similar view of constitutional orders. According to this view, a constitutional order is “a system of systems”60 having “emergent properties” that may differ “from the properties of its components.” On the other hand, the single components may have properties that the system, as a whole, does not display.61 From this perspective, a constitutional order is a two-level system: a first level on which the single components of the system operate; and a second level on which those components are systemically interconnected. Such a structure is characterized by “system effects,” so that the single components – on the first level – display their own properties and perform their own activities, whereas at the systemic level those components are brought together into a complex whole that displays different features and operates in different terms.62

  • 63 Vermeule 2011.
  • 64 Vermeule 2011: 4.

27By detecting these effects, a systemic outlook on constitutional orders helps us to avoid making “invalid claims”63 about constitutional law and theory especially with regard to crucial aspects of the legitimacy of constitutional orders that are related to the differentiation between the order and its components. More specifically, it allows us to appreciate that the legitimacy of the order may depend upon conditions that differ from the legitimacy conditions that apply to the institutional components of that order. Indeed, “if a constitutional order is democratic, somehow defined, it does not follow that each of the institutions that comprise it must itself be constituted in a democratic fashion. The overall order may be democratic only because one or more of its component institutions is designed to act in an undemocratic fashion, in order to check the self-destructive tendencies of democracy.”64

28With this in mind, let me return to DC and judicial review.

4 Re-framing the question of judicial review

  • 65 Courts are explicitly identified as components of the deliberative system, for instance, by Mansbri (...)
  • 66 Krause 2008.
  • 67 Krause 2008, drawing on the account of Gutmann and Thompson 2000.
  • 68 On public hearings see Gargarella 2019; Tushnet 2016.

29Existing accounts of deliberative systems have not yet fully addressed the role of courts, but they provide some elements to do so. They contemplate courts as deliberative agents placed in the empowered space(s) of the deliberative system, which interact with other deliberative agents65 in a broader practice of democratic deliberation. In the system, the activities of legislators differ from those of “judges, executives, and members of the general public”66: the structure and function of each setting come with different kinds of constraints on deliberation. However, all settings share some core constraints establishing “impartiality in public deliberation” and pursuing reciprocity. Reciprocity, here, stands for the search for “mutually justifiable reasons” and a tension towards “mutually binding decisions on the basis of those reasons.”67 Such reciprocity constraints, in the judicial domain, boil down to a set of decision-making standards and mechanisms, going from argumentative reasonableness to dialogic mechanisms and public hearings.68

  • 69 As pointed out by Bello Hutt 2017, providing a first attempt to account for the role of courts in a (...)

30This aspect is highly relevant for our purposes. In a system, deliberative activities may well unfold in different domains under different constraints, but they are ultimately integrated into a unitary practice. The systemic approach draws our attention to the wholeness of this practice, and, by this, it offers new, valuable elements in analyzing the connection between judicial review and democratic deliberation.69

  • 70 Sunstein 2017; Tushnet 2016; Gargarella 2014; Gargarella 2019.

31First, it takes this analysis beyond the “courts-legislature” axis to encompass the full range of actors and sites involved in democratic deliberation and place courts within its scope. I refer, for instance, to the deliberative activities of the executive branch and/or citizens70, and how they interact with courts and judicial deliberations.

32Second, the systemic approach highlights the interdependence between the judicial and other components of a deliberative system, within a unitary practice. It highlights how the deliberative capacity, and legitimacy, of all those components are the result of systemic interactions.

  • 71 See Krause 2008.
  • 72 Valentini 2019a.
  • 73 Rawls 1955: 3 elucidates the idea of practice as “any form of activity specified by a system of rul (...)
  • 74 Rawls 1955; Hart 1959.
  • 75 Hart 1959: 3.
  • 76 As pointed out by Rawls 1955 and Hart 1959.
  • 77 Vermeule 2011: 55.
  • 78 Vermeule 2011: 56.

33Third, the systemic approach reveals the two levels on which judicial activities bear on democratic deliberation. The systemic level on which those activities – alongside law-making and many others – constitute democratic deliberation as a practice that keeps them together. And the specific levels on which judicial and other particular activities occur, in their own domains and under their own constraints.71 By differentiating these levels, the systemic outlook uncovers a fundamental distinction, which is crucial for understanding and justifying legal institutions and which, as I have argued elsewhere, also applies to adjudication and judicial review.72 I refer to the distinction between the level on which a practice takes form and the level on which the instances of that practice occur.73 Descriptively, this distinction is relevant because it captures the complexity of practices bringing together distinct, though interconnected, activities and actors. Normatively, this complexity bears on the justification of those practices. Indeed, as argued by Rawls and Hart on punishment and property,74 it is one thing to inquire into the reasons that justify a specific act as part of a certain practice; it is another to inquire into the reason for the practice itself.75 Addressing a practice requires us to inquire into its general justificatory aim, by expounding the reasons for the practice itself.76 Addressing the particular instances of a practice requires us to inquire into the immediate aim of those instances and to expound the reasons for which they occur and fall within its scope. A systemic stance captures precisely this gap. In descriptive terms, it allows us to refine our analysis and avoid those “pitfalls” that result from neglecting “system effects.”77 I refer, on the one hand, to the “fallacy of division” that occurs when we assess a constitutional order as democratic and, therefore, we appraise its components as acting democratically as well. On the other, I refer to the “fallacy of composition” that occurs when we assess a component as acting undemocratically and, therefore, we appraise the whole constitutional order as undemocratic. On this basis, we can reframe the normative analysis of the counter-majoritarian difficulty. The central question is no longer whether courts should act democratically, but rather whether, and how, they can be components of a democratic system even if, and when, they act undemocratically. As mentioned before, a systemic approach allows us to avoid making the mistake of arguing “from the premise that the overall constitutional order should be democratic to the conclusion that an undemocratic court must be undesirable.”78

34In all these respects, a version of DC embedding the idea of a deliberative system – SDC – can re-define our analysis of judicial review and democratic deliberation. In short, it sheds light on judicial review as embedded in – and shaped by – a practice of deliberation, rather than an external activity that merely enhances deliberation: it is constitutive of democratic deliberation and we should address it accordingly.

35Here, two challenges arise. First, we need to flesh out the idea of adjudication and judicial review as part of a system of deliberation that brings together different actors and activities. This entails addressing the “supremacy concern” mentioned previously. Second, we need to flesh out the idea of adjudication as part of a democratic system of deliberation, which requires us to address the “representativeness concern.” Let me sketch two possible paths to meet these challenges from the perspective of SDC.

4.1 Adjudication and deliberation

  • 79 Bächtiger, Dryzek, Mansbridge, & Warren 2018.
  • 80 Contra Bello Hutt 2018.
  • 81 On dialogic accounts, see Tushnet 2009 and Gargarella 2014.

36A first challenge concerns the idea of adjudication as part of a deliberative practice unfolding within a system. As noted, the authoritative aspect of adjudication, especially in judicial review, stands in tension with the idea of courts as components of a system concurring with other components in the deliberative work. Indeed, adjudication is an enterprise of a distinctive kind. If we define deliberation “minimally” to mean “mutual communication that involves weighing and reflecting on preferences, values, and interests regarding matters of common concern,”79 adjudication is a deliberative enterprise.80 Internally, it unfolds as a reason-weighing process. Externally, it works as a reason-giving process, justifying judicial decisions with arguments addressed to others. However, a deliberative system seems to require something more, namely deliberative cooperation, or dialogue. And in order to enter a dialogue with citizens and other institutional bodies, courts should go beyond reason-weighing and reason-giving. They should also be transparent with respect to their decision-making process – at least in some phases – as well as inclusive and receptive with respect to the reasons and arguments of other institutional and non-institutional components of society. This does not mean that courts should decide solely on the basis of those reasons and arguments, but that they must consider them and enter into “constitutional dialogues” with other institutions and citizens.81 Along this line, current developments in judicial practice point to the embedding of dialogic mechanisms.

  • 82 Gargarella 2019: 68.
  • 83 Young 2018: 126.
  • 84 Gardbaum 2013: 30–31.
  • 85 Young 2018: 127.

37As Gargarella observes, a set of practices of dialogic constitutionalism is emerging, albeit with some difficulties: the use of the notwithstanding clause in Canada; the “meaningful engagements” encouraged by the South African Constitutional Court; and the adoption of public hearings in Argentina and Brazil.82 In particular, “Dialogue has become synonymous with the Commonwealth model of rights protections, championed as a means of maximising the advantages and minimising the disadvantages of constitutional and parliamentary protections of rights through facilitating legislative responses to judicial determinations of rights.”83 More specifically, as pointed out by Young, the Canadian notwithstanding clause permits legislatures to act “notwithstanding” judicial rulings on rights. Furthermore, it permits proportionate legislative restrictions on some Charter rights. This clause has inspired the legal mechanisms of rights protection in many Commonwealth systems, such as those of New Zealand and the United Kingdom. The model emerging out of these mechanisms is characterized by “four essential institutional features.”84 The first feature is a Charter of Rights with a constitutional or statutory status. The second is the provision of “mandatory rights review of legislation by the political branches before enactment,” and the third is a judicial constitutional review of legislation. The fourth is that “notwithstanding this judicial role,” there is the legislative power to “have the final word on what the law of the land is by ordinary majority vote.” As Young notes, “these mechanisms help to combine legal and political controls over rights, the aim being to maximise the benefits and minimise the weaknesses.”85

38Of course, these mechanisms can be improved. Nonetheless, they show the dialogic potential of judicial review, which, from the perspective of SDC, is extremely relevant: we cannot address judicial review as part of a deliberative system if we do not appraise its dialogic dimension.

  • 86 Kyritsis 2017: 119, with reference to courts acting as “practical authorities” in the terms of Raz (...)
  • 87 As argued by Kyritsis 2017. See also Tremblay 2005: 617.

39At the same time, we cannot avoid dealing with its authoritative dimension. Indeed, adjudication is a judicial activity and an essential aspect of jurisdiction is the power to make decisions with binding effects.86 An account of judicial review that does not address both aspects misses one of its distinctive features, with the risk of being descriptively inaccurate as well as normatively inadequate.87

  • 88 See Klatt 2019.

40Ultimately, both dimensions are equally important for our understanding of the link between adjudication and democratic deliberation.88 Accordingly, current efforts in constitutional theory attempt to weaken the tension between them.

  • 89 Mendes 2013.
  • 90 Mendes 2013: 53.
  • 91 Mendes 2013: 53. On internal/external deliberation in adjudication, see also Ferejohn and Pasquino (...)
  • 92 On dialogic practices, see Gargarella 2019. On “external connections,” see also Ferejohn and Pasqui (...)

41Challenging the view of courts as “legalist distractions from deep moral reasoning,”89 Mendes accounts for adjudication as a form of deliberation, notwithstanding its authoritative features. In conceptual terms, “law is deliberative to the extent that it allows for the weighing of various reasons for action.”90 In institutional terms, it is deliberative insofar as “judges deliberate with each other within collegiate adjudication.”91 These connections mostly concern how deliberation becomes part of adjudication, through the reasoning and decisional dynamics adopted within courts. Beyond these connections, then, there are also connections concerning how adjudication becomes part of – and contributes to – democratic deliberation. Such connections are based on dialogic practices, which makes it possible to contest and give inputs to judicial decisions, so that the arguments and decisions of courts address and build on the arguments and decisions provided by other institutional actors or citizens. And vice versa.92

  • 93 Bello Hutt 2017.
  • 94 Bello Hutt 2017: 83.

42Notwithstanding these linkages, it might be argued that adjudication is not fully deliberative and cannot be cast as part of a deliberative system due to a fundamental gap between adjudication and deliberation.93 The gap concerns the purpose of such activities: the point of adjudication is to decide and settle issues, whereas deliberation need not seek to reach a decision.94 Moreover, through judicial review, adjudication comes with final decisions, which allow courts to have a final say on constitutional issues.

43The systemic approach offers some resources to address these points.

  • 95 Mendes 2013: 14.

44First, the idea of political deliberation as an activity not aimed at deciding raises some questions. In fact, the “decisional element” seems to be crucial in political deliberation: “politics demands authoritative decisions that command obedience. Decisions compel deliberation with a practical course of action that a group or a political community needs to select.”95 Deliberation presents a decisional feature shared by adjudication and the other activities – such as law-making – that unfold in the system’s empowered space. This feature characterizes those activities in various ways, under different constraints, and to varying degrees. In this sense, there might well be a gap between adjudication and political deliberation. Yet, such a gap does not imply that adjudication cannot be part of a democratic, deliberative practice that tales from systemically. SDC sharpens our outlook on this aspect, so as to differentiate the activity from the practice – the immediate point of the former from the overall point of the latter – and, at the same time, to grasp how they recursively constitute each other.

  • 96 “Political deliberation survives a decision” (Mendes 2013: 15). Friedman (1993: 644) points out tha (...)

45Second, deciding is not equivalent to having the final say.96 In systemic terms, the practice of democratic deliberation boils down to a set of differentiated but interconnected activities with the aforementioned functions – epistemic, ethical, and democratic. Such activities are structured so as to integrate the initiative of legislative bodies with the supervision of constitutional courts and citizens’ participation in the decision-making processes on issues of public relevance. These activities instantiate the communicative exchange under different constraints and in different ways, i.e. by enacting laws, reviewing laws, taking part in public juries, and so on. The different actors involved in that exchange exercise different competences, within different boundaries. Setting these boundaries requires identifying “who” is competent to intervene on a certain issue, at a certain time. In the case of courts, such identification boils down to determining if judicial actors are competent to adjudicate an issue and, therefore, if that issue is justiciable. The criteria of justiciability depend on the view of the constitutional democratic order in which courts operate and of the relationship between courts and legislatures. The deliberative view of democracy is the basis for different criteria of justiciability, depending on the particular version of that theory that we take into account. What the different versions have in common is that they provide “deliberatively-oriented” criteria of justiciability that do not settle judicial competences once and for all. Rather, they allow the scope of judicial competences to be adjusted, from time to time, based on the possibility that courts contribute to democratic deliberation at a systemic level and the extent to which they can do so. In these terms, we may assess courts’ deliberative capacity as a second-order capacity, that is, as the ability to take part in the practice of democratic deliberation along with other actors, in systemic terms, even though they do not have the first-order capacity of being deliberative actors themselves. In such terms, the limits to justiciability basically depend on the possibility of supporting democratic deliberation through adjudication. Within those limits, then, courts can operate so as to contribute to systemically democratic deliberation, through the interplay with other actors and, in particular, with legislative actors. Setting the terms in which they should operate requires us to determine “how” judicial bodies should exercise their competence and handle the issues that fall within the scope of their legitimate action. The criteria of adjudication depend on the grounding view of the constitutional law and the nested idea of adjudication and its relationship with democratic deliberation. From the perspective of deliberative constitutionalism, law and adjudication can contribute to democratic deliberation by supporting/securing the conditions and the results of the communicative processes through which that deliberation unfolds. Within the SDC framework, in particular, adjudication can make this contribution even if it is not, by itself, a deliberative activity. In systemic terms, adjudication can be the component of a deliberative democratic system insofar as it supports a deliberative practice within which judicial review interacts with political deliberative actions.

46The decisions produced through judicial review, indeed, should be regarded as the product of interactions, primarily involving courts and legislatures. The latter take decisions that determine the content and form of the laws reviewed by the former. By this, they settle, from time to time, the boundaries – and contents – of judicial review. The results of this review, then, affect, from time to time, the validity of laws and the legislative choices required to replace unconstitutional laws.

  • 97 Besides, constitutional courts can decide and yet not settle an issue, as Bickel (1962) observes in (...)
  • 98 Mansbridge 2009: 386.

47In these terms, judicial decisions are not “final.” Rather, they are part of a series of decisions integrated in a practice unfolding over time. As SDC highlights, the single instances of this practice, in which adjudication is embedded, might (not) result in the court – as much as the legislature – settling a certain issue.97 Such a trait, however, relates to those particular instances and must be understood and addressed accordingly, acknowledging that it is part of a broader practice in which judicial, legislative, and other deliberative activities shape and constrain each other, in a system. Their democratic legitimacy depends on a cross-fertilization of deliberative capacity. And such cross-fertilization occurs in light of the division of deliberative work that regulates their interaction. Note that such division of work, from a systemic perspective, follows criteria of differentiation among integrated deliberative tasks that do not imply the supremacy of one deliberative agent over others, or the fact that this agent “knows better,” but which simply follow from a distribution of tasks within a deliberative community.98

  • 99 Mansbridge 2009: 3.
  • 100 This view is close to current accounts of courts as part of a “cooperative” (Kyritsis 2017) or “bal (...)

48In these terms, SDC goes beyond the “judicial enhancement” view and its dualistic deliberative criterion of legitimacy. There are not two separate tracks of legitimacy – one for the courts and another for political, deliberative actors – but two, ultimately interdependent tracks, being unified in a systemic track. Within this track different deliberative actors are required to systemically fulfill deliberatively-oriented standards of legitimacy. Such fulfillment arises from a cross-fertilization of deliberative capacity in that “two venues, both with deliberative deficiencies, can each make up for the deficiencies of the other.”99 This point is crucial in assessing the legitimacy of judicial actions, especially in the forum of constitutional adjudication. These actions are not exempt from criteria of legitimacy requiring a systemic exercise of deliberative capacity: they must contribute to a practice of democratic deliberation. Yet, assessing whether these actions display the required degree of deliberative capacity requires us to also consider those deliberative actions that may complement, or not, possible judicial deficiencies.100

49Be that as it may, the problem with casting adjudication as part of a democratic deliberative system may not be with courts deciding, but rather with the (allegedly) non-representative nature of judicial decisions. In a democratic system, the legitimacy of decisions and actions taken by legislative bodies is grounded (also) in their quality of democratically elected representatives. For courts, the representative ground is allegedly absent, since they are non-electoral, independent bodies. From the perspective of SDC, however, such lack of representativeness can be questioned, as I shall argue below.

4.2 Adjudication and representation

50A second challenge arising within the framework of SDC is whether or not adjudication is a form of democratic deliberation, that is, whether we can understand adjudication as a form of representative deliberation. In fact, contemporary deliberative democratic theory has made room for the idea that representation supports democratic deliberation and, in such terms, is a constitutive element of complex democratic systems, at least with respect to some institutional actors and spheres.

  • 101 Pitkin 1972: 8.
  • 102 Valentini 2019b drawing on Dovi 2018.

51Representation is, in general terms, to “make present in some sense something which is nevertheless not present, literally or in fact.”101 By political representation we understand making “present in public policy-making processes voices, opinions, and perspectives that are not present.” This form of representation is democratic when it “applies to the voices, opinions and perspectives – i.e. the will – of the people, making political decisions responsive to it.”102

  • 103 Pettit 2010.
  • 104 Pettit 2010; Pitkin 1972.
  • 105 Kyritsis 2017: 128.
  • 106 Kyritsis 2017: 129.

52Traditionally, in fact, democratic representation boils down to a “responsive” relation between representatives and representees103 with the former being deputies that act for the latter, as “delegates” or “trustees” depending on whether or not they are directed by the representees.104 In such a relation, accountability mechanisms are based on elections and representatives exercise a judgment informed by voters’ interests and views105 even though they might take an independent view that reflects their view of a just society.106

  • 107 Kyritsis 2017: 129; see also Harel 2019.

53Courts, by contrast, are generally conceived as non-representative institutions. They are not appointed by elections and are not electorally accountable. Furthermore, courts do not exercise dependent judgment, but are independent institutions that can resist political pressures: precisely for this reason, we entrust them with the task of supervising the legislature.107

  • 108 Kuyper 2016: 322; see also Bohman 2012.

54From a systemic perspective, this is a partial, reductive, view of democratic representation in a deliberative democracy. Indeed, the systemic turn has brought a systemic approach to democratic representation, too: “cross-fertilization helps to shed light on the changing nature of representation, democracy, and legitimate political power,” as well as the interactions therein.108

  • 109 Mansbridge 2011: 621.

55Representativeness, from this perspective, should be assessed beyond the characteristics of single representatives to also consider their position within the deliberative system. And electoral criteria should combine with deliberatively-oriented criteria applying – systemically – to both electoral and non-electoral representatives. The legitimacy of the latter, in particular, should be addressed by assessing their position in a representative system that “should be judged normatively as a whole.”109

56As such, we should ask what position we can assign to courts in a representative system, and what criteria we can adopt to assess their contribution to such system. Being, in general, non-electoral and independent bodies, the idea of a responsive relation with the constituency does not apply.

  • 110 Valentini 2019b.
  • 111 Pettit 2010.
  • 112 Mansbridge 2009.

57An alternative idea of representation, however, may help us. As I have noted in other works,110 we can refer to Pettit’s idea of an indicative relation between the representees and a representative, in which the latter “stands for” the former.111 In this kind of relation, representatives are not required to track the representees’ preferences and to act on the basis of such preferences. Rather, they are indicators of how the representees would decide or act if they were in the representatives’ position. After election or appointment, the representees do not control what representatives decide and do, but they can exercise control ex ante, through the selection of the representatives and the establishment of constraints on their future decisions and actions.112 The basis of this relationship is proximity between the representatives and the representees. A proximity that can be understood in terms of resemblance or convergence.

58In the first case, the representatives resemble – display some properties of – the representees. In this sense, proximity is the basis of a relationship that is descriptive insofar as the court mirrors, at least in some respects, the members of the community or particular groups within the community.

  • 113 Pettit 2010.
  • 114 Pettit 2010: 427–428.

59In the second case, the representatives stand as an indicator, that is, they act as the representees would act if they were in the position to do so. In this sense, proximity is the basis of a relationship that is descriptive insofar as the community – or particular groups within the community – recognize themselves in the court’s actions in light of a set of fundamental goals set by the constitution.113 In other terms, the representatives are indicators insofar as the fact that they are of a certain mind “offers reason for expecting” that the representees “will be of the same mind.”114

  • 115 On the representative value of this practice in a system, see Bohman 2012; Kuyper 2016.
  • 116 Pettit 2010; Mansbridge 2009.

60SDC provides a framework in which the indicative relation, in both forms, becomes part of a deliberative representative system and must be characterized accordingly. First, it is grounded in what we may define as “deliberative proximity”: resemblance between deliberative bodies and the community and/or convergence between representatives and representees on a set of goals established by the constitution. A convergence to be realized deliberatively, that is, through the practice of deliberation that takes form systemically, involving courts alongside other institutions and the wider community.115 Second, such deliberative proximity also depends on courts’ deliberative capacity. In fact, this is the capacity allowing courts to take part in the practice of deliberation through which they act as indicative representatives. Third, mechanisms of accountability, in the case of courts in a deliberative, representative system, are based on mechanisms of selection according to criteria of professional expertise as well as on judicial reason-giving and dialogic practices.116 In these terms, we can devise courts as deliberative proxies of a constitutional, deliberative community. By interacting with other representatives, they constitute a broader practice of democratic representation but their indicative actions, per se, neither exhaust that practice nor present each and all of its features.

  • 117 Alexy 2005; Kumm 2019: 281.
  • 118 Rosanvallon 2011.
  • 119 Eisgruber 2001.

61As to how courts contribute to this practice – the actions they should perform as deliberative proxies – we can draw on current developments in constitutional theory, characterizing judicial representation in “argumentative,”117 “reflexive,”118 or “principled” terms.119 I cannot dwell on the different implications of these ideas here. I can only note that, from the perspective of SDC, they are complementary – rather than mutually exclusive – ways in which courts can act as deliberative proxies of a constitutional community.

5 Conclusions

62The article seeks to contribute to DC, an emerging paradigm combining deliberative democratic theory and constitutionalism in new terms, so as to revive and advance the efforts previously made in the same direction by Rawls, Michelman, Nino and others.

63I have argued that DC and the systemic approach to deliberative democracy should be integrated so as to sharpen our analysis of judicial review and its ties to deliberative democracy. This integration allows us to appraise judicial review as a deliberative and representative institution, insofar as it is embedded in – and shaped by – a deliberative, representative, system. It does not present all the features of the system. Nor does it perform all the functions of the system. Its purpose may differ from that of the system overall. Still, it is a constitutive component of that system and contributes to its functionality. And we should assess its legitimacy accordingly, taking into account the deliberative capacity that it transmits to – and borrows from – other systemic components. If we are to properly address the deliberative work undertaken by courts through judicial review, we cannot isolate that work from the practice and the system to which it belongs. Rather, we need to appraise its place within them. A systemic version of DC provides a framework to do so.

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Notes

1 For an overview of this emerging paradigm, see Kong & Levy 2018a: 626; Levy, Kong, Orr, & King 2018; Worley 2009.

2 Bohman 1998: 401.

3 Kong & Levy 2018b: 3.

4 See the works cited in notes 1, 2, 3 and Bello Hutt 2020: 69.

5 See footnote 31.

6 Kong & Levy 2018a: 626. As pointed out by Bello Hutt 2020, “Nowadays, deliberative constitutionalism is explicitly presented as a clear and distinct idea that keeps” the tensions internal to the concepts of constitutionalism and democracy “at bay.”

7 So far, the new literature on DC has not provided a full, systematic analysis of judicial review and there are no chapters devoted to this topic in the Handbook of Deliberative Constitutionalism (Bächtiger, Dryzek, Mansbridge, & Warren 2018).

8 Kong & Levy 2018a: 634.

9 The idea of “deliberative system” was introduced by Mansbridge 1999: 211. For a “manifesto” of the systemic approach, see Mansbridge et al. 2012: 1–26. For a critical reconstruction, see Owen and Smith 2015.

10 Mansbridge et al. 2012: 4.

11 Mansbridge et al. 2012: 22. The roots of this account are in Habermas’ idea of a “two-track” deliberative democracy, advanced in Habermas 2015.

12 Bello Hutt 2017.

13 Mansbridge 2003; Kuyper 2015; Bohman 2012; Mansbridge & Rey 2015.

14 Bello Hutt 2017: 77.

15 Kong & Levy 2018a: 625.

16 Kong & Levy 2018b: 2.

17 13 Kong & Levy 2018b: 1.

18 Kong & Levy 2018a: 625.

19 Worley 2009: 431, making reference to the works of Ackerman, Nino, Habermas, Sunstein, and Michelman.

20 Freeman 2000: 417.

21 Kong & Levy 2018b: 2.

22 Kong & Levy 2018b: 2.

23 Kong & Levy 2018b: 7.

24 Kong & Levy 2018a: 629.

25 Kong & Levy 2018b.

26 Kong & Levy 2018a: 630; Levy & Orr 2016.

27 Friedman 2002.

28 Bickel 1962.

29 Kong & Levy 2018a: 626.

30 Kong & Levy 2018a: 634.

31 I refer to the theories of Ely 1980, Habermas 2015, Ackerman 1991, Michelman 1987, Rawls 1993, Eisgruber 2001, Friedman 1993, Nino 1998, Sunstein 1996, and Alexy 2005.

32 This strand brings together different theories, influenced also by Habermas 2015 and Rawls 1993. As noted by Floridia 2018: 35, these theories have been influenced by – and also helped to build – deliberative democratic theory.

33  See, among many works, Dryzek 1990; Bohman 1994; Cohen 1989; Gutmann and Thompson 1996.

34 A distinction by Ackerman 1991.

35  See, above all, Habermas 2015, and the idea of jurisgenesis in Michelman 1987.

36 Bello Hutt 2017: 81.

37 Bello Hutt 2017: 81.

38 Bello Hutt 2017: 81.

39 See also Bello Hutt 2018.

40 Bello Hutt 2017: 96.

41 As highlighted, in different terms, by Rawls 1993, Sunstein 1996, Eisguber 2001, Michelman 1987, and Nino 1998.

42 Mansbridge et al. 2012.

43 Dryzek 2009: 1385.

44 Kuyper 2016.

45 Kuyper 2016: 312.

46 Dryzek 2009: 1399.

47 Dryzek 2009: 1382.

48 Kuyper 2016: 313.

49 Dryzek 2009: 1382.

50 Goodin 2005.

51 Bohman 2007.

52 Parkinson 2006.

53 Parkinson 2006.

54 Kuyper 2016: 308.

55 Mansbridge et al. 2012: 3.

56 Owen and Smith 2015 remark that this analysis may not be enough. Indeed, it can be complemented by assessing how systemic virtues or flaws influence the system’s components and how these components relate to the whole system.

57 Mansbridge et al. 2012: 5.

58 Mansbridge et al. 2012: 22.

59 Mansbridge et al. 2012: 12.

60 Vermeule 2011: 3.

61 Vermeule 2011: 5.

62 For this distinction, see Rey 2020.

63 Vermeule 2011.

64 Vermeule 2011: 4.

65 Courts are explicitly identified as components of the deliberative system, for instance, by Mansbridge et al. 2012, as well as Dryzek 2009, 1384–1385.

66 Krause 2008.

67 Krause 2008, drawing on the account of Gutmann and Thompson 2000.

68 On public hearings see Gargarella 2019; Tushnet 2016.

69 As pointed out by Bello Hutt 2017, providing a first attempt to account for the role of courts in a deliberative system. He takes a different route from the one I set out in this paper.

70 Sunstein 2017; Tushnet 2016; Gargarella 2014; Gargarella 2019.

71 See Krause 2008.

72 Valentini 2019a.

73 Rawls 1955: 3 elucidates the idea of practice as “any form of activity specified by a system of rules which defines offices, roles, moves, penalties, defenses, and so on, and which gives the activity its structure.”

74 Rawls 1955; Hart 1959.

75 Hart 1959: 3.

76 As pointed out by Rawls 1955 and Hart 1959.

77 Vermeule 2011: 55.

78 Vermeule 2011: 56.

79 Bächtiger, Dryzek, Mansbridge, & Warren 2018.

80 Contra Bello Hutt 2018.

81 On dialogic accounts, see Tushnet 2009 and Gargarella 2014.

82 Gargarella 2019: 68.

83 Young 2018: 126.

84 Gardbaum 2013: 30–31.

85 Young 2018: 127.

86 Kyritsis 2017: 119, with reference to courts acting as “practical authorities” in the terms of Raz 1986.

87 As argued by Kyritsis 2017. See also Tremblay 2005: 617.

88 See Klatt 2019.

89 Mendes 2013.

90 Mendes 2013: 53.

91 Mendes 2013: 53. On internal/external deliberation in adjudication, see also Ferejohn and Pasquino 2002: 21–36.

92 On dialogic practices, see Gargarella 2019. On “external connections,” see also Ferejohn and Pasquino 2002.

93 Bello Hutt 2017.

94 Bello Hutt 2017: 83.

95 Mendes 2013: 14.

96 “Political deliberation survives a decision” (Mendes 2013: 15). Friedman (1993: 644) points out that “the notion of judicial finality seriously overstates the impact of a judicial decision […] A judicial decision is an important word on any subject. But it is not necessarily the last word.”

97 Besides, constitutional courts can decide and yet not settle an issue, as Bickel (1962) observes in order to cast adjudication – and judicial review – as characterized by “passive” virtues.

98 Mansbridge 2009: 386.

99 Mansbridge 2009: 3.

100 This view is close to current accounts of courts as part of a “cooperative” (Kyritsis 2017) or “balanced” (Klatt 2019) institutional scheme. They rely, however, on the idea of courts as non-representative institutions, which I challenge in this paper.

101 Pitkin 1972: 8.

102 Valentini 2019b drawing on Dovi 2018.

103 Pettit 2010.

104 Pettit 2010; Pitkin 1972.

105 Kyritsis 2017: 128.

106 Kyritsis 2017: 129.

107 Kyritsis 2017: 129; see also Harel 2019.

108 Kuyper 2016: 322; see also Bohman 2012.

109 Mansbridge 2011: 621.

110 Valentini 2019b.

111 Pettit 2010.

112 Mansbridge 2009.

113 Pettit 2010.

114 Pettit 2010: 427–428.

115 On the representative value of this practice in a system, see Bohman 2012; Kuyper 2016.

116 Pettit 2010; Mansbridge 2009.

117 Alexy 2005; Kumm 2019: 281.

118 Rosanvallon 2011.

119 Eisgruber 2001.

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References

Electronic reference

Chiara Valentini, “Deliberative constitutionalism and judicial review”Revus [Online], 47 | 2022, Online since 20 March 2022, connection on 26 May 2022. URL: http://journals.openedition.org/revus/8030; DOI: https://doi.org/10.4000/revus.8030

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About the author

Chiara Valentini

Senior Researcher in Philosophy of Law, Department of Legal Studies and Alma Human AI, University of Bologna (Italy)

Address: Palazzo Dal Monte Gaudenzi, Via Galliera 3 - I-40121 Bologna - Italy

E-mail: c.valentini [at] unibo.it

By this author

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