Deliberative performance of constitutional courts
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Date
22/11/2011Item status
Restricted AccessEmbargo end date
31/12/2100Author
Mendes, Conrado Hübner
Metadata
Abstract
Political deliberation is a classic component of collective decision-making. It consists
in forming one’s political position through the give-and-take of reasons in the search
of, but not necessarily reaching, consensus. Participants of genuine deliberation are
open to transform their preferences in the light of persuasive arguments.
Constitutional theory has borrowed this notion in its effort to reconstruct a
justificatory discourse for judicial review of legislation. Constitutional courts were
ascribed the pivotal role of implementing fundamental rights in most contemporary
democracies and called for a more sophisticated picture of democratic politics. One
influential defence has claimed that courts are not only insulated from electoral
competition in order to guarantee the pre-conditions of majoritarian politics, but are
deliberative forums of a distinctive kind: they are better located for public reasongiving.
This belief has remained, from the normative point of view, largely underelaborated.
The thesis proposes a model of deliberative performance to fill that gap. This
qualitative concept unfolds the institutional and ethical requirements for courts to be
genuinely deliberative. Instead of taking a stand on the old dispute about which
institution is more legitimate to have the “last word” on constitutional meaning, this
research leaves this question suspended and systematizes the large range of variations
that can exist in constitutional courts’ performances. Discussions about the potential
roles of constitutional courts, in this perspective, become more sensitive to contexts
and to their varying degrees of legitimacy. The thesis offers a comprehensive picture
of what is at stake if a constitutional court plans to be truly deliberative. This picture
comprises the virtues presupposed by an ethics of deliberation, the institutional
devices that facilitate deliberation, the approach to constitutional reasoning that is
more hospitable to deliberation and, finally, the political perception to grasp the limits
of deliberation itself.