Constitutional Courts as Deliberative Institutions: Towards an Institutional Theory of Constitutional Justice
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Description
The collapse of the communist empire coincided with a new wave of constitution making. All the Eastern European countries included in their new constitutions an organ in charge of constitutional adjudication that is modeled on what we define below as the Kelsenian type. This was neither surprising nor original. The same phenomenon occurred in Southern Europe about 20 years ago, after the collapse of fascist authoritarian regimes in Greece, Portugal and Spain. Likewise, after the Second World War, a similar process took place in Austria, Italy and Germany. For this reason the following discussion of constitutional justice in post-authoritarian regimes is pertinent to the recent developments in Eastern Europe. This institutional revolution can be understood in terms of a simple and more or less unified model. The idea is straightforward: each of the European states is committed to maintaining parliamentary authority over the executive and judicial departments. And, as a matter of sociological fact, each of the post-authoritarian states exhibited distrust either of the judiciary (in the post fascist states) or the parliament (in France) or both. Each therefore chose to introduce a model in which constitutional review of parliamentary actions would take place in a specialized court, outside the judicial system. That model, because it puts some legislative policy making in the hands of constitutional courts (and not merely negative legislative authority as Kelsen himself was forced to admit), places the additional burden of legitimation on those courts. To some extent the burden of legitimation can be addressed by insulating the justices from political pressure and by permitting them to craft procedures (such as holding sessions in private, issuing opinions on behalf of the court, etc) that produce impartiality or the appearance of impartiality. But, beyond these more or less structural assurances, constitutional courts need to provide reasoned justifications for their decisions. We argue, in short, that constitutional courts face special and demanding deliberative expectations. In fact, to some extent, these expectations are embodied in the constitutions that created these courts. For example, the organic law of the Fifth French Republic regulating its procedures requires that the Constitutional Council provides a reasoned justification for its holdings. In Political Liberalism, John Rawls described courts as exemplary deliberative institutions—forums in which reasons, explanations, and justifications are both expected and offered for coercive state policies. The authority of courts is supposed, on this view, to rest in large part on the qualities of judicial reasoning—reasons linking court decisions to legal or moral authority—especially since courts as institutions lack democratic credentials and often lack the means to implement their decisions. So, deliberation and reason-giving seem especially valuable (and familiar) aspects of adjudication. If, therefore, we are trying to locate the institutions where reasoning and deliberation play an important role in public life, it is apt to begin with courts and especially with courts dealing with constitutional issues. In this chapter, therefore, we compare European and American constitutional courts as deliberative forums. We argue that constitutional courts are very differently situated in various political systems. They are asked different kinds of questions by different political actors, and are faced with different expectations, histories and cultural and political constraints. In view of this diversity of circumstances it is to be expected that constitutional courts adopt different kinds of deliberative practices even when treating quite similar issues. Still, despite the diversity, we think there is an important sense in which each of the constitutional courts we examine—the French, German, Italian, Spanish and U.S. courts—have retained the exemplary deliberative character that Rawls describes.
Source Publication
Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective
Source Editors/Authors
Wojciech Sadurski
Publication Date
2002
Recommended Citation
Ferejohn, John A. and Pasquino, Pasquale, "Constitutional Courts as Deliberative Institutions: Towards an Institutional Theory of Constitutional Justice" (2002). Faculty Chapters. 535.
https://gretchen.law.nyu.edu/fac-chapt/535
