REVIEW ESSAY

The Ongoing Search for Legitimacy: Can a ‘Pragmatic yet Principled’ Deliberative Model justify the Authority of Constitutional Courts?

Thomas Bustamante1

Forthcoming publication - Modern Law Review

Conrado Hübner Mendes, Constitutional Courts and Deliberative Democracy (Oxford: Oxford University Press, 2013, 273 pp, hardcover, £ 50.00.

1.1.1.1. INTRODUCING THE GENERAL ARGUMENT

Though most Western Democracies, including legal systems of the common law

tradition, adopt some form of judicial review of the legislation, one can notice in the

recent literature of legal and political philosophy a growing mistrust of constitutional

courts and some serious doubts about their legitimacy for resolving our persistent

disagreements about the rights and principles enshrined in the Bill of Rights.

Jeremy Waldron is probably the first name to cross one’s mind when one thinks of

the critics of judicial review. He accepts Mangabeira Unger’s view that one of the ‘dirty

little secrets’ of contemporary jurisprudence is its ‘discomfort with democracy’.2

According to Waldron, ‘by privileging majority voting among a small number of

unelected and unaccountable judges’, the practice of judicial review ‘disenfranchises

ordinary citizens and brushes aside cherished principles of representation and political

equality in the final resolution about rights.’3

1 Law Faculty, Federal University of Minas Gerais (Universidade Federal de Minas Gerais), Brazil. Email: tbustamante@ufmg.br. 2 J. Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999) 8. 3 J. Waldron, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346, esp 1353.

Electronic copy available at: http://ssrn.com/abstract=2493598

Nonetheless, this scepticism towards judicial review is not unchallenged. There are

at least three plausible responses to these objections, which are based in different images

of constitutional courts.

The first conceives the court as a ‘custodian’ of public deliberation, which merely

supervises the legislative process with a view to assessing whether it was undertaken

under decent deliberative circumstances.4

The second portrays the court as a ‘forum of principle’5 or a privileged locus of

‘public reasons’ that is regarded as indispensable for a ‘political conception of justice’

which establishes the ‘priority of the right over the good’.6 This priority is sustained by

devices such as Dworkin’s distinction between ‘principles’ and ‘policies’,7 which

provides a conceptual framework for fixing the boundaries between ‘constitutional

reasoning’, where the courts have a say, and ‘ordinary politics’, where decisions are

reached exclusively by the legislature on the basis of majority voting or political

compromises.8

The third, finally, is a ‘dialogic’ account which portrays people, legislatures,

executives and the courts in constant conversation about the meaning of the

constitutional provisions,9 so that the image of the constitutional court is that of an

‘interlocutor’ in a ‘long term conversation with the legislator and the broader public

sphere’ (3). According to this view, there are no final answers about constitutional

argumentation.

4 This view is attributed, among others, to Habermas, Zurn, Nino and Sustein. See J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Trans. W. Rehg. (New

York: Blackwell, 1996) ch 6; C. Zurn, Deliberative Democracy and the Institutions of Judicial Review (Cambridge: Cambridge University Press 2007); C. Santiago Nino, The Constitution of Deliberative Democracy (New Haven: Yale University Press 1996); C. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court ( Cambridge, MA: Harvard University Press 2001).

5 R. Dworkin, A Matter of Principle (Cambridge, MA: Belknap, 1985) 71. 6 J. Rawls, Political Liberalism (expanded edition) (New York: Columbia Univ. Press, 2005) 176.

7 According to Dworkin, ‘arguments of policy justify a political decision by showing that the decision advances or protects some collective goal or the community as a whole’, whereas arguments of principle ‘justify a political decision by showing that the decision respects or secures some individual or group right’. R. Dworkin, Taking Rights Seriously, 2nd printing (Cambrdige, MA: Belknap, 1978) 82. 8 R. Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Belknap, 1996) 344. 9 M. Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton: Princeton University Press, 2008) 18-42.

Electronic copy available at: http://ssrn.com/abstract=2493598

Conrado Hübner Mendes’ book Constitutional Courts and Deliberative

Democracy (CCDD) is an attempt to specify and further elaborate these answers, which

are not regarded as entirely satisfactory for providing a proper justification for the

legitimacy of constitutional courts. These images would be inaccurate because they

ignore how judges internally behave and ‘disregard whether they have simply bargained

or aggregated individual positions to reach a common ground’ (87).

The best way to conceive the constitutional court would be as a ‘deliberator’. This

latter image ‘grasps an internal aspect of courts that the others would overlook’ (3). It

rightfully acknowledges that if constitutional courts are to be justified in working

democracies, their authority cannot derive solely from what they are expected to do or

from the role that they are assigned to play in constitutional politics.

Furthermore, he incorporates other elements into this model, since the concept and

the ‘achievements’ (or ‘promises’) of political deliberation are developed and deployed

as a conceptual apparatus for assessing the ‘deliberative performance’ of the courts.

Deliberation is a purposeful collective activity whose value lies both on its

instrumental role and on some intrinsic qualities of deliberative decisions. The

instrumental value, it is argued, points to four types of ‘deliberative achievements’: the

epistemic promise, which promotes clarity about the issues at stake and helps arriving at

the truth or the best answer to a practical problem; the communitarian promise, which

encourages consensus and deepens ‘a sense of community’ among deliberators; the

psychological promise, which fosters a feeling of ‘being respected’ and a commitment

to comply with a decision despite the disagreements; and the educative promise, which

holds that deliberation would ‘educate deliberators both about the respective subjective

matter and about the deliberative skills themselves’ (22-23).

The intrinsic value, on the other hand, stems from further reasons which have to do

with respecting the autonomy of the interlocutors of the court. If we accept that the point

of judicial review is, ‘as a matter of respect for citizens, to offer public reasons for

decisions that bear upon the constitutional essentials of the community’s political

identity’, then these interlocutors of the court deserve a densely responsive decision on

the basis of the ‘estimable service’ that such public justification can do to them. Without

such deliberative scrutiny of their arguments, citizens are deprived of the possibility of

exercising their ‘argumentative autonomy before the court’ (116).

The central thesis of the book, as it is presented in chapter four, is that the

legitimacy of a decision of the constitutional court is correlative to its ‘deliberative

performance’, which is measured by the court’s ability to fulfil the ‘promises of

deliberation’ in a given case. This deliberative performance is determined by a

threetiered model that is structured around the following: 1) the ‘core meaning’ of

deliberation, which corresponds to the ‘kernel of deliberation’ and comprises the

‘conceptual tools to detect the basic set of deliberative commitments taking place in the

particular setting of a constitutional court’; 2) the ‘facilitators’ of deliberation, which

comprise the ‘institutional devices that may trigger and galvanize or, alternatively,

hinder and discourage’ deliberation; and 3) the ‘hedges’ of deliberative performance,

which delineate ‘what a court should deliberate about’ and fix the legal background and

political circumstances of constitutional deliberation (103-4).

One can find some similarities, here, with Joseph Raz’s ‘moral approach’ to

constitutional interpretation, according to which constitutions can be legitimate not

because they have received their authority from an unlimited constituent power, but

because they are ‘enshrined in the practices of their countries’. That is to say:

‘constitutions do not derive their authority from the authority of their authors’. For Raz,

as long as they remain within the boundaries set by the moral principles of their political

communities, constitutions are ‘self-validating’ and (we can add) the legitimacy of

constitutional courts stems from the fact that they constitute a practice accepted by the

members of the political community.10 The authority of constitutions, in this

perspective, depends on how well they are interpreted by the constitutional court.

A liberal theory of the authority of constitutions does not need to assume, as

Dyzenhaus has shown while revisiting the works of Hobbes, that the legitimacy of a

legal system stems directly from an act of constituent power. According to Dyzenhaus,

Hobbes’ conception of legality entails that ‘power can be rendered ever more legitimate

as long as it is exercised authoritatively, that is through the institutions of legal order’.11

Under this interpretation, in spite of Hobbes’ unattractive view that sovereignty is

necessarily indivisible, his idea of governance would require a ‘regulative assumption’

of collaboration between the sovereign and his or her subjects, in which a ‘mutual

relation between protection and obedience’ is established and the authority of the

sovereign is based on a power that needs to be justified according to the laws of nature.

10 J. Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’ in L. Alexander (ed), Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998) 173-174.

11 D. Dyzenhaus, ‘The Politics of the Question of Constituent Power’, in M. Loughlin and N. Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2008) 140. 11 ibid 143.

Although the assumption of this type of ‘natural law’ is controversial, there seems to be

good reasons for us to retain Hobbes’ understanding of authority as based ‘on the idea

of an ongoing constitution of political authority by principles and on collaboration by all

the institutions of legal order in the articulation and rearticulation of those principles’11.

This important point is echoed when Hübner Mendes argues that ‘a court will be

more or less legitimate for what it does, not for the power that it has formally received’

(225). To be more specific, it is more or less legitimate depending on how well it is able

to discharge its deliberative duties. The main contribution of the book, in my opinion, is

to specify how the court may improve this deliberative performance.

To define the core meaning of deliberative performance, Hübner Mendes

distinguishes three deliberative phases and three correlated deliberative tasks. First, at

the pre-decisional stage, the court listens, poses questions and argues with its

interlocutors through the ‘institutional and extra-institutional argumentative channels

that are offered by a political community’ (106). The basic idea, here, is to promote the

highest possible level of public contestation before the court initiates its internal

conversation about the merits of the case. Second, at the decisional stage, the court

initiates the evaluative and intra-mural process of deliberation, where judges are

expected to reach a collegial engagement that mandates them ‘to listen and incorporate

their peers’ reason into theirs, either to adhere or to dissent’ (109). And finally, at the

post-decisional phase, the court must draft a deliberative written decision and engage in

a large-scale debate with its external interlocutors in the community at large.

The main point of book is to develop and ideal-type to provide the basis for

evaluating the quality of the deliberation in each particular court. This ideal-type is

described thus:

‘[A]n ideal-type deliberative court, put straightforwardly, is one that maximizes the range of arguments from interlocutors by promoting public contestation at the pre-decisional phase; that energizes its decision-makers in a sincere process of collegial engagement at the decisional phase; and that drafts a deliberative written decision at the post-decisional phase. In other words, if someone wants to check whether a constitutional court is fulfilling its deliberative duties, she should inspect the written and face-to-face interaction among interlocutors and judges, then the interplay between judges themselves, and finally the written decision delivered by the court. Each of them deserves a proper examination, according to the tailored indicators. Each would have a specific score’ (107).

So far, if one accepts a liberal justification for constitutionalism, as I intend to do

in this essay, there are very few reasons to object to Hübner Mendes’ effort to develop a

theory of judicial deliberation for evaluating the legitimacy of a constitutional court. But

as the reader reaches the second half of the book it becomes more obvious that Hübner

Mendes is aiming at something more than simply filling in the gaps of liberal theorists

such as Rawls or Dworkin. In effect, what he actually wants is to construe a mixed

approach that combines the liberal claim to develop a forum of principle with some

pragmatic strategies for maximizing the force and the social efficacy of the decisions of

the constitutional court. He calls that approach a ‘pragmatic yet principled’ justification

for a deliberative constitutional court (108). Let us discuss, in the following section, the

basic features of this model.

1.1.1.2. VIRTUES, CONSTRAINTS AND FACILITATORS OF CONSTITUTIONAL DELIBERATION

Important as an ideal-type of a constitutional court might be, there are additional

constraints on the process of decision-making and opinion-aggregation, which are

equally important for assessing its deliberative performance.

In chapters 5, 7, and 8, these constraints are addressed and the reader finds a

‘middle-level’ theory for analyzing the deliberative performance of the constitutional

court and the legitimacy of constitutional review in a given legal system.12

In this section, I try to provide a sketch of the constraints of deliberation, which is

required for a more critical assessment of the overall project of the book.

1.1.1.3. The Ethics of Deliberation

Let us begin by the ethical aspects of deliberative performance. The very concept of

deliberation presented in the opening chapter of the book entails an ethics of

deliberation, which is described in detail at chapter five. The kind of ethics that Hübner

Mendes has in mind is an ethics of ‘virtues’, rather than ‘consequences’ or ‘duties’. This

model is inspired by Sollum’s ‘virtue-centred’ theory of judging, which does not see

judicial virtues merely as a means for reaching good legal decisions. On the contrary,

Sollum believes that virtues play a weightier role in adjudication, which is specified

with the following statements: (i) ‘a lawful decision is a decision that would

characteristically be made by a virtuous judge in the circumstances that are relevant to

the decision’; and (ii) ‘a just decision is identical to a virtuous decision’.13

12 In chapter 6, the book analyses how institutional design can act as a facilitator of deliberation, increasing the odds of a good deliberative decision by the constitutional court. I will comment on this facilitator later in this essay.

Although Hübner Mendes is convinced that this account of adjudication begs the

question of determining a plausible theory of judging, since it does not manage to

‘circumvent the need for a virtue-independent criterion’ for determining the just

outcome of a legal decision (126), he believes that a normative theory of deliberation

can be more successful in the attempt of formulating a theory of judicial virtues, for the

very idea of deliberation encompasses certain communicative virtues. Under this view,

‘virtues are not just a means for good deliberation’, since the practice of certain virtues

‘already instantiates deliberation itself’ (126).

He thinks that there are eight virtues that determine the quality of the deliberation

in a constitutional court.

1)At the ‘pre-decisional phase’, the sole virtue is ‘respectful curiosity’, which consists in ‘actively listening and understanding’ what the interlocutors of the court have to say about a given constitutional issue (127). While listening to the parties affected by a legal decision, the court should give a broad range of interlocutors an opportunity to speak, making clear that the decision is still not taken and that the court is sensitive to the reasons that they are able to present.

Nonetheless, the virtue of respectful curiosity does not require the court to give

exactly the same degree of attention to every argument presented by the parties. On the

contrary, these arguments are subjected to a ‘qualitative filter’ that gives a sort of

flexibility to the court, which is not obliged to grant each interlocutor ‘exactly equal

opportunity and time to manifest his case’ (128).

2)At the ‘decisional phase’, there are four further virtues, but it is clear that Hübner Mendes thinks that one of them, the virtue of ‘collegiality’, occupies a more prominent position in the reasoning of a constitutional court.

Collegiality is a virtue that one has towards one’s colleagues in a deliberative

forum. It entails attachment to a collaborative project, ‘but one that is concerned with

the internal institutional culture and favours deliberation in the search for unity’ (129). It

pushes deliberators towards consensus and requires mutual respect, shifting the agency

‘from the individual to the group’:14 the agency of performance is ‘of the court, not the

judge’. This implies a way of judging that values de-personification and a cooperative

attitude from each of the members of the court.

The core of this virtue is ‘a commitment to argue and cooperate, and a disposition

to strive for a supra-individual decision’ (129). But there is more to it, since it pushes

13 L. Sollum ‘Virtue Jurisprudence: A Virtue-Centred Theory of Judging’ (2003) 44 Metaphilosophy 178213, esp 198, quoted in CCDD (125). 14 L. Kornhauser and L. Sager, ‘The One and the Many: Adjudication in Collegial Courts’ (1993) 81 California Law Review 1.

towards convergence even when a spontaneous consensus is not possible, and the

participants of the deliberation must resort to a ‘principled compromise’. In this case,

‘second-order reasons can push a judge who believes he is right to alleviate his first-best

choice and join the group’ (130). A dissent, for a genuinely collegial court, is regarded

as a failure, or an anomaly that ‘is perceived to be a measure of last resort’ (132).

Collegial judges should not avoid, therefore, compromises over delicate moral or

political issues, for they are aware of the ‘symbolic and political power of a unanimous

decision’ (130).

Yet collegiality is not the only virtue at stake at the decisional phase. In addition,

deliberators should practice the virtues of ‘cognitive modesty’ (which requires them to

be not too self-assured of their own individual understanding, making themselves

vulnerable to the arguments of their colleagues), ‘cognitive ambition’ (which implies a

disposition to ‘persist in the search for the best possible decision’) and ‘empathy’

(which implies one’s ‘ability of vicariously imagining the points of view that were not

formally voiced in the course of the judicial process’) (134-6).

3) Finally, at the ‘post-decisional phase’, there are other three virtues that refer

specifically to the drafting of a deliberative written decision.

The first one is the virtue of ‘responsiveness’, which requires an adequate answer to the

arguments raised by the interlocutors of the court at the pre-decisional phase. As a

matter of judgment, this virtue entails an ability ‘to select which of the arguments raised

by formal and informal, actual and vicarious interlocutors, deserve a proper reply’. The

court is not obliged to respond to everything that was argued for or against a

constitutional decision. On the contrary, the court must exercise, ‘as a matter of

practicality and fairness’, a form of ‘sensible judgment’ on the basis of the ‘qualitative

filter at the stage of public contestation’ (137). Furthermore, the court must be able to

manage the tone of the answer, bearing in mind that the decision is addressed to the

whole political community and that it is its duty to ‘speak with equal voice to both

groups’ (137).15

The second virtue is ‘clarity’. The court should not only be able to write a decision

understandable to the class of lawyers, but make an effort to draft a simple, not strictly

legalistic decision which is addressed to the political community as a whole.

15 This Idea is originally attributed to A. Sachs, The Strange Alchemy of Life and Law (Oxford: Oxford University Press, 2009) 239.

The third virtue, finally, is a ‘sense of fallibility and provisionality’. A deliberative

constitutional court is aware both that its decision is ‘historically situated’ and that the

judges ‘might have made a mistake’. It must be prepared to engage with the broad

political community in the future and deal with the natural criticism that is likely to

emerge from the losing side. It must be aware, therefore, of the ‘potential reversibility’

of the decision in the future (138-9).

1.1.1.4. The Legal Backdrop and the Political Circumstances of Constitutional Scrutiny

According to the argument developed in CCDD, a constitutional court ‘sits at the

interaction between law and politics’. Although its decisions must be attentive to the

legal conditions that determine which sorts of reasons are acceptable in constitutional

scrutiny, it ‘cannot but practice a modicum of pragmatism that is inescapable in the

domain of constitutional adjudication’ (176). This is probably the core of the idea of the

‘pragmatic yet principled’ model of constitutional argumentation, which is accepted in

the introduction as an initial premise of the whole argument developed in the book.

Under this view, solutions to constitutional dilemmas ‘depend on context and pragmatic

accommodation as much as on a reasonable interpretation of constitutional norms’

(176).

Despite the fact that legal and political circumstances of the decision interact and

are equally important for reaching a deliberative judgment on a constitutional issue,

there are significant differences with regards to the nature of the deliberation grounded

on legal or political considerations. Deliberation on the basis of the legal backdrop, it is

argued, has an ‘exoteric’ character in the sense that ‘they are addressed to, and supposed

to be understandable by, the general citizenry’ (194), whereas deliberation on the basis

of the political circumstances of the decision are ‘esoteric’ in the sense that the audience

of the argument based on the latter considerations is the court itself. ‘Esoteric morality’,

as the argument goes, ‘comprises considerations that often cannot be publicly unveiled’

(209-210).

Let us retain our attention, first, on the ‘legal backdrop’ of constitutional

scrutiny, which has five components.

The first of these components is the recognition of the ‘moral quality of the

constitutional language’, which requires an ‘interpretive attitude’ of the court16 and a

Dworkinian ‘moral reading’ of the constitution, yet without necessarily endorsing all the

moral and political ideas of the Dworkin’ liberalism (179). The court must abandon,

therefore, the pretence of neutrality in constitutional interpretation and develop a

morally-laden conception of the contested moral concepts embedded in the constitution,

taking full responsibility for its interpretive decisions.17

The second component, in turn, is the historical perspective expressed in the idea

of fidelity to the precedents of the court. What is a stake here is not the strict doctrine of

stare decisis found in common law jurisdictions such as the United Kingdom or the

United States of America. This doctrine is based on a strict distinction between

‘regulated’ (or ‘settled’) and ‘unregulated’ (or ‘unsettled’) cases, which supposes that in

the former there are positive legal rules providing a solution to the case, whereas in the

latter ‘the court has to apply existing law as well as to make new law’.18 Since

precedents are considered to be sources of law in a strict sense, the court is meant to be

strictly bound by the ratio decidendi of any previous decision, which is authoritative

even in the absence of any reasons in support of the decision at stake.19

The kind of precedent that Hübner Mendes has in mind here is the persuasive,

rather than strictly binding, legal precedent, whose force steams not from the lawmaking

power of the previous court, but from the moral principle of universalizability and the

idea of fairness, which make precedents authoritative even in the absence of any

positive rule concerning the strict adherence to legal precedent.20 Fidelity to precedents

is perceived as Janus-faced, for it is both backward-looking and forward-looking, in the

sense that the novel decision must not only cohere with the institutional history and the

previous decisions, but also construct the law in accordance with the fundamental

principles of justice and fairness.

The third legal component suggested by the author is the ‘intra-judiciary

coordination’. Constitutional courts should be able to engage in a deliberation with the

16 As it is widely known, an interpretive attitude towards a social practice such as law comprises, according to Dworkin, two components. First, one must assume that this practice ‘does not simply exist but has value’, in the sense that ‘it serves some interest or purpose or enforces some principle – in short, that is has some point’. Second, it must further assume that its norms ‘are not exclusively what they have taken to be but are instead sensitive to its point, so that the rules must be understood or applied or extended or modified or qualified or limited by that point’. R. Dworkin, Law’s Empire (Cambridge, MA: Belknap, 1986) 47.

17 I am referring here to the distinction between ‘concepts’ and ‘conceptions’ developed by Hart, Rawls and Dworkin. ‘The contrast between concept and conception is… a contrast between levels of abstraction at which the interpretation of the practice can be studied. At the first level agreement collects around

rest of the judiciary, in two ways; by occupying itself with the argumentative exchanges

and decisions of lower-level judicial authorities; and by drafting and communicating its

decisions ‘in a way that preserves a coherent historical thread’ (184).

The fourth component, in turn, is called ‘deliberation of powers’. It holds that

the principle of ‘separation of powers’ should be interpreted in a deliberative way and

that the court should perceive the legislator as a partner in an inter-branch conversation

with a view to determining the correct interpretation of a constitutional provision. This

implies the rejection of a strict form of judicial supremacy and the acceptance of the

idea of a deliberative ‘dialogue’ between the court and the legislature. According to this

idea,

‘A deliberative court does not understand itself as the only and ultimate say about the constitution. In a context of continuous interaction, it addresses the parliament as an agent to be persuaded, but that can equally persuade in return. It stimulates a deliberative exchange rather than a zero-sum game between winners and losers’ (187).

Finally, the fifth component of the legal backdrop has to do with the

cosmopolitan character of constitutional reasoning. A deliberative court should perceive

discrete ideas that are uncontroversially employed in all interpretations; at the second the controversy latent in this abstraction is identified and taken up’. Dworkin, above n 16 at 71. 18 J. Raz, The Authority of Law, 2nd. edn (Oxford: Oxford University Press, 2009) 182. 19 R. Cross and J. Harris, Precedent in English Law, 4th edn (Oxford: Oxford University Press, 1991) 47. 20 On the relation between fidelity to a persuasive precedent and the principle of universalizability, see N.

MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon, 1978) 84, and on the idea that fairness is the sole ground for fidelity to precedent, see Dworkin, above n 6 at 113.

the existence of a new ius gentium in the sense of a ‘source of insights’ for resolving

moral issues concerning principles, rights and justice. It must establish a deliberative

interaction with other constitutional courts which face similar problems and are equally

disposed to learn with each other and contribute to a mutual project of establishing and

recognizing rights and a global sense of justice.18 To put it simply, it must strive towards

‘a global expansion of integrity in the realm of rights’ jurisprudence’ (189).

These five components, altogether, comprise the legal background of

constitutional deliberation and form the ‘exoteric argumentative thicket of constitutional

adjudication’, shaping the ‘public reasons that justify a constitutional court’s decision’

(194-5).

Nonetheless, legal considerations are not the only kind of constraint over

constitutional adjudication. Political circumstances, as it is argued, are equally

18 Hubner Mendes is following Waldron on this. For a comprehensive statement of Waldron position see: J. Waldron, Partly Laws Common to all Mankind (New Haven: Yale University Press, 2012).

important. To a certain extent, Hübner Mendes thinks that the court must be a

‘tactician’, i.e. it must make strategic choices concerning several factors which affect

the effectiveness of its decisions. These choices, according to the ‘pragmatic yet

principled’ model, depend upon ‘political dexterity’ and ‘pragmatic and consequentialist

considerations’ (197-8). They are esoteric choices that are hidden within the internal

deliberations of the court.

The court must, to put it simply, devise a political strategy and balance

pragmatic considerations to make choices about (i) the ‘timing’ of the judgment, which

include agenda-setting and duration of the internal deliberations, (ii) the ‘style of

judgment’, which cuts across questions of width, depth and tone, (iii) the ‘degree of

cohesion’ of the decision, which refers both to the choice between per curiam and

seriatim decisions and to the selection of the degree of cohesion that will be ‘formally

documented and displayed to the public’ in the written decision, (iv) the level of

intrusion on the other branches, in which the court should seek for an ‘inter-branch

cooperation’ on the basis of ‘prudential accommodations apart from legal

interpretation’, i.e. of ‘politics apart from principle’ (206), and (v) the level of fidelity

and deviation from the public opinion (198).

Each of these variables contains a menu of strategic choices available for the

court. Though some of the choices in these dimensions may be settled by institutional

design, this is not always the case, and even when these decisions are pre-empted by

procedural rules that design the institutional setting of the court, the political community

must reflect upon them and periodically reassess the reasonableness of these choices. At

least in part, these strategic choices are determined by political trade-offs, that is, by

pragmatic considerations which entail a non-negligible margin of discretion for the

members of the court. This is one of the key features of the ‘pragmatic yet principled’

model developed in the book, and helps developing the critical observations that I shall

make in the remaining sections of this essay.

1.1.1.5. THE UNAVOIDABLE SAME OLD

QUESTION

As we saw in the previous section, Mendes develops the conception of

constitutional courts as deliberative institutions that are presented as more

argumentatively ambitious as compared to ‘custodians’ of public deliberation,

‘public reasoners’ or ‘interlocutors’. Under the ‘deliberative model’ defended in

the book, to fulfil its argumentative duties the court must not only ignite public

deliberation or respond to arguments put forward by its external audience, but

rather deliberate itself.

The proposed ‘internally deliberative’ model, however, bypasses the old

question of the legitimacy of constitutional adjudication and lacks a fully

articulated response to the main objections against judicial review that one can find

in the current literature of constitutional law and political philosophy. There are no

intrinsic moral or ethical reasons for vesting the courts with such powers in a

democratic society. Arguments based exclusively in the idea of fairness will not

do.

This conclusion, as Waldron has famously argued, applies at least to the

‘core cases’ of democratic communities, in which the following four assumptions

are satisfied: one can find ‘(i) democratic institutions in reasonably good working

order, including a representative legislature elected on the basis of universal adult

suffrage; (ii) a set of judicial institutions, again in reasonably good order, set up on

a nonrepresentative basis to hear individual lawsuits, settle disputes, and uphold

the rule of law; (iii) a commitment on the part of most members of the society and

most of its officials to the idea of individual and minority rights; and (iv)

persisting, substantial, and good faith disagreement about rights (i.e., about what

the commitment to rights actually amounts to and what its implications are) among

the members of the society who are committed to the idea of rights’.19

According to Waldron, there are sound process-related reasons for

accepting as fair a legislative decision made in the light of a profound and

19 Waldron, above n 2 at 1360. 23 bid 1388.

i

persisting disagreement about the rights that we have in a given society, and there

seems to be no analogous moral reasons available to justify its invalidation by an

equally divided court.

On the one hand, an advocate of a majority decision by a legislature, when

questioned by a citizen defeated in a deliberation about rights, may ground her

position on the theory of ‘fair elections’, in which all citizens have equal

opportunities to participate in the decisions about the composition of the

legislature. Furthermore, the principle of ‘majority decision’ (MD), ‘better than

any other rule’, must be accepted because it is ‘neutral as between the contested

outcomes, treats participants equally, and gives each expressed opinion the greatest

weight possible compatible with giving equal weight to all opinions’.23 That is to

say: while adopting MD, we commit ourselves with the principle of political

equality, which provides a reasonable justification for legislative supremacy at

least in the ‘core cases’ described in the previous paragraphs.

On the other hand, the same justification is not available when the power to

resolve our good faith disagreements is assigned to a small number of judges in a

constitutional court. ‘MD is appropriate for persons who have a moral claim to

insist on being regarded as equals in some decision-process’, whereas

constitutional judges lack any moral basis for their claim to participate because

their claim is ‘functional’, rather than a matter of ‘entitlement’.20 According to

Waldron, the attempt to vindicate the judicial supremacy and reconstruct

democracy as suspicious about the MD is described as an ‘insult’, particularly

when we consider the fact that ‘judges disagree among themselves along exactly

the same lines as the citizens and representatives do, and that the judges make their

decisions, too, in the court-room by majority voting.’21

This critique of judicial review is not irrelevant to assess Hübner Mendes’

argument in support of deliberative courts, inasmuch as even if we come up to the

conclusion that a constitutional court is legitimate in our concrete political

community, its moral authority must not be accepted unconditionally. If the

argument for constitutional courts is conditional, as I believe it to be, then the

20 ibid 1392.

21 Waldron, above n 1 at 15.

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process of deliberation of the court must be adjusted to fit the conditions which

define the adequate circumstances for judicial review.

This point is illustrated by Dworkin’s latest challenge against MD,

presented in Justice for Hedgehogs, where he revisits the example of a majority

decision in a lifeboat, the passengers of which must decide who will be thrown

overboard to prevent the boat from sinking and avoid the death of the totality of its

occupants. According to Dworkin, a majority vote under such situation would be

unfair and lack equal concern for the participants, since the majority could easily

vote for drowning the least popular among the passengers. A lottery would be

fairer than a vote.22

What the lifeboat example shows, as Dworkin and Waldron can agree, is

not that MD is never intrinsically fair, but merely that MD is not a ‘general

principle of fairness independent of the context’,23 or a rule ‘intrinsically valuable

in all circumstances’24.

According to Dworkin, this conclusion holds not only for the hypothetical

lifeboat case, but also to some political decisions: ‘just as the biases and the

personal dislikes of a majority should not count in deciding which passenger

should be thrown overboard, so they are not relevant when a political community

decides on the rights of an identified and disliked minority’.25

Let us follow Dworkin’s advice on this and refer to the situations where

judicial review can be morally justified as the ‘circumstances of judicial review’.

The situation where a biased majority is empowered to compromise the rights of

‘an identified and disliked minority’ can be safely described as part of the

‘circumstances of judicial review’. Under these circumstances, MD loses its

intrinsically fair character and judicial review becomes an alternative for

overcoming our disagreements about rights and determining the scope of the

constitutional principles.

22 R. Dworkin, Justice for Hedgehogs (Cambridge, MA: Belknap, 2011) 387. 23 ibid 483.

24 J. Waldron, ‘A Majority in the Lifeboat’ (2010) 90 Boston University Law Review. 1043 esp 10481049. 25 Dworkin, above n 26 at 387.

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Even Dworkin, however, strongly emphasises that we are talking about

‘only one possible’ strategy for improving a government’s political legitimacy,

insofar as the choice for a constitutional court is a matter for institutional design.26

This conclusion, as we shall see in the next section, is not irrelevant for

evaluating Hübner Mendes’ deliberative model for constitutional courts, since the

limited justification of constitutional adjudication offered by the ‘circumstances of

judicial review’ allows a narrow scope for compromises and pragmatic

considerations in constitutional adjudication. As I argue in the next section, the

court may be legitimate to prevent occasional majorities from compromising the

rights of the people, while not allowed to make compromises in their name.

1.1.1.6. COLLEGIALITY AND COMPROMISE

Hübner Mendes thinks that collegiality is the main virtue in the most important

moment in constitutional adjudication, which is the ‘decisional phase’ of a

constitutional judgment. The following fragment captures the core of the virtue at

stake:

‘Collegiality pushes deliberators to find principled compromise where spontaneous agreement proves unviable. A collegial body induces a spirit of accommodation, a default preference for compromising instead of concurring or dissenting, a willingness to locate points of conflict and dissolve them. It implies a pressure to deflect “ in deference to one’s colleagues’” (131).

It is presented, therefore, as a virtue that one has towards one’s peers, rather

than the outsiders or external interlocutors of the court. It pushes one towards a

pragmatic convergence when a spontaneous consensus is not possible. The value

of collegiality would lie in a de-personification of the court, which strengthen its

authority insomuch as the internal disagreement among Justices is replaced by a

principled compromise.

I am not entirely convinced, however, of the value of this conception of

collegiality in the specific context of constitutional adjudication, for reasons that

are similar to those that make Waldron suspicious about the idea of replacing a

majority decision of the representatives of the people by a majority decision of the

26 bid 385.

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judges in a constitutional court. The claim that the court might stake to participate

in the political process, with a view to dictating the solution to a moral

disagreement in a hard case, is merely instrumental, and not a matter of

‘entitlement’, because the court is not deciding its own faith, but rather making

moral judgments in the name of the whole society.

When I argue that such claim is ‘instrumental’, I mean that in a

constitutional democracy one can justify the authority of the constitutional court

not because it represents the members of the political community and is naturally

entitled to decide on their behalf, but merely because under certain conditions (the

‘circumstances of judicial review’) its rulings may trigger a public reasoning about

the fundamentals of the community and help to protect the basic rights enshrined

in the Bill of Rigths.

There are at least two questions that an advocate of judicial review should

address before she accepts that constitutional judges may resort to the kind

compromises that Hübner Mendes is arguing for:

1) Should fundamental issues about the rights that we have in a constitutional democracy be decided on the basis of a political compromise?

2) Are judges entitled to make ‘internal compromises’ about rights in the name of the citizenry?

Let us consider the first question. Ronald Dworkin, for instance, has argued

that such compromises may represent a threat for the appropriate enforcement of

fundamental legal rights. What justifies judicial review is precisely the need to

avoid majority decisions or compromises that may subordinate issues of political

morality. As

Dworkin says,

‘even when the [parliamentary] debate is illuminating, the majoritarian process encourages compromises that may subordinate important issues of principle. Constitutional legal cases, by contrast, can and do provoke a widespread public discussion that focuses on

political morality’.27

The point of this excerpt is, as we know, to ground Dworkin’s claim that a

court deploys a special kind of discourse to fulfil is ‘political responsibility’ of

27 Dworkin, above n 7 at 31. 32 Dworkin, above n 6 at 82.

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securing the priority of arguments of principle over arguments of policy,32 whereas

in ordinary politics it may well be the case that legislation lacking ‘integrity’ is

passed and the parties resort to ‘checkerboard’ laws that are intrinsically unfair

because they do not make sense under any coherent scheme of moral values.28

Neither courts nor legislators are entitled, according to Dworkin, to resort to such

compromises while deciding issues of principle.

Nevertheless, it might be the case that this conclusion is too strong. One

might argue, contra Dworkin, that these views on compromise are based on a

prejudice and that he fails to recognize the moral worth of political compromises

achieved under the scenario of a public reasoning to overcome our reasonable

disagreements.

The danger of checkerboard compromises, which subordinate issues of

principle, is non-existent when the procedural requirements of public deliberation

are satisfied. Under the context of reasonable disagreements, which includes

‘conflicting and incommensurable positions’, Bellamy thinks that compromises

need not to be seen as ‘shoddy’ or unprincipled. On the contrary, they are often

products of ‘the mutual recognition by citizens of the reasonableness of their often

divergent points of view by seeking to accommodate these various perspectives

within a coherent program of government’.29 Under this charitable conception,

compromises about rights are valuable because they strengthen the idea of ‘non-

domination’ of any citizens and reinforce the value of the ‘rule of law’.30

Instead of attributing a moral stigma to compromises achieved under

Waldron’s ‘circumstances of politics’ (which occur when there is a reasonable

disagreement about a particular issue, but a deep consensus that a common

decision must be reached),31 Bellamy thinks that compromises can be fair because

the parties show ‘equal concern’ with regard to the opponent’s substantive views

28 Dworkin, above n 16 at 179. An example of such chequer-board compromises, for Dworkin, would be a law granting the right to make an abortion for women born in even days, while denying such right to those born in odd days. 29 R. Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007), 192-193. 30 ibid 194. In other words, ‘compromises are a natural part of a process that “hears the other side” and seeks to avoid dominating citizens by failing to treat the reasons that they offer equally’ (ibid 193). 31 Waldron, above n 1 at 102.

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and observe the procedural requirement of hearing all sides before a particular

position is reached.

This account of political compromise shows that there is special value in

compromises reached through a process of fair and decent deliberation under the

context of a public reasoning. Nonetheless, it shows also that a moral decision in

the name of the whole society only can be ‘principled’ if this ‘public reasoning’ is

both ‘accessible’ to all citizens and ‘undertaken’ by the citizens themselves, or at

least by someone entitled to make a compromise in their name.32

We can now consider the second question, whether courts are entitled to

make ‘internal compromises’ in the name of the citizenry.

Before getting too excited about the collegial effort of a divided

constitutional court that struggles for a compromise, with a view to increasing the

‘symbolic power of a unanimous decision’, one must pause to consider that most

of the controversies about the rights contained in a Bill of Rights are, strictly

speaking, not merely ‘interpretive questions’ about the content of a legal provision,

but rather ‘well-known and major choices that all liberal societies face’.33 While

resolving these disagreements, a decision is being made, ‘not for an individual, but

for a whole society’.39 In case of disagreement about the limits of governmental

authority it makes little sense, for a judge, to defer to the judgment of another

judge instead of maintaining the decision expressed in a statute that followed the

democratic legislative procedure.

Let me specify, first, what I mean by an ‘internal compromise’ among

constitutional judges. I call an ‘internal compromise’ only the kind of agreement

that Hübner Mendes regards as a ‘partnership compromise’, i.e. an agreement in

which a deliberator ‘defers because, not having deep feelings about her own

position, she values institutional unity’. A partnership compromise, in this sense, is

generally based on the virtue of collegiality as it is interpreted in the book. This is

quite different from what Hübner Mendes describes as a ‘pragmatic compromise’,

32 I am referring here, to two of the seven senses that Bellamy thinks that ‘public reasoning’ can assume. See Bellamy, above n 34 at 179.

33 J. Waldron, ‘Do Judges Reason Morally? ’ in G Huscroft (ed), Expounding the Constitution: Essays in Constitutional Theory (Cambridge: Cambridge University Press, 2009) 64. 39 bid 64.

i

i.e., one in which ‘she defers to change the status quo in a favourable direction,

although the solution still falls short of her ideal position’ (131). While the former

implies that the deliberator gives up her position without being convinced, the

latter does not necessarily require a balancing between making the ‘right’ decision

and increasing the unity of the court.

Let us consider a concrete example of a pragmatic compromise in Hübner

Mendes’ sense. If, after deliberation, John is convinced that abortion should be

permitted in all circumstances, he does not need to give up his position when he

states a preference for a rule allowing abortion in the first three months of

pregnancy over a complete ban on abortion. By accepting this second-best

decision, John needs not to abandon his principle, as long as he explains in his

opinion that he favours abortion in all circumstances, and that he is committed to

defend this rule if the question is raised again.

While deciding a constitutional controversy, judges have to specify the

‘conditions of application’ of the principle that grounds their decisions. The

agreement or disagreement with the majority should not depend on a negotiation

with other judges, but rather on a proper specification of the features of the case.34

After specifying these features, it becomes clear in our example that John’s

decision does not lack integrity, for he is merely giving an affirmative answer to

the question of whether women are entitled to make an abortion before the third

month of pregnancy. In other words, he agrees with the majority while allowing

abortion in the first three months of pregnancy not because he is conceding to the

position that he interprets as flawed, but because this position is already entailed by

his defence of the broader principle that abortion should be allowed in all

circumstances.

As we see, what Hübner Mendes defines as a ‘pragmatic compromise’ is

not actually a compromise in the proper sense, but merely an ‘incompletely

theorized agreement’ in the sense defended by Cass Sunstein. Under this view,

34 This specification of the abstract moral principles in the light of a concrete case is one of the most important roles that a constitutional court should play, as Waluchow argues with his ‘common law constitutionalism’ or as Günther makes plain with his concept of a ‘discourse of application’. See: W. Waluchow, A Common Law Theory of Judicial Review: The Living Tree (Cambridge: Cambridge University Press, 2007); K Günther, The Sense of Appropriateness: Application Discourses in Morality and in Law. Trans J Farrel (Albany: SUNNY, 1993).

i

people who disagree about abstract moral principles might attempt a ‘conceptual

descent’,i.e., a ‘descent to a lower level of abstraction’ with a view to achieving a

consensus about ‘concrete outcomes’.35 This provides, on the one hand, a reason to

agree with Hübner Mendes about the possibility of this type of agreement in a

constitutional court, with the proviso that each judge will specify in his or her

opinion the situation where this

35 C. Sunstein, Designing Democracy – What Constitutions Do (Oxford: Oxford University Press, 2001), 50-51. According to Sunstein, ‘the agreement on these points, more particular than their supporting grounds, is incompletely theorized in the sense that the relevant participants are clear on the practice or the result without agreeing on the most general theory that accounts for it’ (ibid 51).

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agreement is applicable. Nonetheless, it also provides, on the other hand, a reason

for defining ‘internal compromises’ in a narrower way.

An ‘internal compromise’ will be understood here as a compromise in

which a judge, not being entirely confident of her own position, defers to the

majority in order to reach a unanimous decision. To come back to our example, an

‘internal compromise’ occurs if John thinks that abortion should be allowed in all

circumstances, but he is not confident enough that he is right about this and decides

to agree with the majority of the court. A court that resorts to an internal

compromise to settle issues of political morality pays a high price in order to

achieve the benefits of a unanimous decision. By hiding the internal disagreements

and resorting to a compromise, a judge assumes the risk of establishing a priority

of the views of her colleagues over the opinions of the representatives of the

people, insofar as deference to the judgment of the other judges often implies,

when the validity of an act is at stake, defiance to the judgment of the legislature.

When a constitutional judge, even after exhaustive deliberation about

principles of political morality, is still unconvinced of the unconstitutionality of an

act of parliament, it is fairer to disclose this internal disagreement and draft a

dissenting opinion than to join the majority in order to strengthen the authority of

the court. A strong and authoritative decision is not always and necessarily good,

for the court is often immersed in a context of power struggle between institutions.

The more authoritative and stronger the decision of the court is, the less

authoritative and weaker will be the decision reached in parliament by the ordinary

legislative procedure.

The argument developed in the previous sections leads us to conclude that a

majority decision of the representatives of the people only can be overridden under

certain conditions. I have called the set of conditions which justify judicial review

the ‘circumstances of judicial review’. Though I cannot make here an exhaustive

enumeration of these circumstances, Dworkin’s example of the ‘identified and

disliked minority’ in a political community provides a plausible illustration of a

case in which the requirement of fairness would allow a political community

committed to rights to resort to judicial review as a means to elide the biases and

the personal dislikes of the majority.

The awareness of the ‘circumstances of judicial review’ and of the fact that

the legitimacy of judicial review is conditional entails a burden of justification for

the decisions of the constitutional court. For a constitutional court’s decision to be

justified, there must be a sufficient degree of conviction that the parliamentary

decision is flawed, since even the defendants of constitutional adjudication accept

that in a liberal society the only ground for a judicial decision that halts a statutory

enactment is the protection of the ‘democratic conditions’, which require political

majorities to show ‘equal concern and status for all citizens’.36

An affirmative answer to our second question, therefore, would entail a

very strong system of judicial review, which understands judges as political actors

who can simply decide whether and to what extent they will enforce the rights of

the members of a political community. It would imply that judges have authority

not only to revise the majority decisions and political compromises that fail to

protect the rights of the minority, but also to negotiate among themselves about

these rights. It would assume, to some extent, that judges are authors of these

rights, and not merely guardians of them. A compromise among judges would

worth more than a compromise between majorities and minorities in the political

process.

An internal compromise with other judges about the rights that people have

very seldom can be principled, in my view, because this compromise implies a

choice between deferring to another judge’s opinion and deferring to the law that

has been passed by the representatives of the political community. In cases of

‘epistemic’ or ‘normative’ uncertainty about rights, the judge is under a democratic

duty to respect the legislature.37 It is a compromise among constitutional judges,

instead of a dissenting opinion, that should be a matter of last resource. If a judge

in a panel is unconvinced of the rightness of the decision of the court, the

36 Dworkin, above n 7 at 17. 37 This idea is perhaps the most interesting feature of Robert Alexy’s Weight Formula and

correlative ‘Laws of Balancing’. See R. Alexy, A Theory of Constitutional Rights.Trans J. Rivers (Oxford: Oxford University Press, 2002), 414-ff. See also M. Klatt; M Meister, The Constitutional Structure of Proportionality (Oxford: Oxford University Press, 2012) ch 6.

exigencies of fairness and respect to the ‘external interlocutors’ require her to

disclose the reasons for this disagreement and deliver a minority opinion, inasmuch

as the dissenting reasons are as capable as the majority opinion to ignite a public

deliberation about rights and to make the community, as a whole, further deliberate

and focus on the arguments of principle that are applicable to the situation at stake.

If judicial review is admissible because it incites public deliberation about matters

of principle, then all of the arguments deployed by the members of the court must

be publicly displayed.

1.1.1.7. MAJORITY DECISIONS INSIDE THE COURTROOM

One may object, however, that my reservations against compromise in the

context of judicial review are not coherent with the procedures that judges

ordinarily follow to decide controversial issues of political morality. One may ask,

for instance: ‘Why should judges refrain from making principled compromises

about rights and issues of political morality, if they already have the authority to

decide on the basis of a majority vote? Why is it the case that a majority vote in the

courtroom is better than an internal compromise?’

This interrogation brings us to a more abstract question already raised a

couple of sections bellow: ‘Why should judges be allowed to invalidate a majority

decision of the representatives of the people, if they can offer us nothing better

than MD to handle their own disagreements about rights?’ This is certainly the

most perturbing question that Waldron has been asking for the past thirty years,

and the reason why he still has not found an ‘honourable answer’ to it may well be

that there is no moral justification to grant that power to a simple majority in the

courtroom.38

I cannot find any reason to think that a 5-4 or 6-5 majority in a court is any

better than a unanimous decision reached by a compromise between the majority

38 See Waldron (above n 28) where he says that he has given up finding an honourable answer to this question.

and the minority of the same judges. If there are reasons to reject a compromise,

the same reasons apply to a close majority in a divided court.

How, then, can a decision of the court ever be justified? Though I cannot

offer a fully articulated answer to this question here, it seems safe enough to think

that the ‘standard of decisiveness to define when an authoritative settlement was

reached and the process has come to an end’ must be stricter than the options

offered by Hübner Mendes in CCDD, where he claims that there are several

options available, which range among ‘unanimity rule’, ‘simple majority rule’, and

‘qualified majority rule’. This choice, for him, is a matter of ‘institutional design’,

for there would be no aprioristic rule to fix a method of aggregation for a

constitutional court: ‘a deliberative court is not at odds with either alternative’

(168).

It would be up to institutional design to decide not only about the proper

method of aggregation or the standard of decisiveness, but many other factors such

as the ‘institutional location of constitutional adjudication’ (whether in specialized

or nonspecialized jurisdiction), the ‘number of decision-makers’, the ‘character of

decisionmakers’ (whether they should be chosen from a professional elite, for

instance), the ‘mode of appointment’, the duration of the tenure (whether ‘life

tenure’ or a ‘fixed term’), the processes of ‘docket-forming’ and ‘agenda-setting’,

the choice whether sessions will be ‘public’ or ‘secret’, the mode of interaction of

the members of the court, the judicial style (whether to adopt a per curiam or a

seriatim decision), and the forms of communicating a legal decision (142-175).

At least some of these choices, however, are not discretionary in a society

that takes reasonable disagreements seriously. Although judicial review might be

morally justified when there is an identified and disliked minority who suffers with

an unprincipled decision of the majority, as Dworkin thinks, or when abstract

principles of the constitution require casuistic specification, as Waluchow and

Günther think, the picture is radically changed when there is genuine good-faith

disagreement about the contents of a given right.

In the context of the Waldron’s ‘circumstances of politics’, MD has at least

the merit of respecting everyone’s view by treating them as equal in the process of

deliberation, whereas a 5-4 decision in a court lacks this moral justification

because its authors cannot legitimately claim to represent the people and be acting

in their name. If Waldron’s criticism on judicial review is taken seriously, then the

scope of institutional design is narrower than Hübner Mendes supposes. Under the

circumstances of reasonable, good faith, and widespread disagreement judicial

review is under a heavy burden of justification, and some of the procedures of our

constitutional courts must be reformed. As Gardbaum has stated in defence of the

New Commonwealth Model of Constitutionalism – which combines (1) a

mandatory system of political rights review of the legislation before enactment and

(2) a weak system of judicial review, in which the court’s decision may eventually

be overridden by the legislature –, ‘democracy requires a reasonable legislative

judgment to trump a reasonable judicial one’.39

If, as Hübner Mendes suggests, one rejects a solution provided by

‘institutional design writ large’, which focuses on ‘large-scale institutional

structures’40 and can lead to something like a ‘weak’ system of judicial review,

where parliaments and constitutional courts are ‘joint or supplementary rather than

alternative exclusive protectors and promoters of rights’,41 then it seems as the only

alternative is to require either a spontaneous consensus or, at least, a supermajority

in the court.48

A substantially qualified majority, in this case, could be a plausible way to

meet Waldron’s objection against majority decisions in the courtroom. It would be

a safe intermediate position: by admitting a more demanding system of judicial

review, we are still able to protect minorities from the arrogance of a majority who

lacks respect for their rights, and by establishing a supermajority in the court, we

39 S. Gardbaum, The New Commonwealth Model of Constitutionalism (Cambridge University Press, 2013) 65. 40 A. Vermeule, Mechanisms of Democracy: Institutional Design Writ Small (Oxford: Oxford University Press, 2007) 2.

41 Gardbaum, above n 45 at 2.The core example are the models created by the Canadian Charter of Rights and Freedoms (1982), the New Zealand Bill of Rights Act (1990), and the UK Human Rights Act (1998), which form what Gardbaum describes as the “New Commonwealth Model of Constitutionalism”. 48 This point is based on the Proposal to Amend the Brazilian Constitution number 33/2011, which is currently under consideration at the Chamber of Deputies (Lower House). The purpose of the Amendment is to contain ‘judicial activism’, and one of the measures for such objective is to raise the quorum required to pronounce the unconstitutionality of an act. It would change from an ‘absolute majority’ (composed of 6, out of 11, judges), to ‘four fifths of the full bench of the court’ (which would require 9, out of 11, votes for a given decision of the Brazilian Federal Supreme Court).

avoid the risk of merely replacing a majority decision in parliament by a majority

decision in a divided court.

Hübner Mendes could have suggested, while considering institutional

design, a more radical reform of some of the current systems of judicial review,

inasmuch as the current institutional settings of many contemporary democracies

are unsatisfactory because they lack a mechanism for alleviating the democratic

deficit of narrow judicial majorities under the circumstances of reasonable

disagreement.

1.1.1.8. ‘ESOTERIC’ DECISIONS AND

PRAGMATIC CONSIDERATIONS

While considering the influence of policy reasons in adjudication, Hübner

Mendes not only thinks, as most people do, that pragmatic considerations are

simply unavoidable in constitutional decision-making. In addition, he believes that

constitutional judges, while taking up these pragmatic matters, share some sort of

‘esoteric morality’ that comprises considerations that cannot be publicly discussed.

According to his view,

‘courts may play with several cards, but political success largely depends on keeping these choices secret, under pain of being de-legitimized or defeated. At least some of them, thus, should remain inscrutable’ (210).

This ‘esoteric’ deliberation concerns a political strategy of the court that

cannot be publicly unveiled, for ‘the reasons that ground some political choices

cannot be publicized because their secrecy is the very source of their potential

success’ (211).

At first sight, he is only talking about some ‘unavoidable non-legal

decisions’ that are based on residual discretionary choices of the court (197).

Nonetheless, the range of pragmatic and esoteric decisions admitted in the book is

probably wider than it initially appears, for reasons that are two-folded.

On the one hand, the scope of secret strategic calculations in CCDD is not

restricted to the instrumental and allegedly ‘non-legal’ decisions listed in chapter 8,

but involves more important choices as well, as one can infer from the account of

the virtues of ‘respectful curiosity’ and ‘responsiveness’ developed in the chapter

5. When explaining these two virtues, Hübner Mendes makes it plain that he

believes that the arguments presented by the parties in the ‘pre-decisional’ and

‘post-decisional’ phases of deliberation are subjected to a ‘qualitative filter’, so

that the court is not obliged to respond to every argument raised to support or reject

a given decision.

The court is seen as free to decide, on the basis of a pragmatic calculus that

needs not be publicly justified, which reasons are to be considered and which

arguments are to be responded.

This freedom to pick arguments to respond is such that Hübner Mendes

comes to the point of saying that ‘even fairness can sometimes recommend that

flexibility’, for a ‘rigidly ritualized procedure, which prevents the court from

calibrating the adequate participation of each interlocutor, can hamper public

contestation’ (128).42

On the other hand, the instrumental decisions mentioned in the model

developed by Hübner Mendes are more decisive for shaping a political community

than it appears.

The choice about the ‘degree of cohesion’ of the written decision provides a

good example of this assertion. There are obviously several intermediate

alternatives between the two poles of the decisions expressed in a single voice,

where there is no space for dissenting or concurring opinions, and the seriatim

style of adjudication, which requires separate opinions even for the judges who

agree on the solution to a given case.

There are reasons for and against both strategies to decide a constitutional

controversy, and the same applies to the many intermediate styles that one can

imagine.

Written decisions expressed in a single voice favour ‘legal certainty’ and

facilitate the protection of ‘a formal property of the rule of law’. Furthermore,

‘beyond this reason of principle, this format tends to obtain greater political force’

42 I do not understand, in spite of attempting a charitable reading , how the requirement of fairness could be reconciled with this.

(204). It is sensible, therefore, to suppose that ‘courts may prefer to keep

disagreement internal for strategic reasons’ (204).

Majority decisions, on the contrary, might pave the way to fragmentation

and atomicity, but these risks are compensated by the fact that the disclosure of

internal disagreement stimulate more debate and ‘candidly expose the uncertainty

that still shapes the case’. By exposing to the public the dissenting and concurrent

opinions, the court shows respect not only for the minority judges, but to the

populace at large and particularly to the parties that might feel ignored by the

single opinion (205).

The choice between judicial styles and the degree of cohesion, however,

cannot be simply a matter of political trade-off. By advocating that it does, Hübner

Mendes underestimates the importance of moral and legal arguments in this

choice, for they are deeply related to some fundamental principles of political

morality, and, at least in part, need to be justified according to such norms.

In a liberal society, it seems to me implausible to think that the court might

have discretion to choose which arguments presented in the pre-decisional phase

will be considered in its written opinion, as well as which criticisms deserve a

proper response in the dialogue with its external interlocutors. As a matter of

procedural fairness, it is impossible for the court to treat all parties affected by the

decision equally if it sees itself as free to reject an argument without stating the

reasons for this choice.

The range of strategic and ‘esoteric’ considerations, if they are to exist,

must be limited to a minimum, for these considerations are dangerously capable of

influencing in an arbitrary way the general outcome of the final decision of a

constitutional court. As Dworkin says in a fragment also quoted in CCDD, the

‘sole ground’ for the legitimacy of a constitutional court is the ‘discipline of

argument’, i.e., the court’s ‘institutional commitment to do nothing that they are

not prepared to justify through arguments that satisfy, at once, the two conditions’

stated in the following excerpt:

‘The first is sincerity. They must themselves believe, after searching self-examination, that these arguments justify what they do, and they must stand ready to do what the arguments justify in later, perhaps very different, cases as well, when their own personal preferences or politics are differently engaged. The second condition is transparency. The arguments

they themselves find convincing must be exactly the arguments that they present to the professional and lay public in their opinions, in as much detail as is necessary to allow that public to judge the adequacy and future promise of those arguments for themselves’.43

1.1.1.9. CONCLUSION

To conclude, Hübner Mendes’ book is a very stimulating defence of more

deliberation in the life of a constitutional court. It rightfully acknowledges that the

legitimacy of such courts depends entirely upon their deliberative performance.

Furthermore, as the author denounces, it offers more than nice words about

the intangible ideas of ‘public reason’ or ‘institutional dialogue’ to justify the

legitimacy of constitutional reasoning. As stated in the book, ‘constitutional courts

have been praised as unique deliberative forums without much refinement of what

that involves’ (101). CCDD is an inestimable contribution to explain what a

‘forum of principle’ or a ‘dialogue’ between powers entail and to provide a critical

account of the ethical virtues, the facilitators, the legal constraints, and the political

circumstances of judicial deliberation.

Nonetheless, Hübner Mendes makes more concessions that I would be

willing to admit to pragmatic and strategic factors that influence constitutional

reasoning.

Contrary to Posner and other scholars, I do not find any reasons to think

that judges – whether in the United States or anywhere else – are ‘predestined to be

pragmatists’,44 and therefore I would expect a deliberative model more focused on

the priority of principle in legal reasoning. Instead of a ‘pragmatic yet principled’

model of argumentation, I would probably be more persuaded by a model which

claims to be ‘principled yet aware of the pragmatic difficulties’ that judges are

allowed to consider. This commitment to the priority of principle defies Hübner

Mendes’ claim that the decision depends on the legal (and moral) requirements of

deliberation ‘as much as’ on the ‘political circumstances’ of constitutional scrutiny.

Though the importance of the latter cannot be disregarded, the priority of the

43 R. Dworkin, ‘Introduction’ in R Dworkin (ed) A Badly Flawed Election (Debating Bush v. Gore, The Supreme Court, and American Democracy (New York: The New Press, 2002) 54-55. 44 R Posner, How Judges Think (Cambridge, MA: Harvard, 2008) 269.

former is still an important ingredient to develop a deliberative model that

vindicates the legitimacy of judicial review.