Acceso usuarios
Roberto Gargarella
This work refers to the justification of judicial review, particularly in the face of two main objections: the first one, related to the notion of separation of powers ("judicial activism implies an unacceptable challenge to the political branches and, accordingly, an unacceptable challenge to the principle of separation of powers"), and the second one, related to the concept of democracy ("judicial review works against democracy, because in a democracy substantive decisions are to be made by the political branches and not by judges"). In particular, it focuses on the strength of those objections in cases involving judicial activism in the enforcement of social rights. Although generally critical of the institution of judicial review, the paper first maintains that those important objections are obviously dependent on the particular notions of "separation of powers" and "democracy" used by the objector. Then, the article proceeds to demonstrate that not all conceptions of "separation of powers " and "democracy" deny a place to judicial review. In addition, it maintains that certain appropriate notions of the two are not only compatible with judicial review but may also require judicial intervention of a certain type. The article engages, in particular, with a deliberative notion of democracy, which is assumed to be an attractive and fruitful approach to democracy. In that respect, it explores the place that judges might play in a deliberative democracy, and the way they might honour their deliberative commitments. The idea is that in a deliberative democracy, judges could and should help political authorities to think about the proper interpretation of the Constitution in many different ways, including, for example, the following: providing them with arguments that they have not yet considered; moving them to respond or decide in cases where they have an obligation to act but have not acted; signalling to them the existence of grave violations of rights; offering them alternatives that are compatible with the mandates established by the Constitution, etc. The article concludes with different contemporary, real-life examples that demonstrate how a "dialogic justice" might act: it shows how judges have actually used procedural tools and methodologies like the ones suggested in the article, which are respectful of attractive understandings of the notions of separation of powers and democracy.
