Ratio Juris. Vol. 14 No. 4 December 2001 (415±23)
Judicial Review and Deliberative Democracy: A Circular Model of Law Creation and Legitimation MARK VAN HOECKE Abstract. In this paper the author discusses the legitimation of judicial review of legislation. He argues that such a legitimation is not just a moral matter but is to be considered more generally in terms of societal acceptability, since it is based on a wide range of reasons including moral, social and pragmatic concerns. Moreover, the paper stresses that the legitimation of judicial decisions should be properly viewed in a circular perspective, so that the relationship between legislators and judges cannot be reduced to an absolute supremacy of those who are democratically elected over those who apply the law. On the contrary, the law is constantly made, adapted and developed in legal practice and legal decisions are basically legitimated through several processes of deliberative communication.*
In this paper,1 I will discuss the legitimation of judicial review of legislation in the perspective of its societal acceptability. To be widely accepted in society, the content of the judicial decision must meet certain minimum moral standards that are prevalent in that society. However, this acceptability is not just a moral matter. It is a mixture of morals, sociology and pragmatic reasoning. Morally neutral forms and procedures may be decisive for such acceptability. One can, of course, accept that following certain kinds of procedures and other formal rules, may have some moral value in its own right, as it makes it more probable that the content of the rules which will be the outcome of such procedures will also be morally acceptable. Nevertheless the moral value of procedural rules is limited. Therefore, it seems
*Abstract by Antonino Rotolo. 1
Originally, this paper was written as a comment on the paper presented by Luc Tremblay (2001) at the workshop in Bielefeld in February 1999. In the shorter version that is published in this volume, however, the part to which my comments were linked has been dropped, so that my paper has no longer a direct link with Tremblay's contribution.
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appropriate to look at the problem from a broader perspective than just moral acceptability. The relationship between courts and legislators has, at least over the last century, typically been seen in the context of their democratic legitimation. The legislator has been democratically elected, it is said; judges have not. As a result, classical theory posits that it is up to legislators to determine the content of the law and not up to judges. The latter should only apply the democratically established rules, not change, let alone abolish them. However, this is a very formal approach to the concept of democracy. The protection of human rights may be conceived as an essential part of the current conception of democracy. This entails a possible conflict between a substantially democratic judicial decision, protecting fundamental rights of a citizen, which, however, is not democratically legitimate from a formal point of view, on the one hand, and a statutory rule which is formally legitimate, but does not meet the substantive democratic standards as regards human rights, on the other. In fact, constitutional courts have, in most countries, been introduced and installed in order to check legislation as regards its content, on the basis of fundamental rights of the citizen, as laid down in the constitution. This is just the next step forward towards a full implementation of the rule of law. If everybody and every institution are bound by at least some legal rules, some official body should be in charge of controlling whether they abide by those rules. If they do not, it should be possible to impose some kind of sanction, in order to enforce the law. In the case of judicial review by a constitutional court this sanction consists of the annulment of the Act which is considered to be unconstitutional. In the discussion about the democratic legitimation of such judicial review, several arguments could be put forward in favour of its being legitimate. Firstly, it could be argued that, if constitutional judges are not directly elected by the citizen, they are at least appointed by a directly elected body, such as, for example, parliament itself. Secondly, the power of judges, be it in a constitutional court or in other courts, is in any case much more limited than the power of legislators or governments. If ordinary judges ``adapt'' or ``change'' legislative rules, the scope of application of the newly worded rule contra legem is limited to the case beforehand. It does not become a general rule unless it is followed, on a free basis, in legal practice and/or by other courts, and as far as it is implicitly accepted by the legislator, by not reacting, with a new and explicit statutory rule, against ``judicial usurpation.'' If constitutional judges review unconstitutional legislation, they do not create any rule. They just, negatively, abolish a statute. By this, previous rules will come into life, so that indirectly judges seem to create ``new'' rules. But, these old rules, generally speaking, will have been determined and enacted by a democratically elected parliament, and never by the judges themselves. If this does not exclude the problem of formal democratic legitimation, it at least reduces its importance substantially, #
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when compared to the question of the legislator's formal democratic legitimation. Moreover, when weighing and balancing the positive and negative aspects of direct elections, it could be argued that a direct election offers fewer guarantees for the best judges being elected. Indeed, the qualities one needs for being a good judge are rather different from those one needs to become popular, and, hence, elected by the people. The way direct elections of judges works in practice in some countries, such as the United States, offers clear examples of it. If judges are almost never chosen by a system of direct elections, but instead appointed by government or parliament, there must be good reasons for this. These reasons must be found in the weighing and balancing of the advantages and disadvantages of a system of election which offers a better formal democratic legitimation for judicial decisions, but fewer guarantees for their substantive quality, when compared to a system of appointment, which offers a weaker ``democratic pedigree,'' but more guarantees for the quality of the judges. All this shows how the formal democratic legitimation is but one element in the discussion. It is not the only one, and even not the main one. It would be wrong to limit the problem of legitimation of judicial review of legislation to this formal element. However, that is not the whole story. The problem of democratic legitimation cannot be limited to a weighing and balancing of formal and substantive legitimation either. It should be asked whether the problem, when worded like this, is not posited in an incomplete way. It departs from a linear, vertical approach, which is proceeding like a Kelsenian deduction from some basic norm(s): If the ``democratic pedigree'' brings us back to a consensus by the citizen, then the judicial decision is considered to be formally democratically legitimate; if it brings us back to basic rights, previously enacted by a constitutional legislator, the judicial decision is considered to be democratically legitimate on the basis of its content. In both cases some pre-existent ``will'' of ``the people'' or ``will'' of the ``constitutional legislator'' is presumed, which should legitimate today's judicial decision. However, I would like to argue that the legitimation of judicial decisions should be viewed from a circular rather than from a linear perspective. For this, one should accept that the general discussion about the legitimation of judicial decisions is different from a discussion about the acceptability of one single judgement. Limiting the analysis to such an atomistic approach, almost inevitably leads to a linear approach in the Kelsenian sense. When viewing the problem from a systemic, global point of view, other functions and elements, which contribute to legitimate court decisions, come into light. It is only within such a systemic approach that the circular perspective becomes visible. The linear, vertical approach is based on the historical reaction against kings and judges who were, from a democratic point of view, neither formally legitimate nor legitimate in terms of the content of their decisions. Even if #
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only a very limited percentage of the population in 19th century democracies were entitled to vote,2 the legislation enacted by their parliaments was clearly better legitimated than the legislation issued by the previous monarchs, at least from a formal point of view. In the second half of the twentieth century one has become increasingly aware of the limits of such a purely formal approach to democracy. Such an approach, indeed, allows a ``democratic'' suppression, discrimination and even physical elimination of all kinds of minorities. As a result, fundamental rights have been taken more seriously, for instance, in Europe, by drafting and signing a treaty on human rights, which established an international court, the European Court of Human Rights. For the first time in history, it allowed an international court to condemn a State and its legislation on the basis of a violation of human rights of their own citizens. Along the same lines of thought, at the domestic level, constitutional courts were established, with the power to annul parliamentary legislation when, according to the constitutional judges, it violates principles laid down in the constitution. As a result, the vertical relationship between courts and legislators has evolved into a circular relationship. Instead of an absolute supremacy of (democratically elected) legislators over (not democratically elected) judges, we are now confronted with a circular relationship of predominance and inferiority between judges and legislators. The power of a constitutional court, for instance, is determined by the (constitutional) legislator. The legislator is, in most cases, also appointing its judges. But the constitutional court itself has the final word as regards the interpretation of the constitution and the scope of the legislation submitted to the court's judgement. This circular relationship is also to be found, within the European Union, between the member-States and the Union: None of them has a position of sovereignty. The member-States have given part of their legislative and judicial power to the Union, but only to a limited extent (which inevitably will remain the case, at least for a rather long period, because of the subsidiarity principle, introduced by the Maastricht Treaty3). The memberStates remain ``sovereign'' in many areas, but they are subordinate to the European level in an increasing number of other fields. Moreover, the key decisions at the European level are taken by ministers from the national governments. At the European level, courts such as the European Court of Justice (within the European Union), or the European Court of Human Rights (within the ambit of the European Council and covering, with very few exceptions, the whole continent), have become strong constitutional courts. In the absence of any strong legislator at both European levels, courts have filled in the gap and established, through the interpretation of the respective European treaties, new general rules with a much broader scope, and 2
E.g., in Belgium it was around 1850 some 2 or 3%, whereas today it is over 70%. Art. 3B EC Treaty 25 March 1957, added by the Maastricht Treaty on the European Union (7 Feb. 1992), with effect as from November 1st, 1993.
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sometimes a different content, compared to that which the parties to those treaties originally had in mind. Because of the multi-level structure of the European Union (national and European) the circular relationship becomes even more complex when the European judges are controlling national legislators. The European judges, indeed, are demarcating the borderlines within which national legislators may operate. Within the area of ``constitutional'' control of legislation, both at the national and at the European level, courts have sometimes explicitly obtained the power to formulate general rules, comparable to legislative powers. This, for instance, is the case when the court has the power to decide that a new interpretation of the constitution or of the treaty, which the court has posited in its decision, will be valid for the future only and could not be invoked for the period which was preceding the decision (unless a trial, in which a claim was based on it, had started before that date).4 In such cases, it has been considered appropriate, by the legislator, to delegate some (more) limited legislative power to the constitutional court, notwithstanding its weak formal democratic legitimation. A circular relationship may also be found at the level of the relationship between courts within the national court structure. In every legal system there is a hierarchical structure of the courts, in which the inferior courts are subordinate to the higher courts: in a strong way in systems with binding precedents, in a weak way in the other ones. Nevertheless, higher courts sometimes change their position on the basis of the fact that a previous decision was not accepted nor followed by the lower courts and/or massively rejected in legal doctrine.5 Formal authority is sometimes overruled by arguments, indeed by substantive authority. These circular relationships are not just some failure of the current legal system, some weakness, which would be the result of a degeneration of the legal systems from the point of view of (formal) democratic strength. They are one of the ways in which a new conception of democratic legitimation is currently developing. The essential starting point, here, is that law is not something which is (completely) made at some point in time, and afterwards simply ``applied'' by officials, by citizens and by judges to concrete cases. Law is constantly 4
Such decisions have been taken both by the European Court of Justice and by the European Court of Human Rights: ECJ 8 April 1976 (case 43/75 Defrenne v. Sabena), Jur 1976, (455) 481±82; ECHR 13 June 1979 (case Marckx v. the Belgian State), ECHR, 1979, II, 330. In Belgium, the Constitutional Court (Arbitragehof/Cour d'arbitrage) has the power to decide that some of the legal consequences of rules, which this court is annulling, will remain valid (art. 8 Bijzondere Wet Arbitragehof, 6 January 1989). 5 This, e.g., is the case in Belgium, where it happens occasionally that the supreme court (Hof van Cassatie/Cour de cassation) reconsiders its jurisprudence, on the basis of a refusal of lower courts to follow an earlier decision of the supreme court. The Hof van Cassatie, then, will take over the interpretation, unanimously or largely adopted by the lower courts, in order to restore the ``legal peace.'' #
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made, adapted and developed in legal practice, and most prominently by judges. If a court adapts, and even changes, the content of a legislative rule, it is not, in so doing, usurping its role, but, in most cases, rather fully assuming its tasks and duties. Legislators cannot foresee everything, nor can they constantly adapt every statute to changed circumstances. It is precisely the task and the duty of the judges to fill in the gap which every legislator inevitably must leave. But, the question then becomes: how can we legitimate such judicial decisions? There is no, or at least no strong, formal legitimation for such an active role of the courts. There is no strong substantive legitimation: fundamental rights are not necessarily involved. How then, could we legitimate these judicial decisions? The answer is: through deliberative communication. Just as law is constantly made in and through legal practice, legitimation too is constantly achieved through deliberative communication. In a trial, parties are exchanging arguments and evidence. They probably do not try to convince each other, but they certainly try to convince the judges. In some cases judges will ask questions and require more information from one or more parties. Through this process of communication between parties and judge(s), some ``judicial truth'' arises. If the court offers convincing reasons for its decision, it may well be that both parties accept the judgement. This is a first ``communicative circle.'' If the court decision fails to convince both parties, and if one of them takes the case to a higher court, the communication process is broadened: The higher court will not only take into account the arguments and evidence offered by the parties, but the earlier decision by the lower court as well. This is a second ``communicative circle.'' Even outside the context of an appeal, judicial decisions have to locate themselves in a larger structure of previous decisions in similar cases. As a rule, they will follow such precedents. If they do not, they will have to give reasons for it. These reasons in their turn will probably be discussed in legal doctrine and/or followed or overruled by future judicial decisions. Public justification is indeed, as argued by Tremblay (2001), an essential part of communicative legitimation. Sometimes, the case is considered to be interesting enough to be published. As a result, legal scholars will give their comments, criticising and/or supporting the decision, putting it in a broader context from which its value or its weakness appears, etc. Those comments may, in their turn, influence future decisions of the same court and/or of other courts. This is a third ``communicative circle.'' On rare occasions, a case may attract the interest of the media and be discussed within a non-legal audience as well. This is the fourth ``communicative circle.'' Finally, though very rarely, a case may be discussed in society at large, because it involves current fundamental ethical or political issues (e.g., #
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abortion, euthanasia, immigration, racism, etc.). In such cases there is a very large involvement of the citizens in determining (the content of) the law. This is the fifth and largest ``communicative circle.'' These different types of cases and of communication processes create different, and always wider, circles of deliberative politics. They offer various forms and degrees of a ``public forum'' within different public spheres. The more technical and individual the matter is, the more limited the deliberative circle will be, as there is only a weak interest for the community at large. The more ethical and political the matter is, the more it will be of greater general interest, so that it is desirable to discuss it amongst a larger audience. The same goes for rather technical matters which are of a general importance, because the decision may, as a precedent, affect many others. Here too, a broader debate is desirable. Democratic legitimation of judicial review, and of judicial activism in general, is offered by these deliberative processes. It is the public forum function, through which public control, criticism and debate become possible. This ``public forum'' function is also to be found in parliaments.6 It is at least as important as the rule making function on the basis of democratic representation. One could ask what would be the worse situation: (1) an open society with full access to any kind of information and a wide range of opportunities for political discussion, also as regards parliament, although this parliament would not have been democratically elected, but, e.g., constituted on an hereditary basis, or (2) a democratically elected parliament, which would be working in secret, with no information going to the public (except the result of the parliamentary work, notably legislation as such) and no public debate whatsoever? If we would have to choose between these two alternatives, it is obvious that we would be better off with the first one. The reason is that such a public debate outside parliament is a necessary condition for making democratic elections possible. In the absence of open information and debate, elections cannot be meaningful. On the other hand, it is very probable that the public debate in the society with a parliament, which is not democratically elected, will, eventually, lead to democratic elections. This example shows how the public debate is a necessary condition for democracy and, hence, for democratic legitimation. In ideal circumstances, the various deliberative circles guarantee the best audience, or community, for this communication and legitimation process: technical matters within a community of professionals, highly ethical and/or political matters within society at large. It clearly offers the advantage of limiting, where necessary, both the number and the plurality of 6
In particular, when policy requires legislation, parliamentary approval is needed. National parliaments, apart from exercising these ``power functions,'' also fulfil a `` `public forum' function described variously as information, communication, legitimation, etc.'' (Weiler, Haltern and Mayer 1995, 5). #
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participants in deliberation (as discussed by Fitzpatrick 2001). Such a plurality of deliberative circles also solves the problem, raised by Forst (2001, 346), of ``the cognitive capacities of citizens presupposed by the conception of deliberation'' (and it also partly answers some of his other questions, at least as far as the courts are concerned). Finally, it refines the position, implicitly taken by Tremblay, according to which judicial debates must become open to the general public, and not remain restricted to the immediate parties, so as to broaden democratic legitimation. Such a large openness is only desirable in cases belonging to the third, fourth or fifth ``communicative circle,'' not in the majority of the cases. The assumption that court decisions would be ``undemocratic'' because ``legal debates are not open to all citizens'' thus seems to be incorrect, as it, erroneously, narrows the concept of ``democratic legitimation'' to one single, atomistic and populist approach. It considers legitimation within the narrow context of the concrete case only. Moreover, it requires a direct or indirect involvement of all citizens in the judicial debate. It is obvious that democracy does not mean that everybody has to decide about everything. Delegation and adequate division of labour are unavoidable if one wants to limit the impact of manipulation on apparently ``collective'' decisions. Moreover, as especially the American debate on constitutional interpretation by judges shows, a narrow view on the respective roles of judges and legislators is often linked to a narrow view on the interpretation of (legislative) texts. It assumes that a meaning would simply ``appear'' from a text, whereas scholarly research has made massively clear that meaning is always the result of an interpretation, never a fixed ``objective'' fact. When a certain meaning seems to be obvious to all or most of the readers it is because there is common ideological and technical background, that excludes the other possible meanings. Determining the meaning of the law is, therefore, a collective endeavour, which cannot be left to one body, be it a (supreme or constitutional) court or a parliament. It would be naive to think that the content of the law could ever be fully determined by a legislator or even that this would be desirable. Deliberative democracy thus is not only important at the level of justification and legitimation of the law, but also at the level of determining the content of the law. All this is not just a matter of trying, defensively, to legitimate to some extent a judicial power, which otherwise would suffer from some ``democratic deficit.'' The way legal practice works, as a permanent deliberative community, through which new legal concepts, new rules, new principles, new interpretations, new theories are proposed, discussed, elaborated and finally accepted, shows that it also, qualitatively, offers an added value, compared to law-making through delegation, which is (only) formally legitimated. It confirms the quotation by Rainer Forst of Michael Sandel: ``[W]hen politics goes well, we can know a good in common that we cannot know alone'' (Sandel 1998, 183). It is true that in the short term some #
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``wrong'' decisions, some ``accidents'' may occur, but in the long run such deliberative law making has proven to create better law. Catholic University of Brussels Vrijheidslaan 17 B-1081 Brussels Belgium E-mail:
[email protected] References Fitzpatrick, P. 2001. Consolation of the Law: Jurisprudence and the Constitution of Deliberative Politics. Ratio Juris 14: 281±97. Forst, R. 2001. The Rule of Reasons. Three Models of Deliberative Democracy. Ratio Juris 14: 345±78. Sandel, M. 1998. Liberalism and the Limits of Justice. Cambridge: Cambridge University Press. Tremblay, L. 2001. Deliberative Democracy and Liberal Rights. Ratio Juris 14: 424±54. Weiler, J. H. H., U. Haltern and F. Mayer. 1995. European Democracy and its Critique. Five Uneasy Pieces. EUI Working Paper RSC No. 95/11. Florence: European University Institute.
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