Is It All About the Last Word? Deliberative Separation of Powers

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Abstract:

The normative debate about the legitimacy of judicial review seems to be at a stage of argumentative exhaustion. Despite the sensation of fatigue and the continuous circular reproduction of the same old arguments, it is still at the forefront of constitutional theory and keeps sparking intense disagreements.

The bulk of this debate is invariably framed by the following question: can unelected and unaccountable judges have the last word upon the meaning of the constitution and overrule the acts of elected legislators? Other formulations have also been common. Who should have the final say, parliaments or courts? Who should be the ultimate democratic authority?

"Last word", "final say" and "ultimate authority" are radical expressions. They all abound in the literature. They reveal a desire to locate the internal sovereign, the source from which definitive answers for the demands of collective action and coordination will emerge. The imperatives of order and stability call for such settlement. Democracy and the rule of law need that.

This article raises the question of whether this is all what democracy and the rule of law entail, as far as institutional design is concerned. To put it in a less rhetorical way, it investigates what else is at stake when we talk about democratic legitimacy and collective decision-making. By portraying a broader picture, I try to grasp how to measure the proper weight that the concern with last word should play in a theory of constitutional democracy.

Document Type: Research Article

Publication date: July 1, 2009

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  • Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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