In this book Dimitrios Kyritsis advances an original account of constitutional review of primary legislation for its compatibility with human rights. Key to it is the value of separation of powers. When the relationship between courts and the legislature realizes this value, it makes a stronger claim to moral legitimacy. Kyritsis steers a path between the two extremes of the sceptics and the enthusiasts. Against sceptics who claim that constitutional review is an affront to democracy he argues that it is a morally legitimate institutional option for democratic societies because it can provide an effective check on the legislature. Although the latter represents the people and should thus be given the initiative in designing government policy, it carries serious risks, which institutional design must seek to avert. Against enthusiasts he maintains that fundamental rights protection is not the exclusive province of courts but the responsibility of both the judiciary and the legislature. Although courts may sometimes be given the power to scrutinize legislation and even strike it down, if it violates human rights, they must also respect the legislature's important contribution to their joint project. Occasionally, they may even have a duty to defer to morally sub-optimal decisions, as far as rights protection is concerned. This is as it should be. Legitimacy demands less than the ideal. In turn, citizens ought to accept discounts on perfect justice for the sake of achieving a reasonably just and effective political order overall.
Author(s): Dimitrios Kyritsis
Edition: Hardcover
Publisher: Oxford University Press
Year: 2017
Language: English
Pages: 0
Tags: Separation of powers, Constitutional law.
Contents
1. The Possibility of Constitutional Theory 1
I. Introduction 1
II. ‘Three is a Company, Two is Nothing’ 4
III. Towards a Moralized Constitutional Theory 7
IV. Constitutional Theory and History 22
V. Constitutional Theory and Politics 27
VI. Constitutional Theory and Utopia 31
2. A Moral Map of Constitutional Polyphony 33
I. Introduction 33
II. Polyphonic Legal Systems 34
III. The Defects of the Traditional Conception 36
IV. Beyond the Traditional Conception 39
V. Democracy vs. Separation of Powers 54
VI. A Jurisprudential Aside 55
VII. Mapping Out Neptune 56
3. Are Courts the Forum of Constitutional Principle? 59
I. Introduction 59
II. Legal Bootstrapping 61
III. Constitutional Review and the Right to a Hearing 62
IV. The Principle/Policy Distinction 66
V. Principles and Policies in Action 70
VI. A Diagnosis 77
VII. Conclusion 80
4. Against the Democratic Objection 81
I. Introduction 81
II. Articulated Government 82
III. The Moral Appeal of Majority-vote 83
IV. Democratic Process vs. Constitutional Review 86
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V. Delegates and Citizens 89
VI. Back to Disagreement? 97
VII. Conclusion 98
5. A Little Less Conversation, a Little More Action 101
I. Introduction 101
II. Let’s Talk about Rights 102
III. Of ‘Precatory Pronouncements’ and Authoritative Rulings 107
IV. Dialogue, but Muffled 116
V. Conclusion 118
6. Constitutional Review in Representative Democracy 121
I. Introduction 121
II. Substance and Procedure 123
III. Governing Together 125
IV. Legislative Initiative 127
V. Judicial Independence and Varieties of Supervision 136
VI. Strong and Weak Constitutional Review 150
VII. Conclusion 151
7. Two Modes of Judicial Deference 153
I. Introduction 153
II. The Terms of Reference for Deference 154
III. Deference and its Discontents 170
IV. Conclusion 178
8. Moral and Constitutional Rights 181
I. Introduction 181
II. What Are Constitutional Rights There For? 182
III. Constitutional Rights Operationalized 189
IV. Disagreement. Again 192
V. Conclusion 197
Contents xi
9. Dynamic Separation of Powers 199
I. Introduction 199
II. Justification and Description 200
III. Constitutional Design by the Courts 201
IV. A Summary of the Argument 211
Bibliography 215
Index 221
