Weak-form systems of the judicial review of legislation in a comparative perspective. Towards a dialogic structuring of judicial review
PhD student: Mr E.S. Arenas Catalán
Promotors: Prof L.F.M. Besselink, Dr R. Nehmelman
Duration: 1/6/2012 - 31/5/2016
PhD defence: Utrecht, 9/2/2018
A renewed thirst for legitimacy covers Europe. The uprisings of 2011 in both Spain and Greece have mostly aimed at the economic crisis but they have also updated a crisis in the democratization of the institutions at the level of both domestic jurisdictions and on the European Unions design. The question that in this respect is posed to the constitutional scholarship is the extent to which legal and political institutions are performing in terms of political legitimacy. This question does not seem to have been satisfactorily responded in countries like Spain and Greece, yet the similarities of their democratic regimes with other European democracies make feasible that such a question could soon be raised in these countries as well. The question becomes what set of legal institutions makes more plausible or best optimizes the values of self-government without jeopardizing fundamental rights (such as the rights of the minorities)? If the last word on these constitutional matters is not handed in to citizens or its representatives it seems difficult to assert that they are effectively the owners of the legal system. In a commonsensical description, an owner is entitled to make use and take full possession of the object of its property. But if constitutionalism is in the position to autonomously demand the rule of law or fundamental rights to be interpreted by non-representative bodies, to what extent is the democratic element of constitutionalism nothing but a vacuous metaphor? Hence, the configuration of a problem of legal significance. The study hypothesizes that the highest optimization of both constitutionalist and democratic values takes place by means of a dialogue between both, where representatively elected bodies are given the last word. This requires the exploration of the so-called weak-form systems of judicial review, i.e. systems of judicial review where while the last formal word is endowed to a popularly elected body the judiciary maintains the competence of raising questions of constitutional relevance. In this way, the research questions of this study are twofold. First, do weak-form mechanisms of judicial review bestow formally and in practice democratically elected bodies with the last word? Secondly, does such institutional arrangement involve the encroaching of fundamental rights? The exploration of these questions, different from the path traced by the neo-constitutionalist trend, would facilitate a reconciliation of constitutionalism with its democratic roots and it would engage constitutional scholarship in the exploration of a form of constitutionalism which would not need to abjure from the political in order to keep up with the promise of fundamental rights. More specifically, it would entail the upgrading of judicial review towards a constitutional theory of mutual deference.