Constitutional Courts and Deliberative Democracy

Political deliberation is a classic component of collective decision-making. It consists in forming one’s political position through the give-and-take of reasons in the search of consensus. Participants of genuine deliberation are open to transform their preferences in the light of persuasive arguments. Constitutional theory has borrowed this notion in its effort to reconstruct a justificatory discourse for judicial review of legislation.  Constitutional courts were ascribed the pivotal role of implementing fundamental rights in most contemporary democracies and called for a more sophisticated picture of democratic politics. One influential defence has claimed that courts are not only insulated from electoral competition in order to guarantee the pre-conditions of majoritarian politics, but are deliberative forums of a distinctive kind: they are better located for public reason-giving. This belief has remained, from the normative point of view, largely under-elaborated. The book proposes a model of deliberative performance to fill that gap. Instead of taking a stand on the old dispute about which institution is more legitimate to have the “last word” on constitutional meaning, this research leaves this question suspended and systematizes the large range of variations that can exist in constitutional courts’ performances. Discussions about the potential roles of constitutional courts, in this perspective, become more sensitive to contexts and to their varying degrees of legitimacy.