| Special Workshop Title: | Material Review of Constitutionality of Statutes |
| Author: | Augusto Cerri, University of Rome ‘La Sapienza’ |
| Paper Title: | The Problematic Basis of Judicial Review of Legislation |
| Abstract: |
1. The
various theoretical foundations for scrutiny of the constitutionality of
laws and the question of its utility and/or effectiveness. — Why a
rigid constitution ? Why a control of constitutionality by a court ? The
first question has received, as we have seen, various replies: (1) a
rigid constitution is rooted in natural justice; (2) it is the express
declaration of irreversible but historical (cultural) human and civil
acquisitions; (3) it is, therefore, a social compact, historically real,
among individuals or social and political forces; (4) it is an
expression of the people's sovereignty over the government’s power;
(5) it is a structure that serves to join, harmonise, lead, orient the
society and also its distrusts; (6) it is a reasonable framework for
political decisions that all would approve (social compact as an
hypothesis, as a test of reasonableness); (7) a rigid constitution
expresses the conditions for a legitimate and democratic political
process and, therefore, for a legitimate order by a majority, conditions
that, obviously, are not entirely at the majority’s discretion; (8) it
expresses a common space of social consensus, beyond (under or over)
political distrust. The second question entails: (1) the problem of
perhaps excessively wide discretion in interpreting constitutional law,
(2) the consequent problem of the legitimacy of a court, (3) the problem
of effectiveness of such a guarantee, in a context of social and
ideological distrust. 2. The
foundation in the idea of a natural law or justice - fundamentalist
constitutionalism - constitutionalism beyond a written constitution. —
The idea of a foundation in natural law for a written and rigid
constitution appears, as we have seen, in some opinions in the drafting
of the Italian constitution and is amply expressed in the German
constitution's doctrine. It justifies the criticism that, for example,
the German constitutional court's decisions have incurred. Carried to
extremes, the evaluation of natural justice undoubtedly undermines the
very reasons for a written constitution, and in fact the German Court
has exercised a judicial scrutiny of the written constitution. - The
idea of a rigid constitution as a support of firm common opinions in a
given social context appeared, as we have seen, in the drafting of the
Italian constitution. Reference to tradition has sometimes also appeared
in American Federal Supreme Court’s decisions. A defence of firm
social opinions against temporary majorities' decisions can be supported
by the idea of a constitution as social contract (or contract on
government). There is an indisputable connection between the idea of
constitution as defence of tradition (2) and the idea of constitution as
social contract (4) and also the idea of an irrevocable progress of
mankind. 3. The
rigid constitution as a model of a reasonable covenant among men and/or
groups - judicial defence of the pre-conditions for a democratic
political process - The difficulty of defence of social pre-conditions.
— A written and rigid constitution can be intended as a model,
characterised by historical peculiarities, of a reasonable covenant
among men and social groups. The reasoning style of a court (such as the
Federal Supreme Court of the United States), in this context, becomes
like a discourse of moral or political philosophy. 4.
Scrutiny of constitutionality as a defence of the current area of social
consensus. — A constitutional court can also be justified as an
implement that defends the area of social consensus (consensus by
intersection, as has been said against law's prescriptions. 5.
The
role of the courts in a democratic process and the problem of its
effectiveness. — On the contrary, political power can promote
welfare of majority that infringes the intense interests of minority. A
court, moreover, like all the juridical guaranties in the general social
and political process corresponds, perhaps, to something like friction
in physics. It is not insuperable and is of a measurable and limited
force, but it is also not insignificant and without it human movement
would become random and chaotic. |
This page was last updated on: 2003-06-03.