A comment on "legisprudence"

Boston University Law Review

Volumn 89, Issue 2, 2009, Pages 427-434

  Perju, Vlad ^a  

^a BOSTON COLLEGE   (United States)

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EID: 67649531430     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (46)

1. 1 Luc Wintgens, Legitimacy and Legitimation from the Legisprudential Perspective, in LEGISLATION IN CONTEXT: ESSAYS IN LEGISPRUDENCE 3, 4 (Luc J. Wintgens and Philippe Thion eds., 2007).
2. 2 Philip B. Kurland, Toward a Political Supreme Court, 37 U. CHI. L. REV. 19, 29 (1969).
3. 3 See JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 454 (William Rehg trans., 1998) ("The addressees of law would not be able to understand themselves as its authors if the legislator were to discover human rights as pregiven moral facts that merely need to be enacted as positive law.").
4. 4 Wintgens, supra note 1, at 23. One implication is that the requirement of justification applies to each and every law, rather than a set of "constitutionals essentials." For the idea of "constitutional essentials, " see JOHN RAWLS, POLITICAL LIBERALISM 227-30 (1996). For the argument that in liberal political morality the requirements of justification apply to the system as a whole, rather than to particular instances of lawmaking, see Frank Michelman, Constitutional Authorship, in CONSTITUTIONALISM 64, 82-83 (Larry Alexander ed., 1998).
5. 5 RONALD DWORKIN, JUSTICE IN ROBES 153 (2006).
6. 6 Wintgens, supra note 1, at 10 ("Concepts are not natural; they are intellectual constructions.").
7. 7 For a discussion of what such an argument might look like, see Discussion, in THE LEGACY OF ISAIAH BERLIN 121-39 (Mark Lilla, Ronald Dworkin and Robert Silvers eds., 2001).
8. 8 Wintgens, supra note 1, at 3. Another relevant question is what happens with Wintgens's distinction between conceptions about freedom and conceptions of freedom in homogeneous cultural groups whose members share a conception of freedom. I do not explore this issue here, as the "fact of pluralism" can be assumed as a given in pluralist societies. See RAWLS, supra note 4, at xviii ("Political liberalism assumes that, for political purposes, a plurality of reasonable yet incompatible comprehensive doctrines is the normal result of the exercise of human reason within the framework of the free institutions of a constitutional democratic regime.").
9. 9 See Wintgens, supra note 1, at 10 ("The democratic organisation of political space in the Modern philosophical project purports to be more radical than its classical version. Democracy, that is, is not a natural fact nor does not follow from the nature of the polis.").
10. 10 Id. at 22.
11. 11 Id. at 29.
12. 12 Id. at 12.
13. 13 Id. at 10, 12.
14. 14 Id. at 12-13 ("What then both Hobbes and Rousseau are justifying, is not first of all a radical version of democracy, but a proxy version of it.... The very proxy character of their version of democracy stems from its foundation in truth.").
15. 15 Id. at 8.
16. 16 Id. at 7.
17. 17 See Jürgen Habermas, Reconciliation Through the Public Use of Reason: Remarks on John Rawls's Political Liberalism, 92 J. PHIL. 109, 118-20 (1995);
18. see also RAWLS, supra note 4, at 372-434 (replying to Habermas's critique);
19. Frank I. Michelman, Family Quarrel, 17 CARDOZO L. REV. 1163, 1163-64 (1996).
20. 18 For an early classic, see Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L. J. 1063, 1063 (1980).
21. 19 See generally GEOFFREY HAWTHORN, ENLIGHTENMENT AND DESPAIR: A HISTORY OF SOCIAL THEORY (1987).
22. 20 Wintgens, supra note 1, at 9.
23. 21 See id. at 12.
24. 22 See id. at 8 ("Just as freedom only makes sense when exercised in freedom, a procedural model of legitimation cannot refer to anything but itself or some other procedural model. Self-reference is the type of reference we find in a democratically organized political space.").
25. 23 See generally Luc J. WINTGENS, DROIT, PRTNCIPES ET THEORIES: POUR UN POSITIVISME CRITIQUE (2000) (arguing for weak legalism as part of a critical positivist approach to legal theory).
26. 24 See, e.g., ROBERTO MANGABEIRA UNGER, FALSE NECESSITY: ANTI-NECESSITARIAN SOCIAL THEORY IN THE SERVICE OF RADICAL DEMOCRACY (1987).
27. 25 See, e.g., Jeremy Waldron, A Rights-Based Critique of Constitutional Rights, 13 OXFORD J. LEGAL STUD. 18, 20 (1993) ("[O]ur respect for such democratic rights is called seriously into question when proposals are made to shift decisions about the conception and revision of basic rights from the legislature to the courtroom....");
28. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L. J. 1346, 1348 (2006) ("[Judicial review of legislation is inappropriate as a mode of final decisionmaking in a free and democratic society.").
29. 26 Wintgens, supra note 1, at 38 (arguing that constitutional review can function as the "third mechanism of reversal of the legitimation chain, " so long as constitutional judges are elected and their appointments are "confirmed by an act of parliament").
30. 27 The French exception must now be qualified in light of the latest developments in the French constitutional order. See EDOUARD BALLADUR ET AL., COMITE DE REFLEXION ET DE PROPOSITION SUR LA MODERNISATION ET LE REEQUILIBRAGE DES INSTITUTIONS DE LA VEME REPUBLIQUE (2007), available at http://www.comite-constitutionnel.fr/le-rapport/index.php (proposing reforms to the French Constitution).
31. 28 Mattias Kumm, Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice, 2 INT'L J. CONST. L. 574, 595 (2004).
32. 29 Perhaps the most comprehensive limitations clause is section 36 of the 1996 South African Constitution:
33. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including - (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.
34. S. AFR. CONST. 1996 § 36.
35. 30 See Kumm, supra note 28, at 579.
36. 31 For an example of the application of the proportionality test, see id. at 579-81.
37. 32 See, e.g., Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence, 57 U. TORONTO L. J. 383, 388-89 (2007) (explaining that to satisfy step one of the proportionality test, "the German Constitutional Court requires a 'legitimate purpose.' By legitimate the Court understands a purpose not prohibited by the Constitution.... As a result, hardly any law fails at this preliminary step.... The vast majority of laws that failed to pass the proportionality test in Germany do so at the third step. ").
38. 33 Id. at 388 (inferring that the German Constitutional Court defers to the legislature in the early steps of the proportionality test because "[w]hat is important enough to become an object of legislation is a political question and has to be determined via the democratic process"). While some courts have experimented with a more assertive approach along the lines of heightened scrutiny, these courts eventually returned to their normal standard of deference, thus pushing the focus of the proportionality analysis to the final steps. See id. at 388-95 (discussing the difference between the proportionality analysis of the German and Canadian supreme courts - particularly the heightened step one standard of the Canadian Court, which "requires an objective 'of sufficient importance to warrant overriding a constitutionally protected right of freedom, ' or a 'pressing and substantial' concern" (quoting R. v. Big M Drug Mart Ltd., [1985] 1 S. C. R. 295, 352 (Can.))).
39. 34 Justice Barak, former President of the Israeli Supreme Court, has expressed doubts about the wisdom of deferring to the legislature:
40. Despite the centrality of the object component, no statute in Israel has been annulled merely because of the lack of a proper object [or purpose]. A similar approach exists in German constitutional law.... That is regrettable. The object component should be given an independent and central role in examining constitutionality, without linking it solely with the means for realizing it. Indeed, not every object is proper from the constitutional perspective. This is not an expression of a lack of confidence in the legislature; rather, it is the expression of the status of human rights.
41. Aharon Barak, Proportional Effect: The Israeli Experience, 57 U. TORONTO L. J. 369, 371 (2008) (footnotes omitted).
42. 35 Luc J. Wintgens, Legisprudence as a New Theory of Legislation, 19 RATIO JURIS 1, 10-24 (2006).
43. 36 Id. at 10.
44. 37 Id. at 11.
45. 38 Wintgens, supra note 1, at 36.
46. 39 Id. at 14 ("The scholastic fallacy consists of leaving aside the presuppositions that are inherent to a theory.").