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Dialogic constitutionalism and judicial review

Published online by Cambridge University Press:  07 December 2020

SEYLA BENHABIB Open the ORCID record for SEYLA BENHABIB [Opens in a new window]
SEYLA BENHABIB*
Affiliation:
Yale University, Department of Political Science, 115 Prospect Street, New Haven, CT06511, United States
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Email: [email protected]
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Abstract

In A Cosmopolitan Legal Order: Kant, Constitutional Justice and the European Convention on Human Rights, Alec Stone Sweet and Clare Ryan reconstruct Kant’s legal philosophy as a program of cosmopolitan legal order (CLO). A CLO is defined as a multi-level, judicialized, transnational system of rights protection that confers on all persons, by virtue of their humanity, the entitlement to challenge the rights-regarding decisions of public officials, who are under an obligation to assure the equal juridical status of all. The authors illustrate this claim with respect to the development of the ECtHR and the Court of Justice of the European Union. While generally agreeing with their argument, I claim that they minimize the republican aspects of Kant’s political philosophy in favour of strong judicial review. After outlining republican and democratic objections, I claim that their book illustrates a model that I call ‘dialogic constitutionalism’. Dialogic constitutionalism does not neglect legislative authority, but places it in a conversation with judicial authority, whether domestic or transnational; such conversations can serve to upgrade standards of rights protection over time and are not frozen precommitments. Constitutions also have a representative function of standing for the intergenerational continuity of the people, whereas legislatures are bound by electoral cycles.

Keywords

cosmopolitan constitutional orderdialogic constitutionalismEuropean Court of Human Rightsjudicial reviewKant
Type
Symposium/Special Issue Manuscript
Information
Global Constitutionalism , Volume 9 , Issue 3 , November 2020 , pp. 506 - 514
Copyright
© The Author(s), 2020. Published by Cambridge University Press

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References

1 Sweet, Alec Stone and Ryan, Clare, A Cosmopolitan Legal Order: Kant, Constitutional Justice and the European Convention on Human Rights (Oxford University Press, Oxford, 2018), referred to in the text as CLO.CrossRefGoogle Scholar

2 CLO, 256. The reference in quotes is to Ingram, David, Radical Cosmopolitics. The Ethics and Politics of Democratic Universalism (Columbia University Press, New York, 2013)Google Scholar.

3 The earliest critiques of cosmopolitan elites came from Huntington, Samuel, ‘Dead Souls: The Denationalization of the American Elite’ (2004) 75 The National Interest 5 Google Scholar; for left critiques, see Anderson, Perry, ‘Arms and Rights. Rawls, Habermas and Bobbio in an Age of War’ (2005) 31 New Left Review 5 Google Scholar; Jacques Rancière, ‘Who is the Subject of the Rights of Man?’ 203(2/3) South Atlantic Quarterly 297; Žižek, Slavoj, NATO as the Left Hand of God (Arkzin, Zagreb, 2000) and Did Somebody Say Totalitarianism? Five Essays in the (Mis) Use of a Notion (Verso, New York, 2001)Google Scholar.

4 CLO, 256.

5 See (n 1) 39, n 27. By UPR they refer to Kant’s principle of external freedom: ‘[A]ny action is Right [that is, just] if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law’ (quoting I Kant, The Metaphysics of Morals (1797), 6, 230–31).

6 CLO, 43.

7 CLO, 43.

8 See Corradetti’s defence in this issue.

9 CLO, 49.

10 CLO, 51. Emphasis added.

11 See Svenja Ahlhaus, ‘The Democratic Paradox of International Human Rights Courts: A Kantian Solution?’; Markus Patberg ‘Extraordinary Politics and the Democratic Legitimacy of International Human Rights Court’; Maliks, Reidar, ‘Kantian Courts: On the Legitimacy of International Human Rights Courts’, all in Kantian Theory and Human Rights, edited by Follesdal, Andreas and Maliks, Reidar (Routledge, New York, 2015)Google Scholar.

12 I consider ‘dialogic constitutionalism’ to be a kin concept to my own ‘democratic iterations’. Whereas dialogic constitutionalism focuses on courts, the legislature and other instances of law- and rule-making agencies, democratic iteration is concerned with the iteration of legal norms in civil society associations and through social movements. For a recent discussion, see Seyla Benhabib ‘The New Sovereigntism and Transnational Law: Legal Utopianism, Democratic Skepticism and Statist Realism’ (2016) 5 Global Constitutionalism 109.

13 Bickel, Alexander M, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd edn, Yale University Press, New Haven, CT, 1986) 16–18 Google Scholar

14 ‘For myself it would be most irksome to be ruled by a bevy of Platonic guardians even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.’ In Hand, Learned, The Bill of Rights (Harvard University Press, Cambridge, MA, 1958) 73–74 CrossRefGoogle Scholar.

15 Waldron, Jeremy, The Dignity of Legislation. The Seeley Lectures (Cambridge University Press, Cambridge, 1999)CrossRefGoogle Scholar.

16 Waldron, Jeremy, Law and Disagreement (Oxford University Press, Oxford, 2004)Google Scholar 101–03

17 Waldron, Jeremy, ‘A Right-Based Critique of Constitutional Rights’ (1993) 13(1) Oxford Journal of Legal Studies 18 CrossRefGoogle Scholar.

18 See (n 16) 223, emphasis in original.

19 Ibid, 248.

20 Ibid, 248.

21 Bellamy, Richard, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, Cambridge, 2007)CrossRefGoogle Scholar.

22 Bellamy, Richard, ‘The Democratic Legitimacy of International Human Rights Conventions: Political Constitutionalism and the European Convention on Human Rights’ (2014) 25(4) European Journal of International Law 1024 CrossRefGoogle Scholar.

23 Ibid, 1029; ‘Contestatory’ and ‘authorial’ are Pettit’s terms. Cf Philip Pettit. ‘Democracy: Electoral and Contestatory’ in NOMOS XLII: Designing Democratic Institutions, edited by Ian Shapiro and Stephen Macedo (New York University Press, New York, 2000) 105–44.

24 See (n 22) 1030.

25 CLO, 51.

26 Samuel Freeman, ‘Constitutional Democracy and the Legitimacy of Judicial Review’ (1990–91) 9 Law and Philosophy 353.

27 See Dahl, Robert, How Democratic is the American Constitution? (2nd edn, Yale University Press, New Haven, CT, 2003)Google Scholar.

28 CLO, 69.

29 CLO, 104.

30 CLO, 86.

31 CLO, 89.

32 Alessandro Ferrara, ‘Courts also Represent “Legitimation by Constitution”’: Representation and the Courts’. Paper presented at Encontro do Grupo de Estudos Democráticos – Campo Grande, 24 a 26 de Junho de 2019. On file with the author. Alessandro Ferrara, ‘Judicial Review and Its Discontents: A Reply to Frank Michelman’ (2017) 4 Rivista Internazionale di Filosofia del Diritto 615, author’s emphasis.

33 Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (trans. Regh, W, MIT Press, Cambridge, MA, 1996) 448 CrossRefGoogle Scholar.

34 I am grateful to the anonymous reviewer of this manuscript who pressed for further clarification about how democratic such processes of judicial-making by national or transnational high courts can be. A full reply to this issue would exceed the boundaries of this essay, but a number of high-profile cases of recent decades dealing with abortion, same-sex marriage, the wearing of the hijab by Muslim women and the like have been catalysts of democratic conversations in civil society and social movements concerned with these issues. Of course, in some cases activist groups have intentionally brought such issues before the courts to elicit a judgment. Dialogic constitutionalism has two dimensions: the first concerns the formal and institutionalized conversations among official bodies such as parliaments, courts and administrative organs; the second refers to the feedback loop between judicial decisions, and civil society and social movement activism. In their analysis, Stone Sweet and Ryan emphasize the first dimension, while I am calling attention to the second as well.

35 Resnik, J, ‘Comparative (In)Equalities: CEDA, the Jurisdiction of Gender and the Heterogeneity of Transnational Law Production’ (2011) 10(2) International Journal of Constitutional Law 531 CrossRefGoogle Scholar.

36 CLO, 250–51; also see Po Jen Yap’s contribution in this issue on proportionality in Asia.

37 CLO, 258.