NEITHER DIALOGUE NOR LAST WORD

DELIBERATIVE SEPARATION OF POWERS III

Conrado Hübner Mendes*

A. INTRODUCTION

“Deliberative separation of powers” sounds like an exemplary oxymoron.

Such blend of apparently irreconcilable political ingredients may not be, indeed, a
felicitous phrasal construction when read against the history of political concepts.
This first impression, however, should not obscure the possibilities of a refreshing
conceptualization that it can convey. This article is the third piece of an essay that
attempts to investigate how the principle of the separation of powers, looked from this
different angle, might provide a more nuanced standpoint to understand the
interaction between elected parliaments and constitutional courts and, hence, help
justify the democratic legitimacy of judicial review of legislation.
The first article kicked off this inquiry by surveying the variants of what was
called “theories of last word”.1 This theoretical debate is basically structured around
the question of “who should have the last say upon constitutional meaning in a
democracy?” The dispute accepts two opposing answers: either constitutional courts
or elected parliaments. After a systematization of the many intertwined arguments on
both sides, the first article suggested that this approach is reductive and incomplete.
“It is not all about the last word” was its straightforward, if incomplete, answer to the
question from where it departed.
The second article approached a would-be solution to that binary crossroads.2
Theories of dialogue are presented as alternatives to a last word take on the problem.
In its numerous versions, dialogue theories minimally share the assumption that a
constitutional court’s decision, either within a weak or a strong form of judicial
review,3 is not the last word. That depiction, such theories claim, would miss the
long-term dimension of politics, which in turn has normative implications to how the
interaction between courts and parliaments should be perceived. The article
recognized the value of the dialogic metaphor to highlight the worth reminding truism
according to which collective decisions are inevitably provisional, no matter how
costly it may be to replace them. There is political life after last word, and the
inevitability of reactions for or against judicial review of legislation, however subtle

*
PhD in legal philosophy at the University of Edinburgh. PhD and MPhil in political science at the
University of São Paulo. Hauser Research Scholar (2009-2010), NYU Law School. I would like to
thank Neil MacCormick, Neil Walker, Zenon Bankowski, Claudio Michelon, Mattias Kumm, Alvaro
de Vita, Matthew Taylor, Cicero de Araujo, Marcos Veríssimo, Oscar Vilhena and Virgilio Afonso da
Silva for helpful comments on the ideas of this paper.
1
“Is it all about the last word? Deliberative separation of powers I” (2009) 3,1 Legisprudence 69-110.
2
“Not the last word, but dialogue – Deliberative separation of powers II” (2009) 3,2
Legisprudence191-246.
3
This distinction has recently become common currency of comparative constitutional law. For an
introduction, see S Gardbaum, “The New Commonwealth Model of Constitutionalism” (2001) 49
American Journal of Comparative Law.

Electronic copy available at: http://ssrn.com/abstract=1911852

they may be, is a datum not to be neglected. “Dialogue” does not solve the initial
theoretical problem from where this inquiry departs, but it adds something relevant.
The current article is reconciliatory. Its title’s negative tone should not be read
as suppressing either of the perspectives. To the contrary, it calls for complementarity.
“Neither dialogue nor last word”, thus, actually implies that none of the poles, alone,
will entirely capture how separation of powers should be normatively conceptualized,
nor descriptively apprehended. Brought together, both lenses give a more sensible
idea of such institutional device. Microscopically, we have an iteration of last words
over time. Telescopically, imperfect though it may be, we have a persistent
conversation through provisional decisions, about the terms of our political
association.
I seek to imagine separation of powers as a deliberative device. That is to say,
apart from a physicalist tool for countervailing power with power and for distributing
functions across diverse bodies, the separation of powers may also be a deliberative
apparatus, a mechanism for sparkling inter-institutional exchange of reasons. This
potential third virtue, despite the predictable tensions it may prompt with the other
two, does not exclude them. It simply stresses the fact that the branches often take
each other’s reasons into account in the course of making decisions. This adds value
to the logic of checks and balances and to the functional division of labour. Or so I
shall argue.
This article has two broad parts, each of which with several sub-sections. The
first deals with dialogue as a fact to be perceived and draws on the theoretical
implications of such recognition. The second takes dialogue as a value to be pursued,
sketches the idea of deliberative performance and elaborates on how it relates to intra
and inter-institutional deliberation.

B. SEPARATION OF POWERS AND THE TIMES OF POLITICS

Normative theory has produced an apotheosis of last word, imaginary duels

between the heroic judge and the wicked legislator, or vice-versa – between the
ideologically dissimulated judge and the public-spirited legislator. At another level,
this has also been envisioned as a conflict between fundamental rights and democracy
or between powerful majorities and vulnerable minorities. Some theories of dialogue,
in turn, modulated the tone and rejected that apparently naïve dispute. They foment
the possibility of the co-existence of parliaments and constitutional courts without the
need to choose between one or the other. They do not necessarily take a stand on the
model of best or worst judge and legislator.
The two first articles opened up a broad span of favourable and critical
arguments about judicial review. The current article intends to keep those arguments
at the background and to outline a theory of the interaction between parliaments and
courts. I want to test the possibility of reconciling both perspectives, of combining the
provisionality of collective decisions with the continuity of politics. Taking the ideal
of “permanent dialogue” to its ultimate implications may produce certain nonsense.
The same holds true, however, with the “last word”. My aim is to show that both
questions subsist and can insightfully complement each other.
The invocation of the notion of “provisional last word” cannot hide the
temporal, material and intellectual costs of new “procedural rounds”. There are
degrees of provisionality. Collective decisions, even if arguably open to future
revisions, are resistant and durable. Some of their effects are consummated, and, in a
certain sense, become irreversible. To show that the court may be seen as a mere

Electronic copy available at: http://ssrn.com/abstract=1911852

“interlocutor” in an ongoing conversation does not bring such a relief. It does not
immunize the court from a legitimacy test, nor does it liberate the court from the
responsibility of taking appropriate decisions.
There is, still, a valuable gain in illuminating the relative character of last
word. If the point of arrival is always, to some extent, provisional, one should also be
attentive to the process that precedes and succeeds every decision. Some kind of
communicative interaction is inevitable in the long run. Decisions are taken and
concrete problems, indeed, are sorted out, but the same collective issues keep being
reprocessed by the political community. This trivial observation brings a surprisingly
new element to the reflection about the role and legitimacy of the judicial control of
constitutionality.
The next four sub-sections will address dialogue in this basic sense of
interaction over time. The first deals with a traditional escape-valve used by some
authors to avoid an essentialist justification of judicial review. For them, it is not a
necessary product of, but neither is it incompatible with, democracy. They are content
with showing that, if history created it, and it has been playing a relevant role, we
should not try to extinguish it due to an abstract exercise in ideal thinking and
institutional engineering. In the second section, I connect the opposition between
dialogue and last word with two central tensions in political and legal theory: the
tradition of mixed constitution as opposed to sovereignty, and the conception of law
as purposive enterprise (espoused by Fuller) in contrast with law as social fact
(adopted by Hart). In the third, I address the complementary angles of dialogue and
last word. In the fourth section, I interpret some postulates through which empirical
political science studies separation of powers and judicial behaviour.

1. History, institutions and normative political theory

Waldron has more than once contended that his arguments against judicial
review were addressed to the countries in which the adoption of this arrangement
were still an open choice.4 He was not intending to participate in the American
debate, where the institution would be consolidated by history and any argument
challenging its very existence would be doomed to irrelevance. Other authors made
similar assertions to discipline the scope of this discussion. Dworkin, for example,
declared that “this interpretive authority is already distributed by history”.5
Whittington, in turn, contended that “judicial review is an institutional and historical
reality, regardless of any academic critiques directed against it”.6 Friedman slightly
qualified this perception and emphasized that, even if it were feasible to design
institutions in a different manner, so that it could accurately reflect a pure political
ideal, “the federal judiciary is not likely to receive an overhaul of this magnitude
anytime soon”.7 Finally, Vermeule and Garrett propose that the fertile way of
contributing to this discussion is not to insist on the “macro-institutional choices”.
Improvements and innovations, in contemporary politics, spring from the margins, in
the micro-scale of the internal procedures of each institution.8 Others have also
stipulated this arrangement as an almost irrevocable starting point: institutions are out
there, and we need to make the best of them. These references are located, indeed, in
4
See “The core of the case against judicial review”, (2006) 115 Yale Law Journal.
5
See Freedom’s Law, (Harvard University Press, 1996) at 34.
6
“Extrajudicial Constitutional Interpretation: Three Objections and Responses”, (2001) 80 North
Carolina Law Review, at 848.
7
“The Politics of Judicial Review”, (2005) 84, 2 Texas Law Review, at 332.
8
“Institutional Design of a Thayerian Congress”, (2001) 50 Duke Law Journal.

3
the American context. To the extent that such claim is vocal in outside the ambit of
US, its implications should not be ignored by other jurisdictions.
Zurn calls this attitude, by which one assumes that a certain arrangement is an
immutable given, of “institutional panglossianism”.9 He engages in this debate
without assuming a frozen structure of the separation of powers. He writes
institutional fiction without the hesitation sparked by the calculus of historical
feasibility, and proposes arrangements that significantly change the operation of
constitutional review. For him, turning such function more democratic demands
untrammelled normative creativity.
Both theoretical strategies are possible ways of treating the theme of political
legitimacy and its bearing on specific institutions. The first adapts itself better to
times of democratic stability and monotony. In the face of the unlikely changes in the
foreseeable political future, it works with the theoretical questions resources that are
available. The second can be more influential in times of revolutionary rupture or in
large-scale regime transitions. There are no few examples of that impact in modern
political history, which is filled with revolutions that tried, deliberately, to break with
practices of the past.
These postures do not neatly match with what Mill diagnosed as two
conflicting conceptions of political institutions: either a product of pure practical art
and human invention; or a spontaneous and natural corollary of history, immune to
any rational control, human will or design.10 Or, to use another historical jargon,
either the French institutional Jacobinism, which mainly looks forward and is willing
to restart from scratch with the sole aid of abstract reason; or the British
incrementalism, which looks backwards and praises tradition.
Those authors adopt two alternative strategies in the construction of normative
theory. The former group does not deny that institutions are, to some degree, products
of choice rather than historical chance, but prefers to contribute to the improvement of
an already existing arrangement. The latter group does not defend a total
reconstruction ex nihilo either, as if there were no path dependency to be taken into
account, but tries to envisage the possibility of reforms in a broader scale. And it is
probably more optimist about the impact that normative thought may produce in these
reforms.
This is the first way to conceive the relation between institutions, history and
normative political theory. One appraises how much an institutional change, if
desirable in principle, is feasible, and formulates more or less ambitious normative
propositions from that appraisal.11 This essay chooses to think on the relation between
existing institutions, or, more specifically, between constitutional court and
representative parliament. It is not my purpose, thus, to assess the imaginable
alternatives of macro reforms that improve the practice of inter-institutional dialogue.
To be sure, the fact of dialogue, or the inevitable interaction over time, does
not by itself provide a positive justification for the existence of judicial review.

9
“The idea here is that the established institutions and practices of the United States political system
are to be accepted as, in the main, unchangeable social facts, and that any comprehensive constitutional
jurisprudence should be able to justify their main structures and features as being close to ‘the best, in
this the best of all possible worlds’”. (see C Zurn, Deliberative Democracy and the Institutions of
Judicial Review (Cambridge University Press, 2007) 9-10).
10
See Considerations on Representative Government (Oxford World Classics, 1998), 205-207.
11
Or, unassumingly, one can elaborate a theory without the expectations to produce practical effects in
the short run (or even without expectations at all). As stated by Cícero de Araújo: “All political
reflection emerges from its own context, but is not doomed to die there, just because it was not able to
take roots in the immediate historical reality” (see Fundações da República e do Estado (2004)
manuscript with the author, at 184, personal translation).

4
Alternatively to judicial review, we could certainly speculate about an ideal institution
that would be structured in a way that is more legitimate and competent than
constitutional courts may ever be. Perhaps courts, generally defined by the core
institutional tenets that are usually found in constitutional democracies, do not have
the best incentives or capacity to fulfil the role ascribed by the theory of legitimacy
sketched here. But to open new windows and imagine other institutions would require
a different path, which I do not follow in the present work.
Therefore, the standpoint of this article concedes to historical facts and take
constitutional courts, at least as far its core features are concerned, as givens. It is not
a matter of “institutional panglossianism”, but simply a point of departure. For present
purposes, it is more fecund to think on the conditions that maximize the legitimacy of
courts than to reject, for reasons of principle, the very existence of an institution that
has been gradually occupying a noteworthy space in western democracies. It is also
more fertile than to accept it without further qualifications. As it will be defended
later, dialogue can be performed in different ways, and some of them bring positive
justifications for this arrangement too.
The polarity between “last word” and “dialogue” also prompts a second prism
from which to observe the relation between history and institutions. It turns us
sensitive to two temporal scales of a political regime: the immediate demand for a
decision, and the succession of decisions over time (or, to put it differently, the short
and the long run). The separation of powers instantiates both temporal scales of
politics in a special way: it is not simply a matter of a single institution that, alone,
takes decisions at last, but of different institutions inevitably interacting in the long
run (in the case here addressed, parliaments and courts).
There is, finally, a third point of view by which one may conceive the relation
between history and institutions: the construction of social legitimacy and reputation
of institutions by the gradual process of taking roots in the community’s political
system. Institutional longevity also raises a value to be taken into account. The fourth
section touches upon this perspective and grapples with some claims of empirical
political science. Accordingly, it becomes possible to grasp that legitimacy is not only
a product of a normative ex ante recipe of the separation of powers, but also hinges
upon the performance that institutions may achieve ex post.

2. Weights and measures of last word

Inter-institutional dialogue is forged by two basic components: (i) the

institutional design that formally disciplines it and (ii) the political culture that
animates it. This essay is not concerned with a specific institutional design. It does not
defend the single most desirable model of the separation of powers and of judicial
review (whether it is the “strong”, the “weak” or the “minimal”12). Abstract solutions
with universal reach and scope do not attain particular institutional demands. I do not
deny that such design variations are also important to encourage better patterns of
interaction and deliberation. However, I prioritize an anterior step to show that,
whatever the institutional architecture: (i) the interaction over time (in varying
intervals, according to the model) is unavoidable and is not irrelevant to understand
the problem of legitimacy; (ii) the diverse conceptions of legitimacy that inform the
respective political culture and political self-understanding interfere with the quality

12
For a general description of these distinctions, see S Gardbaum, supra, n 3.

5
of that interaction. I leave the latter aspect for the next topic. Let me deal with the
former.
This essay was ignited by the well-known democratic objection against
judicial review. If we react to it by contending that there is no last word but
permanent dialogue between different political institutions that are mutually
responsive, that objection turns out to be less tragic. From this standpoint, judicial
review is just one more decisional stage, one more step in a complex legislative
process that rises above the walls of parliament. It may delay that process, but would
not inflict such a painful harm.
This answer, nevertheless, is unsatisfactory. It probably allows us to return to
the original problem with a more nuanced perception of the time(s) of politics and a
sense of continuity. Still, it does not say much about the legitimacy of the interference
of multiple institutions, in diverse moments, in this overall lawmaking process. It does
not justify the costs that these decisions might impose on the “democratic will” (in
case one accepts the premise of that objection – that parliament is the central or
primary locus of democracy).
In order to manage this difficulty, I earlier resorted to two devices.13 Each
constitution establishes one model of interaction and chooses the institution that will
have the “provisional last word” (granted with differing degrees of resistance). New
“procedural rounds” can always be reinitiated. I now try to escape the two binary
traps that underlie the literature summarized in the first two articles – between
parliaments or courts and between last word or dialogue – and to investigate the
complementarity between them. The two sub-topics below identify two helpful
frames for that relation.

2.1 Between mixed constitution and sovereignty?

The contrast between “dialogue” and “last word” echoes a classical tension
between the mixed constitution, which was somewhat reconceived (if retaining
minimal commonalities) and renamed as “separation of powers” by modern political
theory, and sovereignty. This affinity deserves some further qualification. I do not
intend to make this detour just to point to a historical curiosity, but rather to indicate
that, at the intellectual and institutional roots of the very idea of the separation of
powers, the last word, or the locus of the “sovereign authority”, was not a central
question.
At its origin, the mixed constitution corresponds to an amalgamation of the
three elementary forms of government (government of one, of the few and of the
many). It sought to promote a sort of equilibrium of the forces that emerged from the
“impulses of monarchy, of aristocracy and of the people”.14 Put in another way, it was
born as an ideal of equilibrium between the powers of different groups within a
hierarchical and ranked society. It was not yet associated to a scheme of dividing
institutional functions, nor exactly with checks and balances. It presupposed a
sociology. Each agency was defined by the social order from which it surfaced. It
institutionalized disagreement as a way to keep the creative and transformative
capacity if politics.15

13
See Mendes, supra, n 2, 245.
14
See Araújo, supra, n 11, 12 and 23.
15
See David Wooton, “Liberty, Metaphor, and Mechanism: ‘checks and balances’ and the origins of
modern constitutionalism”, at <http://www.constitution.org/lg/check_bal.txt >

6
 This tradition was hard to reconcile with the advent of the modern sovereign
state. Hobbes, for example, rejected it and defended the necessity of an ultimate
sovereign that confronts the dangers of political vacuum, of the anarchical and
disorderly tendencies that derive from either the absence or the multiplicity of
authority. In such a state-centred vision, “the only intelligible sovereignty is the one in
which the sovereign is supreme and indivisible”.16 There are, in each side, opposite
recommendations of institutional design: a verticalized mode, with a clearly defined
apex of authority; a horizontalized mode through the mechanisms that allow the co-
existence of different groups without a supreme authority.
The episode of the foundation of the American constitution is the vital
reference of that tradition in modernity. It represents the moment in which checks and
balances, understood not only as a functional division of labour but also as a
mechanical design that moderates power, came to the fore of a constitution.17 It does
not help that the constitution provides limits on paper – this was the main message of
the Federalists as to the separation of powers as a mechanism for the preservation of
liberty. The solution would have to be endogenous, with power controlling power.18
That decisional machine creates an innovative and flexible political dynamics.
Nevertheless, its grammar does not neatly accept the necessity of identifying the locus
of sovereign power (at least from the internal point of view).19 This locus is doomed
to remain an “open question”.20
Taking a large historical step ahead, contemporary democracies have triggered
a related perplexity. They incorporate the notion of sovereignty and transfer it,
conceptually, to the people. In practice, however, its institutions are organized
through a complex structure of interlocking checks and balances (that is, without an
univocal notion of internal sovereignty21). How to reconcile “sovereignty of the
people” with separation of powers?
One possible way out would be to situate “the people” within the original and
founding constituent power, which disappears when ordinary politics takes hold. This
approach, which puts forward an ephemeral ideal of the “people’s sovereignty”, does
not satisfy everybody. The people’s voice would remain silenced for too long, and
would have a scant weight in the everyday life of the polity.
Another alternative would be to situate the people within one of these
institutions, which would become the apex of that structure. Any decision that
counters the sovereign institution par excellence would thus be anti-democratic. But
this solution hides the friction that the logic of the separation of powers cannot avoid.
To describe the co-existence of a plurality of authoritative sources by the concept of
sovereignty is a controversial task, for which the recommended normative solution is
sometimes associated with a call for the branches to “cooperate”.22

16
See Araújo, supra, n 11, 130.
17
This was still not clear in Montesquieu, for whom the separation of powers is associated to a
hierarchy of stratum. In the Federalist Papers, a governmental machinery is constructed that does not
directly connect with the assumption of a rigidly divided society. For Araújo, however, it does not
mean that this construction was “empty of social content”. Madison’s solution for the problem of
factions – a product of antagonized economic interests – makes clear that there was a social
substratum. (supra, n 11, 162-163).
18
For Friedman, the biggest legacy of the Federalists was not the constitution, but the theory which put
it into operation and enabled it to adapt itself to new circumstances (see “Dialogue and Judicial
Review”, (1993) 91 Michigan Law Review, 625).
19
Araújo, supra, n 11, 55.
20
Araújo, “Representação, Retrato e Drama”, (2006) 67 Lua Nova, 257.
21
Araújo, supra, n 11, 61.
22
“For, if there is an issue continuously pending in constitutional theory, it is to unambiguously
identify the locus of the sovereign claimed by that concept: although one can still save that concept by

7
 The identification of this tension between sovereignty and fragmentation,
between unity and plurality, bears upon the problem that this essay addresses. The
inter-connected traditions of the mixed constitution and of the separation of powers
are a backdrop theoretical horizon that illuminates my problem. I want to test, though,
the complementarity between dialogue and last word, and the device of checks and
balances does not exactly capture the temporal dimension of what I highlight. Fuller
and Hart add something to this relation.

2.2 Between Hart and Fuller?

The debate between Fuller and Hart is an inspirational episode of 20th

century’s legal theory.23 The possibility of conciliating them tells something about
how to understand the co-existence of “permanent dialogue” and “provisional last
words”. This debate naturally comprises a large set of arguments and concepts, but I
pick two general definitions to fulfil my current task: law conceived as a “purposive
enterprise” and law understood as a “social fact”. I will briefly explain the terms of
this conflict.
Hart tries to describe law from the position of an external observer that looks
at a particular social phenomenon. Through this prism, he notes that the distinctive
element of modern law, in relation to other normative phenomena, is not the rules that
impose duties (primary rules), but the rules that confer powers (secondary rules). In a
state governed under the rule of law, officials basically obey, to a minimum degree,
the secondary rules. Without secondary rules, where public authority is not clearly
defined and the rules of conduct correspond to disperse social practices, the rule of
law either did not reach its maturity or is in crisis. To describe law “as it is”, for Hart,
does not hamper the use of critical morality to judge its quality or praiseworthiness,
neither proscribes the proposal of normative visions of how law ought to be in order
to stimulate law reform. The conflation of “is” and “ought”, however, would have the
perverse effect of making it hard to identify, appraise and hence improve law.24
Reaching such analytical clarity was at the centre of Hart’s theoretical ambition.
Fuller presents a different outlook. For him, the rule of law cannot simply “be
out there”. It is an achievement, a continuous pursuit of a specific purpose: to subject
human behaviour to rules. It is not a fact, but an object of human striving,
uninterruptedly managed by the skills of a practical art. Its existence is a matter of
degree25-26 – of greater or lower success in the achievement of that purpose.

determining, in principle, the time and the specific responsibility in which this or that government
agency presents itself as ‘sovereign’, the theory ends up yielding to the normative notion that the
constitutional powers should find ways to ‘cooperate’ with each other or the political order would
succumb to paralysis.” (supra, n 11, 239, personal translation).
23
This dialogue starts off with Hart’s article, “Positivism and the Separation of Law and Morals”,
(1958) 71 Harvard Law Review, to which Fuller responds with “Positivism and Fidelity to Law”,
(1958) 71 Harvard Law Review; in The Concept of Law (Oxford, Clarendon Press, 1961), Hart returns
to several of those questions, to which Fuller again responds in The Morality of Law (New Haven, Yale
University Press, 1964), which was critically reviewed by Hart (Book Review: “The Morality of Law”,
(1965) 78 Harvard Law Review 1281), criticism which, finally, was addressed by Fuller in the second
edition of his book, published in 1969.
24
See Hart, “Positivism and the Separation of Law and Morals”, (1958) 71 Harvard Law Review.
25
“[Hart is wrong] to treat law as a datum projecting itself into human experience and not as an object
of human striving. When we realize that order itself is something that must be worked for, it becomes
apparent that the existence of a legal system, even bad or evil legal system, is always a matter of
degree” (“Positivism and Fidelity to Law”, (1958) 71 Harvard Law Review 646).
26
“If law is simply a manifested fact of authority or social power, then, though we can still talk about
the substantive justice or injustice of particular enactments, we can no longer talk about the degree to

8
 In order to subject human behaviour to rules, law would need to respect an
inner morality, a “procedural natural law”, as opposed to an external morality – a
substantive natural law.27 The inner morality of law comprises his celebrated list of
eight benchmarks of legal excellence (generality, non-retroactivity, publicity, among
others28). That inner morality is an example of a “morality of aspiration”, which
establishes patterns of excellence that, despite never being completely met, can guide
our choices.29 Law needs to be seen as a teleological enterprise that depends, in order
to be successful, of the intelligence and effort of those who administer it. If it is
comprehended as a mere fact of authority, we would lose the sense of what it is
“trying to do” or to accomplish.30 The ideal of fidelity to law demands, therefore, the
activity of planning.31 Fuller’s concern with institutional design is in tune with his
conception of law. Hart would miss this slightly more complex social phenomenon.32
Behind such disagreement, one can observe that both authors are talking about
different things and guided by dissimilar theoretical purposes. Hart does not
necessarily deny that the set of techniques to keep the legal system in good working
order requires the permanent engagement of those who operate it. He simply points to
the fact that law cannot exist without precise reference to the sources of authority and
a social reflective practice of obedience to them (rather than an inarticulate habit of
obedience). Fuller, on the other hand, warns against the danger of seeing it as a given
and recalls the practical importance of perceiving the human ingenuity underlying this
phenomenon (the “achievement” behind the “fact”).
Each of the angles – law as a present fact or as a continuing enterprise, as an
identification of authority or as a project that needs to be conducted – highlights one
component of what I have been considering. They call our attention to two temporal
perspectives through which we can observe politics and law: synchronic and
diachronic. In the former, it matters to know who settles a conflict here and how; in
the latter, one is concerned with which is the north that fosters continuity,
maintenance and self-improvement of that decisional authority.
It is certainly not appropriate to associate Fuller with dialogue and Hart with
last word. However, the attempt to read them through these lenses, despite the risk of
simplification, helps us understand two parallel goals of a polity or, in our case, of a
polity oriented towards the ideal of a constitutional democracy. Even if last word
plays an indispensable function, it does not exhaust how the question of legitimacy
should be formulated.

3. Grades of anxiety for authority: does the last word matter?

“No one has the last word, because there is no last word”.33 The quote of
Hanna Pitkin was used as an epigraph of my first article.34 When the author enounced

which a legal system as a whole achieves the ideal of legality” (The Morality of Law (New Haven,
Yale University Press, 1964) 147).
27
Fuller, supra, n 26, 102.
28
Fuller, supra, n 26, 46.
29
Morality of aspiration is opposed to morality of duty, is concerned with the minimal requirements
without which community life becomes impossible.
30
Fuller, supra, n 26, 145.
31
“For I believe that a realization of this ideal is something for which we must plan, and that is
precisely what positivism refuses to do. (…) planning the conditions that will make it possible to
realize the ideal of fidelity to law” (Fuller, supra, n 25, 642-643).
32
“(…) Hart leaving completely untouched the nature of the fundamental rules that make law itself
possible” (Fuller, supra, n 25, 639).
33
H Pitkin, “Obligation and Consent—II”, (1966) 60, 1 The American Political Science Review, 52.
34
Mendes, supra, n 1.

9
it, she was not, to be sure, addressing the problem of judicial review. Outside its
context, though, that passage suggests a provocative synthesis of what is at stake. So
far, the essay touched upon some forms of discharging the discussion from the
overweight burden of last word. The importance of last word is inflated in the
hegemonic literature of constitutional theory. It does not seem to be the defining
feature that determines whether a regime is more or less democratic, as I will try to
contend below.
This obsession produced a diversionary theoretical effect, and reduced the
analysis of legitimacy to a search of who should be the apex authority. It would be an
imposition of the elementary logic of authority: if there is no agreement about a
certain collective issue, some institutionalized decisional procedure must settle it. It
was on the basis of this “golden rule” of politics that Waldron erected his familiar
attack against judicial review. That golden rule does not tell the whole story though.35
Politics is an ongoing series of contestation and revision of authoritative decisions.
Beyond each isolated collective decision, there is a historical thread in which the
community recognizes itself and constructs its identity.
This is not to leave the question of authority open. The unbearable existential
discomfort and social disorder that may derive from the lack of definitive settlements
is not a negligible problem. Those who are more anxious for authority would not
tolerate the uncertainty of a regime where different public bodies produce divergent
decisions, or where there is no decision at all.36 Separation of powers, nevertheless,
stimulates that a different agency decides at each moment (or that the final decision
springs from the articulation of a set of decisions from more than one agency), or that
the agencies of government review each other over time. Such dynamic disturbs
strong calls for decisiveness.
There is certain banality in pointing to the provisionality of all collective
decisions. Ultimately, it is obvious that the existence of laws, institutions, political
regimes, human lives and societies is provisional and that, in the meantime, we need
decisions that regulate conducts, implement policies and establish patterns of social
interaction. For all that, it is fundamental that institutions respond to this demand.
Their design will derive, as it happens, from the balancing of the diverse values in
play, allowing for change without, at the same time, facilitating these shifts to an
extent that compromises a minimally desirable stability.
My search, therefore, is not to get rid of last word as a relevant concern, but to
find out what its remaining theoretical and practical role is. To situate the last word, at
least within a certain procedural round, is an inescapable and non-trivial institutional
choice. It will depend of what final balance we understand as desirable, of the degree
of resistance against change we want to ascribe to the provisional last word. A
community needs to estimate the price that is worth paying for facilitating or
inhibiting change, to gauge how much it gains and loses with each arrangement and
institutional division of labour.
Does the last word matter? Yes, but less than is usually supposed (specially in
relation to legitimacy and democratic agency or personhood). For what does it matter?
To settle a controversy with a certain claim of durability; to solve, even if
temporarily, a demand for collective decision that is valid upon everyone. What, then,
35
“Unless we envisage a literally endless chain of appeals, there will always be some person or
institution whose decision is final. (...) People disagree, and there is need for a final decision and a final
decision-procedure” (see Waldron, supra, n 4, 1400-1401).
36
For some authors, dialogic devices simply guarantee the legislative response, that is, the
parliamentary last word. Others, though, are prepared to accept the non-existence, in a sense, of last
word. See Mendes, supra, n 2.

10
is the criterion for choosing the institution that holds this prerogative of last word, if
provisional? The trust shared by the community on the institution that is more likely
able to produce the better decision. But what if this institution is, comparatively, less
democratic than the alternatives? Even if one accepts the hypothesis of the more or
less democratic quality of isolated institutions, within the logic of the separation of
powers, the one which is regarded “more democratic”, if it disagrees, will always be
able to respond. If another institution is really “more democratic”, it will hardly be
defeated for too long.37
Last word, therefore, occupies part of the picture. But then, what else matters?
What is the consequence of stating the obvious – its unavoidable provisionality?
There are, I contend, relevant cognitive gains. The main one is to enable us to
perceive the various temporal scales of democracy and its sense of continuity.
Another one leads to a recommendation of institutional design: in separation of
powers, there is no monopoly of decisions upon rights and policies situated in one
single institution. This would be a counter-productive and misleading prism. The way
these poles interact and, together, gradually construct stable legal solutions has a more
promising potential for my investigation.

4. Political reactivity, prudential accommodations and fluctuations of legitimacy

If, on the one hand, the myth of judicial neutrality has already been debunked
by different schools of thought, the one of judicial independence survives and
continues to be largely ignored by normative theory (both by those who celebrate it
and by those who lament it and attack its democratic deficit). Many accept that the
judge decides according to political and ideological convictions. Dworkin, for
example, builds the theory of the moral reading of the constitution and of law as
integrity on the basis of this premise. They do neither take notice nor accept that
judicial behaviour is determined, to some extent, by external political constraints. In
other words: if the procedural apparatus that surrounds the court guarantees its
independence from electoral politics, the judge is constrained, for the more optimistic,
only by law, and, for others, not even by law.
Three hypotheses defended by empirical political science about judicial
behaviour break down this second myth. I will not delve into the detailed variations of
the several analytical models. But these are the common denominators: (i) the court is
politically sensible and tests, uninterruptedly, the space that it can occupy in the
separation of powers by estimating the potential reaction of the other branches against
its decisions and of its capacity to resist; (ii) the separation of powers is a dynamic
phenomenon, and an abstract legal norm is not able to describe and capture this
constant redistribution of boundaries; (iii) in conjunction to this interaction, the very
legitimacy of each participant of the game oscillates, and this oscillation is
responsible for the greater or lesser space that each branch will occupy in the overall
arrangement.
Political reactivity, prudential accommodations and fluctuations of legitimacy
are phenomena architected by the Federalists38 and demonstrated by empirical
researches.39 Branches use prudence to test where and how far they can go. It is a
37
This empirical insight was aired by Robert Dahl (“Decision-making in a Democracy: The Supreme
Court as a National Policy-Maker”, (1957) 6 Journal of Public Law, 284), but can be traced back to the
Federalists (see Bernard Manin, “Checks, balances and boundaries”, in B. Fontana, The invention of
the modern republic (Cambridge University Press, 1994) 61).
38
See Federalist Papers n. 47-51, where Madison described his theory of inter-branch interaction.
39
In different strains described in the last article. See Mendes, supra, n 2.

11
judgment of occasion and intensity. The radiography of the separation of powers is
different in each point in time. One does not successfully participate of this game
without the qualities and skills, in Bickel’s words, of a “political animal”.
The constitutional court is enmeshed in the heat of politics and far from the
cherished image of the ivory tower. Even if interpretive methods do not constrain
judges to the extent that some expected, (formal and informal) politics do. Judges
sense the degree of acceptability of their decisions, and are subject to diffuse and
direct pressures. Some historical examples might illustrate this idea. Rather than
extracting these examples from the political science literature, a collection of articles
that has tried to compare different traditions of constitutional interpretation provides
telling evidence of the persistent myopia of legal theory.40 The insufficiency and
unsuitability of legal categories to explain phenomena of greater or lesser judicial
activism becomes evident in that book. The articles classify the court’s method as
“formalist” or “positivist” when it takes restrained decisions, and as “teleological”,
“sociological”, “structuralist” etc. when it steps in with more audacious ones. They do
not articulate political reasons to explain why courts have shifted from one to the
other pole of the spectrum, despite, curiously, narrating the political facts behind these
shifts.41 They do not verbalize such plausible causal links, but allow the reader to
speculate and intuit upon it. Let me turn to the examples.
The (post-war) German and (post-apartheid) South-African constitutions and
respective constitutional courts were born with a common characteristic: in an
environment of deep distrust against electoral political bodies, they signalled a rupture
with an authoritarian past and pointed to a program of extensive social transformation.
Both constitutional courts are deemed to have played a central role in the protection
of rights.42 The Indian Supreme Court also brings an even clearer example of the
connection between the interpretive choice and the political atmosphere. Since the
country’s independence, and still embedded in the British culture of parliamentary
sovereignty, the court occupied a timid space. In the 70’s, however, this scenario was
inverted as Indira Ghandi’s authoritarian government undermined the reputation of
the representative bodies. It created the opportune political vacuum for the court to
reconstruct its image from a conservative and elitist body to a relevant agent in the
protection of rights. The extremely interventionist decision that overruled a
constitutional amendment on the basis of the “basic structure” doctrine dates back to
this period. The three aforementioned courts, in the heydays of activism, did not face
any objection as to their legitimacy.
The Australian case gives us the opposite example. The extremely “legalist”
and self-restrained posture of the court is, according to the book, the only way the
court can maintain a minimum of “independence”.43 In the only moment in which the
court rehearsed a modicum of “creativity” – the construction of an implicit bill of
rights, which is absent from Australian constitution – multiple attacks from a variety
of sides lead it to abandon the plan and resume its limited place. Finally, the history of
American Supreme Court provides prolific examples to illustrate the political factors
that have driven these judicial systoles and diastoles. These pendulous oscillations
were explained as a tradition of “interpretive eclecticism”.

40
J Goldsworhty (ed.), Interpreting Constitutions (Oxford University Press, 2006).
41
Mark Tushnet, when talking about the American Supreme Court, raises the sceptic hypothesis: “none
of the methods imposes a sufficiently powerful constraint in the mere policy preferences of
interpreters” (“The United States: Eclecticism in the Service of Pragmatism”, in J Goldsworthy,
Interpreting Constitutions (Oxford University Press, 2006) 51).
42
See Goldsworthy, supra, n 40, 320 and 339.
43
See Goldsworthy, supra, n 40, 145.

12
 The unformulated explanatory hypothesis is that each court has tested its
legitimacy and calibrated the degree of intervention according to the social
expectation about its role, or to the compliance it is able to assure. This hypothesis
does not go as far as saying that the legitimacy for the court to be activist is inversely
proportional to the legitimacy of parliament, as if there were a linear causation, as if
parliament were the dominating pole to permit larger or smaller space for the court. It
shows, though, that there are more variables in play than normative theory has usually
tended to suggest. In all these cases, interpretive methods seem to have been used as
rationalizations of political choices, not their primary determinants.
These modulations according to the circumstances are compatible with the
origins of the idea of checks and balances, but cannot be squared with a theory of
adjudication that is tied to a static and pre-fixed functional partition. The operation of
the institutions within separation of powers is dynamic and mutable. They negotiate,
step by step, the confines of their power. They blend moves of activism and restraint.
It is mainly an informal (and non-formalizable) process of contingent
accommodations dictated by politics rather than by a hermeneutic textbook. It does
not mean that “politics”, as I use it here, is not sensitive to “good reasons”, which I
will consider in the second part of the current article.
The constitution, as a written rule, is a roadmap that cannot strictly regulate
the separation of powers. The latter cannot escape the fluxes and refluxes, the
exercises of trial and error through which, in gradual approximations, each branch
demarcates its own terrain. They achieve periodical equilibria, always subject to
recalibrations. It is not possible to constitutionally regulate the moment that one, and
not the other institution, will have greater legitimacy to take grand decisions.
This article, thus, shares a theory of the separation of powers that, in the field
of fundamental rights, proposes flowing rather than static functions. This goes in line
with what a certain literature of political science contends about judicial behaviour.44
The functions vary behind the fixed terms of the constitution. Such a game, however,
is not independent from the social repercussion of their decisions. Public opinion is
responsible for fluctuations of legitimacy. Institutions construct diffuse political
capital and manage it in more or less popular decisions. Its range of action, moreover,
is not defined en bloc. It varies topic by topic, according to the political voltage of the
conflict.45
A constitutional court may well commit mistakes, even gross ones. Whatever
the criterion to assess such mistakes, it is not historically plausible, though, to say that
it can continuously decide detached from a concern with maintaining its prestige and
respectability from which the legitimacy and efficacy of its decisions spring. It simply

44
Matthew Taylor, for example, defends the idea of judicial independence in line with this proposition:
“The model illustrates why judicial independence is not binary, is strongly influenced by political
conditions, cannot be completely defined by rigidly formal ‘parchment’ protections alone, and may
vary considerably across both time and policy arenas, even within the same political system” (“Curbing
the Courts: Latin American Lessons on Curtailing Judicial Independence”, (2009) Paper presented at
the 2009 Meetings of the American Political Science Association, Toronto, Canada, 3). On the formal
and informal constraints that are faced by the court, he claimed: “any conception of independence must
take them into account, alongside political preferences and less formal factors, such as legitimacy and
long-term processes of institutional development. Because judicial independence is the result of the
interplay between court preferences and the preferences of other branches of government, it is a
dynamic space whose range may vary considerably, even within the same political system.
Independence is thus an unstable and highly variant concept, resulting from recurring interactions that
play out across both time and across different policy arenas” (Ibid, p. 5). And he concluded: “First,
judicial independence cannot be considered in isolation from the interaction between courts and the
conventionally political (and sometimes elected) branches” (Ibid, p. 28).
45
Or the cases of “low salience” e “high salience”, according to Friedman, supra, n 18.

13
cannot sustain its authority over time if it adopts an unacceptable posture within a
certain political culture.
The degree of resistance of the provisional last word, as stated in the last topic,
is also subject to such variations. If all this is true, the challenge of normative theory
is to avoid tying institutions into a rigid scheme of separation of powers (or of
hermeneutic methods), but rather to assure that the guiding principle of such
oscillations be permeable to good arguments. The next part will develop a clearer
theory of legitimacy under this prism of dialogue. The following topic will first
synthesize the steps pursued so far.

5. Some preliminary conclusions

Up to this point, I tried to understand one of the possible meanings of the

separation of powers for constitutional democracy. Apart from its moderating virtue,
which is the traditional justification for this arrangement, its grammar relativizes the
last word, wherever it is formally placed. Perhaps this second virtue is simply a
translation of the first. It is relevant, however, to make it explicit, so that the debate is
not led to a persistent obsession with last word. It is necessary to envision the apex of
the decisional process together with the fact that the political struggle is doomed to
keep on going, and that new acts may be able to challenge the supremacy, according
to certain contexts, of whatever institution. It means that, to some extent, the
extensive list of pros and cons, both for parliaments and courts, outlined in the first
article, can coexist. The two stylized scenarios do not mutually eliminate
themselves.46 There needs to be no winner. Something is lost in that self-excluding
picture. Instead, one can balance such information in a cost-benefit analysis in order
to design a procedural round. This is all that the constitutional architect can do. To
define the place of the provisional last word is a pragmatic choice, among others that
are as consequential.
The form of the separation of powers, thus, allows for the multiplication of the
times of politics. Nadia Urbinati highlighted a similar angle in her theory of
representation, and to borrow her argument might be elucidating. She justifies
representation as a mechanism that enables politics to supersede the dimension of the
immediate will, and therefore opening itself to the practice of judgment and
deliberation. Against a voluntaristic and unidimensional conception of sovereignty,
representation lets people’s opinion, and not only their votes, impact politics. The
political presence ceases to have a merely physical aspect, and realizes itself also
through the voice.
For her, the difference between direct and representative democracy would be
related, first of all, to the “unitemporal” character of the former, as opposed to the
“multitemporality” of the latter.47 Representation would have a special capacity to
articulate different “temporal political layers”, and to stabilize the permanent process
of overruling that characterizes democracy.48 This would be a solution for the
“immediacy” or the “destabilizing force of presentism”. It would create a “mediated

46
As I argued in the first piece of this essay. See Mendes, supra, n 1.
47
“Whereas immediacy and physical presence are the requirements of nonrepresentative democratic
government, multitemporality and presence through voice and ideas are requirements of representative
democratic government. In the former, the will devours politics in a series of discrete and absolute acts
of decision. In the latter, politics is an uninterrupted narrative of proposals and projects that unifies the
citizens and requires them to communicate in a given normative space and over time” (See N Urbinati,
Representative Democracy (Chicago University Press, 2008) 225).
48
See Urbinati, supra, n 47, 225.

14
sovereignty”, a continuum that holds together the short-term electoral politics (the
politics of yes or no, hostage of “short-termism”) and the long run electoral cycles.49
On top of that, it would stimulate a productive circulation of ideas between the formal
and informal spheres of politics.
This article has so far tried to single out, within the separation of powers, the
virtue that Urbinati envisions in representation. In the same way that representation is
a circulatory mechanism between state institutions and social practices,50 separation
of powers is a tool that absorbs this circulation into the state itself. To dynamize the
political temporal scales, nevertheless, is not an end in itself for Urbinati. Its
beneficial effect is to permit deliberation to flourish, to stimulate that political
decisions, apart from always being subject to revision, also benefit from the
argumentative exchange. Representation, therefore, would help us in two respects:
“from a theoretical point of view, it illuminates the place and role of judgment in
politics; from a phenomenological point of view, it changes the perspective of time
and space in politics. Representation’s mediated character highlights the temporal
dimension of politics, an aspect that is essential to democracy, yet one that has not
been sufficiently studied”.51 It is this double-face of representation (time and
deliberation), adapted to the separation of powers, that directs the diverse tasks of this
article.
In this first part, I presented the inevitability of some sort of dialogue, of its
gross manifestation by the mere inter-branch interaction, without much normative
demand. Sooner or later, there will always be responses, more or less frontal, more or
less costly, more or less resistant. “Dialogue”, in this weak sense of sheer interaction,
may be, indeed, a misleading word. Regardless of the most appropriate term, what I
want to convey is the fact that branches interact uninterruptedly, even after the
enunciation of a provisional last word. Institutional choices cannot ignore both axes
(the finitude of a procedural round and the permanently possible continuity of
political mobilization).
The temporal dynamics of the separation of powers is the model of the
Federalists in its pure state, and brings some elements to understand the phenomenon
of legitimacy. The next part conceives of a more ambitious model of dialogue,
consciously conducted by the parties involved. It investigates the possibilities of
exploring the separation of powers not only through its form, but also by the potential
qualities of its outcomes. There, separation of powers is not qualified by the temporal
adjectives like “permanent”, “continuous”, “gradual” or “provisional”, but rather by
adjectives indicating substantive moral qualities, like “correct”, “reasonable”,
“desirable” or “justifiable”.

C. DELIBERATIVE PERFORMANCE AS A METRIC OF INTERACTION

Is there dialogue or last word? Through the concepts of “procedural round”

and “provisional last word”, I tried to find an intermediary and conciliatory way out
of the dilemma. If the perception of “dialogue”, in its weak sense, is important, which
dialogue is most desirable in a democracy? To answer this question, I turn to conceive
of two “models of dialogue” that vary according to the “deliberative performance” of
each institution. I argue that the deliberative interaction between branches has an
epistemic potential, a greater likelihood of reaching good answers over time. This

49
See Urbinati, supra, n 47, 197.
50
See Urbinati, supra, n 47, 223.
51
See Urbinati, supra, n 47, 225.

15
would be an additional reason to embark on the project of judicial review and, at the
same time, a condition of its legitimacy.
Theories about the role of deliberation in democracy do not usually dedicate
too much attention to the separation of powers, and vice-versa.52 This would be a
counter-intuitive relation: branches do not deliberate among themselves, but rather
control each other.53 Curiously, though, institutions display reasons for their
decisions, in distinct manners. The question of whether these reasons should be taken
into account in the reactions of the other branches appears to be a thought-provoking
and under-explored one.
Jeffrey Tullis noted this peculiarity. He places the idea of deliberation into the
centre of the theory of the separation of powers, a theory that is founded on the
“premise that no specific democratic institution is enough to assure a consideration of
all relevant concerns for the maintenance of democracy”.54 According to this author,
separation of powers prompts a tension between different sorts of values (popular
will, the language of rights, the pressure for efficiency etc.) and gives voice to
different perspectives. This deliberative tension among institutions that compete can
be functional in the crafting of collective decisions.55
I propose a criterion of legitimacy that situates deliberation as a dominant
variable, from where one can derive a metric of institutional interaction – deliberative
performance. I defend that parliaments and courts have legitimacy to be activist to the
extent that they engage in dialogue. They can choose to defer, to wait or, in the face
of a good new argument, to challenge the other branch. Elsewhere, I characterized
judicial review as, first of all, a temporary veto, and, marginally, as a tool for
sophisticating inter-institutional conversation.56 Here, I want to probe the underlying
value of this interaction, the shift from a defensive theory of the separation of powers
into one that includes deliberative burdens.
Again, I will not get down to the details of institutional design or to specify
which would be the best formal incentives to prompt the posture that I value. I only
assume that separation of powers, generally speaking, carries a virtuous principle to
52
Jeffrey Tulis diagnoses this detachment between separation of powers and deliberation in political
theory: “Just as students of deliberation have overlooked separation of powers, students of the
American separation of powers tend not to talk about deliberation” (“Deliberation Between
Institutions”, in P Laslett and J Fishkin, Debating Deliberative Democracy (Blackwell, 2003) 208).
53
To imagine deliberation between institutions can spark suspicions related to the possible assumption
of the existence of an “institutional voice”: How to talk about dialogue between different institutions if
institutions are groups of people with conflicting opinions, if there is not something like “one voice”,
“original intent”, “mens legislatoris”? In what sense can we conceive of a supra-individual agent who
speaks, who has an opinion, who argues? How can institutions talk among themselves? Legal theory
offers solutions to manage this problem, possibly connected to the idea of “rational reconstruction”.
How, exactly, these two institutions may deliberate and talk with one institutional voice is a further
step of this theoretical project.
54
See Tulis, supra, n 52, 203.
55
The author points out two other important characteristics of this type of deliberation. First,
deliberation between institutions does not necessarily occur in face-to-face fashion, but, and more
often, by the exchange of texts: “I think this idea, and this phenomenon, may have been overlooked
because deliberation between institutions need not (though it sometimes does) involve a face to face
encounter of persons. In the place of a face to face encounter (or sometimes accompanying one) are
texts exchanged by institutions. In the construction and exchange of texts institutions address the
merits of public policy and the best of these exchanges manifest the most important attribute of
deliberation: reciprocal respect for, and responsiveness to, opposing arguments regarding the issue
addressed” (Ibid, p. 202). Secondly, institutional design, alone, and without requiring the presence of a
virtuous citizen, can stimulate good reasons come to light. Good reasons may surface in the whirlwind
of political competition: “Considerable effort has been expended to define and describe the range of
considerations and the kinds of arguments appropriate for democratic deliberation, but there is little
discussion of institutional mechanisms to maximize the likelihood that relevant arguments, or relevant
perspectives, will actually be advanced” (See Tulis, supra, n 52, 210).
56
See C Mendes, Controle de Constitucionalidade e Democracia (Elsevier, São Paulo, 2008).

16
turn politics sensitive to good reasons. Even if the procedural arrangement is an
indispensable part for the creation of better deliberative conditions, this article does
restrict itself to specify a benchmark of legitimacy that values this ideal of interaction.
I develop it in the next four topics. In the next one, I grapple with the old
tension between the two classic variables of legitimacy – form and substance. Then, I
deal with the concept of deliberative performance and with how it provides a useful
measure to reflect upon the legitimacy of each institution contextually (ex post). In the
third topic, I rescue the ideas of active and passive virtues to show how, having in
mind the inevitable fluctuations of legitimacy that spring from the separation of
powers, the court needs to modulate activism and deference in a prudent way. Finally,
I conceive of some ideal-types of dialogue and their respective epistemic potential
and end with some conclusive remarks.

1. The virtuous and irreducible tension between form and substance

The previous part left untouched the findings of political science about judicial
behaviour, and did not problematize its occasional normative implications. However,
some more attention to those intriguing claims is in order. To understand the
phenomenon as it really happens is central to enable us to think about its legitimacy
conditions. If this phenomenon is, at least to some extent, a given of the separation of
powers, rather than a choice from its participants, how to deal with it? If those
empirical information are true, what are the consequences for normative thought?
The recognition that judges are not exclusively tied to the norm clashes with
an ancient taboo. This malaise was attenuated by a new attempt of legal theory to
constrain the judge through demands of consistency, through requirements of, at least,
rational argumentation. Political science returns and denounce the nakedness of the
King: the constitutional judge is a political actor that reacts according to variables
other than the norm, reason or recommendations of normative theory. Friedman
seems to have answered to this problem by defending a new direction for normative
theory: it is not the judges that it should try to influence, but public opinion.57 The
judge would only be constrained by reasons to the extent that he feels the deliberative
expectation over him. The court will be legitimate, under these conditions, if it can
meet such expectation.
On top of that reactivity, political science also shows that the very functions of
each branch are, to some extent, flowing, specially in the defence of fundamental
rights. Contingent and unstable accommodations spring from interaction. These
chronic oscillations create difficulties for a rigid normative theory. If constitutional
democracy is a procedural arrangement determined ex ante, how to explain such
oscillations?
One intuitive way out, already hinted by Friedman, would claim that
institutions move according to the waves of public opinion. As they stray far from the
socially acceptable, they dilapidate their legitimacy and lose space in the separation of
powers game. Their credibility index would shrink. Perhaps this hypothesis explains,
but does not justify. If our purpose is to assess the legitimacy of such oscillations, the
explanation of causalities will not do. We should focus instead on the reasons that
ground the demand for obedience of the decisions that arise from this process. It is a
normative rather than empirical question.

57
See B Friedman, “The Politics of Judicial Review”, (2005) 84 Texas Law Review.

17
 Reformulated in normative terms, we can ask: is it possible to justify such
oscillations? I believe it is. If we agree that the variables of democratic legitimacy are
not exhausted by procedures, but comprise outcomes, it may be acceptable that
substance subordinates, in some circumstances, the procedure. In other words, there
may be good reasons for the institution that produced an outcome that is most
compatible with a substantive criterion of legitimacy to prevail regardless of its
pedigree (which would momentarily subvert the formal structure).
Actually, one needs to assume more than that. Waldron, for example, accepts
the thesis that democracy has substantive requirements apart from the procedural
ones. His claim is slightly different: since many or at least some will disagree about
such substance, one cannot ascribe the burden of the right answer to any institution.
All that a genuine democracy can do is to adopt a fair procedure, one that grants equal
value to every citizen. This authority must be pre-determined irrespective of what it
decides. It settles disagreements. In sum, Waldron claims for the purity of two
different dimensions that do not communicate: the theory of authority (who should
decide) and the theory of justice (what should be decided). Put differently, the fact
that democracy needs to attain substantive expectations does not have institutional
repercussions. It does not say anything about who should have more or less power.
Dworkin breaks this purity. For him, democracy is a “procedurally incomplete
scheme of government” because it cannot specify, infinitely, new procedures to assess
whether the pre-conditions of democracy were respected.58 Democracy should always
be subject to a consequentialist appraisal, case by case. The more or less acceptable
content of substantive decisions can reverberate in the power arrangement.
Notoriously opposed to that sort of stance, Waldron would probably say that, from the
point of view of authority, democracy is a “procedurally complete scheme of
government”.
The occurrence of fluctuations does not run against Dworkin’s thought.
Fluctuations would possibly be legitimate, for him, as long as they respect or even
promote the pre-conditions of democracy (in his case, the ideal of “partnership”, of
“equal concern and respect”). Rawls has a similar position. Fluctuations would be
compatible with his “liberal principle of legitimacy” provided that they are regulated
by the idiom of “public reason”. Such a reading of both authors might sound
somewhat eccentric and to dilute the relevant analytical distinction between legitimate
authority and legitimate decision, which are determined, respectively, ex ante and ex
post. In fact, Dworkin and Rawls do not exactly refer to “fluctuations”. They simply
accept that a non-majoritarian and non-representative mechanism interferes in the
decisional process, because democracy cannot be prescinded from an epistemic
pretension about principles, and must adopt procedures that maximize the likelihood
of good decisions. They provide, in addition, an independent moral criterion to judge
them. The judicial decision, for both, is not legitimate per se, but only to the extent
that it meets this criterion.
It is plausible to infer that, unless they have adopted a presumption of judicial
infallibility (which they have not, because they propose not more than a probabilistic
projection), legislative decisions will be more legitimate than the judicial if the
former, and not the latter, attains such moral standard (and vice-versa). They deny
parliaments a priori legitimacy for the mere majoritarian pedigree, but do not
passively accept any judicial activism. This is precisely what I understand as a
justification of fluctuation. It is not a matter of purely subordinating procedures to

58
See Dworkin, supra, n 5, 32.

18
substance, or to deny the duty to obey a legislative or judicial decision just because
one understands that they violate a moral parameter. The problems of such a position
are well known.59 I just claim that it is desirable that branches do challenge one
another (since, as we have already seen above, this is an ever present possibility over
time). And it is even more desirable that this mutual challenge is done by the
articulation of reasons. Authority is not dissolved here: decisions keep being
obligatory, even if we disagree with them. Democracy, however, benefits if a standard
of public reason stimulates a mutual challenge between branches. To know what is
the best moment for such a challenge is another question that will certainly demand a
prudential and balanced calculation, and I will return to that later.
I overloaded the two previous paragraphs with strong arguments without
sufficient mediations. Let me proceed at a lower pace. The interpretation of Rawls
sketched above is a framework for the rest of the article. I will better describe him
below, and then come back to Waldron’s reactions and uncover its limitations.
Rawls strives to construct a theory of legitimacy for pluralist societies. The
backdrop question of such an enterprise is usually phrased like that: which conditions
should I demand in order to obey a decision with which I do not agree? If we
disagree, and will keep disagreeing, how to live in the same community and to take
collective decisions that bind every member? To say that we should structure a
democratic procedure does not settle this anxiety: what should be inbuilt in this
procedure?
Political Liberalism is an attempt to find this answer. In this book, Rawls
draws a crucial distinction between a “comprehensive philosophical doctrine” and a
“political conception of justice”. The former presents a complete project about the
good life. The latter tries to find a common ground that is able to accommodate an
inexorable characteristic of democratic societies: the co-existence of incompatible yet
reasonable comprehensive doctrines, or, more shortly, the “fact of reasonable
pluralism”.60 Democratic culture, thanks to the “burdens of judgment”, is doomed to
provoke and to live with such diversity. How to aspire for a just and stable society of
free and equal individuals if its citizens adopt irreconcilable comprehensive
doctrines? How to justify coercion?
The only way is to find a public basis of justification for political actions, one
that is acceptable in the midst of pluralism. For Rawls, this society needs to be stable
for the right reasons, and not only rely on a modus vivendi derived from an
instrumental agreement of conformity. Citizens must share their community’s basic
structure.61
The difficulty of such a project is to elaborate an autonomous and self-
standing conception of justice, one that is purely political, that does not descend from
a comprehensive doctrine. Rawls pursues such a task by means of the liberal principle
of legitimacy. This principle comprises the idea of reciprocity as the criterion for the
valid exercise of power: coercion is appropriate only when the reasons that justify it
can be reasonably be accepted by any other citizen, irrespective of his or her
comprehensive convictions. This is the shape of “public reason”. If, by discussing
fundamental policies, we do not invoke such special category of argument, but rather

59
I refer to formal the values of the rule of law, like decisiveness, certainty and predictability. See F
Schauer and L Alexander, “On Extrajudicial Constitutional Interpretation”, (1997) 110, 7 Harvard Law
Review.
60
See J Rawls, Political Liberalism (Columbia University Press, 2005) xvi.
61
See Rawls, supra, n 60, xxxviii and 218.

19
a comprehensive doctrine, we violate our “duty of civility” (through which we build
bonds of “civic friendship”).62
Public reasons, therefore, impose a limit. Despite the availability of many
sorts of reasons to justify collective decisions, only one that does not depend upon a
comprehensive doctrine will be legitimate. The argument is yet more specific: the
limit of public reason does not necessarily apply, even if desirable, to each and every
issue of the public agenda, but at least to the constitutional essentials and to the
questions of basic justice.63 When these questions are at stake and the debate is
running on a public forum, public reason provides the necessary frame to discipline
communication.64 One should not go beyond it and try to impose the “complete truth”
(since there is no possible agreement about such deep truth).65
If a constitution contains the essential elements of political liberalism and,
additionally, manages to spark a culture of public reason, political relations reach a
democratic pattern, which can never be grounded on pure force.66 Political actions
will be legitimate to the extent that they can be translated into that language.
Therefore, a central task of political institutions is to stimulate public deliberation.
This is roughly how Rawls answers that initial question. Public reason is a standard of
moral argumentation that should regulate political deliberation. Nevertheless, it is not
confounded with such deliberation itself and, therefore, remains as an independent
criterion to judge the legitimacy of such decisions.
It is relevant to recall how Rawls considers the role of the Supreme Court
within this arrangement. For him, the Supreme Court is an exemplar of public reason
and plays relevant institutional roles in implementing the principles of
constitutionalism.67 Three tasks are ascribed to the court. First, it uses public reason to
avoid that transient wills fracture the constitutional structure.68 It can, however, play
other roles that go beyond such traditional defensive function. Because it is the only
institution that decides exclusively and necessarily on the basis of that kind of reason,
it performs an educational task. If public reason is a necessary language of
democracy, at least as far as its constitutional essentials are concerned, the court gives
a stark contribution by not letting this moral code disappear from the public agenda.
The court supplies “vivacity and vitality” to the subsistence of public reason.69

62
See Rawls, supra, n 60, xxxviii and 253.
63
On the distinction between “constitutional essentials” and “questions of basic justice”, see Rawls,
See Rawls, supra, n 60, 228-229. Frank Michelman thoroughly explains why, for Rawls, judicial
review should be limited to “constitutional essentials” (“Justice as Fairness, Legitimacy and the
Question of Judicial Review”, (2004) 72 Fordham Law Review 1407).
64
See Rawls, supra, n 60, 214.
65
Rawls refines this idea through the conceptions of inclusive and exclusive public reason (See Rawls,
supra, n 60, 247).
66
There are two types of constitutional essentials: the general principles that structure the political
process and the basic liberties that should be respected by majorities (See Rawls, supra, n 60, 227).
67
See Rawls, supra, n 60, 231.
68
“By applying public reason the court is to prevent that law from being eroded by the legislation of
transient majorities (…)” (See Rawls, supra, n 60, 233). It is interesting to note that Rawls is aware of
the court’s limitations in the long run: “Now admittedly, in the long run a strong majority of the
electorate can eventually make the constitution conform to its political will. This is simply a fact about
political power as such. There is no way around this fact, not even by entrenchment clauses that try to
fix permanently the basic democratic guarantees. No institutional procedure exists that cannot be
abused or distorted (…)” (Ibid, 233). In another passage, he shows how the court is constrained by the
“people acting constitutionally”: “The constitution is not what the Court says it is. Rather, it is what the
people acting constitutionally through the other branches eventually allow the Court to say it is. A
particular understanding of the constitution may be mandated to the Court by amendments, or by a
wide and continuing political majority (…)” (Ibid, 237).
69
See Rawls, supra, n 60, 236-237.

20
Citizens benefit from such judicial practice by learning a particular mode of
discussing the constitutional essentials.70
Waldron finds serious problems in such a defence of judicial review. He does
not understand how Rawls, in admitting the existence of several incompatible yet
reasonable comprehensive doctrines, does not take seriously the possibility that, at the
level of political justice, the same magnitude of disagreement might well emerge.
Public reason, for Rawls, would be potent enough to dissolve disagreements about
essential questions of justice.71 For Waldron, however, in the “circumstances of
politics”, there is disagreement all the way down, and public reason does not mitigate
that problem. Pluralism of comprehensive doctrines would not be the only type of
pluralism in democratic societies. There is also, accordingly, pluralism about justice.72
Rawls would thus be incoherent.73
Rawls’s solution for institutional design is also, for similar reasons, a target of
Waldron. Rawls, despite recognizing the fact of “imperfect procedural justice”, does
not renounce a probabilistic judgment in the construction of institutions: the greater
the probability that their decisions on constitutional essentials will be correct, the
stronger their legitimacy. Accordingly, it is up for the constitutions to maximize the
possibilities of a good decision.74 Justice constrains procedure, and institutions should
be designed with an eye on the substantive results that they tend to create. In this vein,
as noted by Waldron, Rawls would require that the disagreement about justice be
minimally settled before institutions are constructed (after all, one needs to know
what is the “right answer” that such institution is more likely to get at). And Waldron
reacts: “How, though, can citizens agree on issues of constitutional choice if they
disagree about the telos of such choice?”75 For him, in order to maintain a peaceful
politics despite reasonable disagreement about substance, one can only hope that
people agree about some decisional procedure. And we cannot reach such agreement
if we think about procedures “in the shadow of [our] substantive convictions”, as
Rawls would do.76 I earlier called Waldron’s formal solution for democracy as
“procedurally complete scheme of government”. To accuse Waldron of subordinating
justice to procedure would, as he himself points out, beg the question, once we
perceive that there is no safe standpoint, immune from disagreement, from where we
can judge the outcomes of decisional routes. The logical space that our substantive

70
It is important to mention that Rawls does not advance a positive case for judicial review, as if other
arrangements would be necessarily inferior to this. He asserts that the Supreme Court is one possible
example of how the public reason may function within institutions. Despite that caveat, it is still
curious for him to contend that, when in doubt about whether we are actually using public reason, we
should imagine a court deciding. (See Rawls, supra, n 60, 254).
71
See Rawls, supra, n 60, 226.
72
J Waldron, Law and Disagreement (Oxford University Press, 2001) 158.
73
“This leaves us with the rather uncongenial conclusion that there is no such thing as reasonable
disagreement in politics. (…) In the world we know, people definitely disagree – and disagree radically
– about justice. Moreover, their disagreement is not just about details but about fundamentals”
(Waldron, supra, n 72, 152-153).
74
“The second problem, then, is to select from among the procedural arrangements that are both just
and feasible those which are most likely to lead to a just and effective legal order” (Theory of Justice,
p. 198). “The fundamental criterion for judging any procedure is the justice of its likely results. (…)
Everything depends on the probable justice of the outcome. (…) I mention these familiar points about
majority rule only to emphasize that the test of constitutional arrangements is always the overall
balance of justice” (Waldron, supra, n 72, 230-231).
75
See Waldron, supra, n 72, 157.
76
“To imagine that deliberative politics (or any form of peaceful politics) is possible is to imagine that
people can agree on some of these procedural points even though they disagree on the merits of the
issues that the procedures are, so to speak, designed to house. It is to imagine, in other words, that the
procedural issues and the substantive issues are in some sense separable” (Waldron, supra, n 72, 160).

21
visions occupy must, therefore, be limited and not interfere with our institutional
choices.77
Waldron, nonetheless, by taking disagreement to its ultimate consequences,
falls into his own trap.78 If we disagree that much, why should we agree on the
specific procedure that he embraces? If disagreements are so deep, why should we
prefer his and not others’ solutions? He would perhaps say that the advantage of his
solution is to resort to a procedure that does not create expectations on the outcomes,
that simply respects each one’s equal voice. But what if there is no agreement about
that either? If, as many have argued, the representative majority-rule does not
necessarily give each one “equal voice”, why trust this procedure at all?
Many authors have already pointed to this gap in Waldron’s argumentative
structure. Estlund, in a nuanced criticism, demonstrates that, if Waldron adopts a
liberal conception of political legitimacy (namely, that authority must be justifiable to
each individual subject to it), there is no way of assuming a premise of deep
disagreement, under the pains of falling into the trap of philosophical anarchism,
according to which there is no legitimate political authority. In other words, if one
intends to justify authority on the basis of a liberal principle, one cannot contend that
every disagreement about legitimacy is reasonable.79 There is no way out of the
burden to draw the line between the reasonable and the unreasonable at some point of
the argumentative chain (and Waldron himself does that by adopting a mode of moral
reasoning that is similar to Rawls’ public reason). If a legitimate regime needs to be
justifiable to all, it must rely on a minimal shared agreement.
Several ramifications of the debate remain untouched. I simply want to shed
light on the ways to rescue Rawls’s (and also Dworkin’s) arguments in the face of
Waldron’s challenge, and to adhere to the idea of public reason as the appropriate
substantive criterion to justify the inherent oscillations of the separation of powers.
Back to the point of departure: if separation of powers stimulates a political
game that produces flowing functions, what can we aspire for? Is it plausible to
expect that such accommodations are influenced by a culture of deliberation rather
than by a distribution of forces? By persuasion rather than by capitulation, self-
defence and strategies of survival?
The court plays a relevant role in the institutional effort to turn good argument
into a weighty variable in democratic competition. A consideration of the tension
between form and substance helps clarifying this point. Waldron tries to suppress this
tension in the setting up of institutions. For him, when we discuss democratic
authority, it is procedures, and nothing else, that we should address. As a result of
such normative drive, we end up with a regime of parliamentary sovereignty (for
supposedly being more justifiable under purely procedural reasons). Even if we can
discuss the justice of legislative decisions, the legislative authority cannot be

77
Waldron, supra, n 72, 160.
78
As stated by Wil Waluchow: “In Jeremy’s case, everything in politics is subject to reasonable
disagreement, and nothing, as a result, can be established which meets the no-reasonable-disagreement
criterion, the standard which Waldron has set for himself and others, and which cannot possibly be
met. In short, Jeremy’s theory falls victim to his own standard of acceptable argument and institutional
design” (“Constitutions as Living Trees”, (2005) 18 Canadian Journal of Law and Jurisprudence 49).
“As a result, Waldron has given us no convincing reason to prefer his solution to the circumstances of
politics over those offered by Advocates like Rawls, Dworkin and Freeman” (Ibid, 45).
79
As David Estlund argues: (…) “that if reasonable disagreement is as deep as he says it is, then there
is no political arrangement that is either obligatory for all citizens, or even permissibly implemented
and enforced” (“Jeremy Waldron on Law and Disagreement”, (2000) 99 Philosophical Studies, 118).
“If, as it appears, Waldron accepts the No Reasonable Objection view of legitimacy, then consistency
requires that he reject either Deep Disagreement or any positive account of legitimacy such as Fair
Proceduralism” (Ibid, 114).

22
questioned on the basis of substantive arguments (which, at most, can help to
convince such institution, by the regular procedures, to change its mind later). After
all, we disagree and need a common forum to settle our differences.
Another way out would be to suppress the tension, but towards the other
direction. If democracy needs right decisions upon matters of principle, which is a
condition for its own survival, we should ascribe this mission to judicial review. The
problem, again, is that this answer commits another sin: presumes that the court is
infallible.
The third escape route, even if conscious of the general institutional fallibility,
insists on a probabilistic alternative. We would need institutions that at least have
greater likelihood of reaching the right (or better) answer on matters of justice (or in
the “constitutional essentials”). This is Rawls’ proposal, as we have seen. My thesis
gets close to it, but with some qualifications.
If form and substance are both necessary components of legitimacy, the
institutional arrangement reinvigorates itself when it incorporates this tension. In a
context of pure parliamentary supremacy, in Westminster’s fashion, demands of
substance do not disappear, for sure. Nevertheless, by domesticating the tension at the
institutional level and opting for a justification of authority that is grounded
exclusively on parliament’s formal pedigree, one dimension of politics gets obscured.
It remains there, but weakened and shrouded. The critical and deliberative potential of
the separation of powers gets intoxicated by a message that parliament occupies the
top of the hierarchical scale and cannot be institutionally challenged, whatever the
quality of its decisions. This anesthesia makes it difficult for substantive criticisms
against legislative decisions to get institutional expression, except through the
parliamentary channels themselves. The test of legitimacy becomes diffuse and extra-
institutional. The resistance against decisions that more clearly violate public reason
has lesser channels to be voiced. Judicial review of legislation, on the other hand,
generates the sense of an external limit, and in fact represents a counterbalance
inserted in the very heart of the power arrangements. This is what one risks losing
without judicial review (considering that the court performs this task satisfactorily).
And what does one gain with it? For Rawls, the court can give public reason
greater vitality, can foment a type of moral reasoning that democracy should not
discourage. Without judicial review, rights run the risk of being diluted as one reason
among others, without any special dignity. Of course that a vigorous political culture
can, occasionally, take rights seriously in the heat of parliamentary debate. When we
are planning institutions, however, we stand on the terrain of probabilities, of
exercises of trial and error. It does not seem insensible to adopt an arrangement that
has as its principal mission the protection of rights, and is authorized to be
predominantly monoglot: it will be ignored if it does not justify its decisions on the
basis of a language of principles. This position is not derived from the force of logic,
but, in Michelman’s expression, as an act of “liberal prudence”, a strategy to
institutionalize certain political morality in a more efficacious manner.
In a Westminster-type model, one does not discuss who should decide. This
question is solved in advance. In a model with judicial review, in turn, the debate
about restrictions on parliament is kept alive in the ordinary political agenda.
Parliament gains the additional burden to demonstrate that it respected the pre-
conditions of democracy. The existence of judicial review, thus, stimulates a virtuous
tension of form and substance. I do not need to suppose that the legislator is more
inclined to commit mistakes and that the court is closer to obtain right decisions, not
even that the legitimacy of parliaments is exclusively tied to form whereas the

23
legitimacy of courts is attached to substance (despite the plausibility of each of these
affinities), to envision the value of this continuing circularity.80
There is one more important caveat. We are not in front of a binary crossroad
between courts and parliaments. The perspective of dialogue, by making relative the
idea of last word, shows that the alternative to parliament’s supremacy is not
necessarily the pure supremacy of court, but a more complex interactive game
instead. The inexistence of judicial review, on the other hand, stimulates a culture of
parliament’s sovereignty that, in its simplicity, lacks resources for defending itself
from the well-known vulnerabilities of the parliamentary mode of decision-making.
Democracy cannot abdicate of a consequentialist judgment in order to certify
the legitimacy of its institutions. Democratic legitimacy should not be limited to a
formal ex ante criterion and cannot be exhausted in pure institutional engineering.
Bentham’s solution to the conflict between law and moral is elucidative: “Obey
punctually, censor freely”.81 He also admitted, however, the escape valve of resistance
in cases of excessively unjust political decisions. What is being discussed here is
exactly the possibility of an institutionalized censor of the substance of collective
decisions. But I guess, with Rawls, that the function of judicial review still goes
beyond that. It is not only defensive, as we shall see below.

2. Contextual and comparative legitimacy: deliberative performance

Let us recollect. We saw that democracy, or collective self-rule, is not

monolithically translatable into one decisional process or into one single institution,
irrespective of the outcomes that this regime produces. Outcomes matter, as much as
procedures, for a regime to call itself democracy. I also indicated how the interaction
between court and parliament generates a virtuous tension between both dimensions.
Such an arrangement allows that the test of substantive legitimacy is not restricted to
diffuse social censorship, but rather becomes an endogenous mechanism of control.
No doubt this whole paraphernalia is subject to failure. One cannot say, though, that
the institutional effort is not valid because of this. This effort turns constitutional
deliberation, the one conducted in terms of public reasons, more likely to occur. But
then, how should the branches behave? And who should have the provisional last
word?
Notwithstanding the fact that the place of provisional last word needs to be
institutionally located, from another perspective, this is a mere detail. To know who
should prevail is a contingent question, deprived of a principled, general and abstract
answer. The value of a continuous process of political will-formation should not be
obfuscated by that discussion. The court, if it has this power, is not an assurance of
right decisions, and cannot be perceived as such. It is a mechanism that tries to avoid
the cooling down and the marginalization of the language of rights, the indifference to
and omission of certain reasons regarded as fundamental in the legitimation of
politics. It seeks to nourish a public culture of greater deliberative density. It will be
legitimate as long as it fulfils its role. There are risks, of course. To remain with the
main ones: on the judicial side, the hermetic legalism, the rhetorical imperialism, the
conservative socio-economic background of judges, the arrogance of the entrenched
and monopolist guardian; on the other side, the legislative passivity, deference and

80
Even if we could say that there is also a deliberative tension and “circularity” within parliament, and
also between different legislatures over time, I am here stressing the virtue of this particular inter-
institutional tension, apart from the intra-institutional one.
81
“Obey punctually, censor freely” (quoted by Hart, supra, n 24).

24
complacency. I submit that an alternative to reduce such risks is to develop a stronger
demand for dialogue that, once impregnated in the decisional practice of all branches,
adds an exponential gain to this design. In such an ideal model, there is neither an
entrenched guardian nor a deferent and timid legislator, but two branches engaged in
the exercise of persuasion. They diverge, but with mutual respect, without a
presumption of superior skills.
This is the competitive angle of the interaction, and “deliberative
performance” should be its generic metric.82 The interaction among institutions that
seek to maximize their respective deliberative performances is the best we can expect
from a democracy organized under the principle of the separation of powers. It
stimulates a competition for the better argument and instils rational vibration and
pressure for consistency to the regime. It fundamentally loads the tension between
form and substance at the core of such an arrangement.
It becomes possible, thus, to think on the legitimacy of parliaments and courts
in a contextual and comparative way, rather than in an abstract and a priori way.
Political legitimacy is a volatile institutional property, which partly depends of results,
partly of its formal credentials. It is a goal to be achieved and conserved in each
decision. To outline a scale of qualitative criteria that is able to measure performance
is a paramount task of democratic theory. “Deliberative performance” can be such a
regulatory principle of the oscillations between parliaments and courts, but needs to
be further fleshed out.
Parliaments and courts have different deliberative responsibilities and can
mutually challenge each other to be accountable to them. This is not done without
conflict, uncertainty and risk of mistake. They can be considered more or less
legitimate, according to this line of thought, depending on their respective
performance. Because it is a consequentialist criterion of legitimacy, it introduces
complexity into separation of powers.
To allocate the provisional last word, in advance, is an indispensable choice,
and cannot rely on anything but a probabilistic expectation of the right decision, as we
have already seen. The occasional “mistake” committed by the branch that detains
such last word, moreover, does not reduce the authority of such decision. It turns,
however, more legitimate the challenge made by the other branch. This is the price
paid when institutions do not take decisions with reasonable and transparent
justifications.
Empirically, the exact delimitation of the power of judicial review is not
defined a priori, but along the interaction. In other words, it depends as much of the
court’s as of the parliament’s decisions. Does it mean that there is no pre-fixed formal
arrangement? If this question refers to the jurisdictional details of each branch, yes.
The separation of powers has a flexible logic, and beyond an abstract division of
labour between legislation and adjudication, nothing is pre-fixed. This allotment is not
as clear-cut as it seems and will vary over time. The deliberative quality of this game
can legitimate such mutations, as long as public reason is the idiom uttered by the
institution that prevails in each moment.
This far, I claimed that the institution with better deliberative performance
outstands in the competition for the better argument and has legitimacy to challenge
the other (which is different from simply disobeying the other). Nevertheless, this
proposition seems simplistic and to raise innumerable practical problems. The most

82
It is certainly necessary to spell out the concept of deliberative performance of courts and
parliaments, but this task requires much further investigation. For the purposes of this article,
“deliberative performance” is still an abstract ideal.

25
obvious is: what if both utter public reason, make a clear effort of maximizing their
performances and, still, disagree?
One answer would be: in the end, the branch which has the prerogative of the
provisional last word, prevails. In a system of judicial review, the court. However, if,
in another temporal perspective, there is circularity, and if the defeated institution – in
this case, the parliament – will always be able to reignite a new round, wouldn’t it be
wise and desirable for the court to defer? At the extreme of sincere disagreement
engendered by public reason, would it be sustainable that the institution with better
formal pedigree should have a special trump?
This appears to be a cardinal question of any theory of dialogue. If the
provisional last word does not impede new procedural rounds, it means that the
stabilization of a certain collective theme would occur only by way of
accommodation between the two branches, accommodation which can be the result of
continuous argumentative negotiations in previous rounds. The judicial abdication
could perhaps be a plausible normative defence for these extreme factual situations.
The court would ascribe parliament the benefit of the doubt. Nevertheless, this
scenario is speculative rather than realistic. It is more likely that the branches will
progressively reduce their disagreement by making mutual concessions. It is a
political game, for sure, but nothing necessarily hinders the potential ability of
deliberation to influence the process.
In this topic, I framed the interaction between institutions as a contest for
legitimacy and decisional supremacy, and conceived a generic measure to assess these
flowing demarcations of jurisdictional space. I mentioned deliberative performance
from the intra-institutional perspective, which contributes to the legitimacy of each
institution considered separately. But we can also look at the inter-institutional
performance, that is to say, at what they produce in conjunction. Apart from a
fragmented portrait, one can also have an aggregate portrait of the separation of
powers. The former gives prominence to its competitive side (checks and balances),
whereas the latter accentuates the cooperative prism without which one fails to
apprehend the separation of powers. The fourth topic will elaborate more on this joint
picture. First, I consider how, assuming the oscillation of jurisdictional spaces, a
constitutional court can calibrate its relationship with parliaments.

3. Modulation of active and passive virtues

I showed, in the first part of this article, that a certain type of dialogue is
inevitable over time, assuming a fragile meaning of this term. In the second part, I
started to conceptualize a more authentic and self-conscious sense of dialogue. I
defended that deliberative performance of each branch is a promising measure to
assess legitimacy in each context. In this topic I want to analyse how the court,
specifically, can participate of this process. I want to find a more precise political
guideline beyond the generic normative claim according to which one branch will
have the legitimacy to challenge the other when it outweighs the other in its
deliberative performance.
The degree of intervention of the court in this interaction is probably subject
of greater distrust. After all, it has a less self-evident pedigree in the widespread
common sense about democracy. There is also a concern from the rule of law point of
view: it is necessary to have a clear allocation of roles, to identify who produces
general rules and someone who applies them in a predictable manner.

26
 The narrative so far did not specify particular roles for any branch. This is
attributable to the untenability of establishing, at the abstract level, a neat institutional
division of labour in the domain of rights. To say that the court has the negative role
of declaring unconstitutionality and the legislator the positive function of legislating
does not draw a very useful picture anymore. To invoke the old distinctions between
lawmaking and law-application would persist in an old fallacy. I am not supposing
that, when it comes to rights, parliaments and courts are institutionally equivalent.83 It
seems plausible to perceive that both approach collective problems through non-
redundant prisms. Nevertheless, when parliaments engage in arguments of principle,
the allocation becomes blurred and requires a refined self-comprehension of each
branch about its own role. The greater institutional capacity of one or the other, in this
case, stops being so obvious. A hermeneutic textbook does not solve it either.
One way of responding to this doubt is to formulate a rigid recipe. Ely offers
such an example.84 I maintain, however, that such an alternative does not fit well into
the inherent oscillations of separation of powers regimes, or, at least, curtails its
potential. Shapiro proposes a middle-ground solution through the following formula:
“more than process, less than substance”. He defends a predominantly reactive
judicial role, one that makes the legislator revise the contradictions of his own acts.
The court should not act imperially, but serve as a supplement to competition.85
The position I sustain has some similarity with this intermediary attempt of
Shapiro, as long as we understand it as a malleable recommendation to the court,
rather than a tightly closed solution. I propose that the court should be able to
modulate intervention and contention depending of parliament’s performance.
Therefore, it can sometimes go beyond the “supplement to competition”. It senses the
occasion and opts for either expansive or compressed acts. It chooses between
minimalism and maximalism. This returns to one claim of the previous session: the
prudential analysis of the context, a case-by-case balancing.
The idea of context, depending of the variables that are fed into this calculus,
is certainly dangerous. Still, the attempt to imagine possible political scenarios and
the respective role that the court should play in each of them enriches the discussion.
We can concentrate on the variable of deliberative performance and envisage
hypothetical situations of legislative omission and commission, or consider the
moment in which the challenged legislation was enacted. I believe there are nuances
in each scenario that turn the occasional “anti-democratic noise” of a declaration of
unconstitutionality more and less plausible (assuming that such a noise makes some
sense at all).
We can think of four basic contexts. Many other variations and degrees could
be derived from these four, but these suffice for the purpose of the argument. In the
first, there is legislative omission to attain its constitutional duties (more easily
exemplified in constitutions that require legislative supplementation in order to make

83
This is one of Whittington’s criticisms against Waldron. See “In Defense of Legislatures”, (2000) 28,
5 Political Theory.
84
See J Ely, “Toward a Representation-Reinforcing Mode of Judicial Review”, (1977) 37 Maryland
Law Review.
85
Ian Shapiro argues: “But they should generally operate in a reactive, ‘safety valve’, manner –
holding legislators’ feet to the fire rather than substituting for them. (…) [The court] should declare the
domination that has emerged from the democratic process unacceptable, insisting that the parties try
anew to find an accommodation. In this sense courts should never act imperially to impose results on
recalcitrants legislatures or to protect society from majority rule. Rather, they should use their authority
to get legislatures to confront contradictions in their own actions, forcing them to rethink way of
working their majoritarian wills that do not countenance domination” (The State of Democratic Theory
(Princeton University Press, 2006) 66-67).

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most rights effective). In the second, there is legislative activism without much
deliberative consistency. In the third, legislative activism is accompanied by a high
deliberative performance. In the fourth, switching the key, the court examines an old
statute enacted by previous generations.
Without getting down to the occasional degree of unconstitutionality of a
statute, these contexts, by themselves, insinuate quite different situations to justify or
criticize judicial intervention. With the exception of the third case, it does not seem
difficult, in the light of what has been said so far, to defend the court’s intervention.
The court would simply press the parliament to exert its deliberative responsibility.
The third case is more delicate, but the easy recommendation of judicial abdication,
without additional qualification, is also premature.
The court’s decision, thus, transcends a binary judgment of constitutionality,
as Bickel has said almost half a century ago. One can perceive it empirically, and also
defend this posture from the normative point of view. In the discretionary zone of the
judgment of occasion, there is no other alternative for normative theory but a
pragmatic and particularistic instruction. To know when and how much to decide, to
find a space in the middle which avoids excess and timidity are challenges that the
court must face in every single case. Again, from the abstract point of view, one
cannot say much. My suggestion is that courts modulate passive and active virtues
according to prudence. This formula is perhaps even more enigmatic than Bickel’s,
since he takes a clearer stand in favour of self-restraint as a presumptive general rule.
I get closer to Sunstein, who admits this sort of casuistic modulation and provides
criteria for such choices.
What should guide the court in practicing this modulation? What purpose
should it pursue through the actions of activism and contention? According to the
standard of legitimacy defended above, the court can and should catalyze a qualified
debate upon rights in the formal and informal spheres of politics. The court can only
be protected by the good argument. It cannot impose its decision from top down,
unless the legislator accepts it passively. The judicial interlocutor can provoke
frictions and challenge the legislator to face a special kind of reason that not always
backs parliamentary decisions. As the legislator fails to do so in a transparent manner,
it wastes its electoral credential to innovate responsibly in the political sphere. This
does not imply an untenable obligation to categorically demonstrate the correctness of
its decisions, or to reach a decision through consensual agreement, but rather to
respect the argumentative burdens of every participant in a deliberative enterprise.
The court, therefore, has reasons beyond the messianic ones to come up against
parliament.
Again, the institutional architect can feel some measure of uneasiness. The
hypothesis of challenge or of disagreement echoes disobedience, which would rupture
the desired coherence of the rule of law, would lead to instability or to a risk of
anarchy. The concept of inter-institutional dialogue can lead to misunderstandings,
indeed. Should its basic contention suggest that “everybody decides everything all the
time”, the risks of impasse, paralysis, collapse and vacuum would come to the fore.
That is why, despite relaxing its weight, the idea of last word still plays a meaningful
role, and needs to provide for some degree of decisiveness. Again, thanks either to the
inevitability of a response over time, in case disagreement persists, or to the capacity
of deliberation to reduce dissent, or at least to induce deference, this need of
decisiveness should not be overestimated.86
86
Urbinati sums up: “In fact, deliberation is not meant to impose a decision, but to achieve it” (supra, n
47, 198).

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4. Models of dialogue and epistemic potential

Finally, let me consider the plausibility of the epistemic promise that is inbuilt
in deliberation. The expectation is that a deliberative separation of powers has a
greater likelihood of reaching the right answer.87-88 Unlike the previous topics, I am
not focusing on the effort of each branch to maximize its own deliberative
performance and, then, triumph over the other. I try to perceive the aggregate product
of this interaction. Under this prism, I am not searching whether parliaments or courts
are better structured to find the best answer in matters of principle. I look at both as
parts of a single design. I switch from intra-institutional deliberation into inter-
institutional deliberation.
We have already pointed out that there are two regulators of the interaction
between branches. The first refers to the procedural design, a particular characteristic
of each constitution. The second has a bearing on the attitude or posture of each
power in relation to the other. In this dimension, regardless of who formally detains
the provisional last word, different postures end up shaping distinct models.
I am looking for the model of interaction that is more sensitive, over time, to
the “force of good reasons”.89 We can think about two ideal-types of interaction,
departing from the antagonism between two pure attitudes: the deliberative (which
speaks and listens, with the aim of persuading and openness to be persuaded) and the
adversarial (which speaks to impose itself). The former is publicly exposed to
argument, unlocked to the recognition of dialogue and more disposed to the
deliberative challenge.90 We need to identify why this model of dialogue is more
likely to approximate of better answers.
John Stuart Mill has perhaps elaborated the most well known argument on this
matter by justifying freedom of expression on the grounds of truth.91 His distinction
between “living truth” and “dead dogma” is a more direct shortcut to get his point. In
order for truth to emerge and to continue exerting its reflexive power, there cannot be
any obstacles against the manifestation of opinions of any sort. We can only be sure
that a certain proposition is true as long as attacks against it are open, and it still
resists.92 If, in the guise of having reached the truth, contestation becomes forbidden,
truth dies as a dogma that stupefies critical exercise. It does not survive as truth. Any
obstruction to discussion corresponds to a supposition of infallibility and produces a
perverse educative effect.93
87
Again, Urbinati exemplifies this hope of deliberation: “In any case, although a decision can be made
without deliberation and although it can end in majority/minority divide, the assumption of deliberation
is that a deliberated decision has more chance of being a good one and thus command rational
conviction precisely because of the trial-and-error process it went through” (supra, n 47, 198).
88
This is the hope of Michael Perry too: “In the constitutional dialogue between the Court and other
agencies of government – a subtle, dialectical interplay between Court and polity – what emerges is a
far more self-critical political morality than would otherwise appear, and therefore is likely a more
mature political morality as well – a morality that is moving toward, even though it has never always
and everywhere arrived at, right answers, rather than a stagnant or even regressive morality” (The
Constitution, the Courts and Human Rights (Yale University Press, 1982) 113).
89
In Zurn’s words: “to be responsive, over time, to the force of good reasons” (supra, n 9, 62).
90
It is subject, thus, to the “civilizing force of hypocrisy”, in Elster’s phrase (Deliberative Democracy
(Cambridge University Press, 1998) 12 and 111).
91
See chapter 2 of On Liberty, Oxford World Classics, 1998.
92
“There is the greatest difference between presuming an opinion to be true, because, with every
opportunity for contesting it, it has not been refuted, and assuming its truth for the purpose of not
permitting its refutation. Complete liberty of contradicting and disproving our opinion, is the very
condition which justifies us in assuming its truth for purposes of action; and on no other terms can a
being with human faculties have any rational assurance of being right” (Mill, supra, n 91, 24).
93
“All silencing of discussion is an assumption of infallibility” (Mill, supra, n 91, 22).

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 Mill’s argument has been widely criticized. On the one hand, it would be over-
protective of freedom of expression, not allowing restrictions where they might be
justifiable (as in cases of hate speech, for example). On the other, it would be under-
protective: it would subordinate freedom of expression to an external goal. It would
not be an end in itself, an unconditional element of human dignity, but rather a means
for reaching the truth. This is how Martha Nussbaum rejected his position.94
We do not need to get into the details of Mill in order to test those objections.
By transposing the argument towards the institutional level, the instrumentalization of
freedom of expression, in the name of truth, is exactly what we are looking for. It is
not individual dignity that is at stake anymore. Mill’s argument provides a ground for
the desirability of response, to the uninterrupted and frank continuity of institutional
dialogue. Under pains of becoming “dead dogmas”, and, therefore, vulnerable and
unprotected, the protection of rights should inspire permanent deliberative rounds (or
at least the absence of unsurpassable obstacles).
By guiding a model of interaction through deliberative principles, a model that
is concerned with creating a “culture of justification” beyond sheer power struggle, I
try to defend a more attractive kind of “political reactivity”, where good arguments
play some role. If parliaments and courts adopt a deliberative attitude and take into
account each others’ arguments, and mutually challenging each other when they
consider to have a superior alternative, it is likely that they produce better answers
than in an adversarial and conflictive model.
The resort to Mill may seem artificial or unsound, specially in circumstance of
“reasonable pluralism”, an obligatory property of democratic societies. “Truth”, at
least in the field of social and political relations, is a suspect word. But Mill’s point is
more modest. He does not suppose a single, stable and a-historical truth. He simply
states that suppression of disagreement represents a greater danger than to allow the
clash of ideas so that the best ones survive.
The sceptic, once more, could pour a number of examples in which such a
clash culminated in the opposite result. She prefers to be realist in her own way, and
proposes institutions that cool down this debate in the light of other values that must
be preserved by the political order. This is not, however, incompatible with what has
been defended here. It is exactly in this more cautious sense, and incorporated into the
institutions themselves, that Mill’s argument conserves its power. To keep it as an
ideal may guide each branch’s actions, and does not necessarily subvert values like
stability and security.
Another traditional quibble against deliberation relates to the temporal
pressure for decision. To take an imperfect decision, in many circumstances, is
certainly preferable to a paralysis in the infinite search for the right answer.95 We can
even give moral reasons to justify such a second-best option.
Parliamentary, judicial and executive deliberations do not have the same
openness of an academic seminar, even if they are fundamentally touching upon the
same dilemma.96 Nevertheless, the evident political need of taking decisions does not
exclude the collective responsibility of finding the best answer. In this perspective,
94
“If one starts from the idea that each human being has dignity and deserves respect, and that politics
must be grounded in respect for the dignity of all citizens as equals, one will find that Mill has put
things just the wrong way round. Instead of thinking truth good because of what it does for the self-
respect and flourishing of individuals, he subordinates individual flourishing and dignity to truth”
(Hiding From Humanity (Princeton University Press, 2006) 327-328).
95
In the words of Vermeule and Garrett: “The real question is not whether deliberation is beneficial,
but how much deliberation is optimal” (supra, n 8, 1292).
96
As contended by Elster: “Whereas scientists can wait for decades and science can wait for centuries,
politicians are typically subject to strong time constraints” (supra, n 90, 9).

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democracy is not different from a “philosophical cafe” just because it needs to take
decisions. Instead, it is somehow similar because it has the burden of unearthing the
best answer (without refusing to take, along the way, imperfect and provisional
decisions). Self-improvement is a commitment of such a regime. If provisional
decisions meet the demand of authority, time is not a limit for inter-institutional
deliberation, but a central element to maximize its epistemic capacity.

5. Neither dialogue nor last word

In separation of powers, interaction is inevitable. Deliberative interaction is a

gain; purely adversarial interaction, if not a loss, wastes its epistemic potential. One
can increase the probability of democracy to produce good decisions, not eliminate
imperfect procedural justice. It would be misleading to equate the fallibility of every
design. A deliberative interaction does not extinguish the possibility of mistakes, but
maximizes the one of right or reasonable answers.
Judicial review does not have to be seen only as a hurdle, a contention dam,
but also as a mechanism that propels better deliberations about, at least, constitutional
essentials. It does not only intend to protect us from politics when it succumbs to
panic and irrationality, but to challenge it to keep pursuing better answers.
The court can be a deliberative catalyst. It symbolizes an effort to make
democracy a regime that does not only severe majorities from minorities, structures
periodical political competition and selects the winning and losing elites, but that is
also capable of discerning good and bad arguments. This does not exclude
competition, but qualifies it.
Both the design and the everyday operation of the separation of powers need
to strike a balance between the perspectives offered by dialogue and last word
theories, however contingent, irregular and particular this balance might be. To fine-
tune last word and dialogue, therefore, is a task for the normative theorist, the
institutional architect and the decision-maker herself. Each alone cannot exhaust that
task – the normative theorist imagines and provides criteria for both the institutional
architect, who translates them into procedures, and the decision-maker, who must
modulate it case by case. This equilibrium may shift, and deliberative performance
could hopefully be one of its causal, or at least justificatory, factors.
The deliberative dimension points to a denser demand of legitimacy, one that
is not reduced to a procedural certification. It turns the democratic landscape more
colourful and varied. It is not limited to a cold and flavourless picture of a community
taking collective decisions here and now in the public square. It uncovers the moral
pre-conditions of such a process of collective decision-making.

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