Judicial review, separation of powers and democracy: the problem of activist constitutional tribunals in postcomunist Central Europe

It has become a commonplace belief that the constitutionalization of rights implies the introduction of strongly counter-majoritarian devices into the political system. Conventional wisdom in the current constitutional discourse in the postcommunist countries of Eastern and Central Europe has it that constitutional rights, in order to be meaningful, require a system of constitutional review of political branches performed by non-elected branches of the government, and in particular, by the judiciary. The rise of constitutional tribunals in almost all the countries of the region - though in some countries they achieve higher prominence, independence, and power than in others - is a testimony to the force of this conventional wisdom

“Reasonableness” and Value Pluralism in Law and Politics

In law, the category of reasonableness, when used in a “strong sense”, is inherently lied up with proportionality, and also with the test of necessity, and thus is a guarantee of a minimal restriction of constitutional rights compatible with the attainment of a given purpose. This approach to the scrutiny of restrictions of constitutional rights carries certain disadvantages because of an unfortunate alignment of the judicial role with the role of legislator, but it also has some great advantages when compared with alternative approaches: it is more transparent when it comes to revealing to the public all the ingredients of the judicial calculus, and most importantly, it reduces the sense of defeat for the losing party. As such, it is consensus-oriented because it acknowledges explicitly that there are valid constitutional arguments on both sides. In turn in political philosophy the notion of reasonableness applies to the determination of the standards of justifications for authoritative decisions so that they can be considered legitimate, i.e. calling for respect even from those subjected to them who do not agree with them on merits. The attractiveness of this idea results from the fact that it combines two enormously popular traditions in democratic theory: those of social contract and of deliberative democracy. So it can be seen that both these conceptions: reasonableness in law and reasonableness in political theory have some obvious commonalities at the level of their deep justifications; both appeal to liberal, egalitarian and consensus-oriented values