Deliberative judicial review

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• dc.contributor.author Giuffré, C. Ignacio
• dc.date.accessioned 2025-09-25T09:01:25Z
• dc.date.available 2025-09-25T09:01:25Z
• dc.date.issued 2025
• dc.date.updated 2025-09-25T09:01:25Z
• dc.description.abstract Strong constitutionalism usually conceives rights as instruments for protecting people. The problem with this conception is that it generates legal alienation, since it views people as passive recipients of protection, which is an exclusive matter for the state and, ultimately, for judicial review. In contrast, deliberative constitutionalism gives people an active role in deliberating about rights, among themselves as well as between them and the state. However, despite the development of deliberative constitutionalism, it is not yet clear what this view of rights requires of judicial review. Accordingly, this contribution to the Federal Law Review¿s symposium issue on deliberative rights theory argues for deliberative judicial review, which is a form of judicial review that, by respecting and promoting democratic deliberation, offers better protection of rights, as well as greater impartiality and legitimacy. In support of this argument, the article first makes explicit that the guide that should orient judicial review is not deference or activism but rather democratic deliberation. Next it states that, from this guide, a form of judicial review should be inferred that is not merely substantial or merely procedural, but rather semiprocedural. It then argues that, notwithstanding contextual turns, weak constitutionalism combined with channels of social dialogue offers a better institutional basis for deliberative judicial review than strong constitutionalism. Lastly, it concludes that deliberative judicial review respects and contributes to articulating rights without legal alienation, i.e. through dialogue among all potentially affected persons.
• dc.format.mimetype application/pdf
• dc.identifier.citation Giuffré I. Deliberative judicial review. Federal law review. 2025;53:e2. DOI: 10.1017/fed.2025.2
• dc.identifier.doi https://dx.doi.org/10.1017/fed.2025.2
• dc.identifier.issn 0067-205X
• dc.identifier.uri http://hdl.handle.net/10230/71264
• dc.language.iso eng
• dc.publisher Cambridge University Press
• dc.relation.ispartof Federal law review. 2025;53:e2.
• dc.rights © The Author(s), 2025. Published by Cambridge University Press on behalf of Australian National University. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
• dc.rights.accessRights info:eu-repo/semantics/openAccess
• dc.rights.uri http://creativecommons.org/licenses/by/4.0
• dc.subject.keyword Deliberative constitutionalism
• dc.subject.keyword Deliberative democracy
• dc.subject.keyword Human rights
• dc.subject.keyword Judicial review
• dc.subject.keyword Legitimacy
• dc.title Deliberative judicial review
• dc.type info:eu-repo/semantics/article
• dc.type.version info:eu-repo/semantics/publishedVersion