Oxford Journal of Legal Studies

Volume 22, Issue 2, June 2002: pp. 189-226

Deliberative Democracy in Habermas and Nino

ángel R. Oquendo1

1University of Connecticut School of Law

Habermas and Nino see human rights not as an external
constraint on popular sovereignty, but rather as a key
ingredient of true democracy. Yet, Habermas asserts
that democratic deliberation involves moral, ethical,
pragmatic, and negotiated matters, while Nino reduces
democracy to moral deliberation. Habermas's theory
thus is more complex and takes more seriously the
possibility that deliberative democracy may vary
across societies. All the same, Habermas excessively
limits the extent of legitimate variability inasmuch
as he shares with Nino the conviction that moral
reasons are universal and ultimately decisive.
Habermas and Nino converge, more fundamentally, when
they exclude the non-deliberative (and non-dialogic)
aspects of the democratic process. It is a mistake to
disregard these elements or to characterize them as
oblique manifestations of deliberation. By taking
these features into account, a picture of democracy
gains in plausibility and opens up additional space
for diversity in democratic theory and practice.

Oxford Journal of Legal Studies

Volume 22, Issue 2, June 2002: pp. 275-299

Judicial Review and the Protection of Constitutional
Rights

Wojciech Sadurski1

1Department of Law, European University Institute,
Florence

Does the effective protection of constitutional rights
require a system of robust judicial review? This
differs from the question of whether judicial review
is democratically legitimate, although the two are
often merged. The dominant liberal constitutional
discourse concerning the requirement of judicial
review has arguably suffered from a degree of
insensitivity to the actual effects of specific
judicial review systems. In contrast to a
fact-insensitive approach, I suggest that the 'matrix`
of rights-protection in any specific system of
judicial constitutional review must incorporate two
types of calculation. The first must compare
incidences of the invalidation of 'wrong` statutes (on
the 'gains` side) with invalidations of 'right`
statutes and cases of upholding 'wrong` statutes (on
the 'losses` side). The second looks at the gains and
losses resulting from the very existence of the system
of judicial review (rather than the specific cases
that have been upheld or invalidated). It thus
recognizes the deep disagreement between individuals
about their preferred interpretations of
constitutional rights. Under some conditions, the
results of this matrix may be modified by arguments
about an overlap in preferred articulations of
constitutional rights, prudence, and the deliberative
nature of the courts that exercise constitutional
review, and the paper concludes with a discussion of
how this can occur.

We do not have to have a court that will strike down
laws-a court with the power of judicial review-to have
a vibrant language of fundamental rights available to
us.