LIDO MENDES, Conrado Hübner - Neither Dialogue Nor Las Word - Deliberative Separation of Powers III

Legisprudence
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Neither Dialogue nor Last Word: Deliberative

Separation of Powers III
Conrado H. Mendes
To cite this article: Conrado H. Mendes (2011) Neither Dialogue nor Last Word: Deliberative
Separation of Powers III, Legisprudence, 5:1, 1-40, DOI: 10.5235/175214611796404840
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NEITHER DIALOGUE NOR LAST WORD:
DELIBERATIVE SEPARATION OF POWERS III
Conrado H. Mendes*
Abstract
This article is the third and last of a series that tries to understand and reconcile
Downloaded by [Laurentian University] at 16:24 15 March 2016
‗theories of last word‘ and ‗theories of dialogue‘ with respect to the proper place of
constitutional courts within democratic regimes. It claims that there is a
complementarity between both approaches: the design of the separation of powers
needs to decide, contextually, whether elected parliaments or constitutional courts
should bear the burden of the ‗provisional‘ last word upon constitutional meaning; it
should not neglect, however, the fact that institutions inevitably interact and can
challenge each other‘s decisions over time, a datum that needs to be factored into the
discussion about the legitimacy of judicial review. The article further claims that, if
some sort of interaction between branches is inevitable over time, constitutional
theory should elaborate on which sort is more desirable and legitimate than others.
An interaction inspired by a normative ideal of dialogue and of deliberative
performance, I contend, increases the epistemic capacity of the separation of powers.
Keywords
Democracy and constitutionalism; judicial review of legislation; constitutional
courts; separation of powers; dialogue
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
*
Conrado Hübner Mendes has a Ph.D. in legal philosophy at the University of Edinburgh, a Ph.D.
and a M.Phil. in political science at the University of São Paulo, and has been Hauser Research
Scholar at the New York University School of Law (2009-2010). 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 their helpful comments.
2 Mendes
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
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
1
C.H. Mendes, ‗Is it All About the Last Word? Deliberative Separation of Powers I‘ (2009) 3(1)
Legisprudence 69.
2
C.H. Mendes, ‗Not the Last Word, but Dialogue: Deliberative Separation of Powers II‘ (2009)
3(2) Legisprudence 191.
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(4) American Journal of Comparative Law 707.
Legisprudence, Vol. 5, No. 1

Neither Dialogue nor Last Word 3
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 ‗interlocutor‘ in

4 Mendes
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 provisional to some extent, 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 are indeed 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. Section B.1 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 section B.2, 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 section B.3, I address the complementary angles of dialogue and last word. In
section B.4, I interpret some postulates through which empirical political science
studies the 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
4
J. Waldron, ‗The Core of the Case Against Judicial Review‘ (2006) 115(6) Yale Law Journal
1346.
5
R. Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Harvard
University Press, Cambridge, Massachusetts 1996) 34.
6
K.E. Whittington, ‗Extrajudicial Constitutional Interpretation: Three Objections and Responses‘
(2002) 80(3) North Carolina Law Review 848.

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 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, ―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.
7
B. Friedman, ‗The Politics of Judicial Review‘ (2005) 84(2) Texas Law Review 332.
8
E. Garrett and A. Vermeule, ‗Institutional Design of a Thayerian Congress‘ (2001) 50 Duke Law
Journal 1277.
9
C.F. Zurn, Deliberative Democracy and the Institutions of Judicial Review (Cambridge University
Press, New York 2007) 9-10: ―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‘.‖
10
J.S. Mill, Considerations on Representative Government (Oxford World Classics, Oxford
University Press, New York 1998) 205-207.

6 Mendes
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.
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 takes
constitutional courts, at least as far its core features are concerned, as given. 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
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). C. de Araújo, Fundações da República
e do Estado (2004) 184: ―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‖
(manuscript with the author, translation by author).

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. Section
B.4 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
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
12
For a general description of these distinctions, see: S. Gardbaum, ‗The New Commonwealth
Model of Constitutionalism‘ (2001) 49(4) American Journal of Comparative Law 707.

8 Mendes
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.
(a) 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
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
13
C.H. Mendes, ‗Not the Last Word, but Dialogue: Deliberative Separation of Powers II‘ (2009)
3(2) Legisprudence 245.
14
C. de Araújo, Fundações da República e do Estado (2004) 12 and 23.
15
D. Wooton, ‗Liberty, Metaphor, and Mechanism: ―Checks and Balances‖ and the Origins of
Modern Constitutionalism‘, in D. Womersley (ed.), Liberty and American Experience in the
Eighteenth Century (Liberty Fund, Indianapolis 2006) 209.

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 sovereignty). 21 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
16
C. de Araújo, Fundações da República e do Estado (2004) 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, see: C. de Araújo, Fundações da República e do Estado (2004) 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: B. Friedman,
‗Dialogue and Judicial Review‘ (1993) 91 Michigan Law Review 625.
19
20
C. de Araújo, ‗Representação, Retrato e Drama‘ (2006) 67 Lua Nova 257.
21

10 Mendes
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
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.
(b) 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
22
C. de Araújo, Fundações da República e do Estado (2004) 239 (translation by author): ―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
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.‖
23
This dialogue starts off with H.L.A. Hart, ‗Positivism and the Separation of Law and Morals‘
(1958) 71(4) Harvard Law Review 593, to which L.L. Fuller responds with ‗Positivism and Fidelity
to Law: A Reply to Professor Hart‘ (1958) 71(4) Harvard Law Review 630. In The Concept of Law
(Clarendon Press, Oxford 1961), Hart returns to several of those questions, to which Fuller
responds in The Morality of Law (Yale University Press, New Haven 1964). Fuller‘s book was
critically reviewed by Hart in ‗Book Review: The Morality of Law‘ (1965) 78(6) Harvard Law
Review 1281, to which Fuller responds in the second edition of his book, published in 1969.

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
degree– of greater or lower success in the achievement of that purpose. 25
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.26 The inner morality of law comprises his celebrated list of
eight benchmarks of legal excellence (generality, non-retroactivity, publicity, among
others).27 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.28 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 accomplish. 29 The ideal of fidelity to law demands, therefore, the
activity of planning.30 Fuller‘s concern with institutional design is in tune with his
24
H.L.A. Hart, ‗Positivism and the Separation of Law and Morals‘ (1958) 71(4) Harvard Law
Review 593.
25
L.L. Fuller, ‗Positivism and Fidelity to Law‘ (1958) 71(4) Harvard Law Review 646: ―[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.‖; L.L. Fuller, The Morality of Law (Yale University Press, New Haven 1964) 147: ―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
which a legal system as a whole achieves the ideal of legality.‖
26
L.L. Fuller, The Morality of Law (Yale University Press, New Haven 1964) 102.
27
Ibid. 46.
28
Morality of aspiration is concerned with the minimal requirements without which community life
becomes impossible, and is opposed to morality of duty.
29
L.L. Fuller, The Morality of Law (Yale University Press, New Haven 1964) 145.
30
L.L. Fuller, ‗Positivism and Fidelity to Law: A Reply to Professor Hart‘ (1958) 71(4) Harvard
Law Review 630, 642-643: ―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.‖

12 Mendes
conception of law. Hart would miss this slightly more complex social
phenomenon.31
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.‖32 The quote of Hanna
Pitkin was used as an epigraph of my first article. 33 When the author enounced 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.
31
L.L. Fuller, ‗Positivism and Fidelity to Law: A Reply to Professor Hart‘ (1958) 71(4) Harvard
Law Review 630, 639: ―(...) Hart leaving completely untouched the nature of the fundamental rules
that make law itself possible.‖
32
H. Pitkin, ‗Obligation and Consent – II‘ (1966) 60(1) The American Political Science Review 52.
33
C.H. Mendes, ‗Is it All About the Last Word? Deliberative Separation of Powers I‘ (2009) 3(1)
Legisprudence 69.

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.34 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. 35 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.
34
J. Waldron, ‗The Core of the Case Against Judicial Review‘ (2006) 115(6) Yale Law Journal
1346, 1400-1401: ―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.‖
35
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: C.H. Mendes, ‗Not the Last Word, but Dialogue: Deliberative Separation of Powers II‘
(2009) 3(2) Legisprudence 191.

14 Mendes
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, 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. 36
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.
36
This empirical insight was aired by R. Dahl, ‗Decision-making in a Democracy: The Supreme
Court as a National Policy-Maker‘ (1957) 6(2) Journal of Public Law 279, 284. However, it can be
traced back to the Federalists, see: B. Manin, ‗Checks, Balances and Boundaries: The Separation of
Powers in the Constitutional Debate of 1787‘, in B. Fontana (ed.), The Invention of the Modern
Republic (Cambridge University Press, New York 1994) 61.

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; and (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 Federalists37 and demonstrated by empirical
researches.38 Branches use prudence to test where and how far they can go. It is a
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‖. 39
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‖ or ―structuralist‖ 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
37
See Federalist Paper No. 47-51, in which Madison described his theory of inter-branch
interaction.
38
In different strains described in the last article, see: C.H. Mendes, ‗Not the Last Word, but
Dialogue: Deliberative Separation of Powers II‘ (2009) 3(2) Legisprudence 191.
39
A.M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale
University Press, New Haven 1986) 132; A.M. Bickel, ‗Foreword: The Passive Virtues‘ (1961) 75
Harvard Law Review 51.
40
J. Goldsworhty (ed.), Interpreting Constitutions: A Comparative Study (Oxford University Press,
New York 2006).

16 Mendes
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 1970‘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‖.
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
41
M. Tushnet, ‗The United States: Eclecticism in the Service of Pragmatism‘ in J. Goldsworhty
(ed.), Interpreting Constitutions: A Comparative Study (Oxford University Press, New York 2006)
51, raises the sceptic hypothesis when writing about the American Supreme Court, saying ―none of
the methods imposes a sufficiently powerful constraint in the mere policy preferences of
interpreters‖.
42
J. Goldsworhty (ed.), Interpreting Constitutions: A Comparative Study (Oxford University Press,
New York 2006) 320 and 339.
43
Ibid. 145.

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
44
For example, M. Taylor, ‗Curbing the Courts: Latin American Lessons on Curtailing Judicial
Independence‘ (Meetings of the American Political Science Association, Toronto, Canada 2009) 3,
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.‖ On the formal and
informal constraints that are faced by the court, Taylor claimed on page 5: ―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.‖ He
concludes on page 28: ―First, judicial independence cannot be considered in isolation from the
interaction between courts and the conventionally political (and sometimes elected) branches.‖
45
Or the cases of ‗low salience‘ and ‗high salience‘, see: B. Friedman, ‗Dialogue and Judicial
Review‘ (1993) 91 Michigan Law Review 625.

18 Mendes
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 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
46
As has been argued in section B, also see: C.H. Mendes, ‗Is it All About the Last Word?
Deliberative Separation of Powers I‘ (2009) 3(1) Legisprudence 69.

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
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:
―[F]rom 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
47
N. Urbinati, Representative Democracy: Principles and Genealogy (Chicago University Press,
Chicago 2008) 225: ―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.‖
48
Ibid. 225.
49
Ibid. 197.
50
Ibid. 223.
51
Ibid. 225.

20 Mendes
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 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
52
J. Tulis, ‗Deliberation Between Institutions‘ in P. Laslett and J. Fishkin (eds.), Debating
Deliberative Democracy (Philosophy, Politics and Society, Blackwell Publishing, 2003) 208,
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.‖
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

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
(such as popular will, the language of rights, and the pressure for efficiency), 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
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
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
J. Tulis, ‗Deliberation Between Institutions‘ in P. Laslett and J. Fishkin (eds.), Debating
Deliberative Democracy (Philosophy, Politics and Society, Blackwell Publishing, 2003) 203.
55
Ibid. 202, 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.‖ 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, on page 210: ―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.‖
56
C.H. Mendes, Controle de Constitucionalidade e Democracia (Elsevier, São Paulo 2008).

22 Mendes
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

Section B 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 that empirical
information is 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 denounces the nakedness
of the Emperor: 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
57
B. Friedman, ‗The Politics of Judicial Review‘ (2005) 84(2) Texas Law Review 332.

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.
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
in some circumstances the substance subordinates 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
58
R. Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Harvard
University Press, Cambridge, Massachusetts 1996) 32.

24 Mendes
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
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 seen in Section B.4, 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 propositions above 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
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)

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 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
60
J. Rawls, Political Liberalism (Columbia University Press, New York 2005) xvi.
61
Ibid. xxxviii and 218.
62
Ibid. xxxviii and 253.
63
On the distinction between ‗constitutional essentials‘ and ‗questions of basic justice‘, see: J.
Rawls, Political Liberalism (Columbia University Press, New York 2005) 228-229. F. Michelman
thoroughly explains why, for Rawls, judicial review should be limited to constitutional essentials,
see: F. Michelman, ‗Justice as Fairness, Legitimacy and the Question of Judicial Review‘ (2004)
72(5) Fordham Law Review 1407.
64
J. Rawls, Political Liberalism (Columbia University Press, New York 2005) 214.
65
Rawls refines this idea through the conceptions of inclusive and exclusive public reason, see: J.
Rawls, Political Liberalism (Columbia University Press, New York 2005) 247.

26 Mendes
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 Citizens benefit from such judicial practice by learning a particular mode
of discussing the constitutional essentials.70
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: J. Rawls, Political
Liberalism (Columbia University Press, New York 2005) 227.
67
Ibid. 231.
68
Ibid. 233: ―By applying public reason the court is to prevent that law from being eroded by the
legislation of transient majorities (...).‖ It is interesting to note that Rawls is aware of the court‘s
limitations in the long run, also on page 233: ―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 (...).‖ On page 237, 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 (...).‖
69
Ibid. 236-237.
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: J. Rawls, Political Liberalism (Columbia
University Press, New York 2005) 254.

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 the
same magnitude of disagreement might well emerge at the level of political justice.
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
71
J. Rawls, Political Liberalism (Columbia University Press, New York 2005) 254.
72
J. Waldron, Law and Disagreement (Oxford University Press, New York 2001) 158.
73
Ibid. 152-153: ―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.‖
74
J. Rawls, Theory of Justice (Harvard University Press, Cambridge 1999) 173: ―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.‖; J. Waldron, Law and
Disagreement (Oxford University Press, New York 2001) 230-231: ―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.‖
75
76
Ibid. 160: ―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.‖

28 Mendes
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 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 demonstrates in a nuanced criticism 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
77
78
W. Waluchow, ‗Constitutions as Living Trees: An Idiot Defends‘ (2005) 18(2) Canadian Journal
of Law and Jurisprudence 207, 249: ―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.‖ On page 245: ―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.‖
79
D. Estlund, ‗Jeremy Waldron on Law and Disagreement‘ (2000) 99 Philosophical Studies 111,
118, 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‖. Estlund states on page 114: ―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.‖

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
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: it 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 is 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 anaesthesia 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

30 Mendes
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
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
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
As cited by H.L.A. Hart, ‗Positivism and the Separation of Law and Morals‘ (1958) 71(4)

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
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.

32 Mendes
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, then
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 legitimize such mutations, as long as public reason is the idiom uttered by
the institution that prevails in each moment.
Thus far, I claimed that the institution with better deliberative performance
outstands in the competition for the better argument, and has legitimacy to challenge
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.

the other (which is different from simply disobeying the other). Nevertheless, this
proposition seems simplistic and to raise innumerable practical problems. The most
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, this would be 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, would it not 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. Section C.4 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

34 Mendes
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.
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 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.
83
This is one of Whittington‘s criticisms against Waldron, see: K.E. Whittington, ‗In Defense of
Legislatures‘ (2000) 28(5) Political Theory 690.
84
J. Ely, ‗Toward a Representation-Reinforcing Mode of Judicial Review‘ (1977) 37(3) Maryland
Law Review 451.
85
I. Shapiro, The State of Democratic Theory (Princeton University Press, Princeton 2006) 66-67,
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 recalcitrant 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.‖

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 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

36 Mendes
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
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 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
86
N. Urbinati, Representative Democracy: Principles and Genealogy (Chicago University Press,
Chicago 2008) 198: ―In fact, deliberation is not meant to impose a decision, but to achieve it.‖
87
Ibid. 198: ―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.‖ This is also the hope of M. Perry, The Constitution, the
Courts and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the
Judiciary (Yale University Press, New Haven 1982) 113: ―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.‖

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‘. 88 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.89 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. 90 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.91 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.92
88
C.F. Zurn, Deliberative Democracy and the Institutions of Judicial Review (Cambridge
University Press, New York 2007) 62, calls it ―to be responsive, over time, to the force of good
reasons‖.
89
Thus, it is subject to the ―civilizing force of hypocrisy‖, in the phrase of J. Elster, Deliberative
Democracy (Cambridge Studies in the Theory of Democracy, Cambridge University Press,
Cambridge 1998) 12 and 111.
90
J.S. Mill, Considerations on Representative Government (Oxford World Classics, Oxford
University Press, New York 1998) ch. 2.
91
Ibid. 24: ―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.‖
92
Ibid. 22: ―All silencing of discussion is an assumption of infallibility.‖

38 Mendes
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. 93
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.
93
M.C. Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law (Princeton University
Press, Princeton 2006) 327-328: ―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.‖

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. 94 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.95 Nevertheless, the evident political need of taking decisions does
not exclude the collective responsibility of finding the best answer. In this
perspective, 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.
D. 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 sever 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.
94
In the words of E. Garrett and A. Vermeule, ‗Institutional Design of a Thayerian Congress‘
(2001) 50 Duke Law Journal 1277, 1292: ―The real question is not whether deliberation is
beneficial, but how much deliberation is optimal.‖
95
This is contended by J. Elster, Deliberative Democracy (Cambridge Studies in the Theory of
Democracy, Cambridge University Press, Cambridge 1998) 9: ―Whereas scientists can wait for
decades and science can wait for centuries, politicians are typically subject to strong time
constraints.‖

40 Mendes
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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Legisprudence

ISSN: 1752-1467 (Print) (Online) Journal homepage: http://www.tandfonline.com/loi/rtpl19

Neither Dialogue nor Last Word: Deliberative

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Published online: 14 Sep 2015.

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‗Deliberative separation of powers‘ sounds like an exemplary oxymoron. Such blend

impression, however, should not obscure the possibilities of a refreshing

Legisprudence, Vol. 5, No. 1

persistent conversation through provisional decisions, about the terms of our

B. SEPARATION OF POWERS AND THE TIMES OF POLITICS

Legisprudence, Vol. 5, No. 1

1. History, Institutions and Normative Political Theory

Legisprudence, Vol. 5, No. 1

Legisprudence, Vol. 5, No. 1

Those authors adopt two alternative strategies in the construction of normative

Legisprudence, Vol. 5, No. 1

2. Weights and Measures of Last Word

Legisprudence, Vol. 5, No. 1

(a) Between Mixed Constitution and Sovereignty?

Legisprudence, Vol. 5, No. 1

of the Federalists as to the separation of powers as a mechanism for the preservation

Legisprudence, Vol. 5, No. 1

(b) Between Hart and Fuller?

Legisprudence, Vol. 5, No. 1

Legisprudence, Vol. 5, No. 1

identification of authority or as a project that needs to be conducted – highlights one

3. Grades of Anxiety for Authority: Does the Last Word Matter?

Legisprudence, Vol. 5, No. 1

This obsession produced a diversionary theoretical effect, and reduced the

Legisprudence, Vol. 5, No. 1

4. Political Reactivity, Prudential Accommodations and Fluctuations of

Legisprudence, Vol. 5, No. 1

Three hypotheses defended by empirical political science about judicial

Political reactivity, prudential accommodations and fluctuations of legitimacy are

Legisprudence, Vol. 5, No. 1

undermined the reputation of the representative bodies. It created the opportune

Legisprudence, Vol. 5, No. 1

will consider in the second part of the current article.

Legisprudence, Vol. 5, No. 1

5. Some Preliminary Conclusions

Legisprudence, Vol. 5, No. 1

formal and informal spheres of politics.

Legisprudence, Vol. 5, No. 1

‗correct‘, ‗reasonable‘, ‗desirable‘ or ‗justifiable‘.

C. DELIBERATIVE PERFORMANCE AS A METRIC OF INTERACTION

Legisprudence, Vol. 5, No. 1

decisions, in distinct manners. The question of whether these reasons should be

I propose a criterion of legitimacy that situates deliberation as a dominant

Legisprudence, Vol. 5, No. 1

restrict itself to specify a benchmark of legitimacy that values this ideal of

1. The Virtuous and Irreducible Tension Between Form and Substance

Legisprudence, Vol. 5, No. 1

compatible with a substantive criterion of legitimacy to prevail regardless of its