Deliberative Democracy and the Institutions of Judicial Review

Christopher F. Zurn shows why a normative theory of deliberative democratic constitutionalism yields the best understanding of the legitimacy of constitutional review. He further argues that this function should be institutionalized in a complex, multilocation structure including not only independent constitutional courts but also legislative and executive self-review that would enable interbranch constitutional dialogue and constitutional amendment through deliberative civic constitutional forums. Drawing on sustained critical analyses of diverse pluralist and deliberative democratic arguments concerning the legitimacy of judicial review, Zurn concludes that constitutional review is necessary to ensure the procedural requirements for legitimate democratic self-rule through deliberative cooperation. Claiming that pure normative theory is not sufficient to settle issues of institutional design, Zurn draws on empirical and comparative research to propose reformed institutions of constitutional review that encourage the development of fundamental law as an ongoing project of democratic deliberation and decision.

Christopher F. Zurn is associate professor of philosophy at the University of Kentucky. The recipient of a Humboldt Fellowship in 2004, he has published articles on deliberative democracy, judicial review, critical theory, feminism, moral theory, and aesthetics. An article on democracy and judicial review was chosen as one of the ten best philosophy articles published in 2002 by the editors of Philosopher's Annual, vol. XXV.

Review of the hardback: 'The book, in short, has several merits. The main one, probably, is to refine the old discussion of judicial review in the light of an open institutional scenario, without assuming a readymade parochial design imposed by history and without ignoring the increasing empirical and comparative data about institutional performance produced in the last decades.' Cambridge Law Journal