Table Of ContentWHERE OUR PROTECTION LIES
Where Our
Protection Lies
Separation of Powers
and Constitutional Review
DIMITRIOS KYRITSIS
1
1
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To Denise
Preface
This is a book about the legitimacy and scope of constitutional review of primary legis-
lation for its compatibility with fundamental rights. Some of its central claims have
their origin in my DPhil thesis. There my primary ambition was to draw out some
implications in the theory of law of the idea of institutional cooperation. That ambi-
tion was also at the heart of my first monograph, Shared Authority (Hart Publishing
2015). In the thesis constitutional review was treated as an extended illustration, an
opportunity to descend from the conceptual abstraction of the debate over the nature
of law and sharpen the normative edge of the anti- positivist theory I was developing.
When I started working on this book, Aleardo Zanghellini, my friend and col-
league at Reading, pointed out that it was a good thing the two strands of my thesis
had been disentangled and had become the subject of two separate books, with the
jurisprudential one being written first. I can see now how right he was. For one thing,
the audiences of the two books overlap only in part, as do their interests and theo-
retical concerns. Moreover, it was once I had put the jurisprudential debates behind
me that the complexity of the issues I was about to explore came into full view. In
grappling with the morally contentious aspects of constitutional review and trying to
marry democracy and fundamental rights in sufficiently concrete institutional forms,
legal theories can provide but little comfort. I do not mean by this to endorse the posi-
tion that legal theory must remain detached from legal practice, though many legal
philosophers hold just that position. Rather, I am thinking of the growing distance
between the considerations that are commonly taken to be decisive in the theory of law
and in constitutional theory. For this reason in this book I stay clear of jurisprudential
controversies. Indeed, I go so far as to suggest that my account is compatible with both
legal positivism and anti- positivism. That being said, there are undeniable continuities
between the two books. Apart from the general claim that courts and the legislature
should be understood to participate in a joint institutional project, there is the connec-
tion between separation of powers and political legitimacy— so central to my argument
here— which I first elaborated in Shared Authority.
The book incorporates work that has appeared previously in article form. More
specifically, much of Chapter 3 was published as ‘Principles, Policies and the Power of
Courts’ (2007) 20 Canadian Journal of Law and Jurisprudence 379. Chapter 4 is largely
based on ‘Representation and Waldron’s Objection to Judicial Review’ (2006) 26
OJLS 733. Chapter 6 includes material from ‘Constitutional Review in Representative
Democracy’ (2012) 32 OJLS 297. I am grateful to the publishers for permission to
reprint this material. As my thinking has evolved considerably over the years, I have
decided to develop and expand some of the arguments contained in those earlier arti-
cles, sometimes significantly.
I presented some of the claims advanced here to audiences at the University of
Edinburgh, the Legal Philosophy Forum at UCL, the University of Leicester, the
University of Sheffield, the University of Alberta, UCLA, the University of Warwick,
the University of Oxford, the University of Antwerp, the University of Thessaloniki,
the University of Reading, the 2nd International Conference on Constitutional Law
and Political Philosophy organized by the Federal University of Minas Gerais and Dom
Helder School of Law, the Capodistrian University of Athens, a workshop on ‘New
Theories of State Authority’ organized by the National University of Singapore and
funded by the MOE Academic Research Fund, a conference on representation organized
viii Preface
by the Hellenic Parliament Foundation for Parliamentarism and Democracy in Athens,
Pompeu Fabra University, a workshop on the ‘Current State of Constitutional Science’
organized by the Aristovoulos Manesis Foundation, a workshop on ‘The Methodology
of Constitutional Theory’ hosted by Reading Law School and generously funded by the
Modern Law Review, a symposium on separation of powers at the University of Milan,
as well as a panel discussion on the final manuscript at the 4th ICON- S Conference in
Copenhagen. I wish to thank the organizers of all these events for the opportunity and
all participants for their comments. The following people deserve specific mention for
their input: Nicos Alivizatos, Richard Bellamy, Stefano Bertea, Thomas Bustamante,
Arudra Burra, Emilios Christodoulidis, Matthew Clayton, Brian Hutler, Stephen
Gardbaum, John Gardner, Tria Gkouvas, Swati Jhaveri, Aileen Kavanagh, Jeff King,
Mattias Kumm, Kai Möller, Conrado Hübner Mendes, Konstantinos Papageorgiou,
George Pavlakos, Filimon Peonidis, Nicole Roughan, John Stanton Ife, Pavlos Sourlas,
Victor Tadros, Philippos Vassilogiannis, and Vasilis Voutsakis. I presented a first ver-
sion of my critique of Wil Waluchow’s theory of representation and Alon Harel’s right
to a hearing at two events dedicated to their books in Edinburgh and Reading. I am
grateful to both authors for their gracious and thoughtful feedback.
I am particularly indebted to Stuart Lakin, George Letsas, Matt Lewans, Haris
Papadopoulos, Nicos Stavropoulos, Stavros Tsakyrakis, and Dimitris Tsarapatsanis.
They have been my chief interlocutors all these years, as my views on the issues
explored in this book were being formulated, the people I first turn to in order to try
out my hunches and half- baked arguments. Thanks to their feedback I avoided many
mistakes and attained a better sense of what I was trying to say. Finally, I would like
to acknowledge the great debt of gratitude I owe Larry Sager, whose work on judicial
under- enforcement of the constitution, it is fair to say, was the source of inspiration
for the central thesis of this book. I met him many years after I had first encountered
his writings, and he has proved equally inspiring in person with his wealth of insight
and unfailing dedication to intellectual inquiry. In addition, his encouragement at the
initial stages of writing gave me a tremendous boost.
In spring 2011 UCLA Law School provided a hospitable and stimulating environ-
ment in which the seeds of the monograph were first planted and some of the initial
research for it was conducted. This visit was facilitated by funding I received from the
University of Sheffield. I wish to thank Mark Greenberg for the support he provided
during my stay at UCLA, and Stephen Gardbaum for our many discussions. With the
generous assistance of Reading Law School and a teaching buy- out from the Research
Fund of the University of Reading I was able to complete the most significant part of
the manuscript during the autumn term of 2015. Finally, I wish to acknowledge the
kind support of the Grant Agency of the Czech Republic through a project on ‘The
Role of the Principle of Proportionality in the Decision Making of the Courts’ (Grant
ID 15- 23955S) in spring 2017.
Oxford University Press have stood behind this project throughout its long gestation.
Natasha Flemming, Eve Ryle-H odges, and Elinor Shields have helped me enormously
at various stages. The production team have been extremely efficient and professional.
I am deeply grateful to Alex Flach and an anonymous reviewer for OUP who urged
me to focus in my monograph on the topic of constitutional review, as well as David
Dyzenhaus for providing corrections and useful advice on the final manuscript.
I dedicate this book to my wife Denise. Living with me is not easy at the best
of times, but it can be exasperating when I suffer from writers’ block, have to work
towards a tight deadline, or just get obsessed with a project of this magnitude. It would
have been impossible to complete it without her love and understanding.
Contents
1. The Possibility of Constitutional Theory 1
I. Introduction 1
II. ‘Three is a Company, Two is Nothing’ 4
III. Towards a Moralized Constitutional Theory 7
IV. Constitutional Theory and History 22
V. Constitutional Theory and Politics 27
VI. Constitutional Theory and Utopia 31
2. A Moral Map of Constitutional Polyphony 33
I. Introduction 33
II. Polyphonic Legal Systems 34
III. The Defects of the Traditional Conception 36
IV. Beyond the Traditional Conception 39
V. Democracy vs. Separation of Powers 54
VI. A Jurisprudential Aside 55
VII. Mapping Out Neptune 56
3. Are Courts the Forum of Constitutional Principle? 59
I. Introduction 59
II. Legal Bootstrapping 61
III. Constitutional Review and the Right to a Hearing 62
IV. The Principle/ Policy Distinction 66
V. Principles and Policies in Action 70
VI. A Diagnosis 77
VII. Conclusion 80
4. Against the Democratic Objection 81
I. Introduction 81
II. Articulated Government 82
III. The Moral Appeal of Majority- vote 83
IV. Democratic Process vs. Constitutional Review 86
